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GROUND TO PROVE OVER VOTING

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The law is well settled that in order to prove over-voting, the petitioner must do the following: (i) tender the voters register; (ii) tender the statement of results in appropriate forms which would show the number of registered accredited voters and number of actual votes; (iii) relate each of the documents to the specific area of his case in respect of which the documents are tendered; and (iv) show that the figure representing the over-voting if removed would result in victory for the petitioner. See Haruna v. Modibbo (2004) All FWLR (Pt. 238) 740, (2004 ) 16 NWLR (Pt. 900) 487;Kalgo v. Kalgo (1999) 6 NWLR (Pt. 608 ) 639; Audu v. INEC (No. 2) (2010) 13 NWLR (Pt. 1212) 456; Shinkafi v. Yari (unreported) SC.907/2015 delivered on 8/1/2016; Yahaya v. Dankwambo (unreported) SC.979/2015 delivered on 25/1/2016.

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

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election

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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INEC RESULTS VIEWING PORTAL IS NOT A COLLATION SYSTEM

From the above functions of the BVAS, it is clear to me that, apart from using the BVAS to scan the physical copy of the polling unit result and upload same to the Result Viewing Portal (iReV), there is nothing in the Regulations to show that the BVAS was meant to be used to electronically transmit or transfer the results of the Polling Unit direct to the collation system. It should be noted that INEC Results Viewing Portal (IReV) is not a collation system. The Supreme Court in OYETOLA V INEC (2023) LPELR-60392(SC) has explained the difference between the Collation System and the IReV. In that case, Agim, JSC held as follows: “As their names depict, the Collation System and the INEC Result Viewing Portal are part of the election process and play particular roles in that process. The Collation System is made of the centres where results are collated at various stages of the election. So the polling units results transmitted to the collation system provides the relevant collation officer the means to verify a polling unit result as the need arises for the purpose of collation. The results transmitted to the Result Viewing Portal is to give the public at large the opportunity to view the polling unit results on the election day.”

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

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PROCESSES THAT MUST BE FOLLOWED FOR A SUCCESSFUL ELECTION

Let me underline here that in the conduct of an election, certain processes must have been walked over to conclude and confirm that the election was conclusive. The steps outlined by the law must not be broken. These steps are: (a) Accreditation (b) Conduct of poils (c) Counting of votes (d) Collation and announcement of results (e) Signing of result forms (f) Publication of results.

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

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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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FAILURE TO JOIN A PARTICULAR PARTY WILL NOT WARRANT STRIKING OUT OF ENTIRE PETITION

The other argument of note of 2nd Respondent in this application is the one of failure of petitioners to join Friday Adejoh and Governor Yahaya Bello of Kogi State and its effect on the petition. We have already struck out the relevant paragraphs of the petition where allegations of malpractice were made against the two men. We abide by that decision. We shall simply add that we do not agree with 2nd respondent’s argument that the entire petition merits dismissal for non-joinder of those two men. The proper sanction, in the circumstances of this case as we have already pointed out citing Nwankwo v. Yar’Adua (2010) 12 NWLR (Pt. 1209) 518 @ 583 paras G-H. (SC), is to strike out the paragraphs of the petition where those allegations were made. That order, we also further add, and contrary to the argument of 2nd Respondent, will not affect the paragraphs where allegations were made against unnamed thugs.

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

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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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