Burden of proof in election petition in Nigeria and the implication of Section 137 of the Electoral Act, 2022

Abstract

Over the years, election petition litigation has become a common feature of Nigeria’s electoral process. Every election cycle in Nigeria comes with its attendant disenchantment about the outcome, with aggrieved parties challenging the outcome in courts. However, on getting to courts, litigants face legal barriers in their quest for justice. One of these issues is the problem of proof. The inability of litigants to meet the legal threshold of proof has led to the dismissal of the majority of these election petition suits. Efforts to address this issue led to the enactment of the Electoral Act, 2022. The new Act introduces several novel provisions that address many issues that have been bedevilling Nigeria’s electoral process for a long time. One such provision is section 137 of the Electoral Act, 2022. The paper finds that the rationale behind section 137 is to lighten the onerous burden of proof placed on a petitioner by dispensing with oral evidence where the electoral documents manifestly disclose the allegation of non-compliance. The paper argues that the provision of section 137 is not inconsistent with the provisions of the Evidence Act to the extent that it dispenses with oral evidence. The paper notes that while courts are yet to make an authoritative pronouncement on the proprietary of section 137 of the Electoral Act, recent decisions of courts have not shown a positive reception of this innovative provision of the law. The paper calls on the Supreme Court to provide clarity by making authoritative pronouncement on the proprietary of Section 137 of the Electoral Act and put to rest the raging legal uncertainty around the new law.