Conduct of Election

• Pages: 163-215

7.

CONDUCT OF ELECTION

(17) ACCREDITATION OF VOTERS IN ELECTION PETITION

303. Accreditation procedure under Decree No. 3 of 1999.

(1) “Schedule 5 to the Decree spells out the procedure at elections. Paragraph 20

deals with accreditation procedure. Paragraph 20(2) provides: - The Presiding Officer

shall - Cross-check voters card of a person applying for accreditation against the

register of voters and may ask the voters if required by a candidate or the party

Agent, the following questions or any of the questions, that is: - 1. ……… 2. ………

a. not accredit any voter who answers the questions in sub-paragraph 2(a) of this

paragraph in the negative; b. mark the name of the voter in the register of voters

with biro; c. stamp and sign each voter’s card at the back with the appropriate stamp

and state the date and type of election in code; and d. enter in Form EC8A EC8A

(1) set out in Schedule 7 to this Decree, the number of persons registered to vote at

the Polling Station or Unit, the number of registrered voters accredited, the serial

numbers of the ballot papers issued to the Poling Station or Unit, the serial numbers

of ballot papers issued to the voters, the serial numbers of the balance of unused

ballot papers and the number of accredited voters standing in the queue at the

commencement of voting.” Learned counsel for the Appellant has argued that since

accreditation did not precede voting, and accreditation was not done in Exhibit P38

and P39, this Court should hold that elections did not hold in Umuokwe/Umunawale

1 and Umuokwe/Umunawale II and Amoka Units in Ward 13 Ulakwo Etche. Learned

counsel also urged us to take judicial notice of the fact that the Legislative Houses

and Gubernatorial elections were the second in the series of elections planned for

return of the country to democratic rule. I agree with learned Appellant’s Counsel’s

submission that the Legislative Houses and Gubernatorial election which held

nationwide on 9/1/99 was the second in the series of elections lined up for the return

of the country to democratic rule, the first being the Chairmanship of Local

Government and Councillorship election which were conducted by the I.N.E.C. on

12/12/98. Consequently in compliance with the election procedures any person who

voted throughout the period of election from 12/12/98 to 27/2/98 i.e. from Chairmanship

and Councillorship elections to the Presidential election should have his name in the

election register marked five times and his voter’s card should equally be stamped

five times.” Per Akaahs, J.C.A. in Nweke v. Ejims (1999) 11 N.W.L.R. (Pt. 625) 39

at 52 - 53.

(2) “I agree with learned Appellant’s Counsel’s submission that the Legislative Houses

and Gubernatorial election which held nationwide on 9/1/09 was the second in the

series of elections lined up for the return of the country to democratic rule, the first

being the Chairmanship of Local Government and Councilorship elections which

were conducted by the I.N.E.C. on 12/12/98. Consequently in compliance with the

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Accreditation of voters in electiion petition Para. 303

164

election procedure any person who voted throughout the period of the election from

12/1298 to 27/2/98 i.e., from Chairmanship and Councilorship elections to the

Presidential election should have his name in the election register marked five times

and his voter’s card should equally be stamped five times.” Per Akaah, J.C.A. in

Nweke v. Ejims (1999) 11 N.W.L.R. (Pt. 625) 39 at 53

304. Effect of non-accreditation of voters on election.

(1) “But more pointedly the Court in Uweke v. Ejims (1999) 11 N.W.L.R. (Pt. 625)

39 at 53 held per Akaahs J.C.A., stated as follows: - “….. I also agree that a person

cannot vote until he has been accredited and it is the stamping of the voter’s card and

the marking of the electoral register that proves that the accreditation did in fact take

place where the electoral register is not so marked but votes are returned for the

particular voting until it will be safe to conclude that such vote were not obtained

through the due electoral process. Where therefore the voters register had no

marking but forms EC8A or EC8A (1) are produced showing scores such scores

can be excluded from the valid votes scored by a candidate at the election.”

(emphasis is ours).” Per Muhammad, J.C.A. in Fayemi v. Oni (2009) 7 N.W.L.R.

(Pt. 1140) 223 at 286.

(2) “The only logical inference to be made by any reasonable Tribunal from the facts

available to the Tribunal on the issue of accreditation is that voters were not accredited

before the election as evidence of same had not been provided by the electoral

officers, those who should know and who were charged with responsibility of

conducting the election consequent upon the accreditation exercise. The Tribunal

had held that the appellant did not further prove the effect of this particular non-

compliance on the election. How could he have done this directly and through whom

again other than the electoral officers? The simple answer to this is that no lawful

election can take place without strict compliance with the accreditation requirement.

Unlike other specices of non-compliance which effect on the results of the election

must be separately proved by the petitioner, non-compliance arising from non-

accreditation of voters is so fundamental and the effect it has on the result of the

election lies in the fact of its occurrence. You must have an election lawfully so-

called to be able to talk of the results of that election. Election results ensure from

lawful votes cast by voters in a manner recognized by the law. The appellant in the

instant case had pleaded in paragraph 37(1) thus: “That the 1st respondent was not

duly elected by a majority of lawful votes cast at the election.” An election that

proceeded without accreditation of voters does not allow for the casting of lawful

votes and any person elected on the basis of votes cast by voters who had not been

accredited cannot be said to have been duly elected. The election is voided ab initio

and does not allow for the emergence of any result.” Per Muhammad, J.C.A. in

Fayemi v. Oni (2009) 7 N.W.L.R. (Pt. 1140) 223 at 286-287.

Paras. 303-304 VOL. 2 PT. I CONDUCT OF ELECTION

165 Accreditation of voters in electiion petition Paras. 304-305

(3) “How could he have done this directly and through whom again other than the

electoral officers? The simple answer to this is that no lawful election can take place

without strict compliance with the accreditation requirement. Unlike other specices

of non-compliance which effect on the results of the election must be separately

proved by the petitioner, non-compliance arising from non-accreditation of voters is

so fundamental and the effect it has on the result of the election lies in the fact of its

occurrence. You must have an election lawfully so-called to be able to talk of the

results of that election. Election results ensue from lawful votes cast by voters in a

manner recognized by the law. The appellant in the instant case had pleaded in

paragraph 37(1) thus: “That the 1st respondent was not duly elected by a majority of

lawful votes cast at the election.” An election that proceeded without accreditation

of voters does not allow for the casting of lawful votes and any person elected on the

basis of votes cast by voters who had not been accredited cannot be said to have

been duly elected. The election is voided ab initio and does not allow for the

emergence of any result.” Per M.D.Muhammad, J.C.A. in Fayemi v. Oni (2009) 7

N.W.L.R. (Pt. 1140) 223 at 287.

(4) “In the context of the Electoral Act, S. 146(1) as interpreted in Buhari v.

Obasanjo (supra) and now Buhari v. I.N.E.C. & 4 Ors. (supra), I have already

held, and let me repeat it again, that the effect of non-accreditation as an instance of

non-compliance on an election lies in the fact of its occurrence. Any election that

occurred without accreditation of voters as required by the electoral Act, an allegation

the appellant in the instant case averred to in paragraph 147(d) of his petition, is a

complete nullity as same had proceeded in complete and flagrant violation of the

Principles of the Electoral Act which the law itself jealously protects in section 146(1).

By the Electoral Act as well as within the purview of section 285(2) of the Constitution,

the impact of section 137 of the Evidence Act on the fortunes of litigants and moreso

as it affect the fact of the instant case must be emphasized.” Per M.D.Muhammad,

J.C.A. in Fayemi v. Oni (2009) 7 N.W.L.R. (Pt. 1140) 223 at 289.

305. How to prove whether a voter cast his vote in an election.

“By virtue of section 40 of the electoral Act 2002 the issue of whether a voter cast

his vote is only ascertainable by examining the voters’ registers to ascertain whether

the person’s name has been marked as having voted. The fact is not ascertainable

on the voters cards. DW 2 testified to this effect when he said that the mere fact

that a person’s voter’s card is not signed and marked is not conclusive on the question

whether the holder voted or not. Section 40 requires a person who intends to vote to

present himself to a presiding officer at the polling unit in which his name is registered

with his voter’s card. The presiding officer on being satisfied that the name of the

person is on the register issue him with a ballot paper and indicate on the register that

the person has voted.” Per Salami, J.C.A. in Awuse v. Odili (2005) 16 N.W.L.R.

(Pt. 952) 416 at 471.