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SECTION 177 & 182 IS THE RELEVANT PROVISION FOR QUALIFICATION TO CONTEST AS GOVERNOR

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Before rounding off this matter there can be no doubt that the qualification or non-qualification of a candidate for election purposes as here is within the purview of sections 177 and 182 of the 1999 constitution (as amended) and not Section 34 of the Electoral Act as failure to comply with the provisions of section 34 (supra) cannot in my view succeed in disqualifying a candidate properly so sponsored by this political party. Howbeit, once a sponsored candidate has satisfied the provisions sections 177 and 182 (supra) he is qualified to stand election for the office of Governor. The 1st respondent is therefore qualified to stand election for the office of Governor for Bayelsa State having so qualified under the aforesaid provisions of the amended constitution. And I so hold.

— C.M. Chukwuma-Eneh, JSC. Kubor v. Dickson (2012) – SC.369/2012

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election

TECHNICALITIES IN ELECTION PETITIONS – IT NEVER SOLVES BASIC ISSUES IN CONTROVERSIES

It is now trite law that election petitions are sui generis that is, that they are in class of their own and are governed by different rules. An election petition is by nature a very peculiar proceeding which distinguishes it from an ordinary civil proceeding. See Abubakar v. Yar’adua (2008) 19 NWLR (Pt 1120) 1. In Nwole v. Iwuagwu (2004) 15 NWLR (Pt 895) 61 the Court, held thus: “The courts have often harped on the need to do substantial justice in most cases without dwelling too much on technicalities … in all election matters, the use of technicalities should be avoided, as technicalities merely help to shut the opponent out. It never resolves basic issues in controversy. Once it is agreed that election petitions are in a class of their own, the handling of the matter too must take a form devoid of legal technicalities that tend to leave the litigants more confused. Boldness of a high degree is required of the electoral tribunal, which must never be seen to shy away from obvious grave allegations.”

— J.S. Abiriyi, JCA. Aregbesola v Omisore (2014) – CA/AK/EPT/GOV/05/237/2014

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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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PROVING CORRUPT PRACTICES IN AN ELECTION

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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ALL ELECTION PETITIONS LIE AS OF RIGHT TO THE COURT OF APPEAL

In the case of Awuse v. Odili (2003) 18 NWLR (pt. 851) 116 at 119, Ejiwunmi JSC supported the lead judgment of I.L. Kutugi JSC quoted the provision of Section 246 (1) (b) (ii) of the 1999 Constitution as amended and said of the Section as follows: “An appeal to the Court of Appeal shall lie as of right from the decision of the Governorship Election Tribunal on any question as to whether any person has been validly elected to the office of Governor”. “Though the word “any” when used as an adjective is defined in Longman Dictionary of the English Language thus: “One or some indiscriminately, whichever is chosen”. It would appear that the word “any” qualifying “question” was deliberately used by the law makers to indicate that an appeal to the Court of Appeal was not limited only to hearing appeals only to whether any person has been validly elected to the office of Governor —– It follows therefore that the provisions of Section 246 (1) allows appeals to lie to Court of Appeal in respect of interlocutory decision of the Governorship Election Tribunals and the other tribunals named in that section of the Constitution”.

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ELECTION PETITION SHOULD STATE THE DATE OF THE ELECTION, RETURNED WINNER, AND RAW FIGURES

As it is, the sub-paragraph provides for three requirements: (a) That the election was held. In this respect, the petitioner is expected to depose to the fact that the election was held and the date on which it was held. (b) The scores of the candidates who contested the election. Here, the petitioner is under a legal duty to indicate the official scores of INEC and not what he thinks or thought should be the scores. He can reserve what he thinks or thought should be the scores to any subsequent paragraph or paragraphs in the petition. All that paragraph 5(1) (c) requires is the raw official figures of INEC. (c) The person returned as the winner of the election. Again, all that the petitioner is expected to state is the person officially declared by INEC as the winner of the election. In other words, paragraph 5(1) (c) enjoins the petitioner to name the candidate who won the election as declared by INEC. Again, he can contest the result of INEC in any subsequent paragraph or paragraphs in the petition to the effect that he was in law the winner of the election.

— Niki Tobi, JCA. Nnamdi Eriobuna & Ors. V. Ikechukwu Obiorah (CA/E/77/99, 24 May 1999)

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DOUBLE NOMINATION IS A PRE-ELECTION MATTER; THE BASIS OF QUALIFICATION/DISQUALIFICATION

Considering the facts pleaded above, it is clear that, the claim of disqualification or non-qualification of the 3rd Respondent is centred solely on the invalid or double nomination of the 4th Respondent. However, it is the settled law that, the issue of nomination of a candidate at an election is a pre-election matter. Therefore, the issue of qualification or disqualification can only be ventilated on the grounds enumerated in Sections 131 or 137 of the Constitution … It therefore means that, the conditions of qualification or disqualifica are those prescribed under Sections 131 and 137, in case of persons contesting for Presidential Office. That means that, where it is alleged in an election petition, that a person is or was not qualified to contest election to the office of President of Nigeria, as stipulated in Section 134(1)(a) of the Electoral Act, 2022, it is Sections 131 and 137 of the Constitution of the Federal Republic of Nigeria that are applicable. See PDP v. INEC (2014) 17 NWLR (pt.1437) 525; Kakih v. PDP (2014) 15 NWLR (pt. 1430) 424-425, Ucha v. Onwe (2011) 4 NWLR (pt. 1237) 386 at 427 and Captain Idris Ichaila Wada & Or v. Yahaya Bello & Ors (2016) LPELR 41263 (CA). Thus, where election has been conducted and result declared, such election cannot be questioned on grounds of qualification save under Sections 131 and 137 of the Constitution, in the case of a Presidential election. This postulation is supported by Section 134(3) of the Electoral Act where it is stipulated that: “With respect to Subsection 1(a), a person is deemed to be qualified for an elective office and his election shall not be questioned on grounds of qualification if, with respect to the particular election in question, he meets the applicable requirements of Sections 65, 106, 131 or 177 of the Constitution and he is not, as may be applicable, in breach of Sections 66, 107, 137 or 182 of the Constitution.” As stated earlier, the applicable provisions are Sections 131 and 137 of the Constitution. It is clear from the plenitude of the pleadings in this petition, that the facts grounding the Petitioner’s claim of disqualification or non-qualification of the 3rd and 4th Respondents is hinged on double and invalid nomination of the 4th Respondent. I had pointed out earlier in the course of this Ruling that, the issue of qualification or disqualification of a candidate at an election is strictly a requirement of the Constitution. It is held by the Supreme Court in Alhassan & Anor v. Ishaku & Ors (2016) LPELR 40083 (SC) That: “…, by virtue of the provisions of Section 138(1)(a) of the Electoral Act, a Tribunal’s power to decide whether a person is qualified to contest an election is restricted to establishing the requirements of Section 177 and 182 of the Constitution against the adverse party. An Election Tribunal has no jurisdiction to inquire into the primaries of a political party.”

— H.S. Tsammani, JCA. APM v INEC & Ors. (2023) – CA/PEPC/04/2023

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