Election Petition – Reinstatement of A Person Who Rightfully Won an Election.

Introduction:

Election matters are very sensitive as they are of paramount significance to all parties concerned: the electorates in particular, who are directly involved; as well as the generality of the Nigerian populace. It should not therefore be treated as if it were a matter of private concern and only limited to the inner caucus of political parties. By its very nature, the subject is that which ought to be treated with all utmost transparency, openness, honesty and seriousness. Per Salami, P.C.A in FAYEMI v. ONI (2010) 17 NWLR (Pt.1222) at p.348.

Candidates in an election are sponsored by political parties. It is the political party that participated in the conduct of an election that is the winner or the loser and not the candidates sponsored by the political parties. Sometimes, the goodwill of a candidate being sponsored in an election may contribute to the victory of the political party in an election section 221 of the 1999 Constitution of the Federal Republic of Nigeria does not recognize an independent candidate contesting in elections. See AMAECHI v. INEC (2008) 5 NWLR (Pt.1080) 227.

Section 34 of the Electoral Act, 2006 is designed to check the excesses of the political party arbitrarily substituting candidates who have fought for and worked hard to emerge as the party’s candidate in the primary elections. The section seeks to put sanity in the political system. The days have gone when godfatherism was used to determine candidates who emerge as the party candidates instead of those who succeeded at the primary conducted to elect candidates from the grassroot. It puts confidence in a successful candidate from the primaries that once he is elected, his party cannot on its own whims and caprices substitute him for a less popular and credible candidate without adducing cogent and verifiable reasons for such substitution.

From the provision of section 34 of the Electoral Act, 2006, it is clear that any political party wishing to change or substitute its candidate in an election must fulfill certain conditions.

The duty to change, substitute and/or replace a candidate in an election is that of the political party. The act of substitution out of necessity is that of the political party in which the candidate has no role to play. A person who wins a primary election would not take the issue of substituting him/her with another candidate lightly and as such, a political party who intends to change him or her must ensure that it complies with the statutory provisions of section 34 of the Electoral Act, 2006. Thus, the obligation of giving or providing cogent and verifiable reasons in its application to substitute or replace any candidate for any election under the Electoral Act 2006 lies squarely on the shoulders of a political party wishing to effect the change. There is no obligation whatsoever on INEC or the court to which any complaint on the compliance or otherwise with section 34 of the Electoral Act, 2006, may be brought, to look outside the application for the relevant facts and reasons for wanting to effect the change or substitution of candidates. Two things can be deduced from the above principle of law as follows:

1. The obligation of proving that the provision of section 34 of the Electoral Act, 2006 is complied with by a political party which effected the change or sought the change of its candidate in any election is that of the political party which effected the change or sought the change; and
2. It is neither the duty of INEC nor the court to provide any extraneous evidence to explain the reason or reasons for the substitution, except the reason stated in the application for change.

Where a court of law comes to the conclusion that the substitution of a candidate for an election was not in compliance with section 34 of the Electoral Act, 2006, it will declare it a nullity. See UGWU v. ARARUME (2007) 12 NWLR (Pt.1948) 367.

Please note that, section 285 of the 1999 Constitution provides for jurisdiction of Election tribunals. See ODEDO v. INEC (2008) 17 NWLR (Pt.117) 563.

ON FUNCTIONS OF INDEPENDENT NATIONAL ELECTORAL COMMISSION:

The Independent National Electoral Commission by its statutory existence is an independent body with constitutional powers to conduct elections in Nigeria and therefore has the duty to defend any election it conducted. The function of the Commission by statutory provision is one of an umpire in the conduct of an election. The body should never place itself in a position where imputations may be made that it supports one party or the other in an election. The officials of the Commission should be neutral and not be partisan in favour of any candidate. No matter the allegations made against it, the Commission should remain fair and focused. It is not expected of the Commission to appeal from the election cases but should leave candidates to fight their own battle. It is in the interest of the electoral process that the Commission and its officials should remain as neutral as possible in election cases as its primary responsibility is to conduct free and fair elections regardless of who wins.  As an impartial body in the eyes of the law, it must stand by the result of the election, no matter the circumstance. A partisan role played by the Independent Electoral Commission is contrary to the electoral law. It would be better for the Commission to have exemplified its constitutional role as an unbiased and impartial umpire. See OLOFU v. ITODO (2010) 18 NWLR (Pt.1225) 556.

ON WHO CAN CANCEL, WITHDRAW OR INVALIDATE AN ELECTION RESULT:

The provisions of section 59 (c) of the Electoral Act, 2002 state that the decision of the Returning Officer on any question arising from or relating to declaration of scores of candidates and the return of a candidate shall be final subject to review by a tribunal or court in an election petition proceeding under the Act. See SOWEMIMO v. AWOBAJO (1999) 7 NWLR (Pt. 610) 335; BAWA v. BALARABE (1996) 6 NWLR (Pt.605) 61; OKUNOLA v. OGUNDIRAN (1962) 1 ALL NLR 83.

ON PROCEDURE FOR VOTING AT ELECTION:

Ordinarily, no person seeking to vote at an election under the Electoral Act, 2006 shall be served with voting paper if he failed to produce a voter’s card and his name is not on the voter’s register. See AGAGU v. MIMIKO (2009) 7 NWLR (Pt.1140) 360.

By virtue of section 40 (1) and (2) of the Electoral Act, 2002, every person intending to vote shall present himself to a presiding officer at the polling unit within the constituency in which his name is registered with his voter’s card. The presiding officer shall on being satisfied that the name of the person is on the register of voters issue him a ballot paper and indicate on the register that the person has voted. Emphasis should be on section 40 (2) of the Act which requires that a presiding officer should be satisfied that the name of the person who intends to vote is on the register of voters rather than on section 40 (1) which stipulates that the intending voter should rely on the voter’s card he is holding. If emphasis is placed on presentation of cards rather than the physical presence of the voter, incidence of impersonation at the polling center will be more. If the name of a carrier of a voter’s card is not on the register of votes he certainly will not be allowed to vote. Blunders or misstates are bound to take place from time to time and voter’s cards can easily get into wrong hands.

507. By steps 2, 5 and 6 of chapter 5 of the Manual for Election Officials issued by the Independent Electoral Commission pursuant to the Electoral Act, 2002, is a person does not have a voter’s card, the poll clerk shall ask the person’s name, address and age and for other information contained in the register. If the poll clerk is satisfied that the person’s name is in the register, the poll clerk shall then proceed to make a mark on the left of the voter’s name in the register to indicate that he or she will be voting in the election. The poll clerk shall then give the voter’s card to the poll assistant. See HARUNA v. MODIBBO (2004) 16 NWLR (Pt.900) 507.

The concept of election denotes a process constituting accreditation, voting, collation, recording on all relevant INEC forms and declaration of results. The collation of all results of the polling units making up the wards and the declaration of results are the constituent elements known to law. See FAYEMI v. ONI (2010) 17 NWLR (Pt.1222) 339; INEC v. RAY (2004) 14 NWLR (Pt.892) 92; INEC v. OSHIOMOLE (2009) 4 NWLR (Pt.1132) 607; AJADI v. AJIBOLA (2004) 16 NWLR (Pt. 898) 91.

A person who claims to have voted without a voter’s card cannot be said to have voted lawfully, because such act of voting is contrary to provisions of section 19 and 50 of the Electoral Act, 2006. See AGAGU v. MIMIKO (2009) 7 NWLR (Pt.1140) 360.

ON WHO MAY PRESENT ELECTION PETITION:

By virtue of the provision of section 144 (1) of the Electoral Act, 2006, an election petition may be presented by one or more of the following persons:

1. A candidate in an election;
2. A political party which participated in the election.

A person who secured the nomination of his party and whose name was submitted to the body statutorily charged with the responsibility for the conduct of an election and accepted as a nominated candidate is entitled to petition under section 144 (1) (a) of the Electoral Act, 2006, if he is precluded from partaking in or excluded from the election. See PROGRESSIVE PEOPLE ALLIANCE v. SARAKI (2007) 17 NWLR (Pt.1064) 453; INDEPENDENT NATIONAL ELECTORAL COMMISSION v. A.C (2009) 2 NWLR (Pt. 1126) 524.

A person who was duly nominated by his political party and whose name was substituted to the Independent National Electoral Commission as a candidate and whose name was published pursuant to section 35 of the Electoral Act does not cease to be a candidate for the purpose of filling an election petition simply because he had been disqualified. He is entitled to defend the right which had enured to him as a candidate.

A political party can present an election petition complaining of valid nomination but unlawful exclusion. See ASINYA v. INDEPENDENT NATIONAL ELECTORAL COMMISSION (2005) 16 NWLR (Pt. 950) 157; IDRIS v. ALL NIGERIAN PEOPLES PARTY (2008) 8 NWLR (Pt.1088) 1.

ON WHAT ELECTION PETITION MUST CONTAIN:

An election petition must comply with paragraphs 4 (1) (c) of the First Schedule to the Electoral Act, 2002.

According to the said paragraph, an election petition must state:

1. The holding of an election;
2. The scores of the candidates, and;
3. The person returned as the winner of the election.

The condition required flow one from each other and none of which could be taken in isolation. It is therefore mandatory that for a person to be returned as the winner of an election the scores must be known and stated. Equally, no knowledge of such scores would be possible without a candidate, seeking to be declared, having effectively participated in an election. See ENEMUO v. DURU (2004) 9 NWLR (Pt.877) 83.

ON POWER OF COURT TO DECLARE A CANDIDATE IN AN ELECTION AS ELECTED:

Adjudication in election matters would normally revolve around documentary evidence in most cases. It is part of the resolution of election disputes to cancel unlawful credited votes in appropriate circumstances. See FAYEMI v. ONI (2010) 17 NWLR (Pt.1222) 339. An election tribunal or court can declare as elected the candidate who is shown to have scored the majority of lawful votes cast at the election as provided by section 149 (2) of the Electoral Act, 2006. See EJIOGU v. IRONA (2009) 4 NWLR (Pt.1132) 513.

ON PROPER ORDER TO MAKE WHERE CANDIDATE RETURNED AS ELECTED WAS NOT DULY ELECTED:

By virtue of section 147 (1) and (2) of the Electoral Act, 2006, if the tribunal or court, as the case may be, determines that a candidate who was returned as elected was not validly elected on any ground, the tribunal or the court shall nullify the election. But, if the tribunal or the court determines that a candidate who was returned as elected was not validly elected on the ground that he did not score the majority of valid votes cast at the election, the tribunal or the court, as the case may be, shall declare as elected the candidate who scored the highest number of valid votes cast at the election and who satisfied the requirement of the Constitution and the Act. See AGAGU v. MIMIKO (2009) 7 NWLR (Pt.1140) 368.

ON EFFECT OF NULLIFICATION OF AN ELECTION:

The effect of nullification of an election is that the return of a candidate at the election was null and void and of no legal consequence. The candidate’s tenure of office could not therefore not be calculated from the date he took oath of office in respect of an invalid election. See EHIRIM v. I.S.I.E.C (2008) 15 NWLR (Pt.1111)456.

ON POWER OF THE INDEPENDENT NATIONAL ELECTORAL COMMISSION TO POSTPONE AN ELECTION:

By virtue of section 16(1) of the Electoral Act, 2002, where a date has been appointed for the holding of an election, an there is reason to believe that a serious breach of the peace is likely to occur if the election is proceeded with on that date or if it is impossible to conduct the election as a result of natural disaster or other emergencies, the commission may postpone the election and shall in respect of the area, or areas concerned, appoint another date for the holding of the postponed election. The petitioner who alleges that such a situation exists must prove so by credible evidence. See AYOGU v. NNAMANI (2006) 8 NWLR (Pt.981) 167.

ON HOW ELECTIONS ARE ANNOUNCED:

Election results, either primary or the actual election, are announced in accordance with the person or persons who score the highest votes. See ODEDO v. INEC (2008) 17 NWLR (Pt.1117) 575.

ON ESSENCE OF TIME IN ELECTION MATTERS:

Election petitions are sui generis and time is of essence in view of the tenure of the office which the parties are contesting. See BABALOLA v. SUNDAY (2009) 3 NWLR (Pt.1128)419.

In an election petition, where time is of essence of the proceedings, once the time prescribed for the doing of an act has elapsed, the defect becomes fatally incurable. This is in line with section 132 of the Electoral Act, 2002 and section 141 of the Electoral Act, 2006, which states that an election petition under the Act shall be presented within thirty (30) days from the date the result of the election is declared. See EMESIM v. NWACHUKWU (1999) 3 NWLR (Pt.5960 590; OLANIYONU v. AWAH (1989) 5 NWLR (Pt.122) 493; IBAKU v. EBINI (2010) 17 NWLR (Pt.1222) 297.

By virtue of section 1 of the Interpretation Act, 1990, the Act shall apply to the provisions of any enactment in so far as the contrary intention appears in the Act or the enactment in question. See IBAKU v. EBINI (2010) 17 NWLR (Pv.1222) 297.

Also, by virtue of section 15 (2) (a) of the Interpretation Act, a reference in an enactment to a period of days shall be construed where the period is reckoned from a particular event, as excluding the day on which the event occurs. See P.D.P v. HARUNA (2004) 16 NWLR (Pt.900) 601.

The golden rule of interpretation is that where the words of a statute are clear and unambiguous, the courts must adopt the literal and plain ordinary meaning and must not resort to any aid or any other cannon of interpretation. See UWAIFO v. A.G BENDEL STATE (1983) 4 NCLR 1; S.P.D.C v. ISAIAH (1997) 6 NWLR (Pt.508) 236; ELABANJO v. DAWODU (2006) 15 NWLR (Pt.1001) 76; OBI v. INEC (2007) 11 NWLR (Pt.1046) 565.

ON CLASSES OF ELECTION PETITION:

There are two classes of election petition which are:

1. A petition under the Constitution; and
2. A petition under the Electoral Act.

Under the former, certain things are permissible but not the latter.

ON WHAT ELECTION PETITION MUST CONTAIN:

By virtue of paragraph 4 910 of the First Schedule to the Electoral Act, 2002, an election petition under the Act shall:

1. Specify the parties interested in the election petition;
2. Specify the right of the petitioner to present the election petition;

• State the holding of the election, the scores of the candidates and the person returned as the winner of the election, and

1. State clearly the facts of the election petition and the ground or grounds on which the petition is based and the relief sought.

 

ON GROUND UPON WHICH ELECTION MAY BE QUESTIONED:

By virtue of the provisions of section 145 (1) (d) of the Electoral Act, 2006, and section 134 (1) and (2) of the Electoral Act, 2002, an election may be questioned on the ground that the petitioner or its candidate was validly nominated but was unlawfully excluded from the election. The above cited sections spell out the grounds for challenging an election. It provides that an election may be questioned on any of the following grounds:

1. That a person whose election is questioned was, at the time of the election, not qualified to contest the election;
2. That the election was invalid by reason of corrupt practices or non-compliance with the provisions of the Act;

• That the respondent was not duly elected by majority of lawful votes cast at the elections;

164. That the petitioner or its candidate was validly nominated but was unlawfully excluded from the election. See HARUNA v. MODIBBO (2004) 16 NWLR (Pt.900) 501; P.D.P v. HARUNA (2004) 16 NWLR (Pt. 900) 601; AYOGU v. NNAMANI (2006) 8 NWLR (Pt.981) 164.

A petitioner challenging an election result on the ground of falsity of result is required to plead inter alia two sets of results. The first would be the genuine or correct result while the other would be the false result. It is the two sets of results that would be compared to determine the falsity or otherwise of the results. For a petitioner to assert that the figures in the result of an election were falsified is not sufficient to sustain an allegation of falsification of election result. See OJO v. ESOHE (1999) 5 NWLR (Pt. 603) 444; AGBAJE v. FASHOLA (2008) 6 NWLR (Pt.1082) 90; ADUN v. OSUNDE (2003) 16 NWLR (Pt.847) 643; BUHARI v. OBASANJO (2005) 2 NWLR (Pt.910) 241; YUSUF v. OBASANJO (2005) 18 NWLR (Pt.956) 96; MOGHALU v. NGIGE (2005) 4 NWLR (Pt.914) 1.

A petitioner alleging non-voting must call a voter from each polling booth in the affected constituency as witnesses to tender their voter’s card and testify that they did not vote on the day of election. Evidence of non-voting in a particular polling booth is provable by production of voter’s register, production of voter’s cards and the oral evidence of registered voters who were available and turned up to vote at their respective polling booths on the day of the election but could not vote for a variety of reasons. See CHIME v. ONYIA (2009) 2 NWLR (Pt.1124) 1; BIYU v. IBRAHIM (2006) 8 NWLR (Pt.981) 1; AWUSE v. ODILI (2005) 16 NWLR (Pt.952) 416. Over-voting arises when more than the registered numbers of votes are cast in a polling station. See AUDU v. I.N.E.C (2010) 13 NWLR (Pt.1212) 468.

In order to prove over-voting, the registers of voters, ballot boxes containing ballot papers and statement of result from affected polling stations must be tendered in evidence. See KALGO v. KALGO (1999) 6 NWLR (Pt.608) 639; HARUNA v. MODIBBO (2004) 16 NWLR (Pt.900) 487. A petitioner who alleges inflation of figures must prove his allegation by giving particulars of inflated figures and also show that if the inflated figures were deducted from the figures credited to his opponent, the result would change in his favour. See ANOZIE v. OBICHERE (2006) 8 NWLR (Pt.981) 140.

ON NATURE OF ELECTORAL OFFENCES:

The general rule is that the onus is on a petitioner to prove that there were such malpractices and non-compliance which prevented him from winning the election. A petitioner in an election who alleges in his petition, a particular non-compliance must satisfy the court that the non-compliance is substantial and affects substantially the result of the election in accordance with the provisions of section 135 (1) of the Electoral Act, 2002. See KUDU v. ALIYU (1992) 2 NWLR (Pt.231) 615.

Electoral offences are criminal in nature and generally, like civil cases, the burden of proof lies on the person who would fail if no evidence at all were given on either side. See HARUNA v. MODIBBO (2004) 16 NWLR (Pt.900) 501.

Where a petition is based on allegation of incidents of fraudulent acts, mutilation of results or falsification of results, the allegation is criminal in nature and the evidence required in proof thereof must be clear and unambiguous. The proof must be beyond reasonable doubt. See UWAWAH v. ETELU 1 FSC 263/961. Malpractices in an election include over-voting, riggings, ballot box stuffing, snatching and or stealing. When proved, the whole election is rendered void. See SERIKI v. ARE (1999) 3 NWLR (Pt. 595) 469.

ON EFFECT OF NON-COMPLIANCE WITH THE PROVISION OF THE ELECTORAL ACT ON AN ELECTION:

By virtue of section 146 (1) of the Electoral Act, 2006, an election shall not be liable to be invalidated by reason of non-compliance with the provisions of the Electoral Act, if its appears to the election tribunal or court that the election was conducted substantially in accordance with the principles of the Act and that the non-compliance did not affect substantially the result of the election. For non-compliance with the electoral rules to render an election invalid, it must be so great and substantial and the court or tribunal must be satisfied that it affected the majority of votes or the result of the election. See A.N.P.P v. I.N.E.C (2010) 13 NWLR (Pt. 1212) 555; BUHARI v. OBASANJO (2005) 2 NWLR (Pt.910) 241; ADEOLA v. OWOADE (1999) 9 NWLR (Pt.617) 30; NA-GAMBO v. N.E.C (1993) 1 NWLR (Pt.267) 94; SORUNKE v. ODEBUNMI (1960) 1 SCNLR 414; UWAWAH v. EKWEJUNOR-ECHIE (1962) 1 SCNLR 157; DADA v. DOSUNMU (2006) 18 NWLR (Pt.1010) 134.

Where a petitioner makes non-compliance with the provisions of the Electoral Act the foundation of his complaint, he is fixed with the heavy burden to prove before the Electoral Tribunal, by cogent and compelling evidence that the non-compliance is of such a nature as to affect the result of the election. He must show and satisfy the tribunal that he is a victim of the alleged malpractices. See HUTE v. I.N.E.C (1999) 4 NWLR (Pt.599) 360; NABATURE v. MAHUTA (1992) 9 NWLR (Pt.263) 105; AWOLOWO v. SHAGARI (1979) 6-9 SC 51;

Electoral offence or offences alleged in an election petition must have been committed by the respondent or by someone authorized by him. The petitioner owes it as a basic duty to prove that no other individual other than the respondent committed the acts or that he authorized his agents to commit the nefarious acts on his behalf. Until there is credible evidence in that direction, the respondent cannot be held criminally liable for the alleged criminal acts. The principle has long been established that no one is punished for the crime of another and it has its maxim as nemo punitur pro alieno delicto. See ANAZODO v. AUDU (1999) 4 NWLR (Pt.600) 530; EBOH v. OGYIFOR (1999) 3 NWLR (Pt.595) 419; ESEDUWO v. I.N.E.C (1999) 3 NWLR (Pt.594) 215; OYEGUN v. IGBINEDION (1992) 2 NWLR (Pt.226) 474.

Thuggery and violent disruption of election are criminal acts. It must be shown that the person causing acts of thuggery was an agent of the candidate. See BALAMI v. BWALA (1993) 1 NWLR (Pt.267) 55.

Thuggery and violent disruption of election are criminal acts, and a nexus between the perpetrators and the candidate must be established by credible evidence it must be shown that the act adversely affected the result of the election. It must be shown that the person causing the acts of thuggery was an agent of the candidate. See OGU v. EKWEREMADU (2006) 1 NWLR (Pt.961) 255; NNACHI v. IBOM (2004) 16 NWLR (Pt.900) 614; AJADI v. AJIBOLA (2004) 16 NWLR (Pt.898) 91.

ON COMPOSITION AND QUORUM OF ELECTION TRIBUNAL:

The combined effect of section 285 (3) and (4) of the 1999 Constitution, paragraph 1 (1) of the sixth schedule of the Constitution and paragraphs 24 (2) and 26 (2) of the First Schedule to the Electoral Act, 2006 is that an election tribunal shall consist of five members with a quorum of three members at any sitting. The tribunal will thus be duly constituted if it consists of at least three members inclusive of the Chairman. In the absence of the Chairman of the tribunal who commenced the proceedings, the Act gives the new Chairman the discretion to recommend and continue the proceedings. See NGIGE v. OBI (2006) 14 NWLR (Pt.999) 1; MARK v. ABUBAKAR (2009) 2 NWLR (Pt.1124) 79; AGAGU v. MIMIKO (2009) 7 NWLR (Pt.1140) 362. The jurisdiction of the election tribunal is confined, limited and restricted by the provision of paragraph 49 (2) and (5) of the First Schedule to the Electoral Act, 2006. See A.N.N LTD. v. F.R.N (1985) 2 NWLR (Pt.6) 137.

ON WHETHER CRIMINAL ACTS OF A POLITICAL PARTY CAN AFFECT ELECTION OF ITS CANDIDATE:

Even if a political party engaged in criminal activities which would disqualify a candidate, it cannot affect the candidate unless it is established and shown that the candidate authorized or ratified the offending conduct. In other words, for the activities of thugs to affect the result of an election, it must be shown that the thugs were the agents of the candidate that won the election and that they acted with his consent. See FALAE v. OBASANJO (NO.2) (1999) 4 NWLR (Pt.599) 476; NGIGE v. OBI (2006) 14 NWLR (Pt.999) 1; ANOZIE v. OBICHERE (2006) 8 NWLR (Pt.981) 140.

The most basic and conclusive proof of an allegation of over-voting is the voter’s register, the basic of which whether or not over-voting had indeed taken place can be determined. Any testimony of the shortage of or of excess votes can only be ascertained when it is compared with the solid facts in the voter’s register. See HARUNA v. MODIBBO (2004) 16 NWLR (Pt.900) 501.

In an election petition where there is allegation of stuffing of ballot boxes, the ballot boxes in which the ballot papers were allegedly stuffed must be tendered before the tribunal and opened there. It is only when the ballot boxes are tendered before the tribunal and opened before it that such an allegation is sustainable.

ON BURDEN OF PROOF IN AN ELECTION PETITION:

There is a presumption that the result of any election as declared by the electoral body is correct and authentic, and the onus lies on the person who denies the correctness and authenticity to rebut the presumption with credible evidence. See EZEAZODOSIAKO v. OKEKE (200) 16 NWLR (Pt.952) 612; ONYE v. KEMA (1999) 4 NWLR (Pt.598) 198; ABARAONYE v. EMEANA (2008) 10 NWLR (Pt.109) 496; MOHAMMED v. MOHAMMED (2008) 6 NWLR (Pt. 1082) 73; OKOLUGBO v. ISEI (2006) 8 NWLR (Pt. 982) 303; CHIME v. ONYIA (2009) 2 NWLR (Pt.1124) 1.

He who asserts must prove. Thus, a party who pleads and asserts the existence of a fact bears the burden of proving same. He bears both the onus and the burden of proof. See FASOGBON v. LAYADE (1999) 11 NWLR (Pt. 625) 543; MBUKURTA v. ABBO (1998) 6 NWLR (Pt. 554) 456.

In an election petition, a petitioner who alleges non-compliance with the electoral rules or the Electoral Act has two-fold burden on him to prove and satisfy the tribunal, namely:

1. That the alleged non-compliance occurred or took place; and
2. That the non-compliance affected the result of the election.

The burden of proving the invalidity of an election by reason of non-compliance with the provisions of the Electoral Act is on the petitioner.

Where a petitioner grounds his petition on non-compliance with the Electoral Act, falsification of results and such other conducts, which in themselves constitutes criminal offences, the burden he places on himself is much higher than he otherwise would be called upon to discharge. Such a petitioner’s burden is one to be discharged beyond reasonable doubt. See OKONKWO v. ONOVO (1999) 4 NWLR (Pt.597) 110.

Charges of corrupt practices are in nature criminal and ought to be proved beyond reasonable doubt. It is not sufficient to show that there has been a corrupt practice. A petitioner who alleges that an election is invalid by reason of corrupt practices must prove the incidents of the acts complained of. See CHIME v. ONYIA (2009) 2 NWLR (Pt.1124) 1.

ON WHAT PETITIONER MUST PROVE WHERE HIS ELECTION PETITION IS FOUNDED ON COMMISSION OF ELECTORAL OFFENCES:

Section 131 and 136 – 138 of the Electoral Act, 2006 which created electoral offences on the basis of which a petitioner seeks the nullification of s respondent’s return make relief available only to a petitioner who proves the commission of offences by the person whose election is ought to be nullified or by such other persons authorized by him. Thus, where an election petition is founded on the commission of electoral offences, the proof of the following is required:

1. The commission of the alleged electoral offences beyond reasonable doubts;
2. That the alleged offences were committed personally by the person returned or that the person returned aided or abetted the commission of the offences;
3. That person other than the person returned who perpetrated the electoral offences were his agents or had been authorized by him;
4. That electoral offence were only substantial but had further substantially affected the outcome of the election. See KALU v. UZOR (2006) 8 NWLR (Pt.981) 66; WALI v. BAFARAWA (2004) 16 NWLR (Pt.898) 1; OYEGUN v. OBASANJO (1992) 2 NWLR (Pt.226) 747; BUHARI v. OBASANJO (2005) 13 NWLR (Pt.941) 1; EKECHI v. OKAH (1993) 1 NWLR (Pt.267) 34; AMAECHI v. INEC (2008) 5 NWLR (Pt.1080) 227.
5. In order to prove allegations of corrupt practices during an election beyond reasonable doubt, a petitioner must lead concrete evidence showing that:
6. The respondent personally committed the corrupt acts or aided, abetted, counseled or procured the commission of the alleged acts of corrupt practices;
7. The alleged acts were committed through an agent, that the agent was expressly authorized to act in that capacity or granted general authority; and

• The corrupt practices substantially affected the outcome of the election and how it affected it. See AUDU v. I.N.E.C (2010) 13 NWLR (Pt.1212) 471.

Where an allegation of the commission of crime has not been proved beyond reasonable doubts, all possible doubts must be resolved in favour of the person accused of committing such crime. See KALU v. STATE (1988) 4 NWLR (Pt.90) 503; OKONJI v. STATE (1987) 1 NWLR (Pt.52) 659; A.D. v. FAYOSE (2005) 10 NWLR (Pt.932) 151.

ON WHEN ELECTED CANDIDATE IS LIABLE FOR CORRUPT PRACTICES AT AN ELECTION:

An elected candidate cannot have his election nullified on the ground of corrupt practices or any other illegality committed in the process of the election unless it can be proved that the candidate expressly authorized the illegality. See INUKAN v. JUBELI (1998) 12 NWLR (Pt.579) 587; YUSUF v. OBASANJO (2005) 18 NWLR (Pt.956) 96; HARUNA v. MODIBBO (2004) 16 NWLR (Pt.900) 487; ANAZODO v. AUDU (1999) 4 NWLR (Pt.600) 530; HALI v. ATIKU (1999) 5 NWLR (Pt.602) 186; EKPE v. MORAH (1999) 9 NWLR (Pt.617) 146.

Irregularities at an election which are neither the act of a candidate nor linked to him cannot affect his election. See AGOMO v. IROAKAZI (1998) 10 NWLR (Pt.568) 173; OYEGUN v. IGBINEDION (1992) 2 NWLR (Pt.226) 747.

ON WHAT CONSTITUTES ELECTORAL OFFENCES OF UNDUE INFLUENCE AND PUNISHMENT:

By virtue of section 129 of the Electoral Act, 2002, a person who;

1. Directly or indirectly, by himself or by another person on his behalf makes use of or threaten to make use of any force, violence or restraint;
2. Inflicts or threatens to inflict by himself or by any other person, any temporal or spiritual injury, damage, harm or loss on or against a person in order to induce or compel that person to vote or refrain from voting or on account of such person having voted of refrained from voting; or
3. By abduction, duress or fraudulent device or contrivance, impedes or prevents the free use of the vote by a voter or thereby compels, induces or prevails on a voter to give or refrain from giving his vote;
4. By preventing any political aspirant from free use of the media, designated vehicles, mobilizations of political support and campaign at an election;

Commits an offence of undue influence and is liable on conviction to a fine or imprisonment. He shall in addition be guilty of corrupt practice under section 122 of the Act and be disqualified as a candidate in the election.

By virtue of section 122 (1) and (2) of the Electoral Act, 2002, any person who is convicted of an offence under that part of the Act which amounts to corrupt practice or is convicted of aiding, abetting, counseling or procuring the commission of the offence shall, in addition to any other penalty, be disqualified for a period of four years from the date of his conviction from being:

1. Registered as a voter or voting at any election; and
2. Elected under the Act or if elected before his conviction, from retaining the office to which he was elected.

For the purpose of the section, a candidate shall be deemed to have committed a corrupt practice if it was committed with his knowledge and consent or the knowledge and consent of a person who is acting under the general or special authority of the candidate with reference to the election. See HARUNA v. MODIBBO (2004) 16 NWLR (Pt.900) 501.

ON WHO IS RESPONSIBLE FOR CONDUCT OF ELECTION AND RESOLUTION OF CONFLICTS ARISING THEREFROM:

The Independent National Electoral Commission is the official body constitutionally responsible for the conduct of elections while the Election Tribunal is the body constitutionally responsible for the trial and resolution of any conflict arising from the elections conducted by INEC. See Emeka v. Emodi (2004) 16 NWLR (Pt.900) 436.

ON WHO DECLARES THE RETURN OF A CANDIDATE IN AN ELECTION:

By virtue of section 59 (1) of the Electoral Act, the decision of the returning officer on any question arising from or relating to declaration of scores of candidates and return of a candidate is final subject to review by a tribunal or court in an election petition proceedings under the Act.. See Emeka v. Emodi (2004) 16 NWLR (Pt.900) 436.

ON POWER OF POLITICAL PARTY TO NOMINATE CANDIDATE OR CHANGE OR SUBSTITUTE CANDIDATE FOR ELECTION:

It is a constitutional requirement that a candidate has to contest an elective post on the platform of a political party. An independent candidate cannot contest for an elective post in an election under Nigerian electoral law. Thus, the issue of nomination of a candidate for an election by a party is very important and sensitive step in any electoral process. The prerogative to choose any candidate and nominate him or her to contest on the platform of a party belongs to that party. In an election, it is usually an intra party, political and domestic affair of that party, which the courts have no jurisdiction to entertain. See ONUOHA v. OKAFOR (1983) 2 SCNLR 244; DALHATU v. TURAKI (2003) 15 NWLR (Pt.843) 310; JANG v. INEC (2004) 12 NWLR (Pt.886) 146.

A political party has the power to nominate a candidate for any election without interference from the court, the matter being strictly within the domestic jurisdiction of the political party. Nomination of a candidate for election is either by original act of a political party or by way of substitution. See OLOFU v. ITODO (2010) 18 NWLR (Pt.1225) 553.

Where a person is to be substituted for a nominated candidate, the law has laid down certain conditions that the political party seeking the substitution has to fulfill to make the venture a success. Under section 34 of the Electoral Act, 2006, the political party has to inform the Independent National Electoral Commission of the change in writing not later than sixty (60) days to the election in question and must give cogent and verifiable reasons for desiring the change or substitution.

Section 34 (1), (2) and (3) of the Electoral Act, 2006 for sound reasons employs the word “shall” in the enactment to put an end to the usual arbitrariness with which political parties change their candidates. Breach of conditions stipulated in section 34 (1) and (2) is now justiciable. The time limit makes the provision justiciable. See AMAECHI v. INEC (2008) 5 NWLR (Pt.1080) 227; UGWU v. ARARUME (2007) 12 NWLR (Pt.1048) 367; AGBAKOBA v. INEC (2008) 18 NWLR (Pt.1119) 489.

ON WHETHER POLITICAL PARTY CAN CHANGE OR SUBSTITUTE ITS CANDIDATE AFTER ELECTION:

There is not provision in any Nigerian electoral laws for the substitution of candidates after an election. It is political recklessness for a party to change its candidate after an election or to deprive a winning candidate of the certificate of return.  Such an act shows lack of understanding of the democratic system. See OLOFU v. ITODO (2010) 18 NWLR (Pt.1225) 556.

ON NATURE OF ELECTION PETITION:

Election petitions are sui generis and therefore may not be strictly departmentalized into civil or criminal proceedings. It is not a criminal trial in which the accused person can remain silent. Like in a civil matter, an election petition is fought and won on the preponderance of evidence adduced. Every contestant is entitled to use whatever legal means available to it to extinguish the fires of the opponent. See MADUABUM v. NWOSU (2010) 13 NWLR (Pt.1212) 631; EMEKA v. EMODI (2004) 16 NWLR (Pt.900) 436.

An election petition is a proceeding being sui generis are expected to be conducted expeditiously and should not be treated as normal civil proceedings. It is conducted under the peculiar provisions of relevant electoral laws and is not particularly related to the ordinary rights and obligations of the parties concerned. See BUHARI v. YUSUF (20030 14 NWLR (Pt.841) 446.

ON APPLICATION OF COMMON LAW PRINCIPLE TO ELECTION PETITION ON WHO IS A NECESSARY PARTY:

The principle of the common law relating to who is a necessary party to a suit is inapplicable to election petitions because section 133 (2) of the Electoral Act, 2002 makes specific provision as to who mandatorily should be made parties to an election petition. See P.D.P v. ABUBAKAR (2004) 16 NWLR (Pt.900) 461.

ON WHO IS A NECESSARY RESPONDENT TO AN ELECTION PETITION:

Under section 133 (2) of the Electoral Act, 2002 the three classes of persons who may be made respondents to an election petition are:

1. The person whose election is complained of; that is, the successful candidate at the election;
2. An electoral officer, a presiding officer, or a returning officer whose conduct in the election is complained of;
3. Any other person who took part in the conduct of the election whose conduct is complained.

By section 133 (2), the joinder of a political party as a respondent in an election petition is not mandatory and its non-joinder does not render the petition incompetent. See OBASANJO v. BUHARI (2003) 17 NWLR (Pt.850) 510; BUHARI v. YUSUF (2003) 14 NWLR (Pt.841) 446; EGOLUM v. OBASANJO (1999) 7 NWLR (Pt.611) 355.

ON WHETHER NECESSARY TO JOIN PERSON RETURNED AS A RESPONDENT IN ELECTION PETITION:

By virtue of section 131 (2) of the Electoral Act, the person elected or returned should be joined in an election petition. Only such a person can be described as a compulsory statutory respondent. All other respondents are joined only if the petition complains of their conduct in the discharge of duties assigned to them at the elections. See BUHARI v. YUSUF (2003) 14 NWLR (Pt.841) 446.

ON WHEN TWO OR MORE CANDIDATES MAY BE MADE RESPONDENTS TO THE SAME PETITION:

By virtue of paragraph 45 of the 1^st Schedule to the Electoral Act, 2002, where two or more candidates may be made respondents to the same petition and their case may, but for all purposes (including the taking of security) the election petition shall be deemed to be a separate petition against each of the respondents. See EMEKA v. EMODI (2004) 16 NWLR (Pt.900) 436.

For further legal assistance on election matters, do not hesitate to contact the author:

Kingsley Izimah, Esq.

Principal Partner,

SK Solicitors

0806-809-5282

www.sk-solictorsng.com

[email protected] or

[email protected]