AN APPRAISAL OF THE REQUIREMENTS OF PROOF IN THE HEARING AND DETERMINATION OF ELECTION PETITION IN NIGERIA
CHAPTER ONE
GENERAL INTRODUCTION
1.1 INTRODUCTION
Elections generally are guided by statutory provisions. Not only must the body to take charge of the conduct of the election be established by law, the regulation of the conduct of the election inter alia the registration of voters, the procedure at an election and act that constitute electoral offences as well as determination of election petition arising from election must be matters for which specific provisions are made. Section 153 of the Constitution of the Federal Republic of Nigeria, 1999 as amended establishes the Independent National Electoral Commission (INEC) while the Electoral Act 2010 as amended, in the main, regulates the conduct of Federal, States and Federal Capital Territory Area Council Elections.
Generally, a law to regulate conduct of election must anticipate complaints arising thereof and institutions for investigation and determination of the complaints. The final determination of any complaint arising from an election closes the election process. It is in this latter aspect that this research intends to focus.
It is interesting to note that the procedure for questioning an election is clearly stated in section
133 (1) of the Electoral Act[1], herein reproduce thus:
No election and return at an election under this Act shall be questioned in any manner other than by 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 joined as a party.
The term election petition as used in the above section refers to an originating process by which an unsuccessful candidate in an election or political party or any other person vested with statutory locus, seeks to question the return of a successful candidate at an election as undue either as a result of non-compliance with the electoral law or that the person who has been returned was at the time of the election not qualified to stand for the election or that a substantial number of votes by virtue of which the winner was declared were invalid or because the petitioner was validly nominated to run for the election but was unlawfully excluded from the election[2]. The fundamental issue in election petition is to question the election of a candidate as a victor and as such, it must be shown that the purported election or return was void or that the winner was not returned by a majority of lawful votes[3].
The grounds forming the basis of an election petition must be one of those recognized under the Electoral Act or the Constitution and must be related to or must have arisen out of acts or omissions that were contemporaneous with the conduct of the election. It is now axiomatic and trite law that election tribunal has no power to investigate matters which took place before the conduct of election[4].
The grounds under which an election may be questioned are statutorily articulated in section 138
(1) of the Electoral Act[5]viz:
- That the person whose election is questioned was at the time of the election not qualified to contest the election;
- That the election was invalid by reason of corrupt practices or non-compliance with the provisions of the Act;
- That the respondent was not duly elected by majority of lawful votes cast at the election; or
- That the petitioner or its candidate was validly nominated but was unlawfully excluded from the election.
