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RATIONALE BEHIND WHY A GOVERNOR IS NOT IMMUNED FROM ELECTION PETITION

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I am also of the view that the appeal can be allowed on the main issue of immunity of the governor under the provisions of section 308 of the Constitution of the Federal Republic of Nigeria 1999. The issue can be resolved by a simple question as to whether a person declared and sworn-in as the governor elect can be sued by appropriate party to challenge the declaration. By law the answer must be in the positive. If the said person is said to be immuned under the section the resultant effect is that once a person is declared and sworn – in as governor elect that ends the matter, no one can complain or take any legal action even if the person conducted any gross election malpractice. This will encourage gross wrongful and illegal activities among the parties contesting for the position. This would undoubtedly negate the necessary intendment of our constitution and would destroy the democracy itself. In election petition where the status of the governor is being challenged, as in this, then the said immunity is also questioned. He has no immunity against being sued and consequently he cannot be immuned from being subpoened. It must be made clear that the provisions of section 308 of the Constitution are applicable to ordinary civil proceedings as in the case of Tinubu v. I.M.B. Securities Limited (supra) and criminal proceedings and not in election related matter as in Obih v. Mbakwe (supra) and our present case. In my judgment the appeal is to be allowed on this issue. It is allowed with an order that the matter be remitted for fresh trial by a tribunal of different membership.

— Ja’ Afaru Mika’ilu, J.C.A. AD v. Fayose (2004) – CA/IL/EP/GOV/1/2004

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PRE-ELECTION MATTER CANNOT BE STALLED BECAUSE ELECTION IS OVER

So, does the mere holding of an election and the declaration of a winner or even the swearing in of a winner into office alone render a pre – election matter duly commenced and pending before a Court of competent jurisdiction to become merely academic and or over taken by events and thus liable to be struck out? In law whether a pre-election matter is academic or not is dependent on the facts giving rise to the pre-election matter and if those facts or issues remain live, then the pre – election would be determined on its merit notwithstanding whether or not the election has been held and or the outcome of the election.

– B.A. Georgewill, JCA. Ganiyu v. Oshoakpemhe & Ors. (2021) – CA/B/12A/2021

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FRESH PRIMARY ELECTION IS NOT NEEDED FOR SUBSTITUTED VICE PRESIDENTIAL CANDIDATE

By the proviso thereto, the political party affected, is enjoined to conduct a fresh primary election for the purpose of producing a new or fresh candidate to submit to the Electoral Commission. The grouse of the Petitioner here is that, the 5th Respondent withdrew his nomination as Vice-Presidential candidate of 2nd Respondent but the 2nd Respondent did not conduct another primary election for the purpose of producing a new Vice-Presidential candidate within the 14 days prescribed by Section 33 of the Electoral Act. It should be remembered that by Section 142(1) of the 1999 Constitution, a Presidential candidate for election to the office of President has the sole discretion, authority or power of nominating his associate who shall run with him in the election as Vice-President. The choice or nomination of a Vice-Presidential candidate is, not the product of any primary election. Therefore, in my view, the requirement to conduct a fresh primary election does not apply to the nomination of a Vice-Presidential candidate. Thus, my Lord Augie, JSC highlighted the point in his contributory judgment in PDP v. INEC & 3 Ors (Exhibit X1) as follows: “No; the fourth Respondent was not required to buy any nomination Form. He was the second Respondent (APC’s) candidate at the election into the office of Senator representing Borno Central Senatorial District. But before the election could hold, he was nominated as the third Respondent’s associate, who is to occupy the office of Vice President. The fourth Respondent did not buy a nomination Form for the said office, and most importantly, did not contest any primary election in order to emerge as APC’s Vice-Presidential candidate.”

— H.S. Tsammani, JCA. APM v INEC & Ors. (2023) – CA/PEPC/04/2023

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SECTION 177 & 182 IS THE RELEVANT PROVISION FOR QUALIFICATION TO CONTEST AS GOVERNOR

Before rounding off this matter there can be no doubt that the qualification or non-qualification of a candidate for election purposes as here is within the purview of sections 177 and 182 of the 1999 constitution (as amended) and not Section 34 of the Electoral Act as failure to comply with the provisions of section 34 (supra) cannot in my view succeed in disqualifying a candidate properly so sponsored by this political party. Howbeit, once a sponsored candidate has satisfied the provisions sections 177 and 182 (supra) he is qualified to stand election for the office of Governor. The 1st respondent is therefore qualified to stand election for the office of Governor for Bayelsa State having so qualified under the aforesaid provisions of the amended constitution. And I so hold.

— C.M. Chukwuma-Eneh, JSC. Kubor v. Dickson (2012) – SC.369/2012

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TO PROVE NON-COMPLIANCE MUST ALSO SHOW THAT NON-COMPLIANCE AFFECTED THE RESULTS OF THE ELECTION

It is basic that for a petition to succeed on non-compliance with the provision of the Electoral Act the petitioner must prove not only that there was non-compliance with the provisions of the Act, but also that the non-compliance substantially affected the result of the election. See: Section 139 of the Electoral Act 2010, as amended. Put in other words, the petitioner has to prove:- (1) That there was non-compliance. (2) That the non-compliance substantially affected the result of the election. The above have been variously pronounced in the cases of Buhari v. INEC (2008) 19 NWLR (Pt. 1120) 246 at 435; Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) 1 at 80; Akinfosile v. Ijose (1960) SCNLR 447; Awolowo v. Shagari (1979) 6-9 SC 51; CPC v. INEC & Ors. (2011) 12 SCNJ 644 at 710.

— J.A. Fabiyi, JSC. Akeredolu v. Mimiko (2013) – SC. 352/2013

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THERE IS A REBUTTABLE PRESUMPTION THAT AN ELECTION RESULT DECLARED BY A RETUNING OFFICER IS CORRECT

Election results are presumed by law to be correct until the contrary is proved. It is however a rebuttable presumption. In other words, there is a rebuttable presumption that the result of any election declared by a returning officer is correct and authentic and the burden is on the person who denies the correctness and authenticity of the return to rebut the presumption. (See Omoboriowo v Ajasin (1984) 1 SCNLR 108; Jalingo v Nyame (1992) 3 NWLR (Part 231) 538; Finebone v Brown (1999) 4 NWLR (Part 600) 613; Hashidu v Goje (2003) 15 NWLR (Part 843) 361 and Buhari v Obasanjo (2005) 13 NWLR (Part 941) 1).

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

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AMENDMENTS ARE NOT ALLOWED TO ELECTION PETITION AFTER FILING PARTICULARLY WHEN THE 21 DAYS PERIOD HAVE ELAPSED; EXTENSION OF TIME ARE PROHIBITED TOO

In OKE & ANOR v MIMIKO & ORS (2013) LPELR 20645(SC), the Apex Court, per Ogunbiyi, JSC held that: ‘By Paragraph 4(1) and (5) of the 1st Schedule to the Electoral Act, a composite analysis of an election petition has been spelt out and also a list of materials which must be accompanied. The use of the word “shall” in the subsections is very instructive, mandatory and conclusive. In other words, the provisions do not allow for additions and hence, the procedure adopted by the appellants in seeking for an extension of time is nothing other than surreptitious attempt to amend the petition. This is obvious from the nature and substance of the application especially where one of the grounds seeks to put in facts which were allegedly not available at the time of filing the petition but only came into their possession after the statutory time limit allowed for the presentation of election petition. Expressly, there is no provision in the legislation which provides for extension of time. What is more, vide paragraph 14(2) of the 1st Schedule to the Electoral Act, the Appellants by Section 134(1) of the Electoral Act had been totally foreclosed from any amendment which was in fact the hidden agenda promoting the application. The saying is true that even the devil does not know a man’s intention; it can only be inferred from the act exhibiting that which is conceived in the heart and mind. The use of the word “shall” in paragraph 14(2)(a) of the 1st Schedule to the Electoral Act is mandatory and places a complete bar on any form of amendment to a petition filed and does not also allow for an exercise of discretion whatsoever. See UGWU v ARARUME (2007) 12 NWLR (Pt. 1048) 367 at 510 511 and BAMAIYI V A.G FEDERATION (2001) 12 NWLR (Pt. 727) 428 at 497. Further still and on a critical perusal of the application, relief 2 seeks “leave to call additional witness, to wit A.E.O”. It is pertinent to restate that at the close of pleadings parties had submitted the list of witnesses who were to testify together with their depositions. The idea, purpose and intention of the application is suggestive of nothing more but a clear confirmation seeking for an order of an amendment as rightly and ingeniously thought out by the trial tribunal and also affirmed by the lower court. This will certainly violate the provisions of Section 285(5) of the Constitution and Section 134 of the Electoral Act.’

In his concurring judgment in the same case, Ngwuta, JSC specifically stated that: ‘The additional or further witness depositions sought to be allowed for a just and fair determination of the petition are fresh facts as found by the tribunal and which finding was endorsed by the lower court. This Court will not interfere with a concurrent finding of fact of the two lower courts when the appellants have failed to show a special circumstance for this Court to do so. Election petitions are time-bound and the Court will not allow a party to resort to any sort of subterfuge to frustrate the intention of the Electoral Act that petitions be disposed of expeditiously.’

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