Section 64
Endorsement on rejected ballot paper without official mark(1) The presiding officer shall endorse the word “rejected” on the ballot paper rejected under section 52 (1) of this Act and for any other reason, and the ballot papers shall not be counted except otherwise allowed by the returning officer who may overrule the presiding officer.
(2) If an objection to the decision of a presiding officer to reject a ballot paper is raised by a candidate or a polling agent at the time the decision is made, the presiding officer shall add to the word “rejected”, the phrase “but objected to”.
(3) The presiding officer shall prepare a statement on rejected ballot papers, stating the number rejected, the reason for rejection and their serial number, and he or she shall on request, allow a candidate or a polling agent to copy the statement.
(4) A collation officer or returning officer at an election shall collate and announce the result of an election, subject to his or her verification and confirmation that the—
(a) number of accredited voters stated on the collated result are correct and consistent with the number of accredited voters recorded and transmitted directly from polling units under section 47 (2) of this Act; and
(b) the votes stated on the collated result are correct and consistent with the votes or results recorded and transmitted directly from polling units under section 60 (4) of this Act.
(5) Subject to subsection (1), a collation officer or returning officer shall use the number of accredited voters recorded and transmitted directly from polling units under section 47 (2) of this Act and the votes or results recorded and transmitted directly from polling units under section 60 (4) of this Act to collate and announce the result of an election if a collated result at his or a lower level of collation is not correct.
(6) Where during collation of results, there is a dispute regarding a collated result or the result of an election from any polling unit, the collation officer or returning officer shall use the following to determine the correctness of the disputed result—
(a) the original of the disputed collated result for each polling unit where the election is disputed;
(b) the smart card reader or other technology device used for accreditation of voters in each polling unit where the election is disputed for the purpose of obtaining accreditation data directly from the smart card reader or technology device;
(c) data of accreditation recorded and transmitted directly from each polling unit where the election is disputed as prescribed under section 47 (2) of this Act; and
(d) the votes and result of the election recorded and transmitted directly from each polling unit where the election is disputed, as prescribed under section 60 (4) of this Act.
(7) If the disputed result under subsection (6) were otherwise found not to be correct, the collation officer or returning officer shall re-collate and announce a new result using the information in subsection (6) (a)-(d).
(8) Where the dispute under subsection (6) arose at the level of collation and the returning officer has satisfied the provision of subsection (6) (a)-(d), the returning officer shall accordingly declare the winner of the election.
(9) A returning officer or collation officer, as the case may be, commits an offence if he or she intentionally collates or announces a false result and is liable on conviction to a fine of N5,000,000 or imprisonment for a term of at least three years or both.
This section retains old provisions related to rejection of ballot paper without mark in subsections (1) to (3).
Subsection (1) seeks to create a medium through which the Returning Officer in an election can easily identify rejected ballot papers during the counting exercise.
In order to identify rejected ballot papers, the Section makes it mandatory for a presiding officer to write the word “rejected” on any ballot paper that does not have the official mark of the INEC. In addition, where a Candidate or Polling Agent raises an objection to the decision, the Presiding Officer shall add to the word “objected” the phrase “but objected to”. Read Buhari v. INEC (2008) LPELR-814 (SC)
Unlike the 2010 Electoral Act (67), the 2022 Electoral Act (S. 64) introduces new subsections (4) to (9) on collation procedure. This includes powers of a Collation officer or Returning Officer to verify and confirm proper accreditation and correctness of collated votes before announcing same to the public. It further sets out means through which a Collation or Returning Officer can resolve dispute regarding the collated result of an election; and prescribes a fine and imprisonment as Penalty for any Returning or Collation Officer who deliberately collates or announces a result known to be false.
By these provisions, the use of data from accreditation and votes recorded in INEC’s prescribed technological device is made mandatory and constitute the basis for collation and declaration. These are critical provisions in the Act as the collation process and results’ management system is key to the sanctity, security and integrity of the elections. New provisions on verification and confirmation of results in subsections (4) to (9) are as follows:
Subsection (4) mandates the Collation or Returning Officer to collate and announce the result of an election after:
(a) verifying and confirming consistency of the number of accredited voters on the collated result with the number of accredited voters recorded and transmitted directly from the polling unit (PU) via the smart card reader/technological device (BVAS in the current case).
(b)
verifying and confirming consistency of the votes stated on the collated result with the
votes or results recorded and transmitted directly from the polling units by the Presiding
Officer (PO).
Note:
Per INEC Guidelines, a Registration Area/ Ward level collation officer should ensure
that
the result in the physical Form EC8A brought by the Presiding Officer (PO) to the
RA/Ward
collation centre is the same as that uploaded by the PO at the polling unit using the
BVAS
machine. If it is confirmed to be the same, he/she electronically validates the EC8A
uploaded and uploads same to the INEC Results Viewing (IReV) Portal with the assistance
of
the Registration Area Technical Support Staff (RATECHs). After this, he/she then goes
ahead
to collate the result at that level.
Subsection (5) prescribes that the Collation Officer or Returning Officer should use directly transmitted data on accredited voters and results to collate results where a collated result at his level or a lower level of collation is not correct. This provides a mechanism for correcting errors during collation.
Subsection (6) outlines the procedure for resolving disputed collated results. It says that a Collation Officer or Returning Officer should resolve disputes on a collated result or an election result from a PU by resorting to:
(a) the original of the disputed collated result for each PU where the election is disputed;
(b) the SCR/technological device for the purpose of directly obtaining accreditation data;
(c) Data of accreditation recorded and transmitted via the SCR/technological device;
(d) the votes and result of the election recorded and transmitted directly from each polling unit where the election is disputed.
Subsections (7) & (8) provides that if the disputed result is found to be incorrect, the Collation Officer or Returning Officer shall re-collate and announce a new result using the information in (a) – (d) above. Where these provisions are satisfied, the Returning Officer should announce the result
Lastly, a Returning or Collation Officer who collates or announces a false result is liable to a fine of not less than N5,000,000 or imprisonment for a term of not less than 3 years or both – 64 (9).
Note that Section 120 (4) dealing with dereliction of duty also provides that any person who announces or publishes an election result knowing same to be false or which is at variance with the signed certificate of return commits and offence and is liable on conviction to imprisonment for a term of 36 months.
On whether the Court can declare votes cast through unmarked ballot papers as invalid after being counted and announced by the returning officer.
YUSUF ABBA KABIR v. APC & 2 ORS (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”.
On whether a Collation/Returning Officer can cancel an election at the Collation Center if there are irregularities
SENATOR TANIMU PHILIP ADUDA & ANOR V KINGIBE IRETI HEEBAH & ORS. CA/ABJ/EP/SEN/FCT/63/2023 (Unreported)
There is no such power given to the Collation or Returning Officer under Section 64 (4) of the Electoral Act, 2022. The duty of a Collation Officer or Returning Officer under Section 64 (4) of the Electoral Act is simply to collate and announce result subject to verification and confirmation of the correctness of the number of accredited voters stated in the collated result vis-à-vis the number of accredited voters recorded and transmitted directly from the Polling Units, and also to verify and confirm the correctness of the votes stated in the collated result vis-à-vis the votes or results recorded and transmitted directly from Polling Units. A collation or Returning Officer that proceeds to cancel an election at the Collation Centre acts ulta-vires his powers under Section 64 (4) of the Electoral Act.
On whether electronic transmission is prescribed by the Act.
LABOUR PARTY V INEC (FHC/ABJ/CS/145/2022) delivered on 31/1/2023
There is nothing in a combined reading of sections 47(2), 50(2), 60 (5), and 62(1) of the Electoral Act 2022 that suggests that INEC is mandated to only use an electronic means in collating or transferring of election results. INEC is at liberty to prescribe the mode of transmission of results.
ATIKU & ANOR. V. INEC & 2 ORS. (CA/PEPC/05/2023) @pages 680 - 682
“It should be noted that Section 47(2) referred to in section 64(4)(a) relates to the procedure for accreditation of voters by the Presiding Officer using the technological device prescribed by the Commission.”
To show that INEC is to prescribe the manner of transfer of results, the Apex Court held as follows:
“As for Section 60(4) referred to in Section 64(4)(b) of the Act, it only mandates the Presiding Officer to count
and announce the result at the polling unit. In fact, subsection (5) of Section 60 goes ahead to mandate the Presiding Officer to
transfer the result including total number of accredited voters and the results of the ballot in a manner as prescribed by the Commission.”
On the import of subsections (4) to (6), the Court further held as follows:
“... it is clear that while subsection (4) of Section 64 provides for what the collation or returning officer will use to
verify and collate the results, subsection (5) also provides for what the collation or returning officer will use to collate
the results. Subsection (6) of the same section provides for what the collation or returning officer will use to determine the
correctness of disputed result where there is a dispute. These are:
(a) the original of the disputed collated result for each polling unit where the election is disputed (which in our view means
the physical or hard copy of the disputed collated result);
(b) the technological device used for accreditation of voters in each polling unit where the election is disputed;
(c)the data of accreditation recorded and transmitted directly from each polling unit where the election is disputed as
prescribed under Section 47(2) of this Act; and
(d) the votes and result of the election recorded and transmitted directly from each polling unit where the election is disputed as
prescribed under Section 60(4) of the Act (which requires only the counting and announcement of the result at the polling unit).”
Furthermore, the Court of Appeal stated that the Electoral Act, 2022 has used the words "deliver, "transfer" and "transmitted directly" interchangeably to describe how the results of the election shall be moved from one stage to another until the results are finally collated and declared
See Part III of INEC’s Updated Guidelines on the Conduct of Elections 2022 On Collation of Election Results and Making of Returns
Note Paragraph 49- Collation and Returning Officers are not allowed to make or receive telephone calls during collation.
Their personal staff are also not allowed in the collation centre – P. 46
They are to retrieve the BVAS machine from the Presiding officers and hand over to the respective Supervisory Presiding Officers (SPOs), in tamper-proof envelopes – P. 50 (iv) & (viii)
Note: INEC has what it calls the Collation Support and Results Verification System (with corresponding secretariat). The system consists of spread sheets used in collation centres to provide computational accuracy and electronic support to the tallying process)
