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INVALID NOMINATION PROCESS CANNOT PRODUCE A VALID CANDIDATE FOR AN ELECTION

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It is my thinking, and I hold the firm view on this, that by Section 29(1) of the Electoral Act 2022, the sponsorship referred to in Section 65(2)(a) & (b) of the Constitution of Nigeria 1999 (as amended), means nothing else than a valid sponsorship by a political party. It cannot be otherwise. Thus, a sponsorship by a political party which results from an invalid nomination process would be incapable of meeting the stringent requirement of Section 65 (2) (a) & (b) of the Constitution of Nigeria 1999 (as amended). Therefore, a person who is shown to have emerged from an invalid primary or nomination process of a political party as required by law is not and cannot be said to have been sponsored by that political party since such a sponsorship is invalid by virtue of Section 65 (2) (a) & (b) of the Constitution of Nigeria 1999 (as amended), and I so hold firmly. The law is and has always been, that a primary election of a political party conducted in contravention of the provisions of Section 84 (5) (c) (i) of the Electoral Act 2022, as where for instance such a primary election of the 2nd Appellant for a Federal Constituency was on 25/5/2022 at the Aladinma Shopping Mall, Owerri, Imo State a location outside the Ehime Mbano Ihitte Uboma Federal Constituency, is a nullity and of no legal consequence whatsoever. It follows therefore, a candidate who purportedly emerges from such an illegal primary election is not and cannot be said to be qualified to contest an election conducted under the Electoral Act 2022 by INEC. He remains disqualified for all purpose and if inadvertently declared and returned elected in an election conducted by INEC, which on its own has no power to disqualify him, and if he is challenged before an Election Tribunal, his declaration and return would be nullified and the candidate with the second highest lawful votes cast at the questioned election would be declared and returned at the winner of such an election by the Election Tribunal, or this Court where the lower Tribunal fails to do so. See Section 136 (2) and (3) of the Electoral Act 2022. See also Hon. Jerry Alagbaoso v. Independent National Electoral Commission & Ors. (2023) LPELR-59702 (SC), Hon. Nnamdi Thankgod Ezeani v. Jones Onyeneri & Ors. (2023) LPELR-59701(SC).

— B.A. Georgewill JCA. Okeke, PDP v. Nwachukwu, Labour Party, INEC (CA/ABJ/EP/IM/HR/86/2023, November 04, 2023)

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WITNESS DEPOSITION NOT FILED BY A WITNESS AS AT THE TIME OF FILING THE PETITION WILL NOT BE COUNTENANCED

Peoples’ Democratic Party v. Chibuzor Okogbuo & Ors (2019) LPELR-48989 (CA) at p.24-25, when it said (per Orji-Abadua, JCA) that: “What is deducible is that Witness Deposition filed by a witness not listed in the Petition cannot be countenanced by the Court or Tribunal after the expiration of the time prescribed for the filing of the Petition. It was stressed by this court therein that to allow a Petitioner to file an additional witness statement at any stage of the Election proceedings would destroy the regulated environment that must exist to ensure that both parties to the petition are expeditiously heard and the Petition determined within 180 days from the date of the Petition. This court observed that such an indulgence would remove the control of the pace of the proceedings from the control of the Constitution, the Electoral Act and the First Schedule to the Electoral Act and leave it at the whim of the parties and open the floodgate for all kinds of abuses of the judicial process.”

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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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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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PETITIONER IN AN ELECTION MUST PROVE NONCOMPLIANCE FIRST

In Buhari v Obasanjo (2005) 13 NWLR (Part 941) 1, when the case came to the Supreme Court on appeal, the court held that where an allegation of non-compliance with the electoral law is made, the onus lies on the petitioner firstly to establish the non-compliance, and secondly, that it did or could have affected the result of the election. It is after the petitioner has established the foregoing that the onus would shift to the respondent whose election is challenged, to establish that the result was not affected.

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NON-QUALIFICATION IS A GROUND TO NULLIFY THE RETURN OF A CANDIDATE IN AN ELECTION; IT IS NOT A PRE-ELECTION MATTER

This is so because issues of non-qualification of a candidate to contest an election are cognizable grounds in an Election Petition challenging the
29 declaration and return of the person so declared and returned by INEC, and in such a claim, the 1st Respondent, though not a member of the 2nd Appellant and having also not participated in the primaries of the 2nd Appellant, would have the requisite locus standi to challenge, in an Election Petition, the valid nomination and sponsorship of the 1st Appellant as candidate of the 2nd Appellant, a locus standi he would have lacked if the claims were in a pre – election matter before the Federal High Court for being a mere busy body dabbling into the internal affairs of the 2nd Appellant. Thus, whilst the issue of nomination of a candidate cannot be questioned by a person who is neither a member of the affected political party and who did not also participate in the questioned primary election and nomination of a candidate in a pre-election matter by reason of lack of requisite locus standi, yet the same issue of valid nomination and sponsorship by a political party as required by Section 35 of the Electoral Act 2022 can rightly ground a complaint in an Election Petition before the lower Tribunal and the issue of locus standi would not operate against such 30 a person and so also would the jurisdiction of the lower Tribunal not be ousted by the mere fact that the person so challenging the qualification of the other person declared and returned as the winner of the questioned election is not a member of the political party of the other person so declared and returned as winner and had also not participated in the alleged primary of that political party that had thrown up the other person as the candidate of his political party. It follows therefore, if a claim such as the one filed by the 1st and 2nd Respondents, which I hold was competently before the lower Tribunal, which also had the requisite jurisdiction to hear and determine it according to law, is made out it would result into the nullification of the declaration and return of the 1st Appellant, having not been validly sponsored as the candidate of a political party and thus, not qualified to contest the questioned election. The only way out of all these is simply the entrenchment of internal democracy and obedience to the provisions of both their constitution and guidelines by all the registered political parties in Nigeria in the due conduct of their affairs.

— B.A. Georgewill JCA. Okeke, PDP v. Nwachukwu, Labour Party, INEC (CA/ABJ/EP/IM/HR/86/2023, November 04, 2023)

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IMPORTANCE OF AUTHENTIC REGISTER OF VOTERS

Again, let me pause here to observe that the importance of an authentic Register of voters for an open and transparent election process cannot be underestimated. Not only that the candidate who intends to contest in a particular election is required to be a registered voter as per the Register of voters, also a person who is minded to cast his vote in an election must be a Registered Voter as per the register of voters to be enabled to cast his vote in an election.

— C.M. Chukwuma-Eneh, JSC. Akeredolu v. Mimiko (2013) – SC. 352/2013

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