NNEJI V. INEC (2024)

Background

This appeal arose from the Imo State Governorship Election conducted by the Independent National Electoral Commission on 2023-11-11. Achonu Nneji contested for governor on the platform of the Labour Party, while Sen. Uzodinma Odidika Goodhope contested for the All Progressives Congress. INEC declared Goodhope the winner with 540,308 votes. AnyAnwu Samuel Nnaemeka of the Peoples Democratic Party was credited with 71,503 votes, while Nneji placed third with 64,081 votes.

The appellants challenged the election before the Imo State Governorship Election Petition Tribunal. They alleged that Goodhope was not qualified to contest because his running mate, Ekomaru Chinyere Ihuoma, was allegedly not a valid member of the APC at the time of nomination. They also alleged extensive non-compliance with the Electoral Act 2022, including over-voting, non-accreditation of voters, non-use of the Bimodal Voter Accreditation System (BVAS), defective result sheets, failure to complete prescribed electoral forms, interference with polling agents, and other polling-unit irregularities.

The tribunal dismissed the petition on 2024-05-24, holding that the appellants failed to prove their allegations and that the election substantially complied with the Electoral Act and applicable regulations. The Court of Appeal, Abuja Division, affirmed that decision on 2024-07-16. The appellants then appealed to the Supreme Court.

Issues

1. Whether the tribunal breached the appellants’ constitutional right to fair hearing by abridging the six-week period for presenting their case to 15 days of four hours per day and refusing a further extension.
2. Whether the burden of proving that INEC failed to keep proper records of electoral materials under section 73 of the Electoral Act 2022 rested on the appellants or INEC.
3. Whether the appellants proved over-voting, non-accreditation and non-use of BVAS sufficiently to justify nullification of the election.
4. Whether the appeal was incompetent because the appellants did not expressly seek an order setting aside the tribunal’s judgment, which had been affirmed by the Court of Appeal.

Ratio Decidendi

The Supreme Court unanimously dismissed the appeal and affirmed the judgment of the Court of Appeal. It held that an election petition is neither an ordinary civil proceeding nor a criminal proceeding, but a special proceeding sui generis, governed by its own constitutional and statutory framework. Because election petitions must be determined within strict constitutional timelines, time is of the essence. The tribunal’s authority to fix hearing dates and ensure the just and speedy disposal of petitions includes the practical power to manage and, where necessary, abridge the time available to parties, provided the parties are treated fairly.

The court emphasised that fair hearing is a fundamental constitutional right that cannot be removed by statute. Nevertheless, it is not an unlimited or abstract entitlement to whatever period a party considers desirable. The relevant question is whether the party received a reasonable opportunity to present its case in the circumstances. Reasonable time is fact-sensitive and cannot be determined in a vacuum. Since the abridgement applied to all parties and was necessitated by the number and urgency of the petitions before the tribunal, the appellants’ right to fair hearing was not violated.

On the burden of proof, the court applied sections 131, 132 and 133 of the Evidence Act. The party asserting a fact bears the initial legal and evidential burden. Accordingly, the appellants, as petitioners alleging statutory violations, had to establish those violations with cogent and credible evidence before any burden could shift to INEC. The court also recognised a presumption of regularity in favour of INEC under section 168 of the Evidence Act. The mandatory nature of section 73 of the Electoral Act did not reverse the initial burden; the petitioners still had to prove that INEC failed to record the particulars of sensitive electoral materials.

Court Findings

The Supreme Court found that the appellants had not supplied the evidence required to prove their allegations polling unit by polling unit. In particular, the court held that the BVAS device itself, the voters’ register and the relevant Form EC8A are essential documentary materials for proving over-voting or non-accreditation. The BVAS device is the primary source of accreditation data. A BVAS backend report or database extract is not legally equivalent to the BVAS device and cannot substitute for it.

For over-voting, the court must be able to compare the number of registered voters in the voters’ register, the number of accredited voters recorded by the BVAS, and the votes recorded in Form EC8A. Without the BVAS devices, the tribunal could not make the required comparison. The appellants’ reliance on BVAS reports, voters’ registers and result forms was therefore insufficient. Their oral evidence also did not establish the alleged irregularities across the affected polling units or demonstrate that the complaints substantially affected the result.

The court further held that the concurrent factual findings of the tribunal and Court of Appeal would not be disturbed in the absence of exceptional circumstances, perversity or a substantial miscarriage of justice. No such basis was shown.

Preliminary Objection and Reliefs

The preliminary objection filed by the second and third respondents argued that the appeal was academic because the notice of appeal sought to set aside only the Court of Appeal judgment and did not expressly ask that the tribunal’s judgment also be set aside. The Supreme Court rejected the objection. It held that a relief is the redress or remedy sought from a court, and that the court possesses power to grant consequential reliefs necessary to give effect to its decision. The wording of the appellants’ relief seeking the grant of the reliefs in the petition was sufficient to prevent the appeal from becoming an academic exercise. The objection was therefore struck out.

Conclusion

The appeal was dismissed unanimously. The judgment of the Court of Appeal delivered on 2024-07-16, affirming the tribunal’s dismissal of the election petition and INEC’s return of Goodhope as Governor of Imo State, was affirmed. The parties were ordered to bear their own costs.

Significance

The decision reinforces the strict and specialised nature of Nigerian election petition litigation. It confirms that tribunals may control hearing time to comply with constitutional deadlines, while still preserving a reasonable opportunity for each party to be heard. It also establishes the evidential importance of producing the actual BVAS device, together with the voters’ register and Form EC8A, when allegations of over-voting, non-accreditation or BVAS bypass are made. General allegations, backend reports and insufficient polling-unit evidence will not displace INEC’s presumption of regularity or justify nullification of an election.