IN THE COURT OF APPEAL OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
ON TUESDAY, THE 21ST DAY OF NOVEMBER, 2023
BEFORE THEIR LORDSHIPS:
CHIOMA E. NWOSU-IHEME, Ph.D JUSTICE, COURT OF APPEAL
MUHAMMAD IBRAHIM SIRAJO JUSTICE, COURT OF APPEAL OLABODE A ADEGBEHINGBE JUSTICE, COURT OF APPEAL
APPEAL NO. CA/YL/EP/AD/SHA/13/2023
BETWEEN:
NJIDDA BABANGIDA MOHAMMED -------------------- APPELLANT
AND
COMMISSION (INEC)
JUDGMENT
(DELIVERED BY MUHAMMAD IBRAHIM SIRAJO, JCA)
This appeal interrogates the correctness of the decision of the National and State Houses of Assembly Election Petition Tribunal, Adamawa State, sitting in Yola, handed down on the 29th day of September, 2023, wherein the election of Njidda Babangida Mohammed, the Appellant, as Member of Adamawa State House of Assembly under the platform of the 4th Respondent, was nullified/declared inconclusive and the Independent National Electoral Commission (INEC, the 3rd Respondent) was ordered to conduct a rerun election in two polling units - Bura/Bura Primary School Unit 002 of Nassarawo Jereng Registration Area and Sittim/M/Koleni/Koleni Primary School Unit 011, Gang Fada Registration Area, all of Nassarawo/Binyeri (Mayo-Belwa 1) State Constituency of Adamawa State between the Appellant and the 1st Respondent, who contested the election under the platform of the 2nd Respondent.
Dissatisfied with the decision of the trial Tribunal, the Appellant lodged this appeal vide a Notice of Appeal filed on 16th October, 2023, anchored on six grounds of appeal.
Brief facts of the case leading to this appeal can be sketched thus: The Appellant was the candidate of the All Progressives Congress in the Adamawa State House of Assembly election for Nassarawo/Binyeri (Mayo-Belwa 1) State Constituency, while the 1st Respondent was the candidate of the Peoples Democratic Party (2nd Respondent) in the said election, which held on 18th March, 2023. At the conclusion of the election, the 3rd Respondent declared and returned the Appellant as duly elected with 9,750 votes. The 1st Respondent, who was the runner up, scored 9,310 votes. Being aggrieved with the declaration and return of the Appellant, the 1st Respondent and his political party headed for the Tribunal, where they obtained an order for rerun election in two polling units on account of over-voting in those units.
As required by the Rules of practice and procedure of this Court, parties filed and exchanged Briefs of Argument. Appellant’s Brief of Argument, settled by Tosin S. Alawode with Yusuf Abdullahi and Muhammed K. Abdullah, was filed on 23rd October, 2023. The following two issues were distilled therein for the determination of this Court:
The 1st and 2nd Respondents Brief of Argument, prepared by Chief L.D. Nzadon with E.O. Odo; S.S. Usman; Hassan G. Maidawa; Hussaini G. Maidawa; S.U. Babayi (Mrs.) and N.A. Mohammed (Mrs.), filed on 27th October, 2023, has formulated therein a sole issue for determination, viz:
Whether in view of provisions of the Electoral Act, 2022, the trial Tribunal was not right in finding that the 1st and 2nd Respondents established over-voting in the 2 polling units of Nassarawo/Binyeri State Constituency of Adamawa State.
The 3rd and 4th Respondents did not file any Brief in this appeal.
At the hearing of the appeal on 8th November, 2023, learned counsel for the 1st and 2nd Respondents withdrew the Notice of preliminary objection filed on their behalf on 27th October, 2023 and same was struck out. Subsequently, learned counsel for the Appellant adopted the Appellant’s Brief and urged the Court to allow the appeal, while his counterpart for the 1st and 2nd Respondents urged the Court to dismiss the appeal after adopting the 1st and 2nd Respondents’ Brief of Argument.
Upon a careful perusal of the Record of Appeal and the Briefs filed by the parties, I find that the issue in this appeal has been narrowed down to the rules and principles guiding how over-voting can be established in an election. In this wise, I hold the firm view that the sole issue formulated by the 1st and 2nd Respondents is germane for the determination of this appeal, and I hereby adopt it with slight modification. Without much ado, I will delve straight into the resolution of the issue, which I reframed.
RESOLUTION OF ISSUE FOR DETERMINATION
Whether in view of the provisions of the Electoral Act, 2022, the trial Tribunal was right in nullifying the election in two polling units of Nassarawo/Binyeri State Constituency of Adamawa State as a result of over-voting and ordering for a rerun election in the said polling units.
In their Petition before the trial Tribunal, the 1st and 2nd Respondents, as Petitioners, challenged the election of the Appellant on the ground of over-voting in two polling units and the non-usage of BVAS for accreditation in four polling units. The trial Tribunal found that the allegation of non-usage of BVAS for accreditation in four polling units has not been proved. The trial Tribunal, however, found that the allegation of over-voting in Bura/Bura Primary School Unit 002 of Nassarawo Jereng Registration Area and Sittim/M/Koleni/Koleni Primary School Unit 011, Gang Fada Registration Area, all of Nassarawo/Binyeri (Mayo-Belwa 1) State Constituency of Adamawa State, has been established. The Tribunal therefore ordered for a rerun election in those two polling units. It reasoned that since the total number of PVC’s collected in the two polling units exceeds the margin of lead between the two leading candidates, which is 440 votes, the appropriate thing to do was to order fresh election in the affected polling units. Below is how the trial Tribunal concluded its judgment, as copied at page 296 of the Record of Appeal:
In sum total it is the opinion of the tribunal that the petition succeeds to the extent that the tribunal agrees that there was over voting in Bura/Bura primary school unit 002 of Nassarawo jereng registration area/ward. The tribunal also agrees that there was over voting in polling unit 011 Sittim/M/Koloni/koloni primary school unit 011 of Gang fada registration area/ward. In the circumstance the tribunal orders cancellation of the results in the two affected units and further orders that another poll be conducted by the 3rd respondent in the two units within 90 days of this judgment and it is only the candidates of the APC and PDP that will participate.
Learned counsel for the parties have marshalled boisterous arguments in support of their respective positions which I duly noted, acknowledged and comprehended. Over-voting in an election is said to occur where the total number of votes cast in a polling unit exceeds the number of accredited voters in that polling unit. See Ikpeazu vs. Otti & Ors (2016) LPELR-40055 (SC); Oyetola & Anor vs. INEC & Ors (2023) LPELR-60392 (SC). This simple definition of over-voting is aptly captured by section 51 (2) of the Electoral Act, 2022 and clause or paragraph 40 of the Regulations and Guidelines for the Conduct of Elections, 2022. Section 51 (2) of the Electoral Act, 2022, provides:
Where the number of votes cast at an election in any polling unit exceeds the number of accredited voters in that polling unit, the presiding officer shall cancel the result of the election in that polling unit.
Paragraph or Clause 40 of the Regulations and Guidelines states:
Where the total number of votes cast at a polling unit exceeds the number of accredited voters at the polling unit, the result of the election for that polling unit shall be declared null and void, and a report in that regard shall be made to the Collation Officer.
In order to prove over-voting, a party alleging is required to tender the Voters Register, statement of result forms which will show the number of accredited voters and number of actual votes and demonstrate that the figure representing the over-voting if removed would result in victory for the party alleging (Petitioner). See Shinkafi & Anor vs. Yari & Ors (2016) LPELR-26050 (SC); Ladoja vs. Ajimobi & Ors (2016) LPELR-40658 (SC); Yahaya & Anor vs. Dankwambo & Ors (2016) LPELR- 48364 (SC); Okereke vs. Umahi & Ors (2016) LPELR-40035 (SC). In the instant appeal, the 1st and 2nd Respondents, as Petitioners, neither pleaded nor tendered the Voters Registers for the two affected polling units. It is worth noting that even under the current regime of the Electoral Act, 2022 and the Regulations and Guidelines for the Conduct of Elections, 2022, prove of over-voting also requires the tendering of the BVAS report of accreditation, in addition to the Voters Register and result forms. This much was stated by Okoro, JSC, in his contributory judgment in Oyetola & Anor vs. INEC & Ors (supra) at page 48 of the Report, thus:
Whenever it is alleged that there was over voting in an election, it is my view that the documents needed to prove overvoting are the voters register to show the number of registered voters, the BVAS to show the number of accredited voters and the Forms EC8AS to show the number of votes cast at the polling unit. These three documents will show exactly what transpired at the polling units. Failure to tender these documents would be fatal to any effort to prove over-voting…
To further drive home the point on the necessity of Voters’ Register in proof of over-voting, Abubakar, JSC, stated in Oyetola & Anor vs. INEC & Ors (supra) at page 66, thus:
To establish over-voting, I must state that the Electoral Act has not abolished the voters register, the voters register still constitutes an integral part of necessary requirements to establish over-voting, the candidate alleging over-voting must tender the voters register to show the number of registered voters, he must also tender the BVAS to show the number of accredited voters for the election and forms EC8A to show the number of actual votes cast at the election at every polling unit. Any failure to tender these as exhibits would render the case of the person alleging over-voting fickle, fragile, barren and therefore totally unreliable. The Appellant failed to satisfy this essential and necessary requirement; this failure therefore renders his case deficient and totally unreliable. I therefore agree on this point that the case of the Appellant is not deserving of any positive consideration by this Court.
Having failed to tender the relevant Voters Register, and also in view of their failure to demonstrate the certified true copy of the BVAS report concerning the result of accreditation in the two affected polling units, the 1st and 2nd Respondents/Petitioners could not be said to have legally proved over-voting in Bura/Bura Primary School Unit 002 of Nassarawo Jereng Registration Area and Sittim/M/Koleni/Koleni Primary School Unit 011, Gang Fada Registration Area of Mayo-Belwa 1 Constituency. I so hold.
On another legal pedestal, assuming that the 1st and 2nd Respondents have succeeded in proving over-voting in the two polling units, which I have not conceded, was the trial Tribunal right in ordering a fresh election in the two polling units on the principle of margin of lead?
Section 24 of the Electoral Act provides instances when election may be cancelled or postponed and a date appointed for the holding of the cancelled or postponed election. However, where the result of the election will not be affected by voting in the areas cancelled, a declaration of result and return shall be made. It is the “margin of lead” principle, as provided for in paragraph 62 of the Regulations and Guidelines for the Conduct of Elections, 2022, that determines whether a fresh poll shall be conducted in areas where election did not hold or was cancelled. The said paragraph or Clause provides:
Where the margin of lead between the two leading candidates in an election is not in excess of the total number of voters who collected their permanent Voters Cards (PVCs) in polling Units where election are postponed, voided or not held in line with section 24 (2 & 3) 47 (3) and 51 (2) of the Electoral Act 2022, the Returning Officer shall decline to make a return for the constituency until polls have been conducted in the affected polling Units and the results collated into the relevant forms for declaration and Return. This is the Margin of Lead principle and shall apply wherever necessary in making returns for all elections in accordance with these Regulations and Guidelines.
For practical application of the margin of lead principle as it relates to State Constituency election, as the one in the instant appeal, paragraph 85 of the Regulations and Guidelines 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 Units) where election was cancelled or not held in line with Section 24, 47(3) and 51(2) of the Electoral Act, the Returning Officer shall decline to make a return until polls have been conducted in the affected polling unit(s) and the results incorporated into a new form EC8C(1) and subsequently recorded into Form EC8E(1) for Declaration and Return.
The net result of the above provisions of the Regulations and Guidelines is that where the difference in the votes scored by the two leading candidates is in excess of the total number of collected PVCs in the cancelled polling units or units where election did not hold, the result of the election shall be declared and a return made without the necessity of conducting fresh election in the affected polling units.
As stated earlier in this judgment, the Appellant scored 9,750 votes to defeat the 1st Respondent, who polled 9,310 votes. The difference of votes between them stood at 440. The 1st and 2nd Respondents, as Petitioners, did not plead and lead evidence to prove the number of PVCs collected in the two polling units where election was cancelled by the trial Tribunal. In the absence of such vital evidence, the nullification of the results of the two polling units will not entitle the 1st and 2nd Respondents to the application of margin of lead principle. The foundation for the application of the principle is totally absent as same has not been pleaded and proved. The trial Tribunal was therefore in error when it relied on the Forms EC8A (1) only to order a rerun election in the two polling units on the basis of margin of lead principle without relating same to the number of permanent voters cards collected, which is the most important requirement. For the reasons of failure to prove over-voting in the two polling units as alleged by the 1st and 2nd Respondents, as well as the trial Tribunal’s wrongful application of the margin of lead principle without prove of the foundational basis for its application, the judgment of the trial Tribunal cannot stand. I find that this appeal is imbued with merit and is hereby allowed. The judgment of the trial Tribunal in Petition No. EPT/AD/SHA/O8/2023 delivered on 29th September, 2023 is hereby set aside. The declaration and return of the Appellant by the 3rd Respondent as Member representing Nassarawo/Binyeri (Mayo-Belwa 1) Constituency in the Adamawa State House of Assembly, is hereby affirmed.
Parties to bear their respective costs.
MUHAMMAD IBRAHIM SIRAJO
JUSTICE, COURT OF APPEAL
APPEARANCES:
Tosin S. Alawode with Yusuf Abdullahi and M.K. Abdullah for the Appellant
E.O. Odo for the 1st & 2nd Respondents
Stephen Ibyen for the 3rd Respondent
