Whether Failure to Fill Electoral Forms Can Invalidate Election

In the Supreme Court of Nigeria

Holden at Abuja

On Thursday, the 25th day of January, 2024

Before Their Lordships

Kudirat Motonmori Olatokunbo Kekere-Ekun

Uwani Musa Abba Aji

Mohammed Lawal Garba

Ibrahim Mohammed Musa Saulawa

Tijani Abubakar

Justices, Supreme Court

SC/CV/1193/2023

Between

Cole Tonye Patrick)                                                                                          APPELLANT

And

1. Independent National Electoral Commission (INEC)

2. Fubara Siminalayi RESPONDENTS

3. People’s Democratic Party (PDP)

(Lead Judgement delivered by Ibrahim Mohammed Musa Saulawa, JSC)

Facts

The Appellant and the 2nd Respondent keenly contested the Rivers State Gubernatorial elections of 18th March, 2023. The Appellant contested under the platform of the All People’s Congress, while the 2nd Respondent was a member of the 3rd Respondent. At the end of the election, the 2nd Respondent emerged victorious and was declared and returned as the winner with accredited 302,614 votes, while the Appellant had 95,274 votes.

Given the outcome of the election, the Appellant filed an Election Petition at the Governorship Election Petition Tribunal (the “Tribunal”), challenging the declaration and return of the 2nd Respondent (by the 1st Respondent) as the winner of the election. The Tribunal however, found the Election Petition to be lacking in merit, as the Appellant failed to discharge the burden of proof to establish the allegations of corrupt practices or non-compliance with the Electoral Act 2022.

Dissatisfied, the Appellant appealed to the Court of Appeal where he sought a total of seven reliefs. The Court of Appeal also dismissed the appeal and agreed with the Tribunal. Thereafter, the Appellant appealed the decision of the lower courts to the Apex Court.

Issues for Determination

 The Appellant raised four issues for determination:

(i) Whether the decision or evaluation of Exhibits GL, HB, KL, tendered by the Appellant in proof of the allegation of the non-qualification of the 2nd Respondent to contest the Rivers State Governorship Election of 18th March, 2023 by the Court of Appeal was not wrongful or erroneous and, therefore, occasioned a perverse judgement?

(ii) Whether the Court of Appeal was not in grave error when it failed to properly or correctly resolve the germane issue of the non-qualification of the 2nd Respondent to contest the election, by reason of his failure to comply with the clear provisions of Section 182(1)(g) of the 1999 Constitution?

(iii) Whether the Court of Appeal’s resolution of the failure of the 1st Respondent to comply with the mandatory provisions of Sections 73(2) of the Electoral Act 2022, which ought to have invalidated the Rivers State Governorship election held on 18th March, 2023, was in the circumstance, not perverse?

(iv) Having regard to the clear and unambiguous provisions of Section 137 of the Electoral Act 2022 vis-à-vis the evidence led during trial, whether the Court of Appeal was right in holding that the Appellant’s complaints of over-voting, unsigned alterations, non-stamping and non-signing of results, were not proved?

The 1st and 2nd Respondent formulated three issues for determination respectively (largely identified in the Appellant’s issues), while the 3rd Respondent formulated two issues for determination.

Arguments

The Appellant argued on the first issue bordering on the infraction of Section 182(1)(g) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) (the “Constitution”) that the 2nd Respondent was not qualified to contest the election, having not resigned from public service 30 days before the election. On the second issue, the Appellant argued that the lower court abdicated their responsibility, by failing to properly resolve the fundamental issue above.

Regarding the third issue bordering on giving “judicial imprimatur” to the provisions of Section 73(2) of the Electoral Act 2022, the Appellant argued that the 1st Respondent’s failure to keep records of election materials used in the election (in the entire Polling Units) attracted the consequence of a total nullification of the election. To the fourth issue dwelling on election officials signing and stamping Polling Units Result Sheets (Form ECA8As), the Appellant contested that the ECA8As’ were manifestly altered, filled with cancellations and not countersigned.

In reaction, the Counsel for the 1st Respondent argued that the Appellant’s issue whether the 2nd Respondent resigned from public service was res judicata’ having been determined by two courts of law in Suit No. FHC/CS/222/20222: APC v INEC & 2 ORS and Suit No. FHC/PH/162/2022: APC v INEC & 3 ORS, and the judgements had not been appealed against. The Counsel further argued (in reaction to the second issue) that the Appellant brought forward hearsay evidence in proving what may have transpired at the polls, and urged the Court to agree that the evidence were inadmissible hearsay. Also, Counsel for the 1st Respondent argued that issue 3 was a misplaced point, because nothing in Section 73(2) Electoral Act 2022 stated that an election would be invalidated merely on non-production of records by the 1st Respondent when same is demanded.

The Counsel for the 2nd Respondent introduced the argument on suo motu which was argued in part, by the Appellant. The Counsel contended that there were no issues formulated by the lower court, little wonder why the Appellant did not point the Apex Court to the alleged new issues raised by the lower court. In sum, he submitted that the mere fact that the lower court drew attention to the lacuna or discrepancies in the Appellant’s case, did not mean the lower court raised new issues.

The Counsel for the 3rd Respondent, argued the two issues formulated. He argued that the burden of proving corrupt practices was beyond reasonable doubt, and the legal and evidentiary burden were not discharged as required by law.

Court’s Judgement and Rationale

In determining the appeal, the Apex Court adopted the four issues formulated by the Appellant. On the first issue, the Apex Court considered Section 182 of the Constitution and Section 84(12) of the Electoral Act 2022 to wit:

“182 (1) No person shall be qualified for election to the office of Governor of a State if – 

(g) Being a person employed in the public service of the Federation or, of any State, he has not resigned, withdrawn or retired from the employment at least thirty days before the date of the election.

With regard to the provision of the Electoral Act 2022:

84(12) No political appointees at any level shall be voting delegate or be voted for at any convention or congress of any political party for the purpose of the nomination of candidates for any election.

The Apex Court identified that, Section 84(12) of the Electoral Act was in relation to voting delegates or political appointees contesting primary elections. The consequence of not complying with Section 84(12) of the Electoral Act, meant the primary election be treated as null and void and of no effect whatsoever. The Supreme Court distinguished this from Section 182 of the Constitution which related to disqualification of election if such participant did not resign, withdraw or retire from public service of the Federation or State, at least 30 days before the election. The term “public service” means the service of the Federation in any conceivable capacity regarding the government of the Federation, as in Section 318(1) of the Constitution. The Supreme Court applied the Ejusdem Generis rule to hold that the names listed under Section 318 are persons classified in the public service domain, thus, the omitted or excluded names are not reckoned with as public servants within the purview of Section 182 of the Constitution. PPA v PDP (2009) LPELR-4865(CA). The issue was therefore, resolved against the Appellant.

Resolving the second issue, the Apex Court found that the doctrine of res judicata was apt, having met the three elements to wit: (i) an earlier decision on the issue; (ii) a final judgement on the merits; and (iii) the involvement of the same parties or parties in privy with the original parties.

On the third issue regarding the effect of Section 73(2) of the Electoral Act 2022, the Apex Court as starting point, identified the wording of the statute as follows:

Section 73(2) An election conducted at a polling unit without the prior recording in the form prescribed by the commission of the quantity, serial numbers and other particulars of results sheets, ballot papers and other sensitive electoral materials made available by the commission for the conduct of the election shall be invalid.

The Supreme Court held that the burden rests on the Appellant to establish that the 1st Respondent and the 2nd Respondent did not substantially comply with the provisions of the Electoral Act 2022, as to affect the results credited. BUHARI v INEC (2008) NWLR (Pt. 1078) 564.  Though the provisions of Section 7(2) of the Electoral Act, 2022 imposed an onerous responsibility upon the presiding officer of INEC to ensure that every electoral form to be used at an election is properly filled and this duty is mandatory; nonetheless, the duty of establishing that the presiding officer or INEC has failed in discharging the mandatory duty imposed under Section 73(2) of the Electoral Act rests squarely upon the Petitioner. More so, the mere failure to fill the electoral forms or fill them properly, will not be sufficient ground to invalidate an election vide Section 134(2) Electoral Act 2022.

The Apex Court found that the Appellant did not prove over-voting, non-stamping, unsigned alterations. Further, it was found that out of 305 witness depositions, only 40 were adopted by the Appellant – which implied that at least 86.9% of the case set out was abandoned by the Appellant. The court held further that the Appellant’s 18 witnesses alluded to the fact that the information as to truth of events, were not things they observed themselves – this made the chunk of Appellant’s case inadmissible hearsay.

Their Lordships, therefore, unanimously dismissed the appeal of the Appellant. The judgement of the lower court, was thereby upheld.

Appeal Dismissed.

Representation

J. S. Okutepa, SAN, Chief A. A. Malik, SAN, M. S. Ibrahim, SAN. with Ocholi O. Okutepa for the Appellant.

Kanu Agabi, SAN, U. O. Sule, SAN. M. J. Numa, SAN with Chika Odoemene for the 1st Respondent

Emmanuel C. Ukala, SAN, S. I. Ameh, SAN, D.C. with O. J. Iheko for the 2nd Respondent.

J. B. Daudu, SAN, I. A. Adedipe, SAN, Eberechi Adele, SAN, Aham Eke Ejelam for the 3rd Respondent.

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR), An Affiliate of Babalakin & Co.