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ALL ELECTION PETITIONS LIE AS OF RIGHT TO THE COURT OF APPEAL

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In the case of Awuse v. Odili (2003) 18 NWLR (pt. 851) 116 at 119, Ejiwunmi JSC supported the lead judgment of I.L. Kutugi JSC quoted the provision of Section 246 (1) (b) (ii) of the 1999 Constitution as amended and said of the Section as follows: “An appeal to the Court of Appeal shall lie as of right from the decision of the Governorship Election Tribunal on any question as to whether any person has been validly elected to the office of Governor”. “Though the word “any” when used as an adjective is defined in Longman Dictionary of the English Language thus: “One or some indiscriminately, whichever is chosen”. It would appear that the word “any” qualifying “question” was deliberately used by the law makers to indicate that an appeal to the Court of Appeal was not limited only to hearing appeals only to whether any person has been validly elected to the office of Governor —– It follows therefore that the provisions of Section 246 (1) allows appeals to lie to Court of Appeal in respect of interlocutory decision of the Governorship Election Tribunals and the other tribunals named in that section of the Constitution”.

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PARTY WHO ALLEGES NONCOMPLIANCE HAS THE LEGAL BURDEN

It is trite that a Petitioner who alleges non-compliance with Electoral Act has the legal burden to establish such non-compliance and show how the non-compliance substantially affected the result of the election. See: LADOJA v AJIMOBI (2016) LPELR-40658(SC) at page 29, paras. A E; and SHINKAFI V YARI (2016) LPELR-26050(SC) at pages 19 – 20, para. C.

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

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AN ELECTION CANNOT BE INVALIDATED BY REASON OF NONCOMPLIANCE WITH THE PROVISIONS OF THE ELECTORAL ACT

… an election cannot be invalidated by reason of non-compliance with the provisions of the Act if it appears to the Election Tribunal or court that the election was conducted substantially in accordance with the principles of the Act and that the non-compliance did not affect substantially the result of the election. In other words, a petitioner cannot be heard to say that an election is invalid by reason of non-compliance with the principles of the Act if it appears to the Election Tribunal or Court that the election was conducted substantially in accordance with the principles of the Act and that the non-compliance did not affect substantially the result of the election. The words “cannot be heard to say” above are trite legalism that express the notion of estoppel, as a respondent can say in defence, the petitioner cannot be heard to say that the election is invalid.

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

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QUALIFICATION TO CONTEST GOVERNORSHIP ELECTION

In the Supreme Court case of AL-HASSAN V ISIHAKU 2016 10 NWLR PART 520, PG 230, the court reiterated at pages 275- 276 PARAS H-A; 277 PARAS A-F as follows; “…Where it is alleged that a person is or was not qualified to contest election into the office of Governor as envisaged by section 138(1) (a) of the Electoral Act, it is S177 and 182 of the 1999 Constitution (as amended) that are being contemplated. Taking the provisions together, it is seen that both the provision for qualification and that for disqualification are so comprehensive which makes them exhaustive. Thus the Constitution, as the Supreme law of the land, having such elaborate and allencompassing provisions for qualification and disqualification of persons seeking the office of Governorship of a state, does not leave any room for addition to those conditions already set out. Once a candidate sponsored by his political party has satisfied the provisions set out in S177 of the Constitution and is not disqualified under S182 (1) thereof, he is qualified to stand for election to the office of Governor of a State. No other law can disqualify him (P.D.P V INEC (2014) 17 NWLR (PT 1437) 525, Shinkafi V Yari (2016) 7 NWLR (PT 1511) 340 referred to (Pp 275, paras H_A;277 Paras A-F.”

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ELECTION SHALL NOT BE INVALIDATED BY MERE REASON THAT IT WAS NOT CONDUCTED SUBSTANTIALLY; IT MUST SHOW THAT IT AFFECTED THE ELECTION RESULT

In Buhari v Obasanjo (2005) 13 NWLR (Part 941) 1, Belgore, JSC, said at page 191:– “It is manifest that an election by virtue of section 135(1) of the Act shall not be invalidated by mere reason it was not conducted substantially in accordance with the provisions of the Act, it must be shown clearly by evidence that the non-substantiality has affected the result of the election. Election and its victory, is like soccer and goals scored. The petitioner must not only show substantial non-compliance but also the figures, i.e. votes, that the compliance attracted or omitted. The elementary evidential burden of ‘The person asserting must prove’ has not been derogated from by s.135(1). The petitioners must not only assert but must satisfy the court that the non-compliance has so affected the election result to justify nullification.”

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PRE-ELECTION MATTER CANNOT BE STALLED BECAUSE ELECTION IS OVER

So, does the mere holding of an election and the declaration of a winner or even the swearing in of a winner into office alone render a pre – election matter duly commenced and pending before a Court of competent jurisdiction to become merely academic and or over taken by events and thus liable to be struck out? In law whether a pre-election matter is academic or not is dependent on the facts giving rise to the pre-election matter and if those facts or issues remain live, then the pre – election would be determined on its merit notwithstanding whether or not the election has been held and or the outcome of the election.

– B.A. Georgewill, JCA. Ganiyu v. Oshoakpemhe & Ors. (2021) – CA/B/12A/2021

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IRREGULARITY MUST SUBSTANTIALLY AFFECT THE ELECTION

Chief Awolowo v Alhaji Shagari (1979) 6–9 SC 37. In his contribution to the majority judgment, Qbaseki, JSC said at pages 82 and 84:– “There is no evidence that the non compliance with section 34A(1)(c)(ii) one of the provisions of Part II has affected the result i.e. but for the non-compliance, the petitioner would have won, to enable the tribunal declare the result invalid. The petitioner pleaded a substantial non-compliance i.e. failure to obtain one-quarter of the votes cast in each of at least two-thirds of all the States in the Federation. But the evidence established this non-compliance in only one State. In other words, the evidence established that the first respondent obtained in each of the 12 States one-quarter or more of the votes cast but did not in the 13th State in Kano State. The third respondent claimed that first respondent received 25% of the votes in 2/3 Kano State. There is no evidence of counting in 2/3, Kano State… In this appeal, the appellant has failed to satisfy the tribunal and this Court that the non-compliance has affected the result of the election or has prevented a majority of votes in his favour with effect, and for that reason the appeal must fail.”

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