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 , 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 . 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 .
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 election4.
The grounds under which an election may be questioned are statutorily articulated in section 138
(1) of the Electoral Act5viz:
a) That the person whose election is questioned was at the time of the election not qualified to contest the election;
2 Aderemi O (2006) Electoral Law & Practice in Nigeria, AderemiOlatubira& Co. Akure P. 84
3 Id
4Id
5 138 (1) Electoral (Amendment) Act, 2010
b) That the election was invalid by reason of corrupt practices or non-compliance with the provisions of the Act;
c) That the respondent was not duly elected by majority of lawful votes cast at the election; or
d) That the petitioner or its candidate was validly nominated but was unlawfully excluded from the election.
The 1999 Constitution as amended has established various institutions and invested them with powers to determine election petition. The constitution also provides for a system of appeal. S. 239 of the Constitution for example has vested into the Court of Appeal the original jurisdiction to the exclusion of any other court in Nigeria with power to hear and determine any question as to whether:
a) Any person has been validly elected to the office of the president or vice-president
b) The term of office of the president or vice-president has ceased or
c) The office of the president or vice-president has become vacant.
The Constitution also established a clear appeal mechanism for offices of the President and Vice President. Section 233 (1) of the 1999 Constitution as amended provides that petitions shall lie as of right from the court of appeal to the Supreme Court in all matters emanating from the election.
The National Assembly Election Tribunal has the sole original jurisdiction to determine petitions as to whether any person has been duly elected as a member of the National Assembly, the term of office of any person has ceased, the seat of a member of the senate or a member of the House of Representatives has become vacant and any question or petition brought before it6
Election Tribunals play important roles in the determination of electoral disputes in Nigeria. Since independence the Courts/Election Tribunals have continued to be the major, if not the sole organs tasked with the responsibility of resolving election disputes in Nigeria. The roles of these Courts/Election Tribunals are indeed crucial for the survival of democracy and the rule of law in Nigeria. The Courts/Election Tribunals determine the electoral disputes which cannot be concluded through the ballot boxes. Any person that is dissatisfied with the results at the poll as declared by the Independent Electoral Commission (INEC) relies on these election dispute resolution institutions for redress. The Courts/Election Tribunals are the last hope of such contestants. The judgments of Courts/Election Tribunals are therefore important for restoration of hope in the electoral and democratic process and the rule of law .
It is important to bear in mind that election petition can only be resolved by calling witnesses and leading evidence at the hearing. It is axiomatic that the onus of proof is always on the petitioner to establish his complaint or petition upon the balance of probabilities or beyond reasonable doubt where the petition borders on irregularities that have criminal elements in nature. The question is, while the task appears to be simple to accomplish has it been so in practice?
Jurists and legal luminaries have continued to question the yard stick or standard used by election tribunal judges in arriving at most of its judgments and rulings . The reason for the general outcry is not far-fetched. It appears the Electoral Act and/the Election Tribunals have made the requirements of proof of electoral irregularities to be a near impossibility. The spillover effect of this is that, it has made elections to be a do or die affair because once returned it is an uphill and heculaneous task to dislodge.
In this research, the author has attempted to dissect and discuss critically the various statutory grounds under which an election petition may be brought; the requirements of proof of each ground and an in-depth analysis of the various tests and standards evolved by Election Tribunals vis-a-vis the reasoning and rationale behind those yard sticks.
1.2 STATEMENT OF THE PROBLEM
Nigerian electorates have continued to wonder why in spite of the apparent and manifest cases of electoral malpractices and non-compliances; the courts/ election tribunals have continued to
throw out election petition cases for want of proof. While some electorates and stake holders
attribute the sorry state of the petitioners to the almost impossible requirements of proof evolved by the courts and the Electoral Act others view it as the problem of legal practitioners who have poor appreciation of the dynamics of proof in election petition particularly the extent of proof and evidential burden.
This trend of event now gaining grounds if not checked is capable of threatening our nascent democratic institutions and eroding the confidence of the electorates in the post-election judicial process. The recent unrest in some parts of Northern Nigeria following the announcement of the winner of the presidential election should serve as a gauging point for our electoral and judicial managers. There is no gainsaying that the resultant consequence(s) of this will be anarchy and lawlessness.
In this research, attempt has been made to appraise the extent of proof in election petition with a view to ascertaining why it is a near impossibility to prove some electoral malpractices and possibly highlight some grey areas as well as proffer some recommendations thereon. Emphasis would also be given to the naughty issues of standard and burden of proof in election petition
1.3 SCOPE OF THE RESEARCH
This research is confined to appreciating on a general note what election petition in Nigeria is all about. It tries to study those preliminary items that need to be settled before a competent petition is said to be filed and therefore liable to proof.
The study also engages on a in depth examination of the four (4) statutory grounds under which an election petition may be filled under the Electoral Act 2010 as amended and other previous legislation
The research critically assessed the twin evidential principles of burden and standard of proof and other yardsticks/requirements evolved by the Courts/Tribunals in proof each ground and the difficulty (ies) inherent in each of them if any. The efficacy and effectiveness of the standards/requirements of proof of the statutory grounds are identified; suggestions and recommendations for reforms are proffered.
1.4 AIMS AND OBJECTIVES OF THE RESEARCH
This research seeks to achieve the following objectives:
a. To provide an in-depth analysis of the basic elements a petitioner or respondent need to prove or defend an election petition anchored on any of the statutory grounds of challenging an election petition under section 138 of the Electoral Act 2010 as amended.
b. To study the various standards and yardsticks evolved by the Election Petition Tribunals and Courts in arriving at most of their rulings and judgments vis a vis the yearnings and expectations of the electorates who seem to be fast losing confidence in the post election judicial process.
c. To expose the general public and in the process acquaint them on the dynamics of proof in election petition and the workings of the Election Petition Tribunals.
1.5 JUSTIFICATION OF THE STUDY
This research on the requirement of proof in election petition will be of immense benefit to pre-election petition judges and election petition judges. This is so because it brings to the fore the contentious issues of burden and standard of proof and the extent to which these evidential principles can be made applicable to election petition. The findings, observations and recommendations will no doubt further equip the judges to pass sound and qualitative rulings and judgments that will satisfy the yearnings and expectations of the electorates who are fast losing hope in post-election judicial process.
Owing to many years of military rule in Nigeria, the mastery of the art and proof of election petition has become a daunting and tedious task for most practicing and non-practicing lawyers. This has led to striking out of most election petition cases and the little that survived to hearing stage dismissed for lack of proof. This research seeks to equip lawyers with the basic skills and tact needed to successfully prove or defend election petition as the case(s) may be.
This research will equally be of immense benefit to the stakeholders in the Nigerian electoral system particularly the Independent National Electoral Commission (INEC) and the legislature. They will no doubt find the findings, observations and recommendations very resourceful and worthy of note. It is our hope that it will allow for a more robust and balance regulation and fair handling of our electoral system and legislation.
1.6 RESEARCH METHODOLOGY
The research method used is doctrinal research based on available literatures, laws, statutes and decided cases; journals, seminar papers, periodicals, newspapers, and research works in the library relevant to the topic are consulted and properly acknowledged.
1.7 LITERATURE REVIEW
The bulk of this research is a statute and case law based. The laws and regulations that guided the conduct of elections and the trials in election petition tribunals/courts from the commencement of our democratic journey till date were derived from Decrees, Laws and constitutions. Worse, the theme of the research suggest a study of the outcomes of the romance between the provision of the laws on election petition and the findings/decisions of courts/tribunals on tested election petition cases.
Caveat must be sounded here that the above proposition should not be mistaken to mean that there are no books or literatures on requirements of proof in election or are less important to the research. As a matter of fact the research immensely benefited from the writings and opinions of the learned authors whose works were consulted in this research however, not without some shortcomings or gaps.
Afe Babalola (SAN) one of the leading authorities on Election Petition in Nigeria in his book titled ELECTION LAW AND PRACTICE IN NIGERIA VOL.1 wrote extensively on the historical development and legislative changes regarding election and election petition trials. The book traced the history of elections in Nigeria from colonial time to independence and post independence election. The book discussed issues up to Electoral Act 2006 and trials before election petition tribunals and courts. However the book appears to be merely interested in the historical development and legislative changes regarding Election in Nigeria than with the means and mode of proof of election cases. The book equally does not cover up to the Electoral Act, 2010 as amended being the current applicable legislation on election in Nigeria and the amendments to the 1999 Constitution and the Evidence Act 2011.
Ogunjinmi A.A in his book titled “A PRACTICAL APPROACH TO ELECTION PETITION PROCEDURE IN NIGERIA” tried to give the elementary and practical approach to conduct of Election Petition in Nigeria from the stage of presentation of the petition to the hearing and determination of the petition while highlighting the steps and things required of the parties thereon. The learned author in his attempt to cover all aspects of election petition failed to give much emphasis/attention to the requirement of proof being the area of core interest in this research, even the little discussed do not substantially represent the current position of the law as the Electoral Act has been amended severally with attendant changes to the legal regime on Election petition.
Another book that is worth mentioning in this research is PRACTICAL GUIDE TO ELECTION PETITION BY JOSHUA E. O. The book appears to share the same theme with this research in that it is case law based. The author tried to analyze through judicial authorities the requirements of proof in election petition, burden of proof and standard of proof of virtually all the statutory grounds for challenging an election. As comprehensive as this book may look, it did not the book evaluate the soundness or other wise of the judgments or decisions of the tribunals/courts beyond reproducing them. Again the book is authored on the basis of the Electoral Act, 2006, an Electoral legislation that is repealed and replaced by Electoral Act, 2010 as amended.
Worthy of note is a book authored by Nwabueze B.O. titled NIGERIAN PRESIDENTIAL CONSTITUTION (1979 - 83) THE SECOND EXPERIMENT IN CONSTITUTION DEMOCRACY. The book although concerned about Nigerian Presidential System as contained in 1979 Constitution, it also discusses the various aspects of election from the angle of the electoral commission to the holding of an election and post-election judicial process. It is aimed at providing guidance and general education to politicians, voters and lawyers alike. The book although of immense use in this research does not put or proffer any suggestion on the efficacy or otherwise of the various tests evolved by election petition tribunals/courts in resolving election dispute neither does it reflect the current constitutional and electoral changes to our current electoral legislation. The book also did not appear to be thematically interested in detail analysis of the requirements of proof in election petition.
The book titled ELECTORAL LAW AND PRACTICE IN NIGERIA by Aderemi O is another work consulted in this research. The author who tried to give a general overview of election in Nigeria dedicated a whole chapter of his work in analysis of the four statutory grounds and even delved into the constitutional ground as created by the Supreme Court in the celebrated case of OBASANJO V YUSUF (INFRA). Although the book discussed the statutory grounds and the constitutional ground, it was in a passive and general manner as the work equally failed to evaluate the various standards/yardstick evolved by courts/tribunal in resolving election dispute nor did it engage in an in depth analysis of same. Just like other authorities consulted, it is premised on the Electoral Act 2006 which is no longer the applicable and operational electoral legislation in Nigeria.
The research immensely benefited from a book titled LAW AND PRACTICE OF EVIDENCE IN NIGERIA authored by Afe Babalola particularly the array of Contributors to the book. The book discussed topical issues in the field of Nigerian law of evidence including the twin concepts of burden and standard of proof. The book’s approach is general and did not customize burden and standard of proof as is being advocated for in this research. Equally the book was based on the repealed Evidence Act same having been repealed and replaced with the Evidence Act 2011.
The research also consulted articles written in academic journals. One of such articles is “Election Petition in Nigeria: Buhari v Obasanjo in Perspective ” by Prof B.Y Ibrahim. The article concisely appraised election petition generally from the preliminary aspect to the proof of election using the case of Buhari v Obasanjo as template and made far reaching and profound recommendations. However the article was based on Electoral Act 2002 which has repealed and replaced with Electoral Act 2010 as amended. Again most of the recommendations such as the need for speedy trials, joinder, and number of witnesses amongst others have been overtaken by subsequent legislations including the Electoral Act 2010 as amended.
The research also consulted another article authored by Dr A.K Usman titled “Buhari v Obasanjo: Law and Justice on the Cross ”. The article reviewed the Supreme Court judgment in that case and critically analyzed their reasoning particularly wondering why the Supreme Court could not void the election having accepted that the election was anything but a sham and defective. The author although also made profound recommendations most of them were taken care of by subsequent legislation. The article was based on Buhari (no 2) and Electoral Act 2002. This is not the current legal regime on electoral matters as the said Electoral Act has been repealed and replaced by Electoral Act 2006 which has also been repealed and replaced with Electoral Act 2010 as amended.
The statutes that governed the elections and judicial decisions of courts and tribunals are examined and analyzed with a view to ascertaining whether they have served the purposes of translating the wishes of the Nigerian electorates and sustenance of democracy.
1.8 ORGANIZATIONAL LAYOUT
The work comprises of six (6) chapters. The first chapter introduces the subject matter and lays foundation for the research.
Chapter two dwells on the election petition in general by highlighting the competence of a petition, proper parties, time frame, content of election petition, grounds for bringing petition, jurisdiction and sundry related issues.
Chapter three, four and five discuss extensively the statutory grounds for challenging an election and the requirement of proof of each ground. The difficulty (ies) of proving some of the grounds is also highlighted.
Chapter six provides the summary, the findings or observations of the research are highlighted in the conclusion and recommendations or suggestions equally proffered.
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 , 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 . 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 .
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 election4.
The grounds under which an election may be questioned are statutorily articulated in section 138
(1) of the Electoral Act5viz:
a) That the person whose election is questioned was at the time of the election not qualified to contest the election;
2 Aderemi O (2006) Electoral Law & Practice in Nigeria, AderemiOlatubira& Co. Akure P. 84
3 Id
4Id
5 138 (1) Electoral (Amendment) Act, 2010
b) That the election was invalid by reason of corrupt practices or non-compliance with the provisions of the Act;
c) That the respondent was not duly elected by majority of lawful votes cast at the election; or
d) That the petitioner or its candidate was validly nominated but was unlawfully excluded from the election.
The 1999 Constitution as amended has established various institutions and invested them with powers to determine election petition. The constitution also provides for a system of appeal. S. 239 of the Constitution for example has vested into the Court of Appeal the original jurisdiction to the exclusion of any other court in Nigeria with power to hear and determine any question as to whether:
a) Any person has been validly elected to the office of the president or vice-president
b) The term of office of the president or vice-president has ceased or
c) The office of the president or vice-president has become vacant.
The Constitution also established a clear appeal mechanism for offices of the President and Vice President. Section 233 (1) of the 1999 Constitution as amended provides that petitions shall lie as of right from the court of appeal to the Supreme Court in all matters emanating from the election.
The National Assembly Election Tribunal has the sole original jurisdiction to determine petitions as to whether any person has been duly elected as a member of the National Assembly, the term of office of any person has ceased, the seat of a member of the senate or a member of the House of Representatives has become vacant and any question or petition brought before it6
Election Tribunals play important roles in the determination of electoral disputes in Nigeria. Since independence the Courts/Election Tribunals have continued to be the major, if not the sole organs tasked with the responsibility of resolving election disputes in Nigeria. The roles of these Courts/Election Tribunals are indeed crucial for the survival of democracy and the rule of law in Nigeria. The Courts/Election Tribunals determine the electoral disputes which cannot be concluded through the ballot boxes. Any person that is dissatisfied with the results at the poll as declared by the Independent Electoral Commission (INEC) relies on these election dispute resolution institutions for redress. The Courts/Election Tribunals are the last hope of such contestants. The judgments of Courts/Election Tribunals are therefore important for restoration of hope in the electoral and democratic process and the rule of law .
It is important to bear in mind that election petition can only be resolved by calling witnesses and leading evidence at the hearing. It is axiomatic that the onus of proof is always on the petitioner to establish his complaint or petition upon the balance of probabilities or beyond reasonable doubt where the petition borders on irregularities that have criminal elements in nature. The question is, while the task appears to be simple to accomplish has it been so in practice?
Jurists and legal luminaries have continued to question the yard stick or standard used by election tribunal judges in arriving at most of its judgments and rulings . The reason for the general outcry is not far-fetched. It appears the Electoral Act and/the Election Tribunals have made the requirements of proof of electoral irregularities to be a near impossibility. The spillover effect of this is that, it has made elections to be a do or die affair because once returned it is an uphill and heculaneous task to dislodge.
In this research, the author has attempted to dissect and discuss critically the various statutory grounds under which an election petition may be brought; the requirements of proof of each ground and an in-depth analysis of the various tests and standards evolved by Election Tribunals vis-a-vis the reasoning and rationale behind those yard sticks.
1.2 STATEMENT OF THE PROBLEM
Nigerian electorates have continued to wonder why in spite of the apparent and manifest cases of electoral malpractices and non-compliances; the courts/ election tribunals have continued to
throw out election petition cases for want of proof. While some electorates and stake holders
attribute the sorry state of the petitioners to the almost impossible requirements of proof evolved by the courts and the Electoral Act others view it as the problem of legal practitioners who have poor appreciation of the dynamics of proof in election petition particularly the extent of proof and evidential burden.
This trend of event now gaining grounds if not checked is capable of threatening our nascent democratic institutions and eroding the confidence of the electorates in the post-election judicial process. The recent unrest in some parts of Northern Nigeria following the announcement of the winner of the presidential election should serve as a gauging point for our electoral and judicial managers. There is no gainsaying that the resultant consequence(s) of this will be anarchy and lawlessness.
In this research, attempt has been made to appraise the extent of proof in election petition with a view to ascertaining why it is a near impossibility to prove some electoral malpractices and possibly highlight some grey areas as well as proffer some recommendations thereon. Emphasis would also be given to the naughty issues of standard and burden of proof in election petition
1.3 SCOPE OF THE RESEARCH
This research is confined to appreciating on a general note what election petition in Nigeria is all about. It tries to study those preliminary items that need to be settled before a competent petition is said to be filed and therefore liable to proof.
The study also engages on a in depth examination of the four (4) statutory grounds under which an election petition may be filled under the Electoral Act 2010 as amended and other previous legislation
The research critically assessed the twin evidential principles of burden and standard of proof and other yardsticks/requirements evolved by the Courts/Tribunals in proof each ground and the difficulty (ies) inherent in each of them if any. The efficacy and effectiveness of the standards/requirements of proof of the statutory grounds are identified; suggestions and recommendations for reforms are proffered.
1.4 AIMS AND OBJECTIVES OF THE RESEARCH
This research seeks to achieve the following objectives:
a. To provide an in-depth analysis of the basic elements a petitioner or respondent need to prove or defend an election petition anchored on any of the statutory grounds of challenging an election petition under section 138 of the Electoral Act 2010 as amended.
b. To study the various standards and yardsticks evolved by the Election Petition Tribunals and Courts in arriving at most of their rulings and judgments vis a vis the yearnings and expectations of the electorates who seem to be fast losing confidence in the post election judicial process.
c. To expose the general public and in the process acquaint them on the dynamics of proof in election petition and the workings of the Election Petition Tribunals.
1.5 JUSTIFICATION OF THE STUDY
This research on the requirement of proof in election petition will be of immense benefit to pre-election petition judges and election petition judges. This is so because it brings to the fore the contentious issues of burden and standard of proof and the extent to which these evidential principles can be made applicable to election petition. The findings, observations and recommendations will no doubt further equip the judges to pass sound and qualitative rulings and judgments that will satisfy the yearnings and expectations of the electorates who are fast losing hope in post-election judicial process.
Owing to many years of military rule in Nigeria, the mastery of the art and proof of election petition has become a daunting and tedious task for most practicing and non-practicing lawyers. This has led to striking out of most election petition cases and the little that survived to hearing stage dismissed for lack of proof. This research seeks to equip lawyers with the basic skills and tact needed to successfully prove or defend election petition as the case(s) may be.
This research will equally be of immense benefit to the stakeholders in the Nigerian electoral system particularly the Independent National Electoral Commission (INEC) and the legislature. They will no doubt find the findings, observations and recommendations very resourceful and worthy of note. It is our hope that it will allow for a more robust and balance regulation and fair handling of our electoral system and legislation.
1.6 RESEARCH METHODOLOGY
The research method used is doctrinal research based on available literatures, laws, statutes and decided cases; journals, seminar papers, periodicals, newspapers, and research works in the library relevant to the topic are consulted and properly acknowledged.
1.7 LITERATURE REVIEW
The bulk of this research is a statute and case law based. The laws and regulations that guided the conduct of elections and the trials in election petition tribunals/courts from the commencement of our democratic journey till date were derived from Decrees, Laws and constitutions. Worse, the theme of the research suggest a study of the outcomes of the romance between the provision of the laws on election petition and the findings/decisions of courts/tribunals on tested election petition cases.
Caveat must be sounded here that the above proposition should not be mistaken to mean that there are no books or literatures on requirements of proof in election or are less important to the research. As a matter of fact the research immensely benefited from the writings and opinions of the learned authors whose works were consulted in this research however, not without some shortcomings or gaps.
Afe Babalola (SAN) one of the leading authorities on Election Petition in Nigeria in his book titled ELECTION LAW AND PRACTICE IN NIGERIA VOL.1 wrote extensively on the historical development and legislative changes regarding election and election petition trials. The book traced the history of elections in Nigeria from colonial time to independence and post independence election. The book discussed issues up to Electoral Act 2006 and trials before election petition tribunals and courts. However the book appears to be merely interested in the historical development and legislative changes regarding Election in Nigeria than with the means and mode of proof of election cases. The book equally does not cover up to the Electoral Act, 2010 as amended being the current applicable legislation on election in Nigeria and the amendments to the 1999 Constitution and the Evidence Act 2011.
Ogunjinmi A.A in his book titled “A PRACTICAL APPROACH TO ELECTION PETITION PROCEDURE IN NIGERIA” tried to give the elementary and practical approach to conduct of Election Petition in Nigeria from the stage of presentation of the petition to the hearing and determination of the petition while highlighting the steps and things required of the parties thereon. The learned author in his attempt to cover all aspects of election petition failed to give much emphasis/attention to the requirement of proof being the area of core interest in this research, even the little discussed do not substantially represent the current position of the law as the Electoral Act has been amended severally with attendant changes to the legal regime on Election petition.
Another book that is worth mentioning in this research is PRACTICAL GUIDE TO ELECTION PETITION BY JOSHUA E. O. The book appears to share the same theme with this research in that it is case law based. The author tried to analyze through judicial authorities the requirements of proof in election petition, burden of proof and standard of proof of virtually all the statutory grounds for challenging an election. As comprehensive as this book may look, it did not the book evaluate the soundness or other wise of the judgments or decisions of the tribunals/courts beyond reproducing them. Again the book is authored on the basis of the Electoral Act, 2006, an Electoral legislation that is repealed and replaced by Electoral Act, 2010 as amended.
Worthy of note is a book authored by Nwabueze B.O. titled NIGERIAN PRESIDENTIAL CONSTITUTION (1979 - 83) THE SECOND EXPERIMENT IN CONSTITUTION DEMOCRACY. The book although concerned about Nigerian Presidential System as contained in 1979 Constitution, it also discusses the various aspects of election from the angle of the electoral commission to the holding of an election and post-election judicial process. It is aimed at providing guidance and general education to politicians, voters and lawyers alike. The book although of immense use in this research does not put or proffer any suggestion on the efficacy or otherwise of the various tests evolved by election petition tribunals/courts in resolving election dispute neither does it reflect the current constitutional and electoral changes to our current electoral legislation. The book also did not appear to be thematically interested in detail analysis of the requirements of proof in election petition.
The book titled ELECTORAL LAW AND PRACTICE IN NIGERIA by Aderemi O is another work consulted in this research. The author who tried to give a general overview of election in Nigeria dedicated a whole chapter of his work in analysis of the four statutory grounds and even delved into the constitutional ground as created by the Supreme Court in the celebrated case of OBASANJO V YUSUF (INFRA). Although the book discussed the statutory grounds and the constitutional ground, it was in a passive and general manner as the work equally failed to evaluate the various standards/yardstick evolved by courts/tribunal in resolving election dispute nor did it engage in an in depth analysis of same. Just like other authorities consulted, it is premised on the Electoral Act 2006 which is no longer the applicable and operational electoral legislation in Nigeria.
The research immensely benefited from a book titled LAW AND PRACTICE OF EVIDENCE IN NIGERIA authored by Afe Babalola particularly the array of Contributors to the book. The book discussed topical issues in the field of Nigerian law of evidence including the twin concepts of burden and standard of proof. The book’s approach is general and did not customize burden and standard of proof as is being advocated for in this research. Equally the book was based on the repealed Evidence Act same having been repealed and replaced with the Evidence Act 2011.
The research also consulted articles written in academic journals. One of such articles is “Election Petition in Nigeria: Buhari v Obasanjo in Perspective ” by Prof B.Y Ibrahim. The article concisely appraised election petition generally from the preliminary aspect to the proof of election using the case of Buhari v Obasanjo as template and made far reaching and profound recommendations. However the article was based on Electoral Act 2002 which has repealed and replaced with Electoral Act 2010 as amended. Again most of the recommendations such as the need for speedy trials, joinder, and number of witnesses amongst others have been overtaken by subsequent legislations including the Electoral Act 2010 as amended.
The research also consulted another article authored by Dr A.K Usman titled “Buhari v Obasanjo: Law and Justice on the Cross ”. The article reviewed the Supreme Court judgment in that case and critically analyzed their reasoning particularly wondering why the Supreme Court could not void the election having accepted that the election was anything but a sham and defective. The author although also made profound recommendations most of them were taken care of by subsequent legislation. The article was based on Buhari (no 2) and Electoral Act 2002. This is not the current legal regime on electoral matters as the said Electoral Act has been repealed and replaced by Electoral Act 2006 which has also been repealed and replaced with Electoral Act 2010 as amended.
The statutes that governed the elections and judicial decisions of courts and tribunals are examined and analyzed with a view to ascertaining whether they have served the purposes of translating the wishes of the Nigerian electorates and sustenance of democracy.
1.8 ORGANIZATIONAL LAYOUT
The work comprises of six (6) chapters. The first chapter introduces the subject matter and lays foundation for the research.
Chapter two dwells on the election petition in general by highlighting the competence of a petition, proper parties, time frame, content of election petition, grounds for bringing petition, jurisdiction and sundry related issues.
Chapter three, four and five discuss extensively the statutory grounds for challenging an election and the requirement of proof of each ground. The difficulty (ies) of proving some of the grounds is also highlighted.
Chapter six provides the summary, the findings or observations of the research are highlighted in the conclusion and recommendations or suggestions equally proffered.
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