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GROUND TO PROVE OVER VOTING

Dictum

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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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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STATING ADDRESS FOR SERVICE IN AN ELECTION PETITION

Paragraph 4 (4) of the First Schedule to the Electoral Act, 2022 provides as follows: “Paragraph 4 (4); “at the foot of the election petition, there shall also be stated an address of the petitioner for service at which address documents intended for the petitioner may be left and its occupier. We have carefully gone through the petition filed by the Petitioner and we hold that the Petitioner complied with the provision of paragraph 4(4) of the First Schedule to the Electoral Act 2022. This is because the Petitioner copiously stated at the foot of the election petition, his address for service, at which address documents or all Court processes relating to this petition may be served on the Petitioner and the Petitioner equally indicated who the occupier of that address is.

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

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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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NON-COMPLIANCE MUST BE PROVED POLLING-UNIT BY POLLING-UNIT

Where a petitioner complains of non-compliance with the provisions of the Act, he has an onerous task, for he must prove it polling unit by polling unit, ward by ward and the standard of proof is on the balance of probabilities. He must show figures that the adverse party was credited with as a result of the non-compliance e.g. Forms EC8A, election materials not signed/stamped by presiding officers. It is only then that the respondents are to lead evidence in rebuttal. See Ucha v. Elechi (2012) 13 NWLR (Pt. 1317) 330 at 359 – G. It is also the law that where the commission of a crime by a party to a proceeding is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt. See section 135 of the Evidence Act, 2011. The burden of proof is on the person who asserts it. See section 135(2) of the Evidence Act, 2011 . See also: Abubakar v. Yar’Adua (2008) 19 NWLR (Pt. 1120) 1 at 143 – 144 B; Buhari v. Obasanjo ; Omoboriowo v. Ajasin (1984) l SCNLR 108; Kakih v. PDP (2014) 15 NWLR (Pt. 1430) 374 at 422 – 423 B- C.

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

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ELECTION RIGGING REFERS TO

Basically, election rigging refers to electoral malpractices which are palpable illegalities such as over voting, disruption of election, emergency declaration, violence, non-conduct of election, disenfranchisement of voters, voters resistance to the use of BVAS or BVAS by pass and so on, which no doubt will substantially affect the result of any election in any civilized jurisdiction and therefore translate to non-compliance with the provisions of the Electoral Act.

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