The All Progressives Congress (APC) presidential candidate, Bola Ahmed Tinubu, has told the Presidential Election Petition Court (PEPC) that the claims that collation and upload to the Independent National Electoral Commission (INEC) Results Viewing (IREV) portal was not done “in real time” is baseless and inconsequential.
This was contained in Tinubu’s final written address to the Tribunal holden at the Court of Appeal in Abuja in the Petition filed by Abubakar Atiku/Peoples Democratic Party (PDP) on the matter of the election to the Office of the President of the Federal Republic of Nigeria, held on 25th February, 2023.
Reacting to the issue of collation and upload to IREV “in real time”, Tinubu stated:
The only grouse expressed by the petitioners through their evidence was that the results were not electronically transmitted to the next level of collation and upload to the IREV “in real time” or immediately. We urge the court to note that it is not the petitioners’ case that there was no electronic transmission and upload at all, but that same was not done immediately. Even more critical is the fact that the petitioners did not allege that any of the other procedures of the election, starting from the accreditation, voting, sorting, counting of votes, entry into the relevant forms, and manual transmission was not complied with.
In fact, the testimonies of PW4, PW11, PW12, PW13, PW14, PW15, PW16, PW17, PW18, PW19, PW20, PW22, PW23, PW24 and PW25 are very instructive, as despite being witnesses for the petitioners, all testified to the fact that the only issue with the entire web of processes was that of electronic transmission and upload to the IREV through the BVAS in real time. The point must be made that it is not their claim that the results were not uploaded at all, but that since INEC was constrained not to be able to upload it immediately, during the election, then the election must be impeached.
This line of reasoning finds no place within the circumference of logic or law, particularly, when PW22, the petitioners’ star witness clearly admitted under cross examination that failure to transmit the result on the IREV will not change the content of the result entered in the Form EC8A; and the fact that PW12, PW13, PW14, PW15, PW16, PW17, PW18, PW23, PW24 and PW25 all agreed under cross-examination that not only did they conduct the accreditation as required by the law, the voting went successfully, the votes were sorted and entered into the appropriate form EC8A, the presiding officers signed the results along with the party agents, the results were announced at the respective polling units, party agents and police officers were respectively given their copies, while the respective presiding officers submitted their copies to the ward collation centers, again, in the company of the party agents. In fact, they all agreed that they had snapped the result with the BVAS and that the offline transmission function had been activated.
Against the foregoing background, it is our submission that the petition, both as presented, as well as the lean evidence adduced, cannot be described as a petition, stricto senso, within the meaning and context of the EA, as what it challenges is not strictly against non-compliance with the provisions of the Act, but with very remote events after the conclusion of election, even as admitted by their witnesses, that is, that election was primarily concluded at the polling unit level, when, after the PO has sorted the ballots in the full glare of the party agents and the public, counted the votes, announced the results to the hearing of everyone, recorded the scores of each party in Form EC8A, signed same himself, and called on the agents as well as the security officers present to sign as well.
The law is well settled and the Act has not changed the principle that Form EC8A forms the foundation of the pyramid for election results. In fact, paragraph 91(i) of the Regulations and Guidelines for the Conduct of Elections, 2022, provides thus: “Voting takes place at polling units. Therefore, Forms EC8A and EC 60E are the building blocks for any collation of results.” Arising from this provision, it is our submission that collation of results happens on ground, in the full glare of everybody, and neither in the air nor in the ‘cloud’.
Assuming without conceding that the presentation of the petitioners regarding the non-uploading of already collated results signed by the POs and attested to by all the polling agents, including their own witnesses, among who are PW12, PW13, PW14, PW15, PW16, PW17, PW18, PW23, PW24 and PW25, electronically to IREV amounts to, in their opinion, non-compliance, our submission is that this assumption is a faux pas or non sequitur, for several reasons which will be addressed hereunder. May we submit straightaway that both the EA and the Regulations made thereunder, make provisions for multiple/hybrid methods of transmission of results from the polling unit, just as it does for voting itself.
Instructively, the petitioners have not denied this fact, particularly, through their petition and the evidence made available to this Honourable Court by them. We take our bearing from paragraph 18 of the petition, where the petitioners have alleged that “the election was not conducted in compliance with the provisions of sections 47(2) & (3), 60(1), (2) & (5), 64(4) (a)&(b), 64(4),(6),(7)&(8), 71 and 73 of the Electoral Act, Paragraphs 3.3.0 and 3.4.0 of the 1st Respondent’s Published Manual for Election Officials, 2023…and Paragraphs 19, 35, 38, 40, 41, 42, 43, 47, 48, 50 and 62 of the 1st Respondent’s Published Regulations and Guidelines for the Conduct of Elections 2022…”
It is important to briefly consider each of these provisions in order to determine whether this Honourable Court can accord the petitioners any form of seriousness at all. We respectfully make this point considering section 47(2) & (3), which provides for accreditation with the use of the card reader or any other technological device; section 64 (4) (a) and (b) which mandates the PO to reconcile the votes cast with the number of accredited voters; 64(4),(6),(7)&(8), which provides for the procedure for resolving dispute or discrepancies in the collation of results; section 71, which mandates the signing and stamping of the results at the different levels of collation; and section 73 which prescribes for the types of forms to be used for the election.
While we appreciate that the centerpiece of the petitioners’ grouse is that the results were not electronically transmitted and uploaded to the IREV “in real time”, suffice it to state that neither the provisions highlighted by the petitioners, nor any provision of the Electoral Act at all, provides for the mandatory electronic transmission of results or mandatory upload to the IREV “in real time.” Meanwhile, we invite this Honourable Court to the provision of section 60(5) of the Electoral Act, which provides that “the PO shall transfer the results including total number of accredited voters and the results of the ballot in a manner as prescribed by the Commission.”
A proper appreciation of the provision of section 60(5), with respect to INEC’s prerogative to prescribe the mode of transfer of results, will contextualize the several provisions of the Manual and Regulations. Before carrying out a consideration of the said provisions, we must quickly indicate that the provisions of the Regulations and Guidelines on the one hand, and those of the Manuals on the other hand, are largely similar, hence, space will hinder us from reproducing from both documents.
Paragraph 19 of the Regulation provides the procedure for accreditation, while paragraph 35 provides the procedure for sorting of votes after election. May we refer the court to the clear provision of paragraph 38 of the Regulations, and submit that the said provision do not support the contention of the petitioners; rather, it provides for multiple/hybrid procedures, whether manually or electronically.
Having, therefore, agreed that in line with paragraph 38 of the Regulations, the litany of “Polling Unit voting and results procedures” as contained in paragraphs 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36 and 37, were duly complied with, it, therefore, flattens the contention of the petitioners on non-compliance, more particularly, that it is not their case that the results which were eventually computed at the ward collation center for the respective polling units were different from what was delivered to the ward collation center from the polling unit; or that the results collated at the local government collation centers were different from the ones submitted from the respective wards; or that the results collated at the respective State collation centers were different from the ones submitted from the respective local government collation centers; or finally, that the results collated at the national collation center were different from the ones submitted from the respective State collation centers.
We urge the court to observe that the petitioners have harped on electronic transmission of results as though the same Regulations did not contemplate manual transmission. We submit that right from the polling unit to the national collation center, there are ample provisions for the transfer of results through the manual process, hence the use of the phrases “Electronically transmit” or “transfer” as employed in paragraphs 38 and 50 of the Regulations and “transmit” or “transfer” as used under paragraph 54(xii) of the Regulations.
Our clear submission is that all the provisions of the Regulations created the alternative between electronic transmission and transfer, with the use of the article “or”. For instance, paragraph 38(i), which deals with movement from the polling unit states that “on completion of all the Polling Unit voting and results procedures, the Presiding Officer shall: (i) Electronically transmit or transfer the result of the Polling Unit, direct to the collation system as prescribed by the Commission.”
Paragraph 50(xx) provides that “the Registration Area/Ward Collation Officer shall: Electronically transmit or transfer the result directly to the next level of collation as prescribed by the Commission.” Paragraph 53(xii) provides that “the Local Government/Area Council Collation Officer for the Presidential Election shall Electronically transmit or transfer the result directly to the next level of collation, as prescribed by the Commission.”
To further demonstrate our position on the etymological implication of the words and to corroborate the fact that “electronic” is disjunctively applicable only to “transmit”, we refer to paragraph 54(xii) which completely dispenses with the use of “electronically”, by simply providing that “the State/FCT Collation Officer for the Presidential election shall: Transmit or transfer the result directly to the next level of collation as prescribed by the Commission.”
For each of the above level of collation, provisions are clearly made for taking of original copy of the forms EC8A, 8B, 8C and 8D, respectively, from the different level of collation to the upper level, in a tamper-evident/tamper-proof envelop, for upward transfer in the company of police officers and party agents. In fact, the first step the ward collation officer is to take, by virtue of paragraph 4.2.2 of the Manual, is to “take delivery of the original copies of Forms EC8A, EC8A(I), and EC8A(II) for the Presidential Election”, while the tenth step is for him to “Collate the votes entered in Forms EC8A, EC8A(I) and EC8A(II), for the Presidential Election.”
Not done yet, paragraph 92 of the Regulations, further provides that “at every level of collation, where the INEC copy of collated results from the immediate lower level of collation exists, it shall be adopted for collation.” Paragraph 93 then goes further to provide for the only circumstance where electronic copy will become relevant, being where there is no hard copy of collated result.
For clarity, it is important to reproduce this paragraph to demonstrate that insofar as the Regulations and Guidelines are concerned, the relevance of electronic transmission in the order of things, are extremely tertiary in ranking, and that the Regulations and Guidelines, clearly contemplate its absence, where it directs a fall back on hard copies of collated results already given to the Nigeria Police or agents of political parties, where the ones from the immediate lower level of collation whether from the PO or the IREV, do not exist.
So, from the above provision of the Regulations and Guidelines, before recourse will be had to the electronically transmitted result or results from the IREV portal, the INEC hardcopy of collated results from the immediate lower level of collation must first have been confirmed to be non-existent. It is important to indicate that none of the witnesses fielded by the petitioners have alleged that this was the case at any level of collation centers. In any event, the absence of the electronically transmitted results or results from the IREV portal does not necessarily create a brick wall in the absence of INEC hardcopy of collated results.
The same paragraph creates a solution, to the effect that the collation officer may resort to the duplicate hardcopies issued by INEC to the police and the party agents. To now further accentuate the place of the hardcopy of the electoral forms, particularly, the Forms EC8As, which the petitioners’ witnesses all agree were delivered to the ward collation center, paragraph 91(i) of the Regulations insists that Forms EC8A and EC60E “are the building blocks for any collation of results.”
An aggregation of these clearly shows that it is either the petitioners have, with all respect, naively overrated the electronically transmitted results, or they have simply decided to throw tantrums as a result of their frustration at the polls.
Hence, assuming without conceding that the non-transmission through electronic means, is at all, a non-compliance, the obligation of the petitioners would still remain to answer the question, “how then has the non-transmission affected the result of the election?” By the decision of the apex court in Ucha v. Elechi (2012) 13 NWLR (Pt. 1317) 330 at 359, “where a petitioner complains of non-compliance with provisions of the Electoral Act, 2010 (as amended), he has a duty to prove it polling unit by polling unit, ward by ward and the standard required is proof on the balance of probabilities and not on minimal proof. He must show figures that the adverse party was credited with as a result of the non-compliance. Forms EC8A, election materials not stamped/signed by Presiding Officers. He must establish that non-compliance was substantial, that it affected the election result. It is only then that the respondents are to lead evidence in rebuttal.”
It is also important to draw this court’s attention to the decision of the Supreme Court in Abubakar v. Yar’Adua (2009) All FWLR (Pt. 457) 1, which settles every issue, whether raised by the petitioners or imagined by them in this petition, and more particularly, at page 156 of the report, where the Supreme Court held that: “If there is evidence that despite all the non-compliance with the Electoral Act, the result of the election was not affected substantially, the Election Tribunal must, as a matter of law, dismiss the petition, and that accords with section 146(1) of the Electoral Act (now section 139(1).”
The effect of the above authority, is that for whatever it is even worth, assuming without conceding that there was non-compliance with the Electoral Act, once there is a consensus, as it is the case in this petition, that the result of the election was not substantially affected (not to talk of this case, where the petitioners’ witness all agreed that the results were not affected at all), this Honourable Court, as a matter of law, has the duty of dismissing the petition forthwith and we urge the court to so hold.
In Ejiogu v. Irona (2009) 4 NWLR (Pt. 1132) 513 at 560 this Honorable Court described a valid vote as “a vote cast at an election by a registered and duly accredited voter, which is in compliance with the provisions of the Electoral Act”. The Court went on to hold that “such a vote is a valid and/or lawful vote for the purpose of collating or computing the total or majority of lawful votes cast at the election”.
The petitioners have not been able to prove a single vote that did not pass the litmus test of a valid vote and we submit that their case on real time transmission of results to the IREV portal which is subsequent to the casting of valid votes cannot be a basis to nullify or invalidate valid votes already/previously cast as intended in this petition when such votes are entitled to be collated and were indeed collated.
⦁ In the course of the proceedings, we recall that this Honourable Court applied the de minimis rule in overruling an application urging it to discountenance a process filed by a party, which inconsequentially exceeded the prescribed pagination. The court dismissed the invitation brevi manu. In like manner, while we do not concede that the petitioners have queried the election and return of the respondent on any substantial point or issue, we submit that section 135 of the EA, also takes into cognizance the de minimis non curat lex rule, literally meaning that “of small things, the law knows no cure.” See Garba v. FCSC (1988) 1 NWLR (Pt. 71) 449 at 453 and Baker Marine (Nig.) Ltd. v. Chevron (Nig) Ltd. (2000) 12 NWLR (Pt. 681) 393 at 413.
⦁ This leads us to the decision of the Supreme Court in the celebrated case of Awolowo v. Shagari (1979) NSCC 87 at 102, where the petitioner, just like the petitioners herein complained that the respondent did not secure 25% of the votes cast in Kano State, when the petitioner therein scored far less than the respondent in the said Kano State. The apex court found that section 34(a)(1)(c)(ii) of the Decree was complied with (equivalent of section 134 of the Constitution); that the 1st respondent secured more votes throughout the country than each of his challengers, including the petitioner, who he was ahead of by 772,206 votes (here, the respondent is ahead of the 1st petitioner by 1,810,206 votes); that the respondent secured at least 25% of the votes in 12 2/3 States out of the 19 States of the federation (here, the respondent secured 25% of the votes in 29 States); that the country wide votes referred to are more geographically spread than those of any of the other four candidates (the respondent’s votes are far more geographically spread than those of any other candidate who participated at the election); that the percentage of 19.94 scored by the 1st respondent in Kano State falls short by only 5.06% (assuming without conceding that the FCT is independent of the other States of the federation, the percentage of 18.99% of votes scored by the respondent at FCT, only falls short of 25% by 6.01.)
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