Section 73
Forms for use at elections(1) The forms to be used for the conduct of elections under this Act shall be determined by the Commission.
(2) An election conducted at a polling unit without the prior recording in the forms prescribed by the Commission of the quantity, serial numbers and other particulars of results sheets, ballot papers and other sensitive electoral materials made available by the Commission for the conduct of the election shall be invalid.
(3) A Presiding officer who intentionally announces or signs any election result in violation of subsection (2) commits an offence and is liable on conviction to a fine of N10,000,000 or imprisonment for a term of at least one year or both.
Subsection (1) empowers INEC to prescribe forms for use in elections.
Subsection (2) Provides that an election in a polling unit will be rendered invalid for failure to record in the prescribed election forms, the details of electoral materials such as the quantities, serial numbers, particulars of result sheets and other sensitive materials used to conduct elections.
Subsection (3) states that Presiding Officers who deliberately announce or sign an election result without adhering to this procedure will be liable to imprisonment of at least one year with an option of a fine of N10,000,000 or both.
Subsections (2) and (3) are new provisions introduced to the 2022 Act as the repealed 2010 Act did not invalidate an election for failure of the Presiding Officer to record details of election materials in prescribed Forms. It also did not criminalise such failure.
It is trite law that casting of votes alone does not constitute an election. The election must be recorded in the forms prescribed for the purpose.
OGBORU V. UDUAGHAN [2011] 2NWLR (P. 593, PARAS. C-E). See also (P. 597, PARAS. D-E) on the functions of the forms
On the Validity of an election conducted without prior recording or filling-in the Forms prescribed by the Commission i.e serial numbers of result sheets and other sensitive materials.
ABUBAKAR SADIQUE BABA & ANOR. V. INEC & 2 ORS. (SC/CV/1189/2023) (Unreported) SC – per I.M.M Saulawa, JSC (leading judgment).
The Supreme Court held that oral evidence is needed to prove allegations under section 73(2) and that the failure to fill such Forms must be shown
to have affected the election substantially. It held as follows:
“Indeed, the law is trite regarding the presumption of regularity of the said Forms. The Appellants, therefore, have the onerous
duty to discharge the burden of proof placed thereupon. It is only when the Appellants discharge the burden of proving the irregularity
or non-filling of the Forms, that the burden would then shift to the 1st Respondent (INEC)”
He held further @ page 27 as follows:
“In my considered view, notwithstanding the provisions of Section 137 of the Electoral Act, 2022 (supra) and paragraph 46(4)
of the First Schedule to the Electoral Act, 2022 (supra), the petitioner is obligated to demonstrate vide some cogent and unassailable
oral evidence clearly demonstrating the alleged non-compliance. The petitioner must not sit on his oars merely predicating reliance upon
the provisions of Section 137 of the Electoral Acts, 2022 (supra).”
Dissenting Judgment by Emmanuel Agim, JSC @ Pg. 3, para 3
On the implication of refusal or failure to fill the relevant prescribed INEC forms at the polling units prior to
the conduct of elections, Agim JSC held thus:
”The wordings of S. 73 (2) do not allow for the application of the Omnia praesumuntur rite esse acta rule of the presumption
of regularity of official acts or processes. Once the relevant INEC Forms are not filled with the quantity, serial numbers and other
particulars of result sheets, ballot papers and other sensitive electoral materials made available by INEC for the conduct of the election,
the election in that polling unit shall be invalid. The regularity of the election cannot be presumed to save it.“
On whether section 73(2) operates separately from 135(1) and whether it can void an election by itself.
PETER OBI & ANOR V. INEC & 2 ORS. (CA/PEPC/03/2023) @ page 259-260
The non-compliance that will not invalidate an election under Section 135(1) unless it is shown to be substantial and to have substantially affected the result of the Election, encompasses non-compliance with all provisions of the Electoral Act, including Section 73(2) thereof. In other words, Section 73(2) is not derogated from the ambit of Section 135(1) of the Act. Therefore, the Petitioners who have alleged non-compliance with Section 73(2) as part of their cause of action have the burden to establish such non-compliance in accordance with the requirements of the Section 135(1) of the Act.
See: INEC’s Guidelines on the Conduct of Elections 2022
Parag. 17 (c) lists recording of the quantity, serial numbers, and other particulars of
inspected sensitive materials in the prescribed forms for the conduct of the election as one
of
the actions a Presiding Officer should take at commencement of Polls.
