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GROUND TO PROVE OVER VOTING

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The law is well settled that in order to prove over-voting, the petitioner must do the following: (i) tender the voters register; (ii) tender the statement of results in appropriate forms which would show the number of registered accredited voters and number of actual votes; (iii) relate each of the documents to the specific area of his case in respect of which the documents are tendered; and (iv) show that the figure representing the over-voting if removed would result in victory for the petitioner. See Haruna v. Modibbo (2004) All FWLR (Pt. 238) 740, (2004 ) 16 NWLR (Pt. 900) 487;Kalgo v. Kalgo (1999) 6 NWLR (Pt. 608 ) 639; Audu v. INEC (No. 2) (2010) 13 NWLR (Pt. 1212) 456; Shinkafi v. Yari (unreported) SC.907/2015 delivered on 8/1/2016; Yahaya v. Dankwambo (unreported) SC.979/2015 delivered on 25/1/2016.

— Kekere-Ekun, JSC. Nyesom v. Peterside (SC.1002/2015 (REASONS), 12 Feb 2016)

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ANY ACTION RELATING TO THE PROCESS OF AN ELECTION FALLS WITHIN THE JURISDICTION OF THE ELECTION TRIBUNAL

Ohakim v Agbaso (2011) ALL PWLR (Pt. 553) 1806 at 1846 per Onnoghen JSC where he state as follows: “it is necessary that everything connected will the process leading to the election including the actual election and its aftermath come within the jurisdiction of election tribunal. That will stem the tide of parties trying to pursue election related matters in parallel courts which will only result in conclusion, a gleam of which can be seen in the Sokoto State Gubernatorial election petition saga, in any event, it is my considered view that since the action concerned on election conducted on 14th April 2007 by the appropriate authority whether inchoate or not, the proper court with jurisdiction to entertain any action arising therefrom or relating thereto is the relevant election tribunal established by the Constitution of this country as the matter is not a pre-election matter neither can it be accommodated under the procedure of judicial review. Section 164 of the Electoral Act 2006 defines election as meaning any election held under this Act and includes a referendum. It is therefore beyond doubt that what took place on 4th April, 2007 in Imo State in particular was an election and as such any action relating to the processes leading thereto including the actual conduct of the event or its cancellation fall within the jurisdiction of the election tribunal by operation of law and no other court or tribunal is clothed with jurisdiction to entertain it in any guise.”

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WHERE IREV FAILS, IT DOES NOT STOP THE COLLATION OF THE RESULTS

This court, in Oyetola v INEC (2023) LPELR 60392 (SC) made it clear that there is a difference between a collation system and the IREV portal 68 though both are part of the election process. Whereas the collation system is made up of the centres where results are collated at various stages of the election, the INEC Result Viewing Portal is to give the public the opportunity to view the polling unit results on the Election day. What this means is that where the IREV portal fails, it does not stop the collation of results which up to the last election was manually done. The failure or malfunctioning of the IREV deprives the public and even election administrators and monitors the opportunity of viewing the portal and comparing the result collated with the ones transmitted into the IREV. Truth must be told, the nonfunctioning of the IREV may also reduce the confidence of the voting public in the electoral process.

— I. Okoro JSC. Atiku, PDP v. INEC, Tinubu, APC (SC/CV/935/2023, 26th day of October, 2023)

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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

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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IMPORTANCE OF AUTHENTIC REGISTER OF VOTERS

Again, let me pause here to observe that the importance of an authentic Register of voters for an open and transparent election process cannot be underestimated. Not only that the candidate who intends to contest in a particular election is required to be a registered voter as per the Register of voters, also a person who is minded to cast his vote in an election must be a Registered Voter as per the register of voters to be enabled to cast his vote in an election.

— C.M. Chukwuma-Eneh, JSC. Akeredolu v. Mimiko (2013) – SC. 352/2013

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INEC RESULTS VIEWING PORTAL IS NOT A COLLATION SYSTEM

From the above functions of the BVAS, it is clear to me that, apart from using the BVAS to scan the physical copy of the polling unit result and upload same to the Result Viewing Portal (iReV), there is nothing in the Regulations to show that the BVAS was meant to be used to electronically transmit or transfer the results of the Polling Unit direct to the collation system. It should be noted that INEC Results Viewing Portal (IReV) is not a collation system. The Supreme Court in OYETOLA V INEC (2023) LPELR-60392(SC) has explained the difference between the Collation System and the IReV. In that case, Agim, JSC held as follows: “As their names depict, the Collation System and the INEC Result Viewing Portal are part of the election process and play particular roles in that process. The Collation System is made of the centres where results are collated at various stages of the election. So the polling units results transmitted to the collation system provides the relevant collation officer the means to verify a polling unit result as the need arises for the purpose of collation. The results transmitted to the Result Viewing Portal is to give the public at large the opportunity to view the polling unit results on the election day.”

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

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SPONSORSHIP OF A CANDIDATE FOR AN ELECTION IS AN INTERNAL AFFAIR OF THE PARTY

The courts have held in a plethora of cases that the issue of membership of a political party is an internal affair of the political party. It has been consistently held, that it is only the party (in this case, the 3 rd Respondent), that has the prerogative of determining who are its members and the 3 rd Respondent, having sponsored the 2 nd Respondent as its candidate for the Governorship Election in Kano State on the 18 th of March 2023, the 2 nd Respondent has satisfied the requirement of being a member of the 3 rd Respondent as provided for in S134 (1) (a) of the Electoral Act 2022. Consequently, it has been held, that is not within the right of the Petitioner at this stage and after the nomination, sponsorship of the 2 nd Respondent by the 3 rd Respondent as its candidate, to question the 2 nd Respondents membership of the 3 rd Respondent, as it is an internal affair of the party.

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

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