EVIDENCE AND THE ELECTORAL ACT: THE WHEEL UPON WHICH ELECTORAL PROCEEDINGS RIDE IN OUR COURTS

BY FRANK OKIKE & ODII VICTOR

UNIVERSITY OF NIGERIA

Abstract

It is a crystal position of the law that the fulcrum of any judicial proceedings as well as the strength of a party's case before a court is contingent upon the ability of such party to satisfy the onus laid on him to prove his case. The burden in election petitions is not emphatically spelt out, as the courts in various instances have required stringent evidence to satisfy the burden of proof on the petitioner. This essay is an appraisal of the requisite evidence in election petitions in tandem with statutory provisions as well as its admissibility and application in judicial proceedings.

Keywords: Evidence, Electoral Act, Electoral Petition/proceedings

1.0 Introduction

The word evidence is not capable of exact definition because it belongs to procedural aspect of law (Amupitan, 2013). This is due to its fluctuations in application, with its scope too encompassing (Uglow, 1997). However, in an attempt to define the concept, the court in Onya v Ogbuji (2011) ALL FWLR Pg. 597 described the term evidence as any specie of proof, or probative matter legally presented at the trail of any issue, by the parties and through the medium of witnesses, records, documents, exhibits, concrete objects, etc. for the purpose of inducing belief in the mind of the court or jury as to their contentions. 

Conversely, in Nigeria due to wide spread of electoral malpractices, contention of election results has become a common practice. Thus, the basic law regulating elections and subsequent petitions is the Electoral Act 2022. The Act recognizes petitions as the appropriate method of challenging election outcomes.

Election petition has been distinguished from civil and criminal cases. It was held in Somano v Anka (2000) NWLR pt. 610 at p. 283 that, election petitions are not like ordinary civil proceedings. In election petitions, the rules creating the rights to file the petition, the categories of complaints and format... are clearly set out in the decree. Notwithstanding, the Evidence Act and rules of evidence still apply in election petitions (Osipitan, 2003). 

1.2 The Nitty-Gritty of Evidence in Election Petition

It has been widely contended by some writers that the onus required of petitioners in an election petition is draconic. Thus, in projecting the crux of evidence, the court has held in Atiku v INEC LER [2019] CA/PEPC/002/2019, that an aggrieved party must prove his averments on the strength of his evidence and cannot rely on the weakness of the respondents defense. Garba JCA posited further that; the settled position of the law is that the party making allegations must proffer credible evidence in order to sustain such allegations as a prelude to the grant of the relief sought thereupon. Tritely, for evidence to succeed, there are three heads that must be satisfied which include admissibility, burden of proof and standard of proof. 

For documentary evidence, the foremost criteria are that such evidence must be pleaded; relevant to the inquiry tried before the court and admissible in law. As held in Torti v Ukpai (1984) 1 S.C 270., the basic test for admissibility is not the production of the document from proper custody but the relevance of the document to issues at stake before the court, dependent on the satisfaction of the standard of proof. Generally, it is a rebuttable presumption that election results are correct, thus in Onye v Kema (1999) 4NWLR PT 598 p. 198, it was stated that the onus is on the party challenging the correctness or authenticity of the election results to offer rebutting evidence. To wit, the respondent needs not to offer any evidence in objection during the proceedings. The standard of rebutting evidence offered to displace the presumption is dependent on whether the petition is based on allegations of crime or noncompliance with the Electoral Act (Osipitan 2003, p.298). While the latter is based on preponderance of probabilities, the former is read in tandem with Section 135(1) of the Evidence Act 2011, that when there is an imputation of a crime in any proceedings (civil or criminal), it must be proved beyond reasonable doubt. see Atiku v INEC. This asymmetric onus alongside the standard of proof has been faulted to be heavy on a petitioner, who is time-bound and may not provide sufficient evidence to prove beyond reasonable doubt. 

1.3 The Process of Filling an Election Petition in Nigeria

Pursuant to Section 130 of the Electoral Act 2022, an election petition can only be adjudicated before a competent Election tribunal. To institute a petition, in Bwacha v Ikenya & Ors (2011) LLJR-SC, as well as contained in Section 133(1) of the Electoral Act 2022, it is stipulated that the persons with standing to bring such petitions are any candidate in an election and any political party which participated in the election. Furthermore, for any election petition to be entertainable, it must be predicated on any of the grounds in section 134(1) of the Electoral Act 2022, such as, that the person is not qualified to contest; by reason of noncompliance with Electoral Act and that the respondent was not duly elected by majority of lawful votes. 

Under the Electoral Act, a petitioner is required to present an election petition to the Secretary of an Election Tribunal and furnish same with the address of the respondent. Additionally, a petitioner shall give security of about five thousand naira, for all costs which may become payable by him to a witness summoned on his behalf or to a respondent, otherwise there shall be no proceedings. An election petition shall be filed within 21 days after the date of the declaration of election results, while the tribunal is required to deliver its judgment in writing within 180 days from the date of the result declaration. Also, an appeal from the tribunal’s decision shall be disposed of within 90days from the delivery of its judgment. In essence, any omission of the above procedures goes to the risk of striking out the petition. 

1.4 Importance of the Electoral Act 2022 in Election Petition

1.4.1 Not all persons can question an election outcome:

Different categories of persons participate in elections, but not all possess the right to challenge or question the result of an election. Section 133 of the Electoral Act 2022 defines persons entitled to present an election petition. They include candidates in an election and a political party that participated in the election. A person whose election is questioned is a party to an election petition. Where the complaint is against a permanent or ad-hoc official of the Independent National Electoral Commission (INEC), the electoral commission will be listed as a party due to its role in the administration of elections. Nigerias electoral law considers these persons necessary parties in an election petition. An election petition will suffer an ill fate if these parties are excluded. The person (s) or political party that initiates or files an election petition is referred to as the petitioner, while the person or party the petition is made against is called the respondent (Samson Itodo, 2023).

1.4.2 Grounds for challenging an election must be recognized by law:

Any individual or political party that intends to challenge or question the result of an election must ensure the petition is established on a valid ground or reason recognized by law. An election petition can only succeed with valid grounds recognized by the 1999 constitution or the Electoral Act. Section 134 of the Electoral Act 2022 lays out three grounds. They include:

1.4.2.1 Non-qualification: An election can be questioned if the person declared as a winner was not qualified to contest the election at the time of the election. Where a candidate fails to meet the criteria enshrined in the constitution, such a person is ineligible to contest an election. The requirements of citizenship, age (president 35 years, senate and governors 35 years, House of Reps and State assembly 25 years), membership and sponsorship by a political party, and education qualification are the foundational criteria for running for office (Samson Itodo, 2023).

1.4.2.2 Corrupt practices and non-compliance: A petitioner must establish that the election was invalid by reason of corrupt practices or non-compliance with provisions of the Electoral Act 2022. Corrupt practices include electoral offences like election fraud, bribery, and falsification of election results. Non-compliance refers to outright violations of the (Samson Itodo, 2023).

1.5 Conclusion

The Electoral Act 2022 is an admirable attempt to maintain Nigeria's democratic system. If properly implemented, it will significantly contribute to restoring fairness and transparency in Nigeria's electoral process. But before an electoral court, it is impossible to overstate the importance of evidence as a means of persuasion. In Rimi v Inec (2005) 6 NWLR (Pt. 920) 56 at 84, His Lordship Hon. Justice Muhammad Tanko JCA (as he then was) declared that a claim will be dismissed for lack of proof if no evidence is presented to support it. Election procedures depend on the submission of reliable evidence as well as the satisfaction of the requirements outlined in the Electoral Act 2022.