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A PETITIONER IN AN ELECTION PETITION HAS A HEAVY BURDEN

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In Ihute v Independent National Electoral Commission (1999) 4 NWLR (Part 599) 360, it was held that in an election petition, when a petitioner makes an allegation of non-compliance with the electoral law as the basis or foundation of his case, he has a heavy burden to show the tribunal by cogent and compelling evidence that the non-compliance is of such a nature as to affect the result of the election. The court followed the decision in Kudu v Aliyu, (supra). The decision was followed in the case of Haruna v Modibbo (2004) 16 NWLR (Part 900) 487. The court added in Haruna that the petitioner must satisfy the tribunal that he is a victim of the alleged malpractices. The court also relied on Nabature v Mahuta (1992) 0 NWLR (Part 263) 585 and Awolowo v Shagari, (supra).

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ELECTION ARE SUI GENERIS

It is well settled that election matter are sui generis with a special character of their own, quite different from ordinary civil or criminal proceedings. They are governed by their own statutory provisions regulating their practice and procedure. See Hassan v. Aliyu (2010) All FWLR (Pt. 539) 1007, (2010) 17 NWLR (Pt. 1223 ) 547; Ehuwa v. OSIEC (2006) All FWLR (Pt. 298) 1299, (2006) 18 NWLR (Pt. 1012) 544.

— 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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PRESIDING OFFICER OF A POLLING UNIT IS NOT MANDATED TO UPLOAD RESULT TO INEC DATABASE

There is no part of the Electoral Act or the INEC Regulations and Guidelines for the Conduct of Elections 2022 that requires that the Presiding Officer of the election in a Polling unit transmit the particulars or number of accredited voters recorded by the BVAS to the INEC data base or anywhere. This is obvious from all the provisions reproduced above. Equally, there is no part of the Electoral Act and INEC Regulations and Guidelines that require that election result of a polling unit should on the spot during the poll be transmitted to the INEC National Election Register or data base. Rather, the Regulations provide for the BVAS to be used to scan the completed result in Form EC8A and transmit or upload the scanned copy of the polling unit result to the Collation System and INEC Result viewing Portal (IReV).

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

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WHAT A PETITIONER WHO CONTESTS THE LEGALITY OF VOTES CAST IN AN ELECTION MUST DO

A petitioner who contests the legality or lawfulness of votes cast in an election and the subsequent result must tender in evidence all the necessary documents by way of forms and other documents used at the election. He should not stop there. He must call witnesses to testify to the illegality or unlawfulness of the votes cast and prove that the illegality or unlawfulness substantially affected the result of the election. The documents are amongst those in which the results of the votes are recorded. The witnesses are those who saw it all on the day of the election; not those who picked the evidence from an eye witness. No. They must be eye witnesses too. Both forms and witnesses are vital for contesting the legality or lawfulness of the votes cast and the subsequent result of the election. One cannot be a substitute for the other. It is not enough for the petitioner to tender only the documents. It is incumbent on him to lead evidence in respect of the wrong doings or irregularities both in the conduct of the election and the recording of the votes; wrong doings and irregularities which affected substantially the result of the election.

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

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IT IS A POLITICAL PARTY OR ITS CANDIDATE WHO CAN CHALLENGE AN ELECTION

In the case of ALL PROGRESSIVE CONGRESS V PEOPLES DEMOCRATIC PARTY 2019 LPELR-49499 CA, in the interpretation of the provision of S137(1) of the Electoral Act 2010, which provision is in pari material with the extant provisions of S133 (1) (a) and (b) the Electoral Act 2022, the Court of Appeal, Per Ali Abubakar Babandi Gummel JCA, took the stance that: ‘….it is clear from this provision, that either the political party, or its candidate for the election, or both of them jointly can present an election petition….this provision recognizes that a political party, can in its name, present an election petition challenging the election for the benefit of the candidate and itself….’ Ditto, in the lead judgment delivered by per Emmanuel Akomaye Agim JCA, the court reiterated and expounded as follows; ‘….therefore such a petition is a representative action by the political party on behalf of its candidate for the election and its members, the political party’s candidate for the election is an unnamed party for his benefit and that of the political party. An unnamed party in a representative action is a party to the action…….”

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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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