Construing the word “non-compliance” in both provisions with regard to an election has created a situation where an election has been conducted in a manner not in accordance with the provisions of the Act and/or the guidelines prescribed therefrom.
— C.M. Chukwuma-Eneh, JSC. Akeredolu v. Mimiko (2013) – SC. 352/2013
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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)
The Electoral Act, 2022 in an explicit manner, has laid out clearly grounds upon which an election can be questioned in Section 134 thereof. Then there is Section 135 of the said Act which looks like a proviso to Section 134. For a proper appreciation of the intendment of the law, Section 134 and 135 of the Electoral Act must be considered together.
— H.S. Tsammani, JCA. Atiku v PDP (CA/PEPC/05/2023, 6th of September, 2023)
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)
The case of Chatjok v. Kato and others is relevant. The appellant was the petitioner at the Election Tribunal. In his petition, the petitioner claimed that the 1st and 2nd respondents were not qualified to contest the chairmanship election of Kachia Local Government council, Kaduna State in that the 1st respondent was still a public servant in the employment of Kaduna state Ministry of Works and Transport while the 2nd respondent was an ex-convict. The 2nd respondent was alleged by the appellant to have been convicted of the offence of house-breaking by Area Court I Zonkwua. During the hearing of the petition, a preliminary objection on point of law was raised on behalf of the 1st and 2nd respondents that the appellant’s petition did not comply with the requirements of paragraph 5(1) (c) of schedule 5 to Local Government (Basic constitutional and Transitional provisions) Decree No.36 of 1998 and as such the petition was defective and a nullity. Learned counsel to the appellant conceded to the objection and urged the tribunal to exercise its discretion and strike out the petition without costs. The petition was therefore struck out under the provision of paragraph 5(6) of schedule 5 to the Decree. The Court of Appeal held that where an election petition does not state the scores of the candidates as required under paragraph 5(1) (C) of Decree No.36 of 1998, the Election Tribunal has the discretion to strike out the petition. This is more so when the petitioner cannot amend the petition.
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.”
It is important to note here that although Election petitions are sui generis, they are governed by the Evidence Act. See BUHARI V. OBASANJO (2005) 2 NWLR (PT. 910) 241; APC V PDP & ORS (2015) LPELR-24587(SC). — H.S. Tsammani, JCA. Atiku v PDP (CA/PEPC/05/2023, 6th of September, 2023)
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