Section 65
Decision of returning officer on ballot paper(1) The decision of the returning officer shall be final on any question arising from or relating to—
(a) unmarked ballot paper;
(b) rejected ballot paper; and
(c) declaration of scores of candidates and the return of a candidate:
Provided that the Commission shall have the power within seven days to review the declaration and return where the Commission determines that the said declaration and return was not made voluntarily or was made contrary to the provisions of the law, regulations and guidelines, and manual for the election.
(2) A decision of the returning officer under subsection (1) may be reviewed by an election tribunal or court of competent jurisdiction in an election petition proceedings under this Act.
This Section seeks to prevent unlawful administrative or hierarchical interference with the results of an election once declared by the Returning Officer.
The Section makes the decision of a Returning Officer on issues of unmarked ballot papers, rejected ballot papers and declaration of the scores of candidates and return of the winner of an election final and subject to a review by the Election Petition Tribunal or Court of competent jurisdiction only.
Unlike the 2010 Electoral Act (S. 68) under which the decision of the Returning Officer was final, the 2022 Electoral Act now introduces an exception that empowers the Commission to, within seven days, review the declaration and return on an election where it determines that it was not made voluntarily or was made contrary to the provisions of the law, regulations and guidelines and manual for election. This provision allows INEC to review results declaration made under duress. In the former Act, the Returning Officer’s declaration was final and only subject to judicial review.
On the finality of the decision of a Returning Officer with regards to the validity of ballot papers.
YUSUF ABBA KABIR v. APC, INEC (SC/CV/1179/2023) (Unreported) Per Agim, JSC, Pg. 4-5
The Tribunal does not have the jurisdiction or power to declare votes invalid for the mere reason that they are cast by unmarked ballot papers. Once the unmarked ballot paper have been allowed to be counted, the decision to allow such votes to be counted can only be challenged on the ground that the discretion of the Returning Officer was improperly exercised in that the requirements prescribed in S.63(2) of the Electoral Act for allowing such votes to be counted were not satisfied. The election tribunal can only find out if that discretion was properly exercised and nothing more. That is the power given it by S.64 of the Electoral Act 2022”.
The position of the courts has been that a Returning officer cannot revise the return of an election.
In, SALIK V. IDRIS (2014)15 NWLR (PT.1429) 36 at 53, it was held that – Where in the counting of votes cast at an election, an arithmetical error is discovered after the return has been made; the returning officer cannot make a second return. Any return made subsequent to the original return is invalid. Notwithstanding his ruling as to the validity or invalidity of the return, the Judge in deciding an election petition must declare which candidate was duly elected.
With the exception added in 65 (1) of the 2022 Act that allows INEC to review election results, the courts are likely to hold a less extreme position.
See: 2019 Article on INEC vowing not to issue certificate to candidates announced under duress
This came before the power given to INEC to review results declared under duress in the 2022 Act.
