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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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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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CANNOT TESTIFY ON POLLING UNIT RESULT IF NOT POLLING UNIT AGENT

This witness is not fit to testify on polling unit result not being a polling unit agent. His testimony on the polling unit is hearsay and shall therefore be discountenanced with … The testimony of PW26 is not reliable in this case. Testimony was to the effect that he was the Party Chairman, and never served as an Agent in any of the polling units or wards but monitored the election. His testimony can at best be described as hearsay and not reliable. We so hold.

— K.M. Akano, J. Edeoga v Mbah (2023) – EPT/EN/GOV/01/2023

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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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PARTY WHO ALLEGES NONCOMPLIANCE HAS THE LEGAL BURDEN

It is trite that a Petitioner who alleges non-compliance with Electoral Act has the legal burden to establish such non-compliance and show how the non-compliance substantially affected the result of the election. See: LADOJA v AJIMOBI (2016) LPELR-40658(SC) at page 29, paras. A E; and SHINKAFI V YARI (2016) LPELR-26050(SC) at pages 19 – 20, para. C.

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

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AN ELECTION CANNOT BE INVALIDATED BY REASON OF NONCOMPLIANCE WITH THE PROVISIONS OF THE ELECTORAL ACT

… an election cannot be invalidated by reason of non-compliance with the provisions of the Act if it appears to the Election Tribunal or court that the election was conducted substantially in accordance with the principles of the Act and that the non-compliance did not affect substantially the result of the election. In other words, a petitioner cannot be heard to say that an election is invalid by reason of non-compliance with the principles of the Act if it appears to the Election Tribunal or Court that the election was conducted substantially in accordance with the principles of the Act and that the non-compliance did not affect substantially the result of the election. The words “cannot be heard to say” above are trite legalism that express the notion of estoppel, as a respondent can say in defence, the petitioner cannot be heard to say that the election is invalid.

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

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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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