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THERE IS A REBUTTABLE PRESUMPTION THAT AN ELECTION RESULT DECLARED BY A RETUNING OFFICER IS CORRECT

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Election results are presumed by law to be correct until the contrary is proved. It is however a rebuttable presumption. In other words, there is a rebuttable presumption that the result of any election declared by a returning officer is correct and authentic and the burden is on the person who denies the correctness and authenticity of the return to rebut the presumption. (See Omoboriowo v Ajasin (1984) 1 SCNLR 108; Jalingo v Nyame (1992) 3 NWLR (Part 231) 538; Finebone v Brown (1999) 4 NWLR (Part 600) 613; Hashidu v Goje (2003) 15 NWLR (Part 843) 361 and Buhari v Obasanjo (2005) 13 NWLR (Part 941) 1).

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

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HISTORY OF THE EVIDENTIAL BURDEN OF NON-COMPLIANCE IN OUR ELECTORAL LAWS

This ground of non-compliance to the Electoral Act has been in all our Electoral Laws even from when we had parliamentary system of government. The Courts have over the years shed a lot of light on the requirement of the law in proving the allegation of non-compliance. A short chronicle of the decisions of our Courts will throw more light on the evidential burden of proving non-compliance. In BASSEY V. YOUNG (1963) LPELR-15465 (SC), BRETT JSC in the then Federal Supreme Court held as follows: “…Akinfosile v. ljose (1960) 5 F.S.C. 192, where the Court held that a petitioner who alleges in his petition a particular non compliance and avers in his prayer that the non-compliance was substantial must so satisfy the Court. If there should be any inconsistency between the two decisions, it is the decision of this Court that binds us, and it would appear to me that we are bound by the authority of Akinfosile v. ljose to hold that the petitioner must show both that irregularities took place and that they might have affected the result of the election.” In AWOLOWO V. SHAGARI & ORS (1979) LPELR-653 (SC), the Supreme Court of Nigeria in the 1979 election contest held per Obaseki JSC as follows: “Once a petitioner alleges a particular non-compliance and averred in his prayer that it was substantial it is his duty so to satisfy the Court or Tribunal having cognisance of the question. See AKINFOSILE v. IJOSE 5 FSC 92 AT 99 (a case dealing with Regulation 7 of the Elections (House of Representatives) Regulations 1958 which is in pari materia with Section 111 of the Electoral Decree 1977 as ………..to vitiate an election, the non-compliance must be proved to have affected the results of the election. See SORUNKE v. ODEBUNMI (1960) 5 FSC AT PP 177 AND 178, where Ademola, C.J.N, delivering the judgment of the Federal Supreme Court said: “Finally, in considering ….. whether the election was void under the Ballot Act, Lord Coleridge said at page 751 of the judgment: If this proposition be closely examined it will be found to be equivalent to this, that the non-observance of the rules or forms which is to render the election invalid, must be so great as to amount to a conducting of the election in a manner contrary to the principle of an election by ballot, and must be so great as to satisfy the tribunal that it did affect or might have affected the majority of the voters, or in other words, the result of the election. When Lord Coleridge refers to a majority of voters, he cannot mean to say that non-compliance may be overlooked unless it affects over half of the votes cast. He referred to a non compliance, which “affected the majority of voters, or in other words, the result of the election.” It cannot be doubted that here Lord Coleridge means that those electors wishing to vote who formed a majority in favour of a particular candidate must have been prevented from casting a majority of votes in his favour with effect. This does not require that all their votes must have been disallowed; it will be sufficient if enough of their votes are disallowed to give another candidate a majority of valid votes.” See also the cases of BUHARI & ANOR V. OBASANJO & ORS (2005) LPELR-815 (SC) and CPC V. INEC & ORS (2011) LPELR-8257 (SC).

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

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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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IF THE RESULT OF AN ELECTION IS NOT AFFECTED SUBSTANTIALLY, THE PETITION WILL FAIL

If there is evidence that despite all the non-compliance with the Electoral Act, the result of the election was not affected substantially, the petition must fail. In other words, the Election Tribunal, must, as a matter of law, dismiss the petition; and that accords with section 146(1) of the Electoral Act.

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

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ONLY A PRACTICE WHICH IS CONTRARY TO THE ELECTORAL ACT CAN BE A GROUND TO QUESTION AN ELECTION

As I stated earlier, the electronic transmission of results of an election is not expressly stated anywhere in the Electoral Act, but was only introduced by the 1st Respondent in its Regulations and Guidelines, 2022 and in the INEC Manual for Election Officials, 2023. By Section 134(2) of the Electoral Act, 2022 only an act or omission which is contrary to the Electoral Act, 2022 can be a ground for questioning an election. Thus, complaints relating to non-compliance with provisions of the Regulations and Guidelines or the Manual of Election Officials are not legally cognizable complaints for questioning an election. In interpreting Section 138(2) of the Electoral Act, 2010, which is similar to Section 134(2) of the extant Electoral Act, 2022, the Supreme Court held in NYESOM V PETERSIDE (supra), at page 66 67, paras. F-C, as follows: “The above provisions appear to be quite clear and unambiguous. While the Electoral Commission is duly conferred with powers to issue regulations, guidelines or manuals for the smooth conduct of elections, by Section 138(2) of the Act, so long as an act or omission regarding such regulations or guidelines is not contrary to the provisions of the Act itself, it shall not of itself be a ground for questioning the election.” See also: JEGEDE v INEC (2021) LPELR-55481(SC) at 25 – 26 at paras. A – D.

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

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

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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FRESH PRIMARY ELECTION IS NOT NEEDED FOR SUBSTITUTED VICE PRESIDENTIAL CANDIDATE

By the proviso thereto, the political party affected, is enjoined to conduct a fresh primary election for the purpose of producing a new or fresh candidate to submit to the Electoral Commission. The grouse of the Petitioner here is that, the 5th Respondent withdrew his nomination as Vice-Presidential candidate of 2nd Respondent but the 2nd Respondent did not conduct another primary election for the purpose of producing a new Vice-Presidential candidate within the 14 days prescribed by Section 33 of the Electoral Act. It should be remembered that by Section 142(1) of the 1999 Constitution, a Presidential candidate for election to the office of President has the sole discretion, authority or power of nominating his associate who shall run with him in the election as Vice-President. The choice or nomination of a Vice-Presidential candidate is, not the product of any primary election. Therefore, in my view, the requirement to conduct a fresh primary election does not apply to the nomination of a Vice-Presidential candidate. Thus, my Lord Augie, JSC highlighted the point in his contributory judgment in PDP v. INEC & 3 Ors (Exhibit X1) as follows: “No; the fourth Respondent was not required to buy any nomination Form. He was the second Respondent (APC’s) candidate at the election into the office of Senator representing Borno Central Senatorial District. But before the election could hold, he was nominated as the third Respondent’s associate, who is to occupy the office of Vice President. The fourth Respondent did not buy a nomination Form for the said office, and most importantly, did not contest any primary election in order to emerge as APC’s Vice-Presidential candidate.”

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

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