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ORDINARY COURTS HAVE JURISDICTION IN PRE-ELECTION MATTERS

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The same approach adopted by the Respondents in Amaechi’s case was also adopted in the instant case. The belief was that if elections were conducted that would put an end to the appellants case or “kill his case”. The jurisdiction of ordinary court in pre-election matters is sacrosanct and the holding of such an election when the action was pending would not deprive the ordinary court of its jurisdiction to conclude the matter, even to the appeal court. It is to be noted that the appellant in this case took steps immediately he was aware of this substitution. He instituted this action before the conduct of the election and had been steadfast, believing in the judicial process that justice would be done. He did not stand by and allowed the party to be heard to fight for the election and therefore seek to take the benefit of the result of the election by proceeding to seeks for the enforcement of his right after the election. All what I have been labouring to state is that he did not sleep over his right. If this action had been instituted after the conduct and declaration of the election I would have held that the jurisdiction of the trial court to hear the pre-election matters has been over taken by event.

– Coomassie JSC. Odedo v. INEC (2008)

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

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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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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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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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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PURPORT OF A FREE AND FAIR ELECTION

A free and fair election is one in which all eligible voters who are willing to vote are given every opportunity to cast their votes which must be counted and declared for the candidate of their choice. See the case of JIMOH VS ADEKUNLE (1991) 1 LRECN 123. The essence of democratic elections, it has been held, is that they be free, fair and that in that atmosphere of freedom, fairness and impartiality, citizens will exercise their freedom of choice of who their representatives shall be by casting their votes in favour of those candidates who, in their deliberate judgment, they consider to possess the qualities which mark them out as preferable candidates to those others who are contesting with them. See the case of OJUKWU VS ONWUDIWE & ORS (1984) 1 S 15 AT 91. The above essential tenets of democratic elections are fundamentally negatived by election rigging.

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

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ELECTION SHALL NOT BE INVALIDATED BY MERE REASON THAT IT WAS NOT CONDUCTED SUBSTANTIALLY; IT MUST SHOW THAT IT AFFECTED THE ELECTION RESULT

In Buhari v Obasanjo (2005) 13 NWLR (Part 941) 1, Belgore, JSC, said at page 191:– “It is manifest that an election by virtue of section 135(1) of the Act shall not be invalidated by mere reason it was not conducted substantially in accordance with the provisions of the Act, it must be shown clearly by evidence that the non-substantiality has affected the result of the election. Election and its victory, is like soccer and goals scored. The petitioner must not only show substantial non-compliance but also the figures, i.e. votes, that the compliance attracted or omitted. The elementary evidential burden of ‘The person asserting must prove’ has not been derogated from by s.135(1). The petitioners must not only assert but must satisfy the court that the non-compliance has so affected the election result to justify nullification.”

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