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

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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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election, parties

REGISTER OF VOTERS IS REQUIRED TO PROVE NO ACCREDITATION OF VOTERS

It is clear from the provisions of S.47(1) and (2) of the Electoral Act 2022 and Regulations 14(a) and (b), 18(a) and (b), 19(b) and (e) that the Register of voters for each polling unit is relevant evidence to prove the alleged non accreditations of voters in the 744 polling units on the election day. It is worth stating that in the event of a conflict between the record of accredited voters in the BVAS machine and ticked names in the Register of voters due to human errors in the ticking of the names in the Register of voters, the BVAS Record shall prevail.

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

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IF THE RESULT OF AN ELECTION IS NOT AFFECTED SUBSTANTIALLY, THE PETITION WILL FAIL

If there is evidence that despite all the non-compliance with the Electoral Act, the result of the election was not affected substantially, the petition must fail. In other words, the Election Tribunal, must, as a matter of law, dismiss the petition; and that accords with section 146(1) of the Electoral Act.

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

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PETITIONER IN AN ELECTION MUST PROVE NONCOMPLIANCE FIRST

In Buhari v Obasanjo (2005) 13 NWLR (Part 941) 1, when the case came to the Supreme Court on appeal, the court held that where an allegation of non-compliance with the electoral law is made, the onus lies on the petitioner firstly to establish the non-compliance, and secondly, that it did or could have affected the result of the election. It is after the petitioner has established the foregoing that the onus would shift to the respondent whose election is challenged, to establish that the result was not affected.

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

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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DEFECTIVE VOTERS REGISTER USED FOR AN ELECTION

Whereas the process of compiling a Voters Register is a pre-election matter, the use to which an alleged fundamentally defective Voters Register so compiled is put to in an election which may substantially affect the result of the said election is clearly an issue of non-compliance with the provisions of the Electoral Act, which constitutes a ground for challenging an election in a petition under section 138(l)(b) of the Electoral Act, 2010, as amended.

— W.S.N. Onnoghen, JSC. Akeredolu v. Mimiko (2013) – SC. 352/2013

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NON-QUALIFICATION IS A GROUND TO NULLIFY THE RETURN OF A CANDIDATE IN AN ELECTION; IT IS NOT A PRE-ELECTION MATTER

This is so because issues of non-qualification of a candidate to contest an election are cognizable grounds in an Election Petition challenging the
29 declaration and return of the person so declared and returned by INEC, and in such a claim, the 1st Respondent, though not a member of the 2nd Appellant and having also not participated in the primaries of the 2nd Appellant, would have the requisite locus standi to challenge, in an Election Petition, the valid nomination and sponsorship of the 1st Appellant as candidate of the 2nd Appellant, a locus standi he would have lacked if the claims were in a pre – election matter before the Federal High Court for being a mere busy body dabbling into the internal affairs of the 2nd Appellant. Thus, whilst the issue of nomination of a candidate cannot be questioned by a person who is neither a member of the affected political party and who did not also participate in the questioned primary election and nomination of a candidate in a pre-election matter by reason of lack of requisite locus standi, yet the same issue of valid nomination and sponsorship by a political party as required by Section 35 of the Electoral Act 2022 can rightly ground a complaint in an Election Petition before the lower Tribunal and the issue of locus standi would not operate against such 30 a person and so also would the jurisdiction of the lower Tribunal not be ousted by the mere fact that the person so challenging the qualification of the other person declared and returned as the winner of the questioned election is not a member of the political party of the other person so declared and returned as winner and had also not participated in the alleged primary of that political party that had thrown up the other person as the candidate of his political party. It follows therefore, if a claim such as the one filed by the 1st and 2nd Respondents, which I hold was competently before the lower Tribunal, which also had the requisite jurisdiction to hear and determine it according to law, is made out it would result into the nullification of the declaration and return of the 1st Appellant, having not been validly sponsored as the candidate of a political party and thus, not qualified to contest the questioned election. The only way out of all these is simply the entrenchment of internal democracy and obedience to the provisions of both their constitution and guidelines by all the registered political parties in Nigeria in the due conduct of their affairs.

— 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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