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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

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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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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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GROUND; GROUND FOR QUESTIONING AN ELECTION

It is trite law, that a Petitioner is required to question an election on any of the grounds set out in Section 134 (1) of the Electoral Act, 2022. For ease of reference, Section 134(1) of the Electoral Act, 2022 provides as follows: “An election may be questioned on any of the following grounds – a. A person whose election is questioned was at the time of the election not qualified to contest the election; b. The election was invalid by reason of corrupt practices and non-compliance with the provisions of this Act; or c. The Respondent was not duly elected by majority of lawful votes cast at the election. What then is the meaning of the word “ground”? In the case of KALU VS CHUKWUMERIJE (2012) 12 NWLR (PT. 1315) 425 AT 485, the Court of Appeal per Owoade, JCA puts it succinctly, thus: “The Compact Edition of the Oxford English Dictionary (1971) US reprint (1988) defines the word “Ground” in numerous terms and with an array of examples at pages 1214 to 1225 as follows: “Ground”: (a) The fundamental constituent or the essential part of anything. (b) A fundamental principle, also the elements or rudiments of any study or branch of knowledge. (c) A circumstance on which an opinion, inference, arguments, statement or claim is founded, or which has given rise to an action, procedure or mental feeling, a motive often with additional implication. A valid reason justifying motive or what is alleged as such.” Thus, a ground in the context of an election petition, is the fundamental reason, basis or justification for questioning the election. Before a party can question an election, his petition must fall within the grounds specified by the Electoral Act 2022. See the following cases: OYEGUN VS IGBENEDION & ORS (1992) 2 NWLR (PT. 226) 947; OKONKWO VS INEC & ORS (2003) 3 LRECN 599; ABUBAKAR VS INEC (2020) 12 NWLR (PT. 1737); and MODIBO VS USMAN (2020) 3 NWLR (PT. 1712) 470.

— A. Osadebay, J. APC v INEC & Ors. (EPT/KN/GOV/01/2023, 20th Day of September, 2023)

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STATING ADDRESS FOR SERVICE IN AN ELECTION PETITION

Paragraph 4 (4) of the First Schedule to the Electoral Act, 2022 provides as follows: “Paragraph 4 (4); “at the foot of the election petition, there shall also be stated an address of the petitioner for service at which address documents intended for the petitioner may be left and its occupier. We have carefully gone through the petition filed by the Petitioner and we hold that the Petitioner complied with the provision of paragraph 4(4) of the First Schedule to the Electoral Act 2022. This is because the Petitioner copiously stated at the foot of the election petition, his address for service, at which address documents or all Court processes relating to this petition may be served on the Petitioner and the Petitioner equally indicated who the occupier of that address is.

— A. Osadebay, J. APC v INEC & Ors. (EPT/KN/GOV/01/2023, 20th Day of September, 2023)

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VOTERS REGISTER CANNOT BE REPLACED BY CARD READER TO PROVE OVERVOTING

This court in a number of recent decisions has commended the introduction of the card reader in the 2015 elections by INEC. The court has noted however, that its function is solely to authenticate the owner of a voter’s card and to prevent multi-voting by a voter and cannot replace the voters register or statement of results in appropriate forms. See Shinkafi v. Yari ; Okereke v. Umahi (unreported) SC.1004/ 2015 delivered on 5/2/2016 at pages 31 – 34.

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

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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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PROCESSES THAT MUST BE FOLLOWED FOR A SUCCESSFUL ELECTION

Let me underline here that in the conduct of an election, certain processes must have been walked over to conclude and confirm that the election was conclusive. The steps outlined by the law must not be broken. These steps are: (a) Accreditation (b) Conduct of poils (c) Counting of votes (d) Collation and announcement of results (e) Signing of result forms (f) Publication of results.

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

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