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QUALIFICATION TO CONTEST GOVERNORSHIP ELECTION

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In the Supreme Court case of AL-HASSAN V ISIHAKU 2016 10 NWLR PART 520, PG 230, the court reiterated at pages 275- 276 PARAS H-A; 277 PARAS A-F as follows; “…Where it is alleged that a person is or was not qualified to contest election into the office of Governor as envisaged by section 138(1) (a) of the Electoral Act, it is S177 and 182 of the 1999 Constitution (as amended) that are being contemplated. Taking the provisions together, it is seen that both the provision for qualification and that for disqualification are so comprehensive which makes them exhaustive. Thus the Constitution, as the Supreme law of the land, having such elaborate and allencompassing provisions for qualification and disqualification of persons seeking the office of Governorship of a state, does not leave any room for addition to those conditions already set out. Once a candidate sponsored by his political party has satisfied the provisions set out in S177 of the Constitution and is not disqualified under S182 (1) thereof, he is qualified to stand for election to the office of Governor of a State. No other law can disqualify him (P.D.P V INEC (2014) 17 NWLR (PT 1437) 525, Shinkafi V Yari (2016) 7 NWLR (PT 1511) 340 referred to (Pp 275, paras H_A;277 Paras A-F.”

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DESPITE ELECTIONS BEING SUI GENERIS, THEY ARE GOVERNED BY THE EVIDENCE ACT

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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VOTERS REGISTER CANNOT BE REPLACED BY CARD READER TO PROVE OVERVOTING

This court in a number of recent decisions has commended the introduction of the card reader in the 2015 elections by INEC. The court has noted however, that its function is solely to authenticate the owner of a voter’s card and to prevent multi-voting by a voter and cannot replace the voters register or statement of results in appropriate forms. See Shinkafi v. Yari ; Okereke v. Umahi (unreported) SC.1004/ 2015 delivered on 5/2/2016 at pages 31 – 34.

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

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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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PROCESSES THAT MUST BE FOLLOWED FOR A SUCCESSFUL ELECTION

Let me underline here that in the conduct of an election, certain processes must have been walked over to conclude and confirm that the election was conclusive. The steps outlined by the law must not be broken. These steps are: (a) Accreditation (b) Conduct of poils (c) Counting of votes (d) Collation and announcement of results (e) Signing of result forms (f) Publication of results.

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

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

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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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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