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INTERPRETATION OF SECTION 134(2) OF THE CFRN

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It is obvious that states of the Federation and the Federal Capital Territory, Abuja were lumped together as a group by Subsection (2) (b) above. What differentiates the constituents of the group is their names and nothing more. One of them is called Federal Capital Territory and the rest called states of the Federation. Subsection (2) (b) clearly refers to two thirds of all the constituents of the group enumerated therein as the minimum number from each of which a candidate must have one-quarter of the votes cast therein. There is nothing in Subsection (2)(b) that requires or suggests that it will not apply to the areas listed therein as a group. The argument of Learned SAN that the provision by using the word “and” to conclude the listing of the areas to which it applies has created two groups to which it applies differently is, with due respects, a very imaginative and ingenious proposition that the wordings of that provision cannot by any stretch accommodate or reasonably bear. If S. 134(2) of the 1999 Constitution intended that the Federal Capital Territory, Abuja should be distinct from states of the Federation as a distinct group it would not have listed it together with states of the Federation in (b). Also, if S. 134(2) had intended having one-quarter of the votes cast in the Federal Capital Territory Abuja as a 4 separate requirement additional to the ones enumerated therein, it would have clearly stated so in a separate paragraph numbered (c). It is glaring that S.134(2) prescribed two requirements that must be cumulatively satisfied by a Presidential candidate in an election contested by not less than two candidates, before he or she can be deemed duly elected President. It prescribed the first requirement in (a) and the second one in (b). It did not impose a third requirement and so there is no (c) therein … Such meaning would result a Presidential candidate that has the highest votes cast in the election and not less than one-quarter of the votes cast in not less than two-thirds of 36 states of the Federation or in all the states of the Federation cannot be deemed duly elected as President because he did not have one-quarter of the votes cast in the Federal Capital Territory, Abuja. This certainly violates the egalitarian principle of equality of persons, votes and the constituent territories of Nigeria, a fundamental principle and purpose of our Constitution. Such a meaning is unconstitutional. I think that his said proposition is the result of reading those provisions in isolated patches instead of reading them as a whole and in relation to other parts of the Constitution. Reading and interpreting the relevant provision as a whole and together with other parts of the Constitution as a whole is an interpretation that best reveals the legislative intention in the relevant provision.

— Agim JSC. Peter Obi & Anor. v. INEC & Ors. (SC/CV/937/2023, Thursday the 26th day of October 2023)

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NONCOMPLIANCE MUST AFFECT THE RESULT OF THE ELECTION

In Akinfosile v Ijose (1960) 5 FSC 192, one of the earliest cases, if not the earliest, it was held that the onus is on the petitioner to prove not only that there was substantial non-compliance with the Electoral Act, but also that such non-compliance affected the result of the election. The decision was followed in the case of Kudu v Aliyu (1992) 3 NWLR (Part 231) 598

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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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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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RATIONALE BEHIND WHY A GOVERNOR IS NOT IMMUNED FROM ELECTION PETITION

I am also of the view that the appeal can be allowed on the main issue of immunity of the governor under the provisions of section 308 of the Constitution of the Federal Republic of Nigeria 1999. The issue can be resolved by a simple question as to whether a person declared and sworn-in as the governor elect can be sued by appropriate party to challenge the declaration. By law the answer must be in the positive. If the said person is said to be immuned under the section the resultant effect is that once a person is declared and sworn – in as governor elect that ends the matter, no one can complain or take any legal action even if the person conducted any gross election malpractice. This will encourage gross wrongful and illegal activities among the parties contesting for the position. This would undoubtedly negate the necessary intendment of our constitution and would destroy the democracy itself. In election petition where the status of the governor is being challenged, as in this, then the said immunity is also questioned. He has no immunity against being sued and consequently he cannot be immuned from being subpoened. It must be made clear that the provisions of section 308 of the Constitution are applicable to ordinary civil proceedings as in the case of Tinubu v. I.M.B. Securities Limited (supra) and criminal proceedings and not in election related matter as in Obih v. Mbakwe (supra) and our present case. In my judgment the appeal is to be allowed on this issue. It is allowed with an order that the matter be remitted for fresh trial by a tribunal of different membership.

— Ja’ Afaru Mika’ilu, J.C.A. AD v. Fayose (2004) – CA/IL/EP/GOV/1/2004

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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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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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