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

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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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IRREGULARITIES FOR THE PURPOSE ELECTIONS MUST BE COMPELLING TO VOID THE ELECTION

Nigeria is one vast and huge country made up of so many diversities in terms of tribes, cultures, sociology, anthropology and above all, quite a number of political parties (some large, some small). These diversities, coupled with the usual aggressiveness of Nigerians arising particularly from the do or die behaviour in politics; there must be irregularities. Courts of law must therefore take the irregularities for granted unless they are of such compelling proportion or magnitude as to “affect substantially the result of the election.” This may appear to the ordinary Nigerian mind as a stupid statement but that is the law as provided in section 146(1) of the Electoral Act and there is nothing anybody can do about it, as long as the Legislature keeps it in the Electoral Act. The subsection is like the rock of Gibraltar, solidly standing behind and for a respondent to an election petition. I am not saying that a Presidential Election can never succeed in the light of section 146(1). No. It can if the petitioner discharges the burden the subsection places on him.

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

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THE PROVISIONS OF THE FEDERAL HIGH COURT CIVIL PROCEDURE RULES ARE SUBJECT TO THE EXPRESS PROVISIONS OF THE ELECTORAL ACT

Permit me to still say a word or two of my own on Petitioners’ contention that Order 3 Rules 2 and 3 of the Federal High Court (Civil Procedure) Rules 2019 permitting parties to file witness deposition of a subpoenaed witness even after commencement of their action applies automatically to election petitions by virtue of Paragraph 54 of the First Schedule to the Electoral Act 2022, so the Witnesses statement of their witnesses filed by them after hearing of the petition had long commenced were in order. In the first place, Paragraph 54 of the First Schedule to the Electoral Act 2022 simply states as follows: Subject to the express provisions of this Act, the practice and procedure of the Tribunal or the Court in relation to an election petition shall be as nearly as possible, similar to the practice and procedure of the Federal High Court in the exercise of its civil jurisdiction, and the Civil Procedure Rules shall apply with such modifications as may be necessary to render them applicable having regard to the provisions of this Act, as if the petitioner and the respondent were respectively the plaintiff and the defendant in an ordinary civil action. (Italics ours) This provision clearly makes application of the Civil Procedure Rules of the Federal High Court in election petitions subject to the express provisions of the Electoral Act.” It is not the other way round of modifying provisions of the Act to agree with the Rules of the Federal High Court as suggested by Petitioners’ counsel. That much, Paragraph 54 further clarifies by stating that even where the Federal High Court Rules are considered applicable, they “shall [only] apply with such modifications as may be necessary to render them applicable having regard to the provisions of this Act.” What all that means is that, where there is express provision in the Act on a particular situation, as it clearly is in Paragraph 4(5)(b) of the First Schedule to the Electoral Act 2022 that says the election petition shall be accompanied by Written statements on oath of the witnesses,” the provisions of the Federal High Court (Civil Procedure) Rules will not apply.

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

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IRREGULARITY MUST SUBSTANTIALLY AFFECT THE ELECTION

Chief Awolowo v Alhaji Shagari (1979) 6–9 SC 37. In his contribution to the majority judgment, Qbaseki, JSC said at pages 82 and 84:– “There is no evidence that the non compliance with section 34A(1)(c)(ii) one of the provisions of Part II has affected the result i.e. but for the non-compliance, the petitioner would have won, to enable the tribunal declare the result invalid. The petitioner pleaded a substantial non-compliance i.e. failure to obtain one-quarter of the votes cast in each of at least two-thirds of all the States in the Federation. But the evidence established this non-compliance in only one State. In other words, the evidence established that the first respondent obtained in each of the 12 States one-quarter or more of the votes cast but did not in the 13th State in Kano State. The third respondent claimed that first respondent received 25% of the votes in 2/3 Kano State. There is no evidence of counting in 2/3, Kano State… In this appeal, the appellant has failed to satisfy the tribunal and this Court that the non-compliance has affected the result of the election or has prevented a majority of votes in his favour with effect, and for that reason the appeal must fail.”

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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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THE WHOLE CONCEPT OF SUI GENERIS NATURE OF ELECTION PETITION

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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SPONSORSHIP OF A CANDIDATE FOR AN ELECTION IS AN INTERNAL AFFAIR OF THE PARTY

The courts have held in a plethora of cases that the issue of membership of a political party is an internal affair of the political party. It has been consistently held, that it is only the party (in this case, the 3 rd Respondent), that has the prerogative of determining who are its members and the 3 rd Respondent, having sponsored the 2 nd Respondent as its candidate for the Governorship Election in Kano State on the 18 th of March 2023, the 2 nd Respondent has satisfied the requirement of being a member of the 3 rd Respondent as provided for in S134 (1) (a) of the Electoral Act 2022. Consequently, it has been held, that is not within the right of the Petitioner at this stage and after the nomination, sponsorship of the 2 nd Respondent by the 3 rd Respondent as its candidate, to question the 2 nd Respondents membership of the 3 rd Respondent, as it is an internal affair of the party.

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

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