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PETITIONER HAS BURDEN TO PROVE NON-COMPLIANCE WITH THE ELECTORAL ACT

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In the instant case, it is fundamental to point out that, from the pleadings, the allegation of non-compliance is generated by the Petitioners. Under Sections 134(1) and 135 of the Electoral Act, the level of proof required for the success of the Petition is doubled. There must be proof of non-compliance and the further proof that the non compliance affected substantially the result of the election. In the face of such an allegation of non-compliance, the court is enjoined by the law not to invalidate an election if it appears that the election was conducted substantially in accordance with the principles of the Electoral Act. All said and done, the Petitioners have the primary burden of proving that there was non-compliance and that the non-compliance affects substantially the result of the election before the burden can shift to the Respondents to establish that there was no substantial non-compliance with the Electoral Act in the conduct of the election.

— H.S. Tsammani, JCA. Atiku v PDP (CA/PEPC/05/2023, 6th of September, 2023)

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WHERE CIVIL AND CRIMINAL INGREDIENTS ARE INTERTWINED IN AN ELECTION PETITION

I take the line of thought of the respondents in that it is not enough to allege, non-compliance with the Electoral Act, the Petitioner now Appellant ought to establish by concrete evidence not only the non-compliance but that it was substantial to vitiate the election. Nothing other than that would suffice. Also the petitioner cannot run away from his responsibility on the burden of proof and on-whom it lies. In the present circumstances, the allegations are civil in character as well as criminal and so intertwined or interwoven as to make severance of one genre from the other which is impossible. Therefore the standard of proof must be of the higher standard which is beyond reasonable doubt. It is when the petitioner has discharged the onus on this that the burden can shift to the respondents to see how far he can go to impugn such a rock solid evidence put forward by the appellant. That is the prescription of law in practice and there is no running away from it See Awofowo v Shaman (1979) 1 ALL NLR 120 at 126: Buhari v Obasanjo (2005) 13 NWLR (Pt. 941).

— M. Peter-Odili, JSC. Akeredolu v. Mimiko (2013) – SC. 352/2013

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FORGERY IN INEC FORM MUST BE PROVED BEYOND REASONABLE DOUBTS

False information in INEC Form EC9 which is an affidavit, amounts to lying on oath and is invariably, a crime. Being a crime, its commission must be proven beyond reasonable doubt.

– Aboki JSC. APC v. Obaseki (2021)

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PRESIDING OFFICER OF A POLLING UNIT IS NOT MANDATED TO UPLOAD RESULT TO INEC DATABASE

There is no part of the Electoral Act or the INEC Regulations and Guidelines for the Conduct of Elections 2022 that requires that the Presiding Officer of the election in a Polling unit transmit the particulars or number of accredited voters recorded by the BVAS to the INEC data base or anywhere. This is obvious from all the provisions reproduced above. Equally, there is no part of the Electoral Act and INEC Regulations and Guidelines that require that election result of a polling unit should on the spot during the poll be transmitted to the INEC National Election Register or data base. Rather, the Regulations provide for the BVAS to be used to scan the completed result in Form EC8A and transmit or upload the scanned copy of the polling unit result to the Collation System and INEC Result viewing Portal (IReV).

— E.A. Agim, JSC. Oyetola v INEC & Ors. (2022) – SC/CV/508/2023

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WHOEVER ALLEGATION IS MADE AGAINST SHOULD BE JOINED IN AN ELECTION PETITION, NOT JUST THE CONTESTANTS

I am however of the opinion that the second complaint of 1st respondent against paragraph 129 of the petition, that it also deserves to be struck out for petitioners’ failure to join Hon. Adejoh, Chairman of Olamaboro L.G.A. of Kogi State accused by them of having led thugs at gun point to force Electoral officers in named polling units in Olamaboro L.G.A. of Kogi State to declare concluded elections in the said units cancelled, is well made. The petitioners’ response that not only was no relief claimed by them against Hon. Adejoh, he did not even participate’ in the election neither was he returned so he is not a person contemplated by section 133 of the Electoral Act 2022 to be joined to an election petition, is not a valid response. Section of 133 of the Electoral Act 2022 only deals with the issue of which contestant of an election ought to be joined in an election petition by a co-contestant. It has nothing to do with the issue of joining of third parties against whom allegations of electoral infraction are made by petitioners as in this case. Such persons must be joined to the petition if the court is not to be exposed to the risk of infringing their fundamental right to fair hearing guaranteed by the Constitution. It is also of no moment that no relief was claimed against such persons in the petition; what is important is that allegations of electoral malpractice, which will require the court to make findings, including condemnation of their alleged conduct where necessary, are made in the petition. Support for that position can be found in NWANKWO V. YAR’ADUA (2010) 12 NWLR (Pt. 1209) 518 at 583 where Muntaka-Coomassie, J.S.C., after reproducing the provisions of the then newly enacted section 144(2) of the Electoral Act 2006 (in pari materia with section 133(2) of the Electoral Act 2022) and confirming that that provision had done away with the old regime of the Electoral Act 2002 that required petitioners to join all relevant Electoral Officers of INEC that conducted an impugned election, in addition to INEC itself, spoke thus at page 583: “Unless the conduct of a party who is not an agent of the Commission is in question, it will then be necessary to join such party as a necessary party to the petition in order to afford such party a fair hearing.” (Italics mine) As regards the consequence of failure to join such necessary parties on the petition itself, His Lordship again said as follows: “However, where such a party is not made a party, it will not result into the whole petition being struck out, but the particular allegation against such party is liable to be struck out.” That is the fate of paragraph 129 of the petition where allegations of electoral malpractice were made by the Petitioners against Hon. Adejoh yet he was not cited in the petition. Incidentally, this is also one of the main reasons the Supreme Court gave in dismissing the appeal of the petitioners in the Ondo State Governorship case of Eyitayo Jegede & Another v. I.N.E.C. & Ors (2021) LPELR-55481 (SC) where allegations were made by the Petitioners in that case against the then National Caretaker Committee Chairman of the present 3rd Respondent, APC, Governor Mai Mala Buni of Yobe State, yet he was not joined to the petition by the Petitioners.

— H.S. Tsammani, JCA. Atiku v PDP (CA/PEPC/05/2023, 6th of September, 2023)

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FAILURE TO COMPLY WITH MANDATORY PROVISION OF THE ELECTORAL DECREE WILL WARRANT A STRIKE OUT

The case of Chatjok v. Kato and others is relevant. The appellant was the petitioner at the Election Tribunal. In his petition, the petitioner claimed that the 1st and 2nd respondents were not qualified to contest the chairmanship election of Kachia Local Government council, Kaduna State in that the 1st respondent was still a public servant in the employment of Kaduna state Ministry of Works and Transport while the 2nd respondent was an ex-convict. The 2nd respondent was alleged by the appellant to have been convicted of the offence of house-breaking by Area Court I Zonkwua. During the hearing of the petition, a preliminary objection on point of law was raised on behalf of the 1st and 2nd respondents that the appellant’s petition did not comply with the requirements of paragraph 5(1) (c) of schedule 5 to Local Government (Basic constitutional and Transitional provisions) Decree No.36 of 1998 and as such the petition was defective and a nullity. Learned counsel to the appellant conceded to the objection and urged the tribunal to exercise its discretion and strike out the petition without costs. The petition was therefore struck out under the provision of paragraph 5(6) of schedule 5 to the Decree. The Court of Appeal held that where an election petition does not state the scores of the candidates as required under paragraph 5(1) (C) of Decree No.36 of 1998, the Election Tribunal has the discretion to strike out the petition. This is more so when the petitioner cannot amend the petition.

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WHAT A PETITIONER WHO CONTESTS THE LEGALITY OF VOTES CAST IN AN ELECTION MUST DO

A petitioner who contests the legality or lawfulness of votes cast in an election and the subsequent result must tender in evidence all the necessary documents by way of forms and other documents used at the election. He should not stop there. He must call witnesses to testify to the illegality or unlawfulness of the votes cast and prove that the illegality or unlawfulness substantially affected the result of the election. The documents are amongst those in which the results of the votes are recorded. The witnesses are those who saw it all on the day of the election; not those who picked the evidence from an eye witness. No. They must be eye witnesses too. Both forms and witnesses are vital for contesting the legality or lawfulness of the votes cast and the subsequent result of the election. One cannot be a substitute for the other. It is not enough for the petitioner to tender only the documents. It is incumbent on him to lead evidence in respect of the wrong doings or irregularities both in the conduct of the election and the recording of the votes; wrong doings and irregularities which affected substantially the result of the election.

— Niki Tobi, JSC. Buhari v. INEC (2008) – SC 51/2008

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