ASUERINME V. I.N.E.C. (2025)

Background

This appeal arose from the Edo State Governorship election conducted by the Independent National Electoral Commission (INEC) on 2024-09-21. INEC declared Okpebholo Monday, the candidate of the All Progressives Congress, winner with 291,667 votes, while Ighodalo Asuerinme, the Peoples Democratic Party candidate, obtained 247,274 votes. The margin was 44,393 votes.

The appellants challenged the return before the Governorship Election Petition Tribunal, Edo State, in Petition No. EPT/ED/GOV/02/2024. Their petition relied principally on two grounds under section 134(1) of the Electoral Act 2022: first, that the election was invalid by reason of non-compliance with the Electoral Act; and second, that the declared winner was not elected by a majority of lawful votes. The complaints included alleged failure to pre-record serial numbers and particulars of sensitive electoral materials, over-voting, improper collation, exclusion of votes and discrepancies between physical Form EC8A results and results uploaded to the IReV portal.

The appellants called 19 witnesses and tendered numerous electoral documents, including Forms EC8A, polling-unit booklets, IReV materials, BVAS reports and 133 BVAS machines. The tribunal dismissed the petition on 2025-04-02. The Court of Appeal, Abuja, affirmed the dismissal on 2025-05-29, although it held that the BVAS machines had been wrongly admitted because they were tendered from the Bar without the consent required by paragraph 41 of the First Schedule to the Electoral Act 2022. The appellants further appealed to the Supreme Court.

Issues

1. Whether the Court of Appeal was right to reject the appellants’ objection to the record transmitted for the second respondent’s cross-appeal.
2. Whether a petition based on non-compliance affecting specific polling units required a prayer for nullification of the entire election.
3. Whether the BVAS machines were properly admitted from the Bar without the prior consent of all parties.
4. Whether the appellants proved their allegations of non-compliance, including breaches of sections 51 and 73 of the Electoral Act.
5. Whether the appellants proved that the second respondent was not elected by a majority of lawful votes.

Ratio Decidendi

The Supreme Court unanimously dismissed the appeal. It held that a cross-appeal is a distinct appeal filed by a respondent against a portion of the judgment challenged in the main appeal. Although a main appeal and cross-appeal arising from the same judgment may be argued together, separate records may properly be compiled and transmitted where separate notices were filed and the records were transmitted on different dates. A party challenging a record as incomplete must file an affidavit demonstrating both the alleged omissions and the relevance and materiality of the omitted documents to the determination of the live issues. The record is presumed complete and binds the parties and the court until successfully challenged.

The Court also held that the duty to compile and transmit a record in an election appeal lies principally with the registrar of the tribunal or lower court after the appellant pays the prescribed fees. The omission of irrelevant or immaterial processes does not invalidate the record. Where additional materials are required, the opposing party may compile and transmit a supplementary record.

On the reliefs, the Court of Appeal had erred in treating the appellants’ non-compliance ground as requiring a prayer to nullify the entire Edo State election. Sections 51(2) and 73(2) of the Electoral Act address specific polling-unit irregularities. Consequently, a petitioner may seek cancellation or invalidation of results in identified polling units and also seek a declaration that another candidate did not obtain the majority of lawful votes. The two grounds are not inherently inconsistent where the alleged non-compliance is localized rather than a challenge to the entire election. The Supreme Court therefore resolved this issue in favour of the appellants, but that conclusion did not save the appeal because the allegations were not proved.

Court Findings

Paragraph 41(2) of the First Schedule permits documents or other exhibits to be tendered from the Bar only where the parties consented to that procedure at the pre-hearing session. Disputed documents must be tendered through a witness during the hearing, while real evidence must also be tendered at the hearing. The BVAS machines were physical objects and therefore constituted real evidence. They were produced pursuant to a subpoena but were not opened, activated, demonstrated or explained by a competent witness. Since the respondents objected to their tendering from the Bar, the tribunal acted wrongly in admitting them in that manner. The Court of Appeal was entitled, and indeed obliged, to expunge exhibits PPDD1–PPDD133.

The Court emphasized that screenshots or extracts of BVAS information are not substitutes for the BVAS machines. There was no satisfactory evidence explaining when, where or how the screenshots were obtained, and no demonstration linking them to the machines. For an allegation of over-voting, the essential documentary evidence comprises the voters’ register, the BVAS machine showing the number of accredited voters, and the relevant Form EC8A showing the votes cast. Failure to tender and properly connect these materials is fatal to the allegation.

The appellants also failed to establish the alleged breach of section 73(2). Their case was based largely on the proposition that all prescribed information had to appear on Form EC25B. The Court rejected that narrow interpretation. The electoral booklet contained several forms, including Form EC40A, and the forms had to be read collectively and as a whole. The evidence showed that relevant particulars were recorded on the appropriate forms. Moreover, several appellants’ witnesses admitted under cross-examination that the materials had been recorded before the election, thereby supporting the statutory presumption of regularity under section 168(1) of the Evidence Act.

Section 137 of the Electoral Act does not remove the petitioner’s burden of proof. Oral evidence may be unnecessary only where the originals or certified true copies manifestly disclose the alleged non-compliance and the documents are properly identified and linked to the specific complaint. The appellants’ witnesses generally identified documents without demonstrating how particular documents proved particular irregularities. Bulk tendering without such linkage amounted to dumping documents on the tribunal.

In relation to the majority-of-lawful-votes ground, the appellants were required to plead and prove the votes cast, identify the unlawful votes to be deducted, call witnesses with direct knowledge of events at the polling units or collation centres, and tender legible and reliable electoral forms. The IReV results were not automatically superior to the physical Form EC8A. The physical or certified Form EC8A remains the primary evidence of polling-unit results; IReV materials may assume importance where the physical results are unavailable, but a party seeking to displace the physical forms must provide additional evidence establishing that the uploaded results are authentic. The appellants did not do so, and several agents’ copies were illegible.

Conclusion

The Supreme Court found that the appellants failed to prove substantial non-compliance, over-voting, unlawful votes, improper collation or exclusion of votes. Under section 135 of the Electoral Act, an election is not invalidated for non-compliance unless the election was not substantially conducted in accordance with the Act and the non-compliance substantially affected the result. The alleged irregularities, even as pleaded, were not shown to satisfy that threshold. The concurrent findings of the tribunal and Court of Appeal were not perverse, and no basis existed for Supreme Court interference.

The appeal was dismissed unanimously. The judgment of the Court of Appeal delivered on 2025-05-29 was affirmed, with each party bearing its own costs.

Significance

The decision reinforces strict evidential standards in Nigerian election petitions. It confirms that localized polling-unit complaints need not invariably lead to a claim for statewide nullification, but petitioners must still present credible, legible, properly authenticated and properly connected evidence. It also provides important procedural guidance on records of appeal, cross-appeals, the tendering of BVAS machines, the limits of screenshots, the evidential status of Form EC8A and the restricted operation of section 137 of the Electoral Act 2022.