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TO PROVE NON-COMPLIANCE MUST ALSO SHOW THAT NON-COMPLIANCE AFFECTED THE RESULTS OF THE ELECTION

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It is basic that for a petition to succeed on non-compliance with the provision of the Electoral Act the petitioner must prove not only that there was non-compliance with the provisions of the Act, but also that the non-compliance substantially affected the result of the election. See: Section 139 of the Electoral Act 2010, as amended. Put in other words, the petitioner has to prove:- (1) That there was non-compliance. (2) That the non-compliance substantially affected the result of the election. The above have been variously pronounced in the cases of Buhari v. INEC (2008) 19 NWLR (Pt. 1120) 246 at 435; Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) 1 at 80; Akinfosile v. Ijose (1960) SCNLR 447; Awolowo v. Shagari (1979) 6-9 SC 51; CPC v. INEC & Ors. (2011) 12 SCNJ 644 at 710.

— J.A. Fabiyi, JSC. Akeredolu v. Mimiko (2013) – SC. 352/2013

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PROVING NON-COMPLIANCE IN AN ELECTION

Any Petitioner who complains that the result as declared is either wrong or not in compliance with the Electoral Act has the onus of proving the contrary: see NYESOM V. PETERSIDE (2016) LPELR-40036 (SC). This case was relied upon by the Supreme Court in the case of ANDREW & ANOR V. INEC (2017) LPELR 48518 (SC) where the Supreme Court held per Onnoghen, J.S.C. (as he then was) as follows: “…Secondly, one of the main planks on which the petition is based is non-compliance with the provisions of the Electoral Act, 2010 (as amended). For one to succeed on that ground, it is now settled law that where a petitioner alleges non compliance with the provisions of the Electoral Act, he has the onus of presenting credible evidence from eye witnesses at the various polling units who can testify directly in proof of the alleged non-compliance See Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) 1 at 315 316: Buhari v. INEC (2008) 18 NWLR (Pt.1120) 246 at 391 392: Okereke v. Umahi (2016) 11 NWLR (Pt.1524) 438 at 473. Nyesom v. Peterside (2016) 7 NWLR (Pt. 1512) 452, etc.”

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

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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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GROUND; GROUND FOR QUESTIONING AN ELECTION

It is trite law, that a Petitioner is required to question an election on any of the grounds set out in Section 134 (1) of the Electoral Act, 2022. For ease of reference, Section 134(1) of the Electoral Act, 2022 provides as follows: “An election may be questioned on any of the following grounds – a. A person whose election is questioned was at the time of the election not qualified to contest the election; b. The election was invalid by reason of corrupt practices and non-compliance with the provisions of this Act; or c. The Respondent was not duly elected by majority of lawful votes cast at the election. What then is the meaning of the word “ground”? In the case of KALU VS CHUKWUMERIJE (2012) 12 NWLR (PT. 1315) 425 AT 485, the Court of Appeal per Owoade, JCA puts it succinctly, thus: “The Compact Edition of the Oxford English Dictionary (1971) US reprint (1988) defines the word “Ground” in numerous terms and with an array of examples at pages 1214 to 1225 as follows: “Ground”: (a) The fundamental constituent or the essential part of anything. (b) A fundamental principle, also the elements or rudiments of any study or branch of knowledge. (c) A circumstance on which an opinion, inference, arguments, statement or claim is founded, or which has given rise to an action, procedure or mental feeling, a motive often with additional implication. A valid reason justifying motive or what is alleged as such.” Thus, a ground in the context of an election petition, is the fundamental reason, basis or justification for questioning the election. Before a party can question an election, his petition must fall within the grounds specified by the Electoral Act 2022. See the following cases: OYEGUN VS IGBENEDION & ORS (1992) 2 NWLR (PT. 226) 947; OKONKWO VS INEC & ORS (2003) 3 LRECN 599; ABUBAKAR VS INEC (2020) 12 NWLR (PT. 1737); and MODIBO VS USMAN (2020) 3 NWLR (PT. 1712) 470.

— A. Osadebay, J. APC v INEC & Ors. (EPT/KN/GOV/01/2023, 20th Day of September, 2023)

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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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WHERE CIVIL AND CRIMINAL INGREDIENTS ARE INTERTWINED IN AN ELECTION PETITION

I take the line of thought of the respondents in that it is not enough to allege, non-compliance with the Electoral Act, the Petitioner now Appellant ought to establish by concrete evidence not only the non-compliance but that it was substantial to vitiate the election. Nothing other than that would suffice. Also the petitioner cannot run away from his responsibility on the burden of proof and on-whom it lies. In the present circumstances, the allegations are civil in character as well as criminal and so intertwined or interwoven as to make severance of one genre from the other which is impossible. Therefore the standard of proof must be of the higher standard which is beyond reasonable doubt. It is when the petitioner has discharged the onus on this that the burden can shift to the respondents to see how far he can go to impugn such a rock solid evidence put forward by the appellant. That is the prescription of law in practice and there is no running away from it See Awofowo v Shaman (1979) 1 ALL NLR 120 at 126: Buhari v Obasanjo (2005) 13 NWLR (Pt. 941).

— M. Peter-Odili, JSC. Akeredolu v. Mimiko (2013) – SC. 352/2013

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IN ELECTION PETITION, RECOURSE TO THE FHC RULES IS SUBJECT TO THE ELECTORAL ACT

Specifically, any recourse to the Federal High Court (Civil Procedure) Rules must be “subject to the express provisions” of the Act. It follows that it is only where the Electoral Act or First Schedule does not provide for a particular situation that reference would be made to the Federal High Court (Civil Procedure) Rules with necessary modification.

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

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