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PROVING CORRUPT PRACTICES IN AN ELECTION

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Furthermore, where the ground for challenging the return of a candidate in an election is by reason of corrupt practices or non-compliance with the provisions of the Electoral Act, the petitioner must prove: (a) that the corrupt practice or non-compliance took place; and (b) that the corrupt practice or non-compliance substantially affected the result of the election. See Yahaya v. Dankwambo ; Awolowo v. Shagari (1979) All NLR 120, (2001) FWLR (Pt. 73) 53; Buhari v. Obasanjo (2005) All FWLR (Pt. 258) 1604, (2005) 2 NWLR (Pt. 910) 241 and sections 138(1)(b) and 139(1) of the Evidence Act, 2011.

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

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INEC COLLATION SYSTEM VERSUS THE INEC RESULT VIEWING PORTAL

As their names depict, the Collation System and the INEC Result Viewing Portal are part of the election process and play particular roles in that process. The Collation System is made of the centres where results are collated at various stages of the election. So the polling units results transmitted to the collation system provides the relevant collation officer the means to verify a polling unit result as the need arises for the purpose of collation. The results transmitted to the Result Viewing Portal is to give the public at large the opportunity to view the polling unit results on the election day. It is clear from the provisions of Regulation 38(i) and (ii) that the Collation System and Result Viewing Portal are different from the National Electronic Register of Election Results. The Collation System and Result Viewing Portal are operational during the election as part of the process, the National Electronic Register of Election Results is a post election record and is not part of the election process.

— E.A. Agim, JSC. Oyetola v INEC & Ors. (2022) – SC/CV/508/2023

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IRREGULARITIES FOR THE PURPOSE ELECTIONS MUST BE COMPELLING TO VOID THE ELECTION

Nigeria is one vast and huge country made up of so many diversities in terms of tribes, cultures, sociology, anthropology and above all, quite a number of political parties (some large, some small). These diversities, coupled with the usual aggressiveness of Nigerians arising particularly from the do or die behaviour in politics; there must be irregularities. Courts of law must therefore take the irregularities for granted unless they are of such compelling proportion or magnitude as to “affect substantially the result of the election.” This may appear to the ordinary Nigerian mind as a stupid statement but that is the law as provided in section 146(1) of the Electoral Act and there is nothing anybody can do about it, as long as the Legislature keeps it in the Electoral Act. The subsection is like the rock of Gibraltar, solidly standing behind and for a respondent to an election petition. I am not saying that a Presidential Election can never succeed in the light of section 146(1). No. It can if the petitioner discharges the burden the subsection places on him.

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

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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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INEC GUIDELINES CANNOT BE ELEVATED ABOVE THE ELECTORAL ACT

As held by this court, the INEC directives, guidelines and manual cannot be elevated above the provisions of the Electoral Act as to eliminate manual accreditation of voters. This will remain so until INEC takes steps to have the necessary amendments made to bring the usage of the card reader within the ambit of the substantive Electoral Act. These issues are accordingly resolved in favour of the appellant.

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

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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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INEC RESULTS VIEWING PORTAL IS NOT A COLLATION SYSTEM

From the above functions of the BVAS, it is clear to me that, apart from using the BVAS to scan the physical copy of the polling unit result and upload same to the Result Viewing Portal (iReV), there is nothing in the Regulations to show that the BVAS was meant to be used to electronically transmit or transfer the results of the Polling Unit direct to the collation system. It should be noted that INEC Results Viewing Portal (IReV) is not a collation system. The Supreme Court in OYETOLA V INEC (2023) LPELR-60392(SC) has explained the difference between the Collation System and the IReV. In that case, Agim, JSC held as follows: “As their names depict, the Collation System and the INEC Result Viewing Portal are part of the election process and play particular roles in that process. The Collation System is made of the centres where results are collated at various stages of the election. So the polling units results transmitted to the collation system provides the relevant collation officer the means to verify a polling unit result as the need arises for the purpose of collation. The results transmitted to the Result Viewing Portal is to give the public at large the opportunity to view the polling unit results on the election day.”

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

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