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WHO ARE NECESSARY RESPONDENTS IN AN ELECTION PETITION

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Generally, necessary respondents in an election petition are the persons whose election or return is complained of, and the Electoral body that conducted the election. See Section 133(2) and (3) of the Electoral Act, 2022. Those are what are termed statutory respondents. It should be remembered the Election Petitions are sui generis, and its procedure strictly regulated by statute. Thus, where a person does not fall within the category of statutory respondents, they are not necessary parties in an election petition. See Agbareh v. Mimra (2008) All FWLR (pt.409) 559; APC v. PDP (2015) LPELR – 24587 (SC) and Buhari v. Yusuf (2003) 4 NWLR (pt.841) 446 at 498. Thus, in Waziri v. Gaidam (2016) 11 NWLR (pt. 1523) 230 at 265 paragraphs F-G; the Supreme Court held that: “From the above, I have no difficulty in going along with the submissions of the respective counsel for the respondent that Section 137(2) and (3) of the Electoral Act, 2010 has no room for the joinder of the 5th Respondent who neither won the election nor performed any role as electoral officer or agent of the third Respondent in the election petition challenging the result of such an election and even no relief was claimed against the said 5th respondent and indeed, he had nothing to gain or lose in the petition aforesaid.”

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

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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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ONLY POLLING UNIT AGENT CAN GIVE TESTIMONY OF WHAT TRANSPIRED IN THE POLLING UNIT

In PDP & ANOR V INEC & ORS (2019) LPELR-48101(CA), this Court Per Agim, JCA (as he then was) held that it is only a Polling Unit agent or a person who was present at a Polling Unit during polls that can give admissible evidence of what transpired during the poll in that unit. See also GOYOL & ANOR V. INEC & ORS (2012) 11 NWLR (PT. 1311) 207, 218 and BUHARI V. INEC & ORS (PT.1120) 246, 424 … Under our law, specifically in Section 43 of the Electoral Act, 2022, Polling Agents are permitted to be appointed by Political Parties for each Polling Unit and collation centre. The wisdom in this is for each of the political parties involved in an election to be represented by its own agents. The duties of an agent are to represent the interest of his/her principal. Having regard to the fact that no mortal man can be in all the places at the same time, the law allows political parties to have their agents at all polling units and collation centres. It is therefore not anticipated by the law for any political party to appoint an octopus agent with his tentacles in all the polling units and collation centres. This is humanly not practicable. When, therefore, evidence is required to prove what happened in any polling unit or a collation centre, it is only the agent who witnessed the anomaly or the malfeasance that can legally and credibly testify. See BUHARI V. OBASANJO (SUPRA); OKE & ANOR V. MIMIKO (SUPRA) AND ANDREW V. PDP (SUPRA).

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

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FAILURE TO JOIN A PARTICULAR PARTY WILL NOT WARRANT STRIKING OUT OF ENTIRE PETITION

The other argument of note of 2nd Respondent in this application is the one of failure of petitioners to join Friday Adejoh and Governor Yahaya Bello of Kogi State and its effect on the petition. We have already struck out the relevant paragraphs of the petition where allegations of malpractice were made against the two men. We abide by that decision. We shall simply add that we do not agree with 2nd respondent’s argument that the entire petition merits dismissal for non-joinder of those two men. The proper sanction, in the circumstances of this case as we have already pointed out citing Nwankwo v. Yar’Adua (2010) 12 NWLR (Pt. 1209) 518 @ 583 paras G-H. (SC), is to strike out the paragraphs of the petition where those allegations were made. That order, we also further add, and contrary to the argument of 2nd Respondent, will not affect the paragraphs where allegations were made against unnamed thugs.

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

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ONLY A PRACTICE WHICH IS CONTRARY TO THE ELECTORAL ACT CAN BE A GROUND TO QUESTION AN ELECTION

As I stated earlier, the electronic transmission of results of an election is not expressly stated anywhere in the Electoral Act, but was only introduced by the 1st Respondent in its Regulations and Guidelines, 2022 and in the INEC Manual for Election Officials, 2023. By Section 134(2) of the Electoral Act, 2022 only an act or omission which is contrary to the Electoral Act, 2022 can be a ground for questioning an election. Thus, complaints relating to non-compliance with provisions of the Regulations and Guidelines or the Manual of Election Officials are not legally cognizable complaints for questioning an election. In interpreting Section 138(2) of the Electoral Act, 2010, which is similar to Section 134(2) of the extant Electoral Act, 2022, the Supreme Court held in NYESOM V PETERSIDE (supra), at page 66 67, paras. F-C, as follows: “The above provisions appear to be quite clear and unambiguous. While the Electoral Commission is duly conferred with powers to issue regulations, guidelines or manuals for the smooth conduct of elections, by Section 138(2) of the Act, so long as an act or omission regarding such regulations or guidelines is not contrary to the provisions of the Act itself, it shall not of itself be a ground for questioning the election.” See also: JEGEDE v INEC (2021) LPELR-55481(SC) at 25 – 26 at paras. A – D.

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

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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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DESPITE ELECTIONS BEING SUI GENERIS, THEY ARE GOVERNED BY THE EVIDENCE ACT

It is important to note here that although Election petitions are sui generis, they are governed by the Evidence Act. See BUHARI V. OBASANJO (2005) 2 NWLR (PT. 910) 241; APC V PDP & ORS (2015) LPELR-24587(SC). — H.S. Tsammani, JCA. Atiku v PDP (CA/PEPC/05/2023, 6th of September, 2023)

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