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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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PROVING NON-COMPLIANCE IN AN ELECTION

Any Petitioner who complains that the result as declared is either wrong or not in compliance with the Electoral Act has the onus of proving the contrary: see NYESOM V. PETERSIDE (2016) LPELR-40036 (SC). This case was relied upon by the Supreme Court in the case of ANDREW & ANOR V. INEC (2017) LPELR 48518 (SC) where the Supreme Court held per Onnoghen, J.S.C. (as he then was) as follows: “…Secondly, one of the main planks on which the petition is based is non-compliance with the provisions of the Electoral Act, 2010 (as amended). For one to succeed on that ground, it is now settled law that where a petitioner alleges non compliance with the provisions of the Electoral Act, he has the onus of presenting credible evidence from eye witnesses at the various polling units who can testify directly in proof of the alleged non-compliance See Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) 1 at 315 316: Buhari v. INEC (2008) 18 NWLR (Pt.1120) 246 at 391 392: Okereke v. Umahi (2016) 11 NWLR (Pt.1524) 438 at 473. Nyesom v. Peterside (2016) 7 NWLR (Pt. 1512) 452, etc.”

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

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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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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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THERE IS A REBUTTABLE PRESUMPTION THAT AN ELECTION RESULT DECLARED BY A RETUNING OFFICER IS CORRECT

Election results are presumed by law to be correct until the contrary is proved. It is however a rebuttable presumption. In other words, there is a rebuttable presumption that the result of any election declared by a returning officer is correct and authentic and the burden is on the person who denies the correctness and authenticity of the return to rebut the presumption. (See Omoboriowo v Ajasin (1984) 1 SCNLR 108; Jalingo v Nyame (1992) 3 NWLR (Part 231) 538; Finebone v Brown (1999) 4 NWLR (Part 600) 613; Hashidu v Goje (2003) 15 NWLR (Part 843) 361 and Buhari v Obasanjo (2005) 13 NWLR (Part 941) 1).

— Niki Tobi, JSC. Buhari v. INEC (2008) – SC 51/2008

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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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IT IS A POLITICAL PARTY OR ITS CANDIDATE WHO CAN CHALLENGE AN ELECTION

In the case of ALL PROGRESSIVE CONGRESS V PEOPLES DEMOCRATIC PARTY 2019 LPELR-49499 CA, in the interpretation of the provision of S137(1) of the Electoral Act 2010, which provision is in pari material with the extant provisions of S133 (1) (a) and (b) the Electoral Act 2022, the Court of Appeal, Per Ali Abubakar Babandi Gummel JCA, took the stance that: ‘….it is clear from this provision, that either the political party, or its candidate for the election, or both of them jointly can present an election petition….this provision recognizes that a political party, can in its name, present an election petition challenging the election for the benefit of the candidate and itself….’ Ditto, in the lead judgment delivered by per Emmanuel Akomaye Agim JCA, the court reiterated and expounded as follows; ‘….therefore such a petition is a representative action by the political party on behalf of its candidate for the election and its members, the political party’s candidate for the election is an unnamed party for his benefit and that of the political party. An unnamed party in a representative action is a party to the action…….”

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