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

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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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DEFECTIVE VOTERS REGISTER USED FOR AN ELECTION

Whereas the process of compiling a Voters Register is a pre-election matter, the use to which an alleged fundamentally defective Voters Register so compiled is put to in an election which may substantially affect the result of the said election is clearly an issue of non-compliance with the provisions of the Electoral Act, which constitutes a ground for challenging an election in a petition under section 138(l)(b) of the Electoral Act, 2010, as amended.

— W.S.N. Onnoghen, JSC. Akeredolu v. Mimiko (2013) – SC. 352/2013

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ONLY POLLING UNIT AGENT CAN GIVE TESTIMONY OF WHAT TRANSPIRED IN THE POLLING UNIT

In PDP & ANOR V INEC & ORS (2019) LPELR-48101(CA), this Court Per Agim, JCA (as he then was) held that it is only a Polling Unit agent or a person who was present at a Polling Unit during polls that can give admissible evidence of what transpired during the poll in that unit. See also GOYOL & ANOR V. INEC & ORS (2012) 11 NWLR (PT. 1311) 207, 218 and BUHARI V. INEC & ORS (PT.1120) 246, 424 … Under our law, specifically in Section 43 of the Electoral Act, 2022, Polling Agents are permitted to be appointed by Political Parties for each Polling Unit and collation centre. The wisdom in this is for each of the political parties involved in an election to be represented by its own agents. The duties of an agent are to represent the interest of his/her principal. Having regard to the fact that no mortal man can be in all the places at the same time, the law allows political parties to have their agents at all polling units and collation centres. It is therefore not anticipated by the law for any political party to appoint an octopus agent with his tentacles in all the polling units and collation centres. This is humanly not practicable. When, therefore, evidence is required to prove what happened in any polling unit or a collation centre, it is only the agent who witnessed the anomaly or the malfeasance that can legally and credibly testify. See BUHARI V. OBASANJO (SUPRA); OKE & ANOR V. MIMIKO (SUPRA) AND ANDREW V. PDP (SUPRA).

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

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ALL ELECTION PETITIONS LIE AS OF RIGHT TO THE COURT OF APPEAL

In the case of Awuse v. Odili (2003) 18 NWLR (pt. 851) 116 at 119, Ejiwunmi JSC supported the lead judgment of I.L. Kutugi JSC quoted the provision of Section 246 (1) (b) (ii) of the 1999 Constitution as amended and said of the Section as follows: “An appeal to the Court of Appeal shall lie as of right from the decision of the Governorship Election Tribunal on any question as to whether any person has been validly elected to the office of Governor”. “Though the word “any” when used as an adjective is defined in Longman Dictionary of the English Language thus: “One or some indiscriminately, whichever is chosen”. It would appear that the word “any” qualifying “question” was deliberately used by the law makers to indicate that an appeal to the Court of Appeal was not limited only to hearing appeals only to whether any person has been validly elected to the office of Governor —– It follows therefore that the provisions of Section 246 (1) allows appeals to lie to Court of Appeal in respect of interlocutory decision of the Governorship Election Tribunals and the other tribunals named in that section of the Constitution”.

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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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IN ELECTION PETITION, RECOURSE TO THE FHC RULES IS SUBJECT TO THE ELECTORAL ACT

Specifically, any recourse to the Federal High Court (Civil Procedure) Rules must be “subject to the express provisions” of the Act. It follows that it is only where the Electoral Act or First Schedule does not provide for a particular situation that reference would be made to the Federal High Court (Civil Procedure) Rules with necessary modification.

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

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FORGERY IN INEC FORM MUST BE PROVED BEYOND REASONABLE DOUBTS

False information in INEC Form EC9 which is an affidavit, amounts to lying on oath and is invariably, a crime. Being a crime, its commission must be proven beyond reasonable doubt.

– Aboki JSC. APC v. Obaseki (2021)

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