Section 51
Over voting(1) No voter shall vote for more than one candidate or record more than one vote in favour of any candidate at any one election.
(2) Where the number of votes cast at an election in any polling unit exceeds the number of accredited voters in that polling unit, the Presiding officer shall cancel the result of the election in that polling unit.
(3) Where the result of an election is cancelled in accordance with subsection (2), there shall be no return for the election until another poll has taken place in the affected polling unit.
(4) Notwithstanding the provisions of subsections (2) and (3) the Commission may, if satisfied that the result of the election will not substantially be affected by voting in the area where the election is cancelled, direct that a return of the election be made.
This section seeks to ensure that at the conclusion of every election and collation of results, the total number of votes cast, tallies with the total number of the intending voters that were cleared to vote during accreditation and where it is otherwise, the entire election in such Polling Unit would be cancelled. It aims to eliminate or reduce manipulation of electoral results by candidates.
Unlike under the 2010 Electoral Act (S. 53) where over voting is said to occur when the total number of the vote cast exceeds the total number of the registered voters in a Polling Unit, the 2022 Electoral Act (Section 51) has introduced a new principle to the effect that over voting occurs when the total number of the votes cast exceeds the total number of accredited voters.
It provides there should be another election in the affected polling unit but subjects it to INEC’s discretion who may decide to go ahead and conclude the election where the result from that polling unit will not substantially affect the overall result. This procedure is more clearly defined in Paragraph 57 of the Regulations and Guidelines for the Conduct of Elections, 2022.
This provision requires INEC to apply the “Margin of Lead”principle which measures the difference in votes cast for two leading candidates against the number of voters in the affected areas.
Where the condition in Section 51 (2) is found to be present and satisfied, it can trigger the application of the “Margin of Lead” principle.
The Margin of Lead Principle is defined in Regulation 62 of the INEC Regulations and states as follows:
“where the margin of lead between the two leading candidates in an election is NOT in excess of the total number of voters who
collected their permanent voters cards in polling units where elections are postponed, voided or not held in line with sections 24(2 &3) ,
47 (3) and 51(2) of the Electoral Act, the returning officer shall decline to make a return for the constituency until polls have been conducted
in the affected polling units and the results collated into the relevant forms for declaration and return…”
Paragraph 57 says that where the total number of voters who collected their Permanent Voters’ Cards (PVCs) in the Polling Units (PUs) where over voting occurred is less than the margin by which the leading candidate is ahead of the second candidate, the Returning Officer shall make a return and a declaration because it indicates that the outcome of the election will not be affected by a supplementary election in the PUs affected by overvoting.
Conversely, where the difference between the scores of a leading candidate A and second leading candidate B is less than the number of voters who collected their PVCs in the affected polling units (i.e., the number of voters with PVCs is greater than the margin of lead), then a return and declaration shall not be made because it indicates that the outcome of the election will be affected if a supplementary election with such a large number of voters takes place.
NB: The 2022 INEC Regulations now uses total number of voters with PVCs as against total number of voters registered in the Polling Units contained in the 2019 Regulations.
Note that the Margin of Lead principle enables INEC to not only ensure that voters are not disenfranchised, but also answers the question of whether the overall result of an election will be substantially affected where there have been cancellations in some PUs as mentioned in section 53 (4) and other provisions such as Section 24 (5) and Section 47 (3) .
Where INEC determines overall results would be substantially affected, supplementary elections will be held in those polling units where elections did not hold (due to insecurity or emergency) or were cancelled (due to over voting or failure to deploy a fresh BVAS machine).
The Margin of Lead principle was applied in the 2015, 2019 and 2023 elections.
Note that if the results are erroneously declared it concludes the election process and INEC can no longer exercise discretion to hold a supplementary election. In this case, the matter can only be redressed in court.
What amounts to Over-voting?
OYETOLA v. INEC & Ors. (2023) 11 NWLR (Pt. 1894) 125 @ 171 E – H
Whenever it is alleged that there was over-voting in an election, by virtue of sections 47 (1) & (2), 51 (2) of the Electoral Act 2022,
Regulations 14, 18, 19 (b) (i-iv), e (i-iii) and 48 (a) of the INEC Regulations and Guidelines for the Conduct of Elections 2022,
the evidence which must be tendered are:
a.) the voters register to show the number of registered voters,
b.) the BVAS machine to show the number of accredited voters and
c.) the Forms EC8As to show the number of votes cast at the polling unit.
On deciding on what can amount to as over-voting in an election, the Supreme Court held that:
“Regulation 48 (a) of the INEC Regulations and Guidelines states what the number of accredited voters in the result should agree with as “the number recorded in the BVAS”. So, it is the number of accredited voters recorded in the result in Form EC8A must be compared with or verified from to determine if there was over voting in a polling unit. For practical purpose and for ease of reference an original or certified true copy of an INEC certificate of the record of number of accredited voters of BVAS for each polling unit can be produced from an examination of the record of the BVAS machines and tendered in evidence along with the BVAS machines. In any case, Regulation 48 (a) having expressly and specifically mentioned the election document or instrument with which the number of accredited voters recorded in Form EC8A is to agree with or be compared with, only that document and no other shall be evidence for that purpose.”
On the need to tender BVAS Machines to prove over-voting
OMBUGADU V. SULE (Unreported) (SC/CV/1213/2023) Judgment delivered on 19th January 2024.
The Supreme Court reiterated its position in Oyetola V. INEC. It held that the record of the examination of the BVAS machine may be tendered alongside the machines “but not as an alternative.” And that the failure of the petitioner/appellant in this case to tender the three required documents/materials for proving over voting, that is the voters register, the BVAS machines and the Forms EC8A, was fatal to their case.
On Power of the Presiding Officer to Cancel a Poll for Over-voting.
ALL PROGRESSIVES CONGRESS (APC) v. INEC & 3 Ors. CA/S/EP/SEN/KB/11/2023) (Unreported) Per Obande Ogbuinya, JCA @ Pg. 20
In affirming the powers vested in the Presiding Officer to cancel an election in the event where the number of votes cast at an election in any polling unit exceeds the
number of accredited voters, the Court of Appeal held thusly;
“It is an elementary law in our electoral jurisprudence, which appears domineering in the expansive landscape of adjudication, that the presiding officer
is clothed with the vires to cancel elections in a polling unit, enjoys this prerogative right and monopolizes it to the exclusion of any officer engaged
in the conduct of election… it flows from the ex cathedra authorities, which bind other subordinate courts on the rungs of the judicial ladder in this
country, that the purported cancelation by the ward collation officer was a flagrant defilement of the electoral law.”
A petitioner who alleges over voting in an election can establish the allegation where the total votes cast at the election exceed the number of accredited voters as provided in section 51 of the Electoral Act.
ALL PROGRESSIVES CONGRESS V. ADELEKE (2019) LPELR-47736(CA)At the conclusion of every election and collation of results, the total number of votes cast should tally with the total number of the intending voters that were cleared to vote during the accreditation exercise and where it is otherwise, the entire election in such Polling Unit should be cancelled.
See: Part II and III of the Regulations and Guidelines for the Conduct of Elections, 2022 – Paragraphs 40, 56 & 57.
Paragraph 57, specifically applies the “Margin of Lead principle” (defined in paragraph 62) to say that where the total number of voters who collected their Permanent Voters’ Cards (PVCs) in the Polling Units where over voting occurred is less than the margin by which the leading candidate is ahead of the second candidate, the Returning Officer shall make a return and a declaration because it indicates that the outcome of the election will not be affected by a supplementary election in a PU affected by overvoting.
