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TECHNICALITIES IN ELECTION PETITIONS – IT NEVER SOLVES BASIC ISSUES IN CONTROVERSIES

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It is now trite law that election petitions are sui generis that is, that they are in class of their own and are governed by different rules. An election petition is by nature a very peculiar proceeding which distinguishes it from an ordinary civil proceeding. See Abubakar v. Yar’adua (2008) 19 NWLR (Pt 1120) 1. In Nwole v. Iwuagwu (2004) 15 NWLR (Pt 895) 61 the Court, held thus: “The courts have often harped on the need to do substantial justice in most cases without dwelling too much on technicalities … in all election matters, the use of technicalities should be avoided, as technicalities merely help to shut the opponent out. It never resolves basic issues in controversy. Once it is agreed that election petitions are in a class of their own, the handling of the matter too must take a form devoid of legal technicalities that tend to leave the litigants more confused. Boldness of a high degree is required of the electoral tribunal, which must never be seen to shy away from obvious grave allegations.”

— J.S. Abiriyi, JCA. Aregbesola v Omisore (2014) – CA/AK/EPT/GOV/05/237/2014

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ALLEGATIONS OF CRIME IN ELECTION PETITION MUST BE PROVED BEYOND REASONABLE DOUBT

Now, notwithstanding the fact that election petitions are a specie of civil proceedings, where in any such election petition, allegations, which are criminal in nature are made in the pleadings, they must be proved beyond reasonable doubt Abubakar v. Yar ‘Adua (2008) 18 NWLR (Pt. 1120) 1, 143; 144; Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) 1; Omoboriowo v. Ajasin (1984) 1 SCNLR 108; Kakih v. PDP (2014) 15 NWLR (Pt. 1430) 374, 422 – 423; B-C; Nwobodo v. Onoh (1984) 1 SCNLR 27-28; Emmanuel v. Umanah and Ors (2016) LPELR – 40037 (SC) 93 et seq. reported as Udom v. Emmanuel (2016) 12 NWLR (Pt. 1526) 179.

— Nweze, JSC. Anyanwu v. PDP (2020) 3 NWLR (Pt. 1710) 134

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WHERE A PERSON WHO ATTAINED THE HIGHEST VOTE IS DECLARED NULL, THE SECOND HIGHEST WITH VOTES IS TO BE DECLARED THE WINNER

By Section 136 (2) of the Electoral Act 2022, it is provided thus: “Where an Election Tribunal or Court nullifies an election on the grounds that person who obtained the highest votes at the election was not qualified to contest the election, the Election Tribunal or Court shall declare the person who scored the second highest number of valid votes cast at the election who satisfied the requirement of the Constitution and the Act as dully elected.” In law, once an Election Petition succeeds under Section 134 (1) of the Electoral Act 2022, the only consequential order for the Election Tribunal or Court, where the Election Tribunal fails to do so, is an order declaring and returning the candidate with the second highest score of lawful votes as the winner of the said election. Indeed, neither the Election Tribunal nor this Court, has any discretion in this matter nor is it dependent on the reliefs claimed or not claimed by the Petitioner.

— B.A. Georgewill JCA. Okeke, PDP v. Nwachukwu, Labour Party, INEC (CA/ABJ/EP/IM/HR/86/2023, November 04, 2023)

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INEC RESULTS VIEWING PORTAL IS NOT A COLLATION SYSTEM

From the above functions of the BVAS, it is clear to me that, apart from using the BVAS to scan the physical copy of the polling unit result and upload same to the Result Viewing Portal (iReV), there is nothing in the Regulations to show that the BVAS was meant to be used to electronically transmit or transfer the results of the Polling Unit direct to the collation system. It should be noted that INEC Results Viewing Portal (IReV) is not a collation system. The Supreme Court in OYETOLA V INEC (2023) LPELR-60392(SC) has explained the difference between the Collation System and the IReV. In that case, Agim, JSC held as follows: “As their names depict, the Collation System and the INEC Result Viewing Portal are part of the election process and play particular roles in that process. The Collation System is made of the centres where results are collated at various stages of the election. So the polling units results transmitted to the collation system provides the relevant collation officer the means to verify a polling unit result as the need arises for the purpose of collation. The results transmitted to the Result Viewing Portal is to give the public at large the opportunity to view the polling unit results on the election day.”

— H.S. Tsammani, JCA. Peter Obi & Anor. v INEC & Ors. (2023) – CA/PEPC/03/2023

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IN ELECTION PETITION, RECOURSE TO THE FHC RULES IS SUBJECT TO THE ELECTORAL ACT

Specifically, any recourse to the Federal High Court (Civil Procedure) Rules must be “subject to the express provisions” of the Act. It follows that it is only where the Electoral Act or First Schedule does not provide for a particular situation that reference would be made to the Federal High Court (Civil Procedure) Rules with necessary modification.

— Kekere-Ekun, JSC. Nyesom v. Peterside (SC.1002/2015 (REASONS), 12 Feb 2016)

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DOUBLE NOMINATION IS A PRE-ELECTION MATTER; THE BASIS OF QUALIFICATION/DISQUALIFICATION

Considering the facts pleaded above, it is clear that, the claim of disqualification or non-qualification of the 3rd Respondent is centred solely on the invalid or double nomination of the 4th Respondent. However, it is the settled law that, the issue of nomination of a candidate at an election is a pre-election matter. Therefore, the issue of qualification or disqualification can only be ventilated on the grounds enumerated in Sections 131 or 137 of the Constitution … It therefore means that, the conditions of qualification or disqualifica are those prescribed under Sections 131 and 137, in case of persons contesting for Presidential Office. That means that, where it is alleged in an election petition, that a person is or was not qualified to contest election to the office of President of Nigeria, as stipulated in Section 134(1)(a) of the Electoral Act, 2022, it is Sections 131 and 137 of the Constitution of the Federal Republic of Nigeria that are applicable. See PDP v. INEC (2014) 17 NWLR (pt.1437) 525; Kakih v. PDP (2014) 15 NWLR (pt. 1430) 424-425, Ucha v. Onwe (2011) 4 NWLR (pt. 1237) 386 at 427 and Captain Idris Ichaila Wada & Or v. Yahaya Bello & Ors (2016) LPELR 41263 (CA). Thus, where election has been conducted and result declared, such election cannot be questioned on grounds of qualification save under Sections 131 and 137 of the Constitution, in the case of a Presidential election. This postulation is supported by Section 134(3) of the Electoral Act where it is stipulated that: “With respect to Subsection 1(a), a person is deemed to be qualified for an elective office and his election shall not be questioned on grounds of qualification if, with respect to the particular election in question, he meets the applicable requirements of Sections 65, 106, 131 or 177 of the Constitution and he is not, as may be applicable, in breach of Sections 66, 107, 137 or 182 of the Constitution.” As stated earlier, the applicable provisions are Sections 131 and 137 of the Constitution. It is clear from the plenitude of the pleadings in this petition, that the facts grounding the Petitioner’s claim of disqualification or non-qualification of the 3rd and 4th Respondents is hinged on double and invalid nomination of the 4th Respondent. I had pointed out earlier in the course of this Ruling that, the issue of qualification or disqualification of a candidate at an election is strictly a requirement of the Constitution. It is held by the Supreme Court in Alhassan & Anor v. Ishaku & Ors (2016) LPELR 40083 (SC) That: “…, by virtue of the provisions of Section 138(1)(a) of the Electoral Act, a Tribunal’s power to decide whether a person is qualified to contest an election is restricted to establishing the requirements of Section 177 and 182 of the Constitution against the adverse party. An Election Tribunal has no jurisdiction to inquire into the primaries of a political party.”

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

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EVIDENCE REQUIRED FO PROVE VOTES ALLOWED WITHOUT ACCREDITATION

It is glaring from the above reproduced provisions of the Electoral Act and the INEC Regulations and Guidelines that the evidence required to prove that voting was allowed without accreditation or that there was improper accreditation are the Register of Voters, BVAS and the Polling Unit result in Form EC8A and that the evidence required to prove that there was over voting are the record of accredited voters in the BVAS and the Polling Unit result in Form EC8A.

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

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