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AMENDMENTS ARE NOT ALLOWED TO ELECTION PETITION AFTER FILING PARTICULARLY WHEN THE 21 DAYS PERIOD HAVE ELAPSED; EXTENSION OF TIME ARE PROHIBITED TOO

Dictum

In OKE & ANOR v MIMIKO & ORS (2013) LPELR 20645(SC), the Apex Court, per Ogunbiyi, JSC held that: ‘By Paragraph 4(1) and (5) of the 1st Schedule to the Electoral Act, a composite analysis of an election petition has been spelt out and also a list of materials which must be accompanied. The use of the word “shall” in the subsections is very instructive, mandatory and conclusive. In other words, the provisions do not allow for additions and hence, the procedure adopted by the appellants in seeking for an extension of time is nothing other than surreptitious attempt to amend the petition. This is obvious from the nature and substance of the application especially where one of the grounds seeks to put in facts which were allegedly not available at the time of filing the petition but only came into their possession after the statutory time limit allowed for the presentation of election petition. Expressly, there is no provision in the legislation which provides for extension of time. What is more, vide paragraph 14(2) of the 1st Schedule to the Electoral Act, the Appellants by Section 134(1) of the Electoral Act had been totally foreclosed from any amendment which was in fact the hidden agenda promoting the application. The saying is true that even the devil does not know a man’s intention; it can only be inferred from the act exhibiting that which is conceived in the heart and mind. The use of the word “shall” in paragraph 14(2)(a) of the 1st Schedule to the Electoral Act is mandatory and places a complete bar on any form of amendment to a petition filed and does not also allow for an exercise of discretion whatsoever. See UGWU v ARARUME (2007) 12 NWLR (Pt. 1048) 367 at 510 511 and BAMAIYI V A.G FEDERATION (2001) 12 NWLR (Pt. 727) 428 at 497. Further still and on a critical perusal of the application, relief 2 seeks “leave to call additional witness, to wit A.E.O”. It is pertinent to restate that at the close of pleadings parties had submitted the list of witnesses who were to testify together with their depositions. The idea, purpose and intention of the application is suggestive of nothing more but a clear confirmation seeking for an order of an amendment as rightly and ingeniously thought out by the trial tribunal and also affirmed by the lower court. This will certainly violate the provisions of Section 285(5) of the Constitution and Section 134 of the Electoral Act.’

In his concurring judgment in the same case, Ngwuta, JSC specifically stated that: ‘The additional or further witness depositions sought to be allowed for a just and fair determination of the petition are fresh facts as found by the tribunal and which finding was endorsed by the lower court. This Court will not interfere with a concurrent finding of fact of the two lower courts when the appellants have failed to show a special circumstance for this Court to do so. Election petitions are time-bound and the Court will not allow a party to resort to any sort of subterfuge to frustrate the intention of the Electoral Act that petitions be disposed of expeditiously.’

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THE WHOLE CONCEPT OF SUI GENERIS NATURE OF ELECTION PETITION

Tobi, J.S.C., in his lead judgment in Buhari v, INEC (2008) LPELR-814 (SC) p. 97 paragraph A-B: “The whole concept of Election Petition being sui generis, in my view, is to project the peculiarity of the reliefs sought, the time element and peculiar procedure adopted for the hearing of the petition and all that.”

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PURPORT OF A FREE AND FAIR ELECTION

A free and fair election is one in which all eligible voters who are willing to vote are given every opportunity to cast their votes which must be counted and declared for the candidate of their choice. See the case of JIMOH VS ADEKUNLE (1991) 1 LRECN 123. The essence of democratic elections, it has been held, is that they be free, fair and that in that atmosphere of freedom, fairness and impartiality, citizens will exercise their freedom of choice of who their representatives shall be by casting their votes in favour of those candidates who, in their deliberate judgment, they consider to possess the qualities which mark them out as preferable candidates to those others who are contesting with them. See the case of OJUKWU VS ONWUDIWE & ORS (1984) 1 S 15 AT 91. The above essential tenets of democratic elections are fundamentally negatived by election rigging.

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

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WHERE COUNSEL SAYS THERE IS MOTION FOR APPEAL, BUT MOTION NOT BEFORE JUDGE

What the appellant’s counsel said was that they could not proceed because it is impossible for them to go on without the amendment and that there is an appeal and that they wanted the case to be stood down. Where a counsel says that there is a notice of appeal and a motion for stay of proceedings, the only option for the trial court is to stand down the case so that it could be checked at the court registry if there is notice of appeal and a motion for stay of proceedings. If there is a motion for stay of proceedings, it is incumbent on the trial court to take the motion and it is after he had refused the application that he can call on the defence to go on with their defence.

— Opene JCA. United Bank for Africa (UBA) v. Samuel Igelle Ujor (CA/C/134/99, 20 FEB 2001)

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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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ELECTORAL RESULT DECLARED BY INEC ENJOY PRESUMPTION OF REGULARITY

Primarily, the law is well settled that the results declared by INEC (1st Respondent) in an election enjoy a presumption of regularity. In other words, they are prima facie correct. See Section 168(1) of the Evidence Act 2011, recently applied by the Supreme Court in ATUMA V. APC & ORS (2023) LPELR-60352 (SC) where JAURO, JSC held at PP 40-41 as follows: “By virtue of Section 168(1) of the Evidence Act, 2011, presumption of regularity inures in favour of judicial or official acts, including those carried out by INEC. The exact words of the subsection are thus: “When any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with.” See P.D.P. V.I.N.E.C. (2022) 18 NWLR (PT. 1863) 653, UDOM V. UMANA (NO. 1)(2016) 12 NWLR (PT. 1526) 179. Fortunately for the Appellant and 1st Respondent, it is only a presumption, which implies that it is rebuttable. Any person who questions the validity of an act in favour of which there is a presumption of regularity, has a duty to rebut the presumption with cogent and credible evidence. A flimsy or half-hearted rebuttal will not suffice.”

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