Effect of Ballot Paper Not Bearing  Official Mark Prescribed by INEC

In the Supreme Court of Nigeria

Holden at Abuja

On Friday, the 12th day of January, 2024

Before Their Lordships

John Inyang Okoro

Uwani Musa Abba Aji

Ibrahim Mohammed Musa Saulawa

Adamu Jauro

Emmanuel Akomaye Agim

Justices, Supreme Court

SC/CV/1179/2023

Between

1. YUSUF ABBA KABIR                                                                                      APPELLANT

                                                                        And

1.  ALL PROGRESSIVES CONGRESS (APC)

2. INDEPENDENT NATIONAL ELECTORAL                                               RESPONDENTS

    COMMISSION (INEC)

3. NEW NIGERIA PEOPLES PARTY (NNPP)

(Lead Judgement delivered by Honourable Justice John Inyang Okoro, JSC)

Facts

The Appellant under the platform of the 3rd Respondent, participated in the Governorship Election conducted by the 2nd Respondent on 18th March, 2023 for Kano State. At the conclusion of the election, the Appellant was declared the winner and returned by the 2nd Respondent as the Kano State Governor-elect. Dissatisfied with the outcome of the election, the 1st Respondent whose candidate was one Nasir Yusuf Gawuma, filed a petition at the Kano State Governorship Election Petition Tribunal. The petition was predicated on allegations of the Appellant’s non-membership in the 3rd Respondent; forgery of the Appellant’s membership card and Form EC9; and use of unlawful ballot papers at the election.

The Tribunal delivered its judgement in which it found that membership of a political party is outside its jurisdiction, and that the issue of forgery upon which the challenge to the Appellant’s membership was predicated failed. Notwithstanding the said finding, the Tribunal went on to hold that the challenge to the Appellant’s membership of the 3rd Respondent was proven, and he was not qualified to be sponsored by the party. The Tribunal also proceeded to invalidate 165,616 ballot papers cast in favour of the Appellant on the basis that they were not signed, stamped, dated and did not bear the names of the Presiding Officers. On this basis, the Tribunal deducted 165,616 votes from the Appellant’s scores, upheld the 1st Respondent’s petition and declared its candidate as the winner of the said election.

Aggrieved, the Appellant filed an appeal before the Court of Appeal which dismissed the appeal. The Appellant thus, filed a further appeal to the Supreme Court.

Issues for Determination

The Supreme Court considered the following issues in its determination of the appeal:

1. Whether the lower court was right when it affirmed the tribunal’s decision to deduct 165,616 votes from the votes cast in favour of the Appellant, on account of allegation of unlawful ballot papers.

2. Whether the lower court was correct in assuming jurisdiction over a complaint relating to the Appellant’s membership of and sponsorship by the 3rd Respondent, and also affirming the Tribunal’s decision that the Appellant was not a member of the 3rd Respondent.

Arguments

On the 1st issue, the Appellant’s Counsel relied on the case of BUHARI v OBASANJO (2005) 13 NWLR (PT.942) 1 at 317, to submit that since the 1st Respondent’s pleadings admitted that the affected ballot papers complained were the ones used for the said election and did not allege any form of malpractice, voter inducement, over-voting, multiple thumb-printing, non-accreditation of persons who voted, forgery of ballot papers or that different ballot papers were used in casting votes for other candidates; the 1st Respondent’s petition itself and evidence led did not warrant a situation for the invalidation of the votes. Counsel for the Appellant argued further that the 2nd Respondent having complied with the format prescribed for ballot papers, failure by the presiding officers to stamp or sign the ballot papers is not fatal to the result of the election.

In response, counsel for the 1st Respondent submitted that the issue in contention was not on the format of the ballot papers, but, rather, the failure of the 2nd Respondent to comply with the requirements prescribed for presiding officers with regard to ballot papers. He submitted that the tribunal and the lower court were right to have relied on the provisions of Section 71 of the Electoral Act, to hold that the said ballot papers were invalid.

On the 2nd issue, the Appellant’s Counsel relied on several cases such as ENANG v ASUQUO (2023) II NWLR (PT. 1896) 501 to argue that 1st Respondent’s case which borders on the issue of sponsorship of candidates for an election and membership of political parties/non-qualification of a candidate of a political party, falls squarely within the confines of domestic affairs of political parties, which are pre-election matters that the trial tribunal has no jurisdiction to entertain. He submitted that such issues are contestable only by a co-aspirant at the party’s primaries at the Federal High Court, and not the Tribunal.

In reaction, Counsel for the 1st Respondent argued that by a communal reading of Section 177(c) of the 1999 Constitution and Section 77 of the Electoral Act, 2022, the Appellant whose name was not contained in the 3rd Respondent’s register of members submitted to the 2nd Respondent, was not qualified to contest in the election as the 3rd Respondent’s candidate. He contended that by the authority of ENANG v ASUQUO (Supra), issues of qualification for election to the office of the Governor of a State, if it borders on membership of a political party, can be entertained by the Election Petition Tribunal. He submitted that the Court of Appeal was right to have upheld the finding of the tribunal, that the Appellant was not qualified to contest in the Governorship election as the 3rd Respondent’s candidate, since his name was not contained in the 3rd Respondent’s register of members submitted to the 2nd Respondent.

Court’s Judgement and Rationale

Resolving the first issue, the Apex Court held that the provision of Section 71 of the Electoral Act that every result form completed at the ward, local government, State and national levels in accordance with the provisions of the Act or any INEC Guidelines should be stamped, signed and counter-signed by the relevant officers and polling agents at these levels, which the trial Tribunal and the Court of Appeal relied on to invalidate the affected 165,616 votes, does not refer to or regulate any action at the polling unit. The Court held that rather the actions regulated by Section 71 not only commence from the ward and not the polling unit, but expressly refer to “result form” to the exclusion of ballot papers.

On the effect of a ballot not having the official mark prescribed by the Commission, the Apex Court held that the provision of Section 63(1) of the Electoral Act, 2022 that ballot papers without the official mark prescribed by the Commission shall not be counted is subject to the provision of subsection 2 thereto which provides that, if a returning officer is satisfied that a ballot paper which does not bear the official mark was from a book of ballot papers furnished to the presiding officer of the polling unit in which the vote was cast for use at the election in question, he or she shall notwithstanding the absence of the official mark, count that paper. The Court held that by this provision, a ballot paper which does not bear the official mark of the INEC is not altogether invalid for all purposes, and before an impugned ballot paper is rejected, it must be proven by the party seeking to have it rejected, that it was not the booklet of ballot papers furnished to the presiding officer.

The Court held that in the instant case, there was no pleading or proof that the said ballots were not the ones furnished to the presiding officer in the polling unit, and the 1st Respondent in paragraph 92 of its petition confirmed that these were the ballot papers used at the election. The Court also found that the ballot papers in question did in fact contain both the logo of INEC and the Coat of Arms of the Federal Republic of Nigeria as prescribed by Section 45 of the Act and out of these, 146,292 ballot papers were confirmed to have been signed and stamped, with the only feature left out being the date. It follows therefore, that those ballot papers fully complied with the format prescribed in the Electoral Act, and there was no reason for the tribunal to invalidate the ballot papers in question and consequently, no reason for the Court of Appeal to affirm the decision of the Tribunal in this regard. 

On the 2nd issue, the Apex Court held that the issue of nomination and sponsorship of a candidate for an election is exclusively within the prerogative of a political party, as long as such selection for sponsorship is in compliance with the law; and being an internal affair of the sponsoring political party, it is not justiciable how a candidate sponsored came to be, as long as it is satisfied that the candidate participated in all stages leading to its nomination.

The Court held further that any complaint on the sponsorship or membership of a political party, can only be ventilated before the Federal High Court by a member of the particular political party who was an aspirant at the primary election that produced the candidate. Another political party cannot challenge the action of a political party acknowledging a person as its member, and an Election Petition Tribunal has no jurisdiction to go behind a political party’s acknowledgment of a person as its member, to find out if such acknowledgment is false or not.

The Court, relying on its decision in ONI v OYEBANJI (2023) LPELR-60699 (SC), held that the provision of Section 177(c) of the 1999 Constitution does not provide for consideration on how a political party arrived at the decision or the validity of the sponsorship itself, and the fact that a member of the political party is sponsored by it as its Governorship candidate for the general election makes such a person automatically qualified for election to the office of the Governor of a State. The Court found that the requirement under Section 77(3) of the Electoral Act, for a party to submit its register of members to INEC not later than 30 days to the party’s primaries does not preclude a political party from updating its register after submission, and there is nothing in the said section that disqualifies a candidate whose name was not in the register of members submitted to INEC, so long as the political party acknowledges the candidate as its member. It therefore, does not matter whether the Appellant is a foundation member of the 3rd Respondent or joined shortly before the primaries; as long as the 3rd Respondent had accepted him, nominated him and sponsored him, the 1st Respondent has no business questioning the membership of the Appellant.

Appeal Allowed. Judgement of the Court of Appeal voiding the return of the Appellant as the Kano State Governor-elect, set aside.

Representation

Chief Wole Olanipekun, SAN with Bode Olanipekun, SAN, Chief Gideon Kutu, SAN, Ibrahim G. Waru and Akintola Makinde for the Appellants.

Chief Akin Olujinmi, SAN with Dr Onyechi Ipeazu, SAN, Chief O. E. B Offiong, SAN, Nureni S. Jimoh SAN and M. A. Lawan for the 1st Respondent.

A. B. Mahmoud, SAN with A. M. Aliyu, SAN, Aminu Sadauki, Amina Hamisu and Rabiu Maikafi for the 2nd Respondent.

Adegboyega Awomolo, SAN with R. A. Lawal-Rabana, SAN, A. J. Owonikoko, SAN, Victoria Awomolo, SAN, and Bashir Yusuf Mohammed for the 3rd Respondent.

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