Legalpedia Citation: (2023-12) Legalpedia 16046 (CA)

In the Court of Appeal

Holden At Sokoto

Sat Dec 16, 2023

Suit Number: CA/S/EP/HR/SK/47/2023

CORAM

Ebiowei Tobi Justice, Court of Appeal

Ademola Samuel Bola Justice, Court of Appeal

Peter Chudi Obiora Justice, Court of Appeal

PARTIES

INDEPENDENT NATIONAL ELECTORAL COMMISSION

APPELLANTS

 

1. YUSUF UMAR YABO
2. PEOPLES DEMOCRATIC PARTY
3. UMARU ABUBAKAR
4. ALL PROGRESSIVES CONGRESS

 

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, ELECTION PETITION, EVIDENCE, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The election which gave rise to the Petition was conducted on the 25th day of February, 2023. On the 26th day of February, 2023, the Returning Officer for the election declared and returned the 1st respondent of the Peoples Democratic Party, as the winner of the election. However, on the 28th day of February, 2023, the Returning Officer reviewed the election and declared it inconclusive having regard to the margin of lead between the two leading candidates. As it turned out, and ostensibly, the appellant agreed with the report of the Returning Officer and declared the election inconclusive along with other elections for the Senate and House of Representatives conducted across all the Senatorial Districts and Federal Constituencies in Sokoto State and set down the 15th day of April, 2023 for supplementary elections.

The said supplementary election did not hold for the House of Representatives on the 15th day of April, 2023 and the appellant later issued a Certificate of Return dated 17th April, 2023 and presented on the 19th April, 2023 to the 1st respondent confirming him as the winner of the election.

The 3rd and 4th respondents, as petitioners, challenged the declaration and return of the 1st respondent by filing a Petition on the sole ground that the election of the 2nd respondent was invalid by reason of non-compliance with the provisions of the Electoral Act, 2022.

The trial Tribunal delivered its judgment upholding the petition and ordered the appellant to conduct supplementary elections in 26 polling units in the Yabo/Shagari Federal Constituency of Sokoto State within 90 days of the judgment and declare the winner and dismissed preliminary objections made by the appellant and the 1st and 2nd respondents challenging its jurisdiction to entertain the petition.

The appellant was dissatisfied with the judgment of the trial Tribunal and appealed to this Court.

HELD

Appeal dismissed

 

ISSUES

1. Whether the trial Tribunal was right when it held that until 17th April, 2023 when the appellant issued the 1st Respondent Certificate of Return and not 26th February, 2023, the date when the actual declaration and return was made, the 21 days allowed by Section 285(5) of the Constitution for the filing of an election petition will begin to run?
2. Whether the trial Tribunal was right in determining the sole ground of the petition of non-compliance with the provisions of the Electoral Act, 2022, declared the election inconclusive and ordered supplementary election into the office of member, Federal House of Representatives for Yabo/Shagari Federal Constituency of Sokoto State in 26 polling units specified within 90 days?

 

RATIONES DECIDENDI

CERTIFICATE OF RETURN – THE TIME FRAME FOR ISSUING A CERTIICATE OF RETURN

On the import of a certificate of return, Section 72(1) of the Electoral Act, 2022 provides that:

“A sealed certificate of return at an election in a prescribed form shall be issued within 14 days to every candidate who has been returned by the returning officer in an election under this Act.” – Per P. C. Obiorah, JCA

 

MARGIN OF LEAD – THE OPERATION AND EFFECT OF THE MARGIN OF LEAD PRINCIPLE

The margin of lead principle for Federal Constituency election is enshrined in Paragraph 75 of the Regulations and Guidelines for the Conduct of Elections, 2022 and states as follows:

“Where the margin of lead between the two leading candidates is not in excess of the total number of collected PVCs of the Polling Unit(s) where election was not held or was cancelled in line with Sections 24, 47 and 51 of the Electoral Act, the Returning Officer shall decline to make a return until polls have been conducted in the affected Polling Units and the results incorporated into a new Form EC8D(II) and subsequently recorded into Form EC 8E(II) for Declaration and Return.”

The above provision is clear and unambiguous. My understanding of this clear provision is that where the election was cancelled or not held in certain polling units, meaning that there are no results from those polling units, the registered voters will not be disenfranchised but must be given the opportunity to vote, particularly when their number is in excess of the margin of win between the two leading candidates. The obvious rationale being that the outcome of the election in the affected polling units can swing the victory to either side.

In Effiom v. Bassey & Ors (2022) LPELR-58652 at 17, paras. B-F, Georgewill, JCA in affirming the effect and application of the ‘Margin of Lead Principle’ held as follows:

“In law, the principle of ‘Margin of Lead’ would readily arise after the final results had been collated at the Constituency level at which time the person who scored the majority of lawful votes would be disclosed before the ‘Margin of Lead’ can be determined to warrant postponement of the declaration of the final result and a winner for the purpose of conducting supplementary elections in the affected polling units or wards to determine the overall winner when the results of such postponed elections are added to the subsisting results. See Faleke v. INEC (2017) 3 NWLR (Pt. 1543) 16. See also Sharta Benjamin Elohor & Anor v. Independent National Electoral Commission & Ors (2019) LPELR-48806(CA), per Sir Biobele Abraham Georgewill JCA, Oputa v. Ishida (1992) 1 LRECN 140, Ejike v. Ezeugwu (1992) 4 NWLR (Pt. 236) 462.

See also PDP v. Okogbuo & Ors (2019) LPELR-48989(CA) and Mohammed Aliyu Sarkin Kasuwa & Anor v. INEC & Ors, Appeal No. CA/G/EPT/HR/YB/06/2023, judgment delivered on the 2nd day of November, 2023 (unreported) per Peter Obiorah, JCA. – Per P. C. Obiorah, JCA

 

CASES CITED

STATUTES REFERRED TO

1.Constitution of the Federal Republic of Nigeria 1999 (as amended)

2. Electoral Act, 2022
3. Regulations and Guidelines for the Conduct of Elections, 2022

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