The role of the judiciary in determining the outcome of elections, By Mohammed Bello Adoke

1. Introduction

I am delighted at the invitation the organisers of this International Conference extended to me to share my thoughts on a subject that I consider apt and topical. To critically discuss the role of the Judiciary in determining the outcome of Elections in Nigeria would undoubtedly require more time than has been allotted to me. I have therefore taken the liberty to analyse some selected statutory provisions in the Constitution, the Electoral Act and landmark cases from the Second to the Fourth Republic to assess the courts’ role in determining election petitions cases submitted for adjudication.

The judiciary’s constitutional responsibility to determine the outcome of election cases has always elicited mixed reactions. The Petitioner who succeeds will always applaud the judiciary for a well-done job, while the Respondent may make a few sketching remarks about the judgment and sometimes the judex. Often you hear about “kangaroo Court/judgment”, “compromised justice system”, “stolen mandate”, etc.  Despite these challenges, the judiciary is usually expected to decide the Petition one way or the other. The Courts often do substantial justice by determining the petition on its merits and making a pronouncement as to whether a Petitioner was validly returned elected. Sometimes the courts refrain from entertaining the substance of the Petition, especially where such a petition is incompetent for want of strict compliance with the Electoral Act.

2. Legal Framework for Electoral Adjudication

To appreciate the judiciary’s role in determining the outcome of election cases, we must examine the legal framework that regulates how such cases are adjudicated. The legal framework for electoral adjudication in Nigeria includes the Constitution of the Federal Republic of Nigeria, 1999 (as amended); The Electoral Act 2022, The Electoral Regulations and Guidelines; the Election Tribunal and Court Practice Directions, 2022; the Various Court Civil Procedure Rules, Other Statutes; and Case Law. 

It is, therefore, clear that the judiciary does not discharge its adjudicatory functions based on the whims and caprices of the Judges but within the confines of a complex web of laws, rules and case law. Also, as is usual with every human endeavour, the process of adjudication is sometimes challenged by the incompetence of the judex to navigate the inconsistent, vague, and overly complex rules and procedures that attend the process, including the ever-increasing wave of political pressures and interference.

3. The Role of the Judiciary in Election Cases

The judiciary’s role in determining the outcome of elections is constitutionally and statutorily provided by the Constitution of the Federal Republic of Nigeria, 1999 (1999 Constitution) and the Electoral Act, 2022, respectively. The 1999 Constitution has, under section 6, vested the judicial powers of the federation in the courts established by the Constitution. These provisions imply that all disputes, including election disputes, shall be submitted to the Courts for adjudication and resolution. Similarly, Part VIII Electoral Act, 2022 has expressly vested the determination of election petitions arising from Elections on the various Election Tribunals established by the Act.

The Electoral Act is very central to electoral adjudication. The Act envisages two main types of disputes- pre-election and post-election disputes. All disputes relating to disqualification, nomination, substitution and sponsorship of candidates for an election precede the voting proper in an election and are treated as pre-election matters. They include disputes relating to questioning the qualification and disqualification of candidates for elections, substitutions of candidates, and the nomination, including sponsorship of candidates by political parties. On the other hand, post-election disputes, which take the form of Election Petitions, are concerned with occurrences on election (voting) day, including collation and announcement of results. 

Election Petition is the approved process for questioning the return in an election. The Electoral Act 2022 provides –

No election and return at an election under this Act shall be questioned in any manner other than by a petition complaining of an undue election or undue return (in this Act referred to as an “election petition”) presented to the competent tribunal or court in accordance with the provisions of the constitution or of this Act, and in which the person elected or returned is joined as a party.

The Act also prescribes the persons who are entitled to present Election petitions. They are namely: (a) a candidate in an election and (b) a political party which participated in the election.

The Act also states in Subsection (2) that a person whose election is complained of is, in the Act, referred to as the Respondent; and that once the commission, INEC, is made a respondent, it is deemed to be defending the petition for itself and on behalf of its officers or such other persons.

The grounds upon which an election petition may be presented under Section 134 of the Electoral Act 2022 are as follows :

(a)  a person whose election is questioned was, at the time of the election, not qualified to contest the election;

(b) the election was invalid by reason of corrupt practices or non-compliance with the provisions of this Act, or 

(c) the respondent was not duly elected by majority of lawful votes cast at the election.

It should be noted that the 2022 Electoral Act has done away with two other grounds contained in the 2010 Electoral Act. These are:

1. that the petitioner or its candidate was validly nominated by was unlawfully excluded from the election;  and

2. (ii) section 138(e) dealing with submission of a false information of a fundamental nature in aid of qualification.

The Act also provides that certain defects should not invalidate an election by stating that: “An Election shall not be liable to be invalidated by reason of non compliance with the provisions of this Act if it appears to the Election Tribunal or Court that the election was conducted substantially in accordance with the principles of this Act and that the non compliance did not affect substantially the result of the election.” The grounds enumerated above are what Petitioners often call on the courts /tribunals to adjudicate and resolve electoral disputes. We shall therefore consider some of the leading cases where the courts have decided on these grounds to appraise how the courts have interpreted these provisions.

3.1 Qualification

Elections have been questioned on this ground in almost all the electoral acts enacted to regulate elections in Nigeria since the 2nd Republic. The Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides for the qualifications and disqualification of persons seeking election to the offices of President and Vice President (Sections 131 and 137), Governor and Deputy Governor (Sections 177 and 182); membership of the Senate and House of Representatives (Sections 65 and 66); and membership of the State House of Assembly (Sections 106 and 107).

These qualifications and disqualifications are basically the same except for the requirements of age, which differs from one political office to the other and the limitation of tenure to two terms of four years in the case of the offices of the President/Vice President; and Governor/Deputy Governor. Where a candidate at any election fails to fulfil any of the qualifications or suffers any of the disqualifications stated in the Constitution, the unsuccessful candidate or the political party that participated in the election is at liberty to file an election petition on those grounds. The Courts have held that the qualification and disqualification of a candidate to stand for the governorship election are exclusively determined within the limits of Sections 177 and 182 of the Constitution, and nothing can be added to those provisions. 

In the case of ANPP & Anor v Usman & Ors, the Court of Appeal stated that the Electoral Act could not expand the criteria for qualification to contest an election under the Constitution. The Court held:

“The Electoral Act cannot expand the criteria for qualification to contest election under the Constitution. Any such attempt is null and void and of no effect. Thus, the Electoral Act cannot add to or subtract from the elaborate provisions on the subject matter of qualification and disqualification for election into office of the Governor of a State provided for by the 1999 Constitution. Any ground of disqualification not listed under Section 182 of the Constitution is an incompetent ground and cannot ground election petition. Also Section 32 of the Electoral Act, 2006 supports the view that the Act does not lay down any criteria for qualification to contest an election outside those provided for under the Constitution of the Federal Republic of Nigeria. A.G Abia State v A.G Federation (2002) 6 NWLR (pt 763) 264; Rimi v INEC (2005) 6 NWLR (pt 920) 56 referred to”.

Furthermore, in PDP v INEC, the Supreme Court stated as per Okoro, JSC that “ a person who wishes to challenge the election on the basis that the winner was not qualified to contest the election has umbrage in Section 138(1)(a) of the Electoral Act. That is to say, where a person failed to take advantage of Section 31(5) and (6) (supra) in the High Court, he can still approach the Electoral Tribunal under Section 138(1)(a) thereof. Section 177 of the CFRN, 1999, as amended, sets out conditions a person must meet to qualify as a State Governor. 

It is, therefore, the settled position of the law in Nigeria that the Independent National Electoral Commission (INEC), Code of Conduct Bureau, Economic and Financial Crimes Commission or any Executive Body cannot disqualify a candidate from contesting as it is only a Court or Tribunal that has the jurisdiction and power to disqualify a candidate to any election in Nigeria. In the case of Action Congress v INEC, INEC had disqualified the Presidential Candidate of the Appellant on the ground that the candidate was allegedly indicted for fraud and embezzlement by an Administrative Panel of Enquiry. 

The Supreme Court, in declaring the action of INEC void and of no effect, stated that disqualification is a judicial exercise of powers that do not extend to INEC. Musdapher, JSC, as he then was stated:

“The indictment for embezzlement against a person to deprive him of the right granted by Section 131 of the Constitution to contest or vie for the President of the Republic is a very serious matter and the issue can only be pronounced upon by the judicial branch. Such serious issues are riddled with complex questions of law and facts which are by the provisions of the Constitution in the exclusive preserve of the Judiciary, no executive body should have the power or competence to unravel such serious and far reaching complex issues without a proper recourse to the proper judicial process.” 

In many election petitions, the issue of possession of the minimum educational qualifications has come up for decision. As noted earlier, the constitutional provisions that qualify a person to contest the office of President and Vice President. Governor and Deputy Governor; members of National Assembly and members of the State House of Assembly are the same and it state thus – “he has been educated up to a least school certificate level or its equivalent”

This provision has been interpreted severally by the Courts and the conclusion is that even a Primary School Leaving Certificate qualities a person to contest for the Office of the President of Nigeria. This is the Implication of the decision of the Supreme Court in the very recent case of Abubakar v INEC & Ors where the meaning of the provisions was defined by Muhammad, CJN thus –

“By virtue of Section 318 of the Constitution of the Federal Republic of Nigeria, 1999 the phrase “School certificate or its equivalent” is defined as follows:

1. A Secondary School Certificate or its equivalent or Grade 11 Teachers Certificate, the City and Guilds Certificate; or 

2. Education up to Secondary School Certificate Level; or 

3. Primary Six School Leaving Certificate or its equivalent and 

1. Service in the public or private sector in the Federation in any capacity acceptable to the Independent National Electoral Commission for a minimum of ten years, and 

2. Attendance at courses and training in such institution as may be acceptable to the Independent National Electoral Commission for periods totaling up to a minimum of one year; and 

3. The ability to read, write, understand and communicate in English Language to the satisfaction of the Independent National Electoral Commission; and 

4. Any other qualification acceptable by the Independent National Electoral Commission.

The apex Court went ahead to hold that the Constitution went further to liberalise the electoral space by stating in subsection (d) “Any other qualification acceptable by the Independent National Electoral Commission”. What this means is that a person who possesses as any qualification outside those specifically mentioned in Sections 131 and 318 of the Constitution which is acceptable to the INEC, is also qualified to contest election as President of the Federal Republic of Nigeria”

Most ridiculous of the state of the law, is that a candidate for any office in Nigeria is not required to prove his so called qualifications by presentation of a certificate. He need not have sat for any examination nor passed same. This was the position of the Court of Appeal in the case of ACN & ANOR v Jimoh Afiz Adelowo & Ors wherein Uwa, JCA stated – 

“From the clear words of the Constitutional provision, it did not require or state that an aspirant or candidate to the House of Representatives, or as the case maybe, must pass or posses a certificate. The important thing is to have been educated up to secondary School Level or the equivalent. Passing the Senior Secondary School Certificate examination and obtaining a certificate cannot be read into Section 65(2) (a) of the 1999 Constitution as amended. What is required under the law is that there must be evidence that a candidate is educated up to the required level and not that he must or should produce a certificate to prove the level of education attained. Bayo v Njida (2004) 8 NWLR (pt 816) 544; Arebi v Gbabijo (2008) 49 WRN 29; and IMAM v SHERIFF (2005) 4 NWLR (pt 914) 43 referred”.

Also, in the case of Atiku Abubakar v INEC & Ors, the Court of Appeal held that the law is settled that a candidate is not required by the Constitution or the Electoral Act to attach his certificates to FORM CF001 before the candidate can be considered or adjudged to have the requisite educational qualifications to contest an election. The earlier case of  Terver Kakih V PDP & Ors, the Supreme court per Galadima, JSC, adopted the same line of reasoning.

It is, therefore, fair to state that Nigerian law and the position of the Courts with regard to educational qualification for elections is that even a Primary School Leaving Certificate could qualify a person to become the President of the Federal Republic of Nigeria or even any other qualification, provided it is acceptable to the Independent National Electoral Commission.  This rather unfortunate state of affairs was lamented upon by Abba Aji, JSC in Abubakar v INEC (supra) in the following words: “In clarity, the Constitution has, unfortunately to my mind, made it that even where the person does not possess a Secondary School Certificate, he can be qualified by the combined effect of Sections 131 and 318 of the constitution if he is “educated up to at least School certificate level or its equivalent.”

Another common feature of the ground of qualification is the allegation that the Respondent alleged not to be qualified to contest an election, which is the issue of the presentation of forged certificates. The attitude of our Courts /Tribunals has been to declare that the allegations were criminal offences which must be proved beyond a reasonable doubt, and to prove the allegation, the genuine document from which the forgery was made must be produced. In the case of APC v PDP, the Supreme Court stated  as follows:

“Forgery is a criminal offence, and when it is an issue in any proceeding, it must be proved beyond reasonable doubt. Forgery is the noun form of the verb, “forge” and to forge means, inter alia, to make a copy or an imitation of something in order to deceive people. See Oxford Advanced Learners Dictionary P.462. It means to fabricate by false imitation. See Black’s Law Dictionary Special Deluxe Fifth Edition P.585.

4.2 Non-compliance

The ground of Non-compliance in election petition litigation is a barometer to measure the attitude of the Courts in determining the outcome of elections in Nigeria. It is the commonest ground for challenging elections but, unfortunately, a ground whose ingredients of proof depend largely on the disposition of the judex. As we shall show below, this is the particular ground on which the public has lost confidence in the Nigerian judiciary because the people who have been eye witnesses to election malpractices disagree with the judgement of the court emanating from the same elections and the petitions arising therefrom. 

Non compliance as a ground for an election petition has been very controversial and difficult to prove. The burden of proof is so high that most petitioners prefer to rely on other grounds. This is because the provisions of Section 139 (1) of the Electoral Act, 2010 ( now section 135 (1) of the Electoral Act 2022 ) and the onerous interpretation given to same by the Courts have made it impossible for petitioners to prove non-compliance. 

Section 139 (1) Electoral Act, 2010 (as amended) states that   “An election shall not be liable to be invalidated by reason of non compliance with the provisions of this Act if it appears to the Election Tribunal or Court that the election was conducted substantially in accordance with the principles of this Act and that the non compliance did not affect substantially the result of the election” The controversy regarding the correct interpretation of the above provision which has been part of our Electoral Law since 1958, started with Sorunke v Odebunmi, Akinfosile v Ijose, and Swen v Dzungwe & Anor. The interpretation given by the Supreme Court in Swen v Dzungwe (supra) seems to be the approach that accords with both principle and logic. Where Coker JSC stated:

“It is clear therefore that where, from the facts found, the court was unable to say whether or not the non compliance affected the result, once it is satisfied that there was non-compliance which might affect the result, an Election Petition will be allowed. In such a petition, the petitioner lost the election on account of non-compliance with the Electoral Rules or Regulations or statutes which was substantial enough to affect the result of the election. The reply of the respondent postulates, apart from technical bars and procedure and/ or jurisdiction, that there was no non-compliance or that even if there was, the non-compliance did not affect the majority votes secured by the appellant. It follows clearly, therefore that if at the end of the case of the petitioner, a case of non-compliance  is established which may or may not affect the result of the election, and it is impossible for the tribunal to say whether or not the results were affected by the non-compliance established; unless there be evidence on behalf of the respondent that such non compliance as found could not and did not in fact affect the results of the election, the petition is entitled to succeed on the simple ground that civil cases are proved, by a preponderance of accepted evidence.”

The implication of the above decision of the Federal Supreme Court is that once a petitioner established non-compliance and the Court or Tribunal cannot say whether or not the results of the election could have been affected by such non-compliance, the election will be voided.

The above legal position, which accords with justice and equity, has been departed from by the Courts in Nigeria, including the Court of Appeal and the Supreme Court, for instance, in Awolowo v Shagari. 

The current position of the Court as held by the Supreme Court in CPC v INEC (supra) is that: 

“This Court has consistently held that for a petition to succeed on non-compliance with the provision of the Electoral Act, the petitioner must prove not only that there was non-compliance with the provisions of the Act but that the non-compliance substantially affected the result of the election. In other words, the petitioner has two burdens to prove –

1. That the non-compliance took place; and 

2. That the non compliance substantially affected the result of the election.

See Buhari v INEC (2008) 19 NWLR (pt 1120) 246 at 435; Buhari v Obasanjo (2005) 13 NWLR (pt 941) 1 at 80; Akinfosile v Ijose (1960) SCNLR: Awolowo v Shagari (1979) 6 – 9 SC 51”

The courts have interpreted S. 139 (1) of the Electoral Act 2010 as amended. In a most discretionary manner.  Each court has, in different cases, analysed the provision in its own fashion and interpreted the same differently. In Awolowo v Shagari, Obaseki JSC, who analysed the provision in depth, tried to distinguish the Nigerian Law on the subject from the English Law as stated by Lord Denning M.R in the English case of Morgan v Simpson where his Lordship stated three propositions on the subject – 

1. If the election was conducted so badly that it was not substantially in accordance with the law as to elections, the election is vitiated, irrespective of whether the result was affected or not. That is shown by the case of Hackney, Case 2.0 “M & H 77 where two out of 19 polling stations were closed all day and 5,000 voters were unable to vote.

2. If the election was so conducted that it was substantially in accordance with the law as to elections, it is not vitiated by a breach of the rules or a mistake at the polls provided that it did not affect the result of the election. That is shown in the Islington Case, 17 TLR 210 where 14 ballot papers were issued after 8pm.

3. But, even though the election was so conducted substantially in accordance with the law as to elections, if there was a breach of the rules or a mistake at the polls and it did affect the result, then the election is vitiated. That is shown by Gunn v Sharpe (1974) QB 808, where the mistake of not stamping 102 ballot papers did affect the result.

Continuing his Lordship, Obaseki JSC at page 123 of the report of Awolowo v Shagari (supra)  stated further – 

“It is doubtful whether the 1st proposition (by Lord Denning M.R in Morgan v Simpson (supra) represents the state of the law in Nigeria. It is my opinion that the second and third propositions do represent the state of the law in Nigeria and to vitiate an election, the non – compliance must be proved to have affected the results of the election. See Sorunke v Odebunmi (1960) 5 FSC 175 at pp 177 and 178 and the dictum of Ademola CJF delivering the judgement of the Federal Supreme Court…”

The Apex Court in Awolowo v Shagari did not state why the majority judgement chose Lord Denning M.R.’s second and third propositions but rejected the First proposition. The only rationale that can be drawn from it is that the judgements of the Court are mostly rationalisations of the prejudices of the individual judges and not necessarily what the statutes provide. So at the end of the Second Republic, the law on non-compliance as a ground for election petition was as stated by Ademola, CJF in Sorunke v Odebunmi thus – 

“if this proposal be closely examined it will be found to be equivalent to this, that the non-observance of the rules or forms which is to render the election invalid, must be so great as to amount to a conducting of the election in a manner contrary to the principles of an election by ballot, and must be so great as to satisfy the tribunal that it did affect or might have affected the majority of the voters, or in other words, the result of the election.”

It would appear that the facts of Awolowo v Shagari (supra) were more around the interpretation of the statutory provision – “two – thirds of Nineteen states” rather than non-compliance as was the case in Buhari v Obasanjo that really showed the attitude of the Courts on the ground of non compliance with the provisions of the Act.

In Buhari v Obasanjo (supra) the Supreme Court, as per Belgore JSC, as he then was, stated thus – 

“it is manifest that an election by virtue of S. 135 (1) of the Act (Electoral Act 2002) shall not be invalidated by mere reason it was not conducted substantially in accordance with the provisions of the Act, it must be shown clearly by evidence that the non-substantiality has affected the result of the election. Election and its victory, is like soccer and goals scored. The petitioner must not only show substantial non compliance but also the figures i.e votes, that the non-compliance attracted or omitted.  The elementary evidential burden of “The person asserting must prove” has not been derogated from S. 135 (1). The petitioners must not only assert but satisfy the Court that non compliance has so affected the election result to justify nullification, Awolowo v Shagari (1979) NWLR 120 at 161; Akinfosile v Ijose.

It should be observed that the above dictum started the penetrant for the Courts to read into the statute, what was never provided nor intended by the parliament. For instance, when His Lordship stated-“The Petitioner must not only show substantial non compliance but also the figure too, i.e. votes that the non compliance attracted or omitted”, this can only be likened to judicial legislation. This act of judicial legislation was to manifest more by the Supreme Court in Senator Julius Ucha v Chief Marlin Elechi & Ors, where Rhodes-Vivor, JSC, amended the Electoral Act by judicial legislation and held thus- 

“The results declared by INEC are prima facie correct and the onus is on the petitioner to prove the contrary. Where a petitioner complains of non compliance with provisions of the Electoral Act, 2010 (as amended) he has a duty to prove it polling unit by polling unit, ward by ward and the standard required is proof on the balance of probabilities and not on minimal proof. He must show figures that the adverse party was credited with as a result of the non compliance. Forms EC8A, election materials not stamped/signed by presiding officers. He must establish that non compliance was substantial, that it affected the election result. It is only then that the respondents are to lead evidence in rebuttal. See Buhari v Obasanjo (supra), Awolowo v Shagari (supra); Akinfosile v Ijose (supra).” 

From the above conditions set by the Apex Court in Buhari v Obasanjo (supra) and Ucha v Elechi & Ors (supra) it would appear that the courts have made it virtually impossible for the petitioner to ever prove non compliance. This is because it is not possible for any petitioner to decide the number of votes attracted by non compliance be it non-accreditation, non-stamping, lateness of materials or officials etc. It is also not possible for  petitioner to present witnesses polling unit by unit as the time for the petitioner to present his case is strictly limited to 14 days only. The impossibility of proof of non compliance from the jurisprudence already developed by the Courts was recently acknowledged  by the Supreme Court in the recent case of Abubakar v INEC, where Muhammad CJN stated – 

“There is no doubt, the task of establishing a petition on the ground of non-compliance is a herculean and daunting one placed on the petitioner by law. A petitioner who desires and urges the court to set aside the result of an election on ground of non-compliance with the Electoral Act has the onerous duty of proving the alleged non-compliance with the Electoral Act by calling witnesses from each of the polling units complained of. It must be noted that he does not call any witness. He must present eye witnesses, i.e those who were present at the various units across the election area. In the instant case the entire country. It is indeed a daunting task. See Andrew v INEC (2018) 9 NWLR (pt 1625) 507; Edonkumoh v Mutu (1999) 9 NWLR (pt 620) 633 at 653.”

This judicial legislation by the superior courts that foists an impossibility of proof on petitioners was exhibited by the Court of Appeal in the cases of Chime v Ezea(supra); Chime v Onyia (supra), and Chime v Egwuonwu (supra). These cases arose from the gubernatorial elections in Enugu State in 2007. The petitioners had filed petitions on grounds, amongst others, of non-compliance, in that no election took place in the State on 14th April 2007, as the materials were not distributed until 1300hrs due to non availability of Result sheets, Forms EC8A, EC8B, EC8C series. The Election Tribunal after extensive hearing, held that no proper election held, nullified the purported elections and ordered fresh election.

On appeal, the Court of Appeal headed of Adekeye JCA (as she then was) in Chime v Ezea while quoting with approval, the dictum of Bulkachuwa JCA (as she then was) in Ayogu v Nnamani, held –

“In the instant case, the appellant who asserted before the lower tribunal that there were no voting materials, no INEC officials to supervise the voting and that no voting infact took place in at least 13 Local Government Areas out of 17 Local Government in Enugu State must prove so by calling at least a registered voter from each of the polling booths in Each of the wards in the respective local government to show that he could not vote….. he must also establish by credible evidence how the lack of voting is those local government areas affected the final results of the election to his disadvantage….”.

Itse Sagay in reaction to above judgement stated thus:

“This is the type of judicial pronouncement that makes it impossible for a petitioner to defeat election fraud, and tends to embolden election rigging and impurity. How can a petitioner produce a witness to testify about events in 2874 polling booths? Even if he can produce the witnesses, how many years will it take to conclude oral evidence?

Effectively, what the Learned Justice of Appeal (as he then was) was saying in Chime v Ezea was that anyone not declared winner of an election should forget about petitioning. He should go home to link his wounds” 

The summary is that the courts have set up insurmountable road blocks for petitioners who seek to question an election based on non compliance with the provisions of the Act. In Chime v Ezea (supra) the Court of Appeal held – 

“Everyone deprived of voting must come and show his voters card, express the disappointment to exercise his constitutional right to pick a candidate of his choice, the comprehensive voters register must be tendered and authentic evidence of what happened at each polling booth must be given and this will not admit of any generalization of evidence for Local Government or Constituency as it will not serve the purpose”

In fact, the Supreme Court has resorted to indirectly advising petitioners to look for other grounds to question an election, but if the petitioner insists on non-compliance as a ground, it is “Volenti non fit injuria.” That was what the apex meant when it advised petitioners in the case of Ngige v INEC & Ors thus –

“The burden of proving any allegation of non-compliance with the Electoral Act in the conduct of elections remains with the petitioner. So it is left with a petitioner to decide whether he should file a petition seeking the nullification of the election on the ground of non-compliance with the Electoral Act, knowing the herculean task involved in adducing sufficient evidence to prove substantial non compliance leading to the nullification of the election”

With the above advice coming from no less a place than the apex Court, we need no further adumberation on the attitude of the courts to electoral justice with particular reference to non-compliance with the Electoral Act.

4.3 Majority of lawful votes

This is another ground for questioning an election whose results have been declared by INEC. This ground is contained in Section 138(1)(c) of the Electoral Act, 2010, as amended, (now section 134 (1) (c) of the Electoral Act, 2022 which provides that “An election may be questioned on any of the following grounds that is to say:

(c), that the respondent was not duly elected by majority of lawful votes cast at the election;

A ground complaining that a candidate who was declared the winner, did not score the majority of lawful votes cast at the election is an invitation to compare and contrast figures. To establish the allegation, there must be a proper tabulation of the registered voters, the total number votes cast and the votes scored by each candidate. In Ogu v Ekweremadu, the Court of Appeal held that “By the very nature of election cases, evidence alleging election malpractice or irregularity must not only be precise and definite but must also be unequivocal and certain. A vague and imprecise evidence alleging election malpractice or irregularity cannot be accepted by a tribunal or Court of Law.” Therefore, where there is an allegation that a candidate did not score the majority of lawful votes cast in that election, the petitioner must plead the mathematical figures as contained in the Declaration of Result of Election specifying the units of which ward or wards of the constituency in which the alleged errors occurred. The petitioner is also required to plead the particulars of the result of polling stations which they would want the tribunal or court to nullify out of the votes allocated to the declared winner.

In the case of Nadabo v Dubai, the Court of Appeal held –

…when a petitioner is alleging that the respondent was not elected by majority of lawful votes, he ought to plead and prove that the votes cast at the various polling stations, the votes illegally credited to the “winner”, the votes which ought to have been credited to him and also the votes which should be deducted from that of the supposed winner in order to see if it will affect the result of the election. Where that is not done, it will be difficult for the court to effectively address the issue. See Awolowo v Shagari (1979) 6-9 51

The Supreme Court in the case of Omoboriowo v Ajasin has held that where the Petitioner’s complaint is that the petitioner scored a majority of lawful votes, he is to prove that within the balance of probability or preponderance of evidence. It is settled law that in election matters, the best form of evidence are documentary evidence. In Ngige v Obi the Court held that the decision of the tribunal on the ground that “the respondent was not duly elected by majority of lawful votes cast at the election” would be based largely on documentary evidence, mainly election result Forms.

It should be noted that the results of election declared by the Independent National Electoral Commission are presumed correct, authentic and genuine by virtue of Section 168(1) of the Evidence Act. Thus a petitioner challenging the result of the election on grounds that the respondent was not elected by a majority of lawful votes cast at the election, has the burden of rebutting the presumption. Where such allegations are predicated on crime, the rebuttal must be proved beyond reasonable doubt. But where such allegations are based on mere compliant that the petitioner scored a majority of lawful votes, the proof of rebuttal or the presumption only needs to be proved within the balance of probability. 

Mohammed Bello Adoke (SAN) is a former Attorney General of the Federation and Minister of Justice,
Federal Republic of Nigeria.