Section 63
Rejection of ballot paper without official mark(1) Subject to subsection (2), a ballot paper which does not bear official mark prescribed by the Commission shall not be counted.
(2) If the returning officer is satisfied that a ballot paper which does not bear the official mark was from a book of ballot papers which was furnished to the presiding officer of the polling unit in which the vote was cast for use at the election in question, he or she shall, notwithstanding the absence of the official mark, count that ballot paper.
The provision empowers the Commission to reject any ballot paper not bearing the official mark except where the Commission reasonably believes that the ballot paper without the official mark truly and really forms part of the book of ballot papers furnished for the purpose of the election.
It seeks to ensure that only ballot papers printed and delivered to a Returning Officer by INEC is counted during the Counting of the ballot papers cast in a Polling Unit.
While counting the ballot paper cast at an election, the Section makes it mandatory for every Returning Officer to count only the ballot papers having the official mark of INEC.
The only circumstance in which a Returning Officer is permitted to Count a ballot paper that does not bear the official Mark of INEC is when the Returning Officer is satisfied that the ballot paper in question is part of the ballot papers that were delivered to the Presiding Officer in the Polling Unit.
Note that Section 115 prescribes the punishment for using a forged ballot paper or a ballot paper without the requisite legitimate marks.
By virtue of section 57(1) and (2) of the Electoral Act, 2002 (now s. 63 of the 2022 Act) a ballot which does not bear the official mark shall not be counted. However, if the returning officer is satisfied that a ballot paper which does not bear the official mark was from a book of ballot papers which was furnished to the presiding officer of the polling station in which the vote was cast for use at the election in question, he shall notwithstanding the absence of the official mark count that ballot. Section 57(2) relates to the official mark of the Independent National Electoral Commission on its election documents.
BUHARI V. INEC (2008) LPELR-814 (SC)The non-binding and non-serialization of ballot papers is enough to invalidate an election.
