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PETITIONER IN AN ELECTION MUST PROVE NONCOMPLIANCE FIRST

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In Buhari v Obasanjo (2005) 13 NWLR (Part 941) 1, when the case came to the Supreme Court on appeal, the court held that where an allegation of non-compliance with the electoral law is made, the onus lies on the petitioner firstly to establish the non-compliance, and secondly, that it did or could have affected the result of the election. It is after the petitioner has established the foregoing that the onus would shift to the respondent whose election is challenged, to establish that the result was not affected.

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AMENDMENTS ARE NOT ALLOWED TO ELECTION PETITION AFTER FILING PARTICULARLY WHEN THE 21 DAYS PERIOD HAVE ELAPSED; EXTENSION OF TIME ARE PROHIBITED TOO

In OKE & ANOR v MIMIKO & ORS (2013) LPELR 20645(SC), the Apex Court, per Ogunbiyi, JSC held that: ‘By Paragraph 4(1) and (5) of the 1st Schedule to the Electoral Act, a composite analysis of an election petition has been spelt out and also a list of materials which must be accompanied. The use of the word “shall” in the subsections is very instructive, mandatory and conclusive. In other words, the provisions do not allow for additions and hence, the procedure adopted by the appellants in seeking for an extension of time is nothing other than surreptitious attempt to amend the petition. This is obvious from the nature and substance of the application especially where one of the grounds seeks to put in facts which were allegedly not available at the time of filing the petition but only came into their possession after the statutory time limit allowed for the presentation of election petition. Expressly, there is no provision in the legislation which provides for extension of time. What is more, vide paragraph 14(2) of the 1st Schedule to the Electoral Act, the Appellants by Section 134(1) of the Electoral Act had been totally foreclosed from any amendment which was in fact the hidden agenda promoting the application. The saying is true that even the devil does not know a man’s intention; it can only be inferred from the act exhibiting that which is conceived in the heart and mind. The use of the word “shall” in paragraph 14(2)(a) of the 1st Schedule to the Electoral Act is mandatory and places a complete bar on any form of amendment to a petition filed and does not also allow for an exercise of discretion whatsoever. See UGWU v ARARUME (2007) 12 NWLR (Pt. 1048) 367 at 510 511 and BAMAIYI V A.G FEDERATION (2001) 12 NWLR (Pt. 727) 428 at 497. Further still and on a critical perusal of the application, relief 2 seeks “leave to call additional witness, to wit A.E.O”. It is pertinent to restate that at the close of pleadings parties had submitted the list of witnesses who were to testify together with their depositions. The idea, purpose and intention of the application is suggestive of nothing more but a clear confirmation seeking for an order of an amendment as rightly and ingeniously thought out by the trial tribunal and also affirmed by the lower court. This will certainly violate the provisions of Section 285(5) of the Constitution and Section 134 of the Electoral Act.’

In his concurring judgment in the same case, Ngwuta, JSC specifically stated that: ‘The additional or further witness depositions sought to be allowed for a just and fair determination of the petition are fresh facts as found by the tribunal and which finding was endorsed by the lower court. This Court will not interfere with a concurrent finding of fact of the two lower courts when the appellants have failed to show a special circumstance for this Court to do so. Election petitions are time-bound and the Court will not allow a party to resort to any sort of subterfuge to frustrate the intention of the Electoral Act that petitions be disposed of expeditiously.’

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WHERE A PERSON WHO ATTAINED THE HIGHEST VOTE IS DECLARED NULL, THE SECOND HIGHEST WITH VOTES IS TO BE DECLARED THE WINNER

By Section 136 (2) of the Electoral Act 2022, it is provided thus: “Where an Election Tribunal or Court nullifies an election on the grounds that person who obtained the highest votes at the election was not qualified to contest the election, the Election Tribunal or Court shall declare the person who scored the second highest number of valid votes cast at the election who satisfied the requirement of the Constitution and the Act as dully elected.” In law, once an Election Petition succeeds under Section 134 (1) of the Electoral Act 2022, the only consequential order for the Election Tribunal or Court, where the Election Tribunal fails to do so, is an order declaring and returning the candidate with the second highest score of lawful votes as the winner of the said election. Indeed, neither the Election Tribunal nor this Court, has any discretion in this matter nor is it dependent on the reliefs claimed or not claimed by the Petitioner.

— B.A. Georgewill JCA. Okeke, PDP v. Nwachukwu, Labour Party, INEC (CA/ABJ/EP/IM/HR/86/2023, November 04, 2023)

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ONLY A PRACTICE WHICH IS CONTRARY TO THE ELECTORAL ACT CAN BE A GROUND TO QUESTION AN ELECTION

As I stated earlier, the electronic transmission of results of an election is not expressly stated anywhere in the Electoral Act, but was only introduced by the 1st Respondent in its Regulations and Guidelines, 2022 and in the INEC Manual for Election Officials, 2023. By Section 134(2) of the Electoral Act, 2022 only an act or omission which is contrary to the Electoral Act, 2022 can be a ground for questioning an election. Thus, complaints relating to non-compliance with provisions of the Regulations and Guidelines or the Manual of Election Officials are not legally cognizable complaints for questioning an election. In interpreting Section 138(2) of the Electoral Act, 2010, which is similar to Section 134(2) of the extant Electoral Act, 2022, the Supreme Court held in NYESOM V PETERSIDE (supra), at page 66 67, paras. F-C, as follows: “The above provisions appear to be quite clear and unambiguous. While the Electoral Commission is duly conferred with powers to issue regulations, guidelines or manuals for the smooth conduct of elections, by Section 138(2) of the Act, so long as an act or omission regarding such regulations or guidelines is not contrary to the provisions of the Act itself, it shall not of itself be a ground for questioning the election.” See also: JEGEDE v INEC (2021) LPELR-55481(SC) at 25 – 26 at paras. A – D.

— H.S. Tsammani, JCA. Peter Obi & Anor. v INEC & Ors. (2023) – CA/PEPC/03/2023

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A PETITIONER IN AN ELECTION PETITION HAS A HEAVY BURDEN

In Ihute v Independent National Electoral Commission (1999) 4 NWLR (Part 599) 360, it was held that in an election petition, when a petitioner makes an allegation of non-compliance with the electoral law as the basis or foundation of his case, he has a heavy burden to show the tribunal by cogent and compelling evidence that the non-compliance is of such a nature as to affect the result of the election. The court followed the decision in Kudu v Aliyu, (supra). The decision was followed in the case of Haruna v Modibbo (2004) 16 NWLR (Part 900) 487. The court added in Haruna that the petitioner must satisfy the tribunal that he is a victim of the alleged malpractices. The court also relied on Nabature v Mahuta (1992) 0 NWLR (Part 263) 585 and Awolowo v Shagari, (supra).

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IF THE RESULT OF AN ELECTION IS NOT AFFECTED SUBSTANTIALLY, THE PETITION WILL FAIL

If there is evidence that despite all the non-compliance with the Electoral Act, the result of the election was not affected substantially, the petition must fail. In other words, the Election Tribunal, must, as a matter of law, dismiss the petition; and that accords with section 146(1) of the Electoral Act.

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

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PETITIONER HAS BURDEN TO PROVE NON-COMPLIANCE WITH THE ELECTORAL ACT

In the instant case, it is fundamental to point out that, from the pleadings, the allegation of non-compliance is generated by the Petitioners. Under Sections 134(1) and 135 of the Electoral Act, the level of proof required for the success of the Petition is doubled. There must be proof of non-compliance and the further proof that the non compliance affected substantially the result of the election. In the face of such an allegation of non-compliance, the court is enjoined by the law not to invalidate an election if it appears that the election was conducted substantially in accordance with the principles of the Electoral Act. All said and done, the Petitioners have the primary burden of proving that there was non-compliance and that the non-compliance affects substantially the result of the election before the burden can shift to the Respondents to establish that there was no substantial non-compliance with the Electoral Act in the conduct of the election.

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

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