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THE WHOLE CONCEPT OF SUI GENERIS NATURE OF ELECTION PETITION

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Tobi, J.S.C., in his lead judgment in Buhari v, INEC (2008) LPELR-814 (SC) p. 97 paragraph A-B: “The whole concept of Election Petition being sui generis, in my view, is to project the peculiarity of the reliefs sought, the time element and peculiar procedure adopted for the hearing of the petition and all that.”

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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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PRE-ELECTION MATTER CANNOT BE STALLED BECAUSE ELECTION IS OVER

So, does the mere holding of an election and the declaration of a winner or even the swearing in of a winner into office alone render a pre – election matter duly commenced and pending before a Court of competent jurisdiction to become merely academic and or over taken by events and thus liable to be struck out? In law whether a pre-election matter is academic or not is dependent on the facts giving rise to the pre-election matter and if those facts or issues remain live, then the pre – election would be determined on its merit notwithstanding whether or not the election has been held and or the outcome of the election.

– B.A. Georgewill, JCA. Ganiyu v. Oshoakpemhe & Ors. (2021) – CA/B/12A/2021

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ELECTION RIGGING REFERS TO

Basically, election rigging refers to electoral malpractices which are palpable illegalities such as over voting, disruption of election, emergency declaration, violence, non-conduct of election, disenfranchisement of voters, voters resistance to the use of BVAS or BVAS by pass and so on, which no doubt will substantially affect the result of any election in any civilized jurisdiction and therefore translate to non-compliance with the provisions of the Electoral Act.

— A. Osadebay, J. APC v INEC & Ors. (EPT/KN/GOV/01/2023, 20th Day 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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ANY ACTION RELATING TO THE PROCESS OF AN ELECTION FALLS WITHIN THE JURISDICTION OF THE ELECTION TRIBUNAL

Ohakim v Agbaso (2011) ALL PWLR (Pt. 553) 1806 at 1846 per Onnoghen JSC where he state as follows: “it is necessary that everything connected will the process leading to the election including the actual election and its aftermath come within the jurisdiction of election tribunal. That will stem the tide of parties trying to pursue election related matters in parallel courts which will only result in conclusion, a gleam of which can be seen in the Sokoto State Gubernatorial election petition saga, in any event, it is my considered view that since the action concerned on election conducted on 14th April 2007 by the appropriate authority whether inchoate or not, the proper court with jurisdiction to entertain any action arising therefrom or relating thereto is the relevant election tribunal established by the Constitution of this country as the matter is not a pre-election matter neither can it be accommodated under the procedure of judicial review. Section 164 of the Electoral Act 2006 defines election as meaning any election held under this Act and includes a referendum. It is therefore beyond doubt that what took place on 4th April, 2007 in Imo State in particular was an election and as such any action relating to the processes leading thereto including the actual conduct of the event or its cancellation fall within the jurisdiction of the election tribunal by operation of law and no other court or tribunal is clothed with jurisdiction to entertain it in any guise.”

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