CORAM

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THERESA N. ORJI-ABADUA JCA

MOHAMMED BABA IDRIS JCA

HANNATU LAJA-BALOGUN JCA

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PARTIES

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1. AUWALU UMAR

2. ALL PROGRESSIVES CONGRESS (APC)

APPELLANTS 

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1. INDEPENDENDENT NATIONAL ELECTORAL COMMISSION

2. HALILU HABIBU MODACHI

3. PEOPLES DEMOCRACTIC PARTY (PDP)

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, ELECTION, EVIDENCE, PRACTICE AND PROCEDURE

 

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SUMMARY OF FACTS

The Petitioners claimed that the election of 18th March, 2023 in respect of Isa State Constituency Sokoto State for 14 Polling Units/awards listed in their petition was characterized, to a large extent, by non-compliance with the provision of the Electoral Act, 2022 and the Guidelines and Regulations for the conduct of the General Election conducted by the 1st Respondent. The noncompliances stated by the Petitioners include failure the of the Collation Officer to fill Form EC40G upon the cancellation of results, failure to limit themselves to the record of accreditation in the BVAS and the results transmitted directly from the polling units, failure to consider the total number of the PVCs collected in the areas for purpose of determining the margin of lead principle, that the total number of votes cast and the number of accredited votes recorded in the respective form EX8A(1) for these polling units in issue does not tally with the number of accredited voters on the record of the Bimodal Voters Accreditation System (BVAS) and that the total number of votes cast in the units as collated in Form EC8A(1) by the 1st Respondent does not reflect the true and accurate number of voters duly accredited by BVAS, improper accreditation of voters in the said polling units and permitting those without accreditation to vote which they alleged have substantially affected the results of the election and therefore liable to be voided by reasons of the non-compliance.

Judgment which was delivered in favour of the Respondents. Dissatisfied with the said judgment delivered by the Trial Tribunal, the Appellants appealed to this Court.

 

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HELD

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Appeal dismissed

 

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ISSUES

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1 Whether given the evidence before it, both oral and documentary, and the nature of the Appellants’ Petition before the Tribunal, the trial Tribunal was not in grave error in holding that the Appellants (now Appellants) failed to prove over voting and that PW1 – PW10 are not witnesses of truth?

2 Whether the Appellants have not discharged the burden of proof placed on them by law in respect of substantial non-compliance with the Electoral Act and the manual and guidelines for election and whether the recording of Cancelled in Exhibit P12 amounts to substantial non-compliance with the Electoral Act in the circumstances of the Appellants’ Petition?

 

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RATIONES DECIDENDI

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PETITION – BURDEN OF PROOF IN AN ELECTION PETITION

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In an election petition, the burden of proof lies on the Petitioner whose duty it is, to adduce evidence for the purpose of tilting the scale of justice in his favor. In other words, where the Petitioner alleges, and fails to satisfy the burden of proof, he will not be entitled to judgment in his favor. See the case of P. D. P. VS. INEC (2022) 18 NWLR (PT. 1863) P. 698 AT PARAS C – D. –Per M. B. Idris, JCA

 

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DOCUMENTS – DOCUMENTS TO BE TENDERED BY A PETITIONER CHALLENGING LEGALITY OF VOTES CAST IN AN ELECTION

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A party who contests the legality or lawfulness of votes cast in an election and the subsequent result must tender in evidence all the necessary documents by way of forms and other documents used at the election. The documents must include those in which the results of the votes are recorded. Both forms and witnesses are vital for contesting the legality or lawfulness of the votes cast and the subsequent result of the election. See the case of NWAFOR CHRISTIAN O. VS. BARR NOMEH CHIKAODILI INNOCENT & ORS (2023) 13 NWLR (PT. 1900) 203, PARAS C – D.– Per M. B. Idris, JCA

 

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VOTER’S REGISTER – THE IMPORTANCE OF A VOTER’S REGISTER IN AN ELECTION

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Voters’ register is the foundation of any competent election. Without the voters’ register, it will be difficult to determine the actual number of voters in an election, and if the number of registered voters is not known, the court cannot determine whether the number of votes cast at the election are more than the voters registered to vote. Thus, to prove over-voting, the Petitioner must tender the voters’ register and Forms EC8A so as to work out the difference of excess votes easily. See the case of ADELEKE VS. OYETOLA (2023) 11 NWLR (PT. 1894) AT PAGE 119 – 120, PARAS H – B. – Per M. B. Idris, JCA

 

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PETITIONER – DUTY OF A PETITIONER WHO COMPLAINS OF NON-COMPLIANCE WITH THE PROVISIONS OF THE ELECTORAL ACT

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Where a Petitioner complains of non-compliance with the provisions of the Electoral Act, he has a duty to prove it polling unit by polling unit, ward by ward, and the standard required is proof on the balance of probabilities and not on minimal proof. The Petitioner must show figures that the adverse party was credited with as a result of the non-compliance. He must as well establish that the non-compliance was substantial and that it affected the election result.

See the case of UDOM VS. UMANA (NO. 1) (2016) 12 NWLR (PT. 1562) 234. – Per M. B. Idris, JCA

 

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EVIDENCE – EVIDENCE REQUIRED TO PROVE NON-ACCREDITATION, IMPROPER ACCREDITATION AND OVER VOTING

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By virtue of Sections 47(1) and 51(2) of the Electoral Act, 2022, Regulations 14, 18, 19(b) (i – Iv),

(e) (i – iii) and 48(a) of the INEC Regulations and Guidelines for the Conduct of Elections 2022, the evidence required to prove non-accreditation, improper accreditation and over voting under the Electoral Act 2022 are the Bimodal Voter Accreditation System (BVAS), the register of voters and the polling unit result in INEC Form EC8A. See the case of OYETOLA VS. INEC (2023) 11 NWLR (PT. 1894) PG. 168, 170, 171 AND 175 AT PARAS E – F, D – F, A – B AND E-H. It is glaring from the above provisions of the Electoral Act and the INEC Regulations and Guidelines that the evidence required to prove that voting was allowed without accreditation or that there was improper accreditation are the register of voters, BVAS and the polling unit result in Form EC8A. It is worth stating that in the event of a conflict between the record of accredited voters in the BVAS machine and ticked names in the register of voters due to human errors in the ticking of the names in the register of voters, the BVAS record shall prevail. Thus, under our electoral laws, particularly clause 19(b) of the Regulations and Guidelines for the Conduct of Elections, the Register of Voters is still relevant in conducting accreditation of voters and proving allegation of non-accreditation of voters. – Per M. B. Idris, JCA

 

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ELECTION – DUTY OF THE PRESIDING OFFICER WHERE AN ELECTION IS CANCELLED AT A POLLING UNIT

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By the provisions of paragraph 43 of the INEC Electoral Regulations and Guidelines for the Conduct of Elections, 2022, for an election cancelled at any polling unit, the Presiding Officer shall report same in writing to the Registration Area/Ward Collation Officer explaining the nature of the problem and the Collation Officer shall fill Form EC40G as applicable – Per M. B. Idris, JCA

 

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CASES CITED

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STATUTES REFERRED TO

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1. Electoral Act, 2022

2. INEC Regulation and Guidelines for the Conduct of Elections, 2022

3. INEC Manual for Election Officials 2023.

4. Evidence Act, 2011

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