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Act: A Mirage or A Reality? 

Page | 64 
 

PROVING SUBSTANTIAL NON-COMPLIANCE IN ELECTION PETITION UNDER THE 

NIGERIAN ELECTORAL ACT: A MIRAGE OR A REALITY?* 

 

Abstract 

Elections Petitions in Nigeria, particularly those challenging the outcome of elections on the ground of 

substantial non-compliance to the provisions of the Electoral Act fail more than they succeed. While it 

has become almost impossible to prove the said ground of substantial non-compliance, there is some 

ease and possibility in proving the other four grounds provided for when they are raised in an election 

petition. This problem seems traceable to the Electoral Act regime and the requirement of proof for 

allegation of substantial non-compliance in election cases. This paper examined the difficulty in proving 

the ground of substantial non-compliance as provided in Section 138(1)(b) and 139 of the Electoral Act 

2010(As Amended). In doing so, it examined further the burden of proof placed on the petitioner where 

he attempts to prove allegations of offences that constituted the non-compliances in an election petition. 

The methodology adopted is doctrinal and analysis of the relevant provisions of the Act and literature 

on the subject. In the end, the researcher recommends the deletion of Section 139 of the Electoral Act 

2010 (as Amended) and suggests other necessary amendments to the Act, which if adopted, will enable 

a petitioner succeed in proving the ground of substantial non-compliance. 

 

Keywords: Election Petition, Substantial Non-compliance, Electoral Act, Election Tribunal. 

 

1. Introduction 

Nigeria is heterogeneous and populous. It has about 374 ethnic formations.1 On May 19, 2021, the 

population of Nigeria was estimated at 210,832,540 based on the latest United Nations estimates.2 Also, 

Nigeria is peculiarly plural by vast number of different social groups and by vast number of different 

religious and traditional occupations. The deep and fundamental differences in attitude, character and 

culture also added to her peculiarity. Most social and political groups like Nigeria often times adopt 

election as a means of selecting their leaders and policy makers. From the 17th century, elections have 

been the usual mechanism by which modern representative democracy has operated.3 Today, election 

is the corner stone of democracy.4 Elections, therefore, are central institutions of democratic 

representative governments. Election in most democratic states is usually conducted by an institution 

set up by law. For Nigeria, the body is currently the Independent National Electoral Commission. Rules 

and regulations are normally put in place for the conduct of free and fair elections. As at date, the 

Electoral Act 2010 (As Amended) is the primary legislation for the conduct of elections in Nigeria.  

After the conduct of elections, in line with the dictates of the Act5 and a winner emerges, a candidate in 

the election or his political party not satisfied with the outcome can challenge the result of the election.6 

This can be done by presenting a petition to the relevant Election Tribunal created under the law.7 In 

presenting a petition, the petitioner, can only rely on any or a combination of the five grounds of petition 

provide for. The five grounds on which an election may be questioned or set aside are: 

1. That the candidate declared to be the winner of an election is not qualified, at the time of the 

election, to contest the election. 

2. That the election was invalid by reason of corrupt practices of non-compliance with the 

provisions of the Electoral Act 

                                                           
*By Chukwuemeka E. IBE, PhD, LLM, BL, LLB, Professor of  Law, Faculty of Law, Nnamdi Azikiwe University, Awka 

Anambra State Nigeria. Email:emmaibe2020@gmail.com; Phone Number: 07031105599; 07034029929; and  

*Uchechukwu Humphrey ONYEKACHI, LLB, BL, LLM Candidate, Faculty of Law, Nnamdi Azikiwe University, Awka, 

Anambra State, Nigeria. Email: onyekachiuchechukwu@gmail.com. Phone Number +2348060008948    
1I AUmezulike, ‘An Overview of Communal conflicts in Nigeria: Our Skeptical view and suggestions’ (2015) NBJ Vol.10, p 

15. 
2‘Nigerian Population 2019-Worldmeters’ www.worldometers.info/world-population/nigeria-populationaccessed on 19thMay, 

2021.  
3‘Election Political Science,’ Britannica online. www.britannica.com/topic/election-political-science accessed on 5 September 

2016. 
4T Osipitan, Problems of Proof under the Electoral Act 2002, Judicial Excellence, Essays in Honour of Hon. Justice Anthony 

Iguh JSC CON, (Enugu: Snaap Press Ltd Enugu, 2004) p 289-304. 
5 Act means the Electoral Act 2010 (As Amended) 
6 Section 137 of the Electoral Act 2010 (As Amended) 
7 Section 133 of the Electoral Act and Section 285 of the 1999 Constitution of the Federal Republic of Nigeria.   

mailto:emmaibe2020@gmail.com
mailto:onyekachiuchechukwu@gmail.com
http://www.worldometers.info/world-population/nigeria-population
http://www.britannica.com/topic/election-political-science


ACARELAR 2 (2021) 

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3. That the respondent was not duly elected by the majority of lawful votes cast at the elections or 

4. That the petitioner or its candidate was validly nominated but was unlawfully excluded from 

the election. 

5. That the person whose election is questioned had submitted to the commission affidavit 

containing false information of a fundamental nature in aid of his qualification for the election.8 

 

Amongst these five grounds upon which an election petition can be challenged, ground two that is 

(Section 138(1)(b)), are resorted to more often than the other grounds. Most times, in the conduct of 

elections, the provisions of the Electoral Act are breached, giving rise to these complaints. As a result, 

majority of election petitions presented to the tribunal are often on the ground that there was non-

compliance with the provision of the Act in the conduct of the election.  On the other hand, ground one 

above rarely occurs as a post-election dispute. This is so because grounds one and five are both pre-

election and post-election disputes. They can occur and be challenged prior to the election, just as they 

can be raised after the election. In most cases, however, other candidates in the election would have 

raised those grounds in a pre-election suit prior to the elections and a determination on the same would 

have been made thereby aborting its occurrence as a post-election dispute. Also, grounds three and four 

rarely occur as post-election dispute, because the electoral body after computing the majority of lawful 

votes scored in an election would have arrived at a correct determination of who scored majority of 

lawful votes. It is not the practice of the electoral body (INEC) to exclude the candidate of a political 

party whose name had been submitted to the Commission prior to the Elections. After the names of 

candidate of political parties have been submitted to INEC and published, INEC would have ample time 

to capture all the candidates for the election. Therefore, it rarely occurs that a lawfully nominated 

candidate would be excluded from the election. This leaves us with ground two as the ground that often 

arises for determination in an election tribunal.  

 

2.0 Substantial Non-Compliance 
By virtue of section 138(1) (b), an election can be invalidated by reason of corrupt practices or non-

compliance with the provisions of the Act. Even though the Act provided these as a ground upon which 

an election can be nullified, establishing/proving the said ground simpliciter cannot result in the setting 

aside of an election because section 139(1) of the Act has further qualified ground 138 (1) (b) and made 

it more difficult to establish. Section 139 (1) of the Act provides thus: 

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 

noncompliance did not affect substantially the result of the election. 

 

Section 139(1) enunciated the principle of substantial non-compliance. It introduced a qualification for 

ground 138(1) (b). No other ground as shown in Section 138(1) (a-e) was so qualified. 

What section 139(1) of the Act prescribes is that after establishing that there were non-compliances in 

an election, the petitioner must go further to satisfy two distinct requirements. These are that the election 

was not conducted substantially in accordance with the principles of the Act and that the non-

compliance affected the result of the election substantially.  In PDP v. INEC & Ors9 the Apex Court 

restated this position when it held: 

By Section 138(1) (b) of the Electoral Act, 2010 (as amended), an election may be 

questioned on the ground that the election was invalid by reason of corrupt practices or 

non-compliance with the provisions of the Act. However, by Section 139(1) of the 

same Act an election shall not be liable to be invalidated by reason of non-compliance 

with the provisions of the Act if it appears to the Election Tribunal or Court that the 

election was conducted substantially in accordance with the principles of the Act and 

that the non-compliance did not affect substantially the result of the election. The two 

provisions i.e. Sections 138(1)(b) and 139(1) of the Electoral Act, from the way they 

are couched, have placed a heavy burden of proof on any petitioner seeking to challenge 

the result of an election on the ground that the election did not comply with the 

                                                           
8 Section 138(1a-e) Electoral Act 
9 (2014) LPELR-23808(SC) 



IBE & ONYEKACHI: Proving Substantial Non-Compliance in Election Petition under the Nigerian Electoral 

Act: A Mirage or A Reality? 

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provisions or principles of the Electoral Act. This is so because, apart from showing or 

proving that it did not comply with the provisions of the Act, such a petitioner must 

prove to the Tribunal or Court that the election was not conducted substantially in 

accordance with the principles of the Act and that the non-compliance substantially 

affected the result of the election.10  

 

Before this, Niki Tobi in Basheer v Same & Ors11 fell to the error of thinking that the two limbs of the 

conditions in section 139(1) should be read disjunctively and that an election may be invalidated if any 

of the limbs is proved. But he was quick to return on the subject and departed from his earlier position 

for the reason that he reached that decision per incuriam.12 We agree that the two conditions must be 

satisfied before an election can be invalidated. This even makes the matter worse confounded. 

 

We also submit that non-compliance with the provisions of the Act must not necessarily mean the 

commission of corrupt practices or electoral offence. From the provision of Section 138(1) (b), the 

commission of corrupt practice as a ground for election petition is distinct from non-compliance with 

the Act. The use of the word ‘or’ connotes disjunctive preposition.  

 

3. Evidential Burden in Proving Substantial Non-compliance for varied offences 

Even though, some non-compliance will not imply the commission of a criminal offence, a majority of 

non-compliances committed during an election connotes the commission of a criminal offence. Of 

course, where criminal allegations are made by the petitioner as constituting the non-compliance in the 

election, the burden of proving those allegations rests squarely on the petitioner and he must prove same 

beyond reasonable doubt. This principle was enunciated in of Nwobodo v Onoh.13A corollary to that 

principle is that where the commission of a crime by a party to any proceeding is directly in issue in 

any proceeding civil or criminal, it must be proved beyond reasonable doubt.14 The substantive 

provisions are expatiated anon.   

 

Falsification of result 
Where a petitioner alleges that the result of an election was falsified and that the falsification has 

substantially affected the result of the election, he would be required to satisfy the requirement of proof 

beyond reasonable doubt as falsification of result constitutes a criminal act. In Eboh v Ogujiofor, it was 

held:  ‘The allegation of incident of fraudulent acts, falsifications, mutilations and cancellation of 

election result is criminal in nature of which the evidence required in proof of such allegations must be 

clear and unequivocal’.15 Moreover, the petitioner in order to establish or prove an allegation of 

falsification of election result has a duty to produce and tender at the trial. at least two sets of results, 

one of which could be taken as genuine and the other stigmatized as held in Etuk v Isemin16; Sabiya v 

Tukur &Ors17; Wali v Bafarawa18; Awuse v Odili19; Ojo v Esohi&Ors20Seikegba v Penawou&Ors.21 

This is a big burden on the petitioner. The petitioner does not keep custody of the election results.  INEC 

does and it is no news that INEC as a respondent in a petition often colludes with the winner so as to 

justify the outcome of the polls which they conducted. Even when all the electoral materials are 

subpoenaed, the petitioner would not be able to establish this requirement as the materials are often 

already tampered with in favour of the winner.  

 

 

 

                                                           
10 Per John Inyang Okoro, J.S.C (p. 51, paras. A-G) 
11Basheer v. Same & Ors (1992) LPELR-12762(CA) 
12See Alhaji Yusuf I. Na-Bature v Alhaji Isa Aliyu Mahuta & Ors (1992) 9NWLR (Pt. 263) 85 at 108 
13(1984) All NLR 1. See also Omisore & Anor v. Aregbesola &Ors (2015) LPELR-25820(CA) 
14 Section 135(1) of the Evidence Act 
15(1999) 3 NWLR (Pt. 595) 419 @ 423 - 424 
16(1994) 4 NWLR (Pt 234) 402 at 414 
17(1983) 11 SC 109 
18(2005) (Pt 249) 1863 
19(2004) All FWLR (Pt. 261) 248; (2004) 8 NWLR (Pt. 876) 481 
20(1999) 5 NWLR (Pt. 603) 444 at 452 - 453 
21(1999) 9 NWLR (Pt.618) pg.354 



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Disenfranchisement 
Disenfranchisement can be proved by the tendering of voter's registers, voters’ cards and of course by 

the verbal or oral testimony of those who claim to have been disenfranchised.  In Chime v Ezea, the 

court held thus:  

Everyone deprived of voting must come and show his voters card, express his 

constitutional right to pick a candidate of his choice. The comprehensive voters register 

must be tendered, authentic evidence of what happened at each polling booth must be 

given and this will not admit of any generalisation of evidence for Local Government 

or Constituency as it will not serve the purpose.22   

 

This same is true of Audu v INEC & Ors23 The above requirement is an onerous task considering that 

the number of persons disenfranchised may run into hundreds of thousands and or millions and may be 

scattered at different locations. Also, considering the fact that an election petition must be presented 

within 21 days after the election the procedural requirement of frontloading depositions of witnesses 

and documents to be relied on poses a difficult challenge for the petitioner. Furthermore, the fact that 

the petition must be concluded within a stipulated time makes it almost impossible for the petitioner to 

call all the witnesses that may be required to prove disenfranchisement. Where the number of persons 

that claim disenfranchised is less than the difference between the winner and the petitioner, the tribunal 

will again resort to the magic wand of substantial non-compliance to hold that it would not have affected 

the outcome of the results.24 For the petitioner to succeed, he will have to prove that the 

disenfranchisement was substantial and such infringement or non-compliance affected the result of the 

election. As usual, the petitioner alleging non-compliance has the burden to establish, after he has 

shown that there was a substantial non-compliance, that it also affected the result of the election. The 

respondents have no burden of proof on them.  

 

Multiple Thumb Printing/Voting 
Multiple thump printing of ballot papers is an electoral offence. Under the electoral regime, a person is 

entitled to one vote and so where a person thump prints multiple ballot papers and or vote more than 

once, the offence is constituted. This is provided in section 53(1) of the Act.  A petitioner in 

substantiating non-compliance with the Electoral Act may plead facts to the effect that the petitioner or 

his agents engaged in the offence of multiple thump printing/voting. Where this is the case, he would 

need to prove such offence beyond reasonable doubt. In addition to the requirement of proof beyond-

reasonable doubt, there are the additional requirements that there must be established a nexus between 

the perpetrators and the candidate who was returned. What is more, it must, also, be shown that the act 

adversely affected the conduct of the election and substantially affected the result of the election25. 

Dealing with the offence, the court held in Hon Ode Frank Igbe& Anor. v Dr. Joseph Adoga Ona & 

Ors that an expert evidence showing that the finger prints appearing on the ballot papers belong to one 

and same person is essential. It also established that it must also be proved that the party, whose election 

is challenged, aided or abetted the multiple voting/thumb-printing.  

 

Thuggery 

Generally, election thuggery is the attempt to dictate the outcome of the election with the use of force 

and intimidation. It is the act of using violence and intimidation to prevent voters for voting a particular 

candidate or threatening them to vote a particular candidate.26 Thuggery being a criminal act will require 

proof beyond reasonable doubt and before the result can be impugned. The petitioner must establish 

that the winner of the polls carried out the thuggery or establish a nexus between him and the 

perpetrators of the act.27As dictated by section 139(1) of the Electoral Act, the petitioner must establish 

that the thuggery has affected the result substantially and that thereby the provisions of the Act have 

not been complied with substantially. 

 

                                                           
22(2009) 2 NWLR (Pt. 1125) 263 at 357 Paras. E-F 
23(2010) 13 NWLR (Pt. 1212) 456 at 523 
24PDP & Anor. v INEC & Ors. (2012) LPELR-8409(CA) 
25Oyegun v Igbinedion (1992) 3 NWLR (Pt. 226) 747; (1992) 2 LRECN 1,747, 759-760 
26 Section 131 of the Act  
27Ogu v Ekweremadu (2006) 1 NWLR (Pt. 961) 255 at 281 - 282 (CA) 



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Stuffing of Ballot Boxes 

Another known electoral offence which can be particulars of substantial non-compliance is stuffing of 

ballot box with already unlawfully thumb printed ballot papers. Ordinarily, a voter will only be issued 

with one ballot paper with which he will vote by thumb printing and put in the ballot box. However, the 

offence occurs when the respondent or his agent through intimidation or other unlawful means obtains 

many ballot papers, thumb prints and stuffs the box with these. A Petitioner who relies on this offence 

to seek for nullification of the result will be required to tender and open before the court the ballot boxes 

he alleges to have been stuffed, for the contents to be seen by everyone present at the proceeding before 

the Tribunal. This pre requisite was introduced in the cases of Haruna v Modibbo28; Iniama v Akpabio29 

and A.N.P.P. v Usman30, PDP v. INEC &Ors.31  In other words, the petitioner has to obtain custody of 

the boxes and produce them in court. This is quite an onerous burden to discharge. In the first place, 

after election, INEC retains all the materials and where they are colluding with the winner of the polls, 

they would have covered up the illegality before the matter gets to the tribunal.  Perhaps, if immediately 

the result is declared, all the materials used in the election are deposited at the court’s Registry for safe 

keeping; it would be easier for the petitioner during hearing to make use of these in discharging this 

burden. What is more, to prove the respondent’s guilt, the petitioner will be expected to discharge the 

burden beyond reasonable doubt.32 We now consider procedural drawbacks against the petitioner. 

   

4. Procedural Hitches in Proving Substantial Non-Compliances 

As has been shown above, the petitioner has onerous burden of discharging the burden of proof in any 

criminal allegation occasioning the non-compliance. Apart from this evidential burden on the petitioner, 

there are certain provisions of the rule of practice of an election tribunal that further compound the 

difficulty of proving substantial non-compliance by the petitioner. These procedural hitches are 

contained in the 1st Schedule to the Electoral Act (the rule of procedure for election tribunal). Some of 

these procedural hitches targeted against the petitioner alone are discussed hereunder.  

 

The Deposit of Security for Cost 

One harsh requirement introduced under the Electoral Act regime and procedure in election petitions is 

the requirement of a petitioner depositing money as security for cost. This provision already suggests 

that procedure of enforcement of election petition is anti the petitioner by confronting him with deposit 

of money for payment of cost not yet accrued and which no one knew if it will ever accrue. Paragraph 

2 of the First Schedule brought out the stark realities of this stringent provision. It provides: 

           2(1) At the time of presenting an election petition, the petitioner shall give security for 

all cost which may become payable by him to a witness summoned on his behalf or to a 

respondent. 

(2) The security shall be of such amount not less than N 5,000.00 as the Tribunal or 

Court may order and shall be given by depositing the amount with the Tribunal or court. 

(1) ……. 

(2) If no security is given as required by this paragraph, there shall be no further 

proceedings on the election petition.’      

 

An election petition is said to be presented under the Act, when the petitioner or his solicitor gives 

security for cost and pays all necessary fees as required in paragraph 2(1) and 3(4) of the First Schedule 

to the Act. Non-compliance with this provision is fatal to the petition.33 The practice of deposit of cost 

is rarely practiced in other areas of law. This mandatory introduction under the Electoral Act has 

worsened the problem of the petitioner. What is more saddening is that the First Schedule did not 

prescribe with certainty the amount to be deposited in an election petition but has left the court/secretary 

to impose any amount as he/she may desire but not less than N5,000.00. This is not to be encouraged 

as an impecunious petitioner may by this provision be prevented from presenting his petition. For 

instance, in Enugu State after the 2019 General Elections, the Petition of Uchenna Nwegbo against the 

                                                           
28(2004) 16 NWLR (Pt. 900) p.487 
29(2008) 17 NWLR (Pt. 1116) Pg. 225 
30(2008) 12 NWLR (Pt.1100) p. 1 
31(2011) LPELR-8831 (CA) 
32Uzu & Anor v Ogbu & Ors. (2012) LPELR-9775(CA) 
33Eminue v Nkereuwen & Ors (1966) 4 NSCC 51 at 54 



ACARELAR 2 (2021) 

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return of Sen Dr. Chimaroke Nnamani in respect of Enugu East Senatorial District could not be 

presented as the said Petitioner could not pay the N 600,000.00 (Six Hundred Thousand Naira) only 

being charged as security for cost. 

 

Frontloading 
Paragraph 4 (5) of the First Schedule to the Act introduced frontloading system under the Electoral Act 

regime. The paragraph provides: 

(5) The election petition shall be accompanied by- 

(a) A list of the witnesses that the petitioner intends to call in proof of the petition; 

(b) Written statements on oath of the witnesses; and  

(c) Copies or list of every document to be relied on at the hearing of the petition. 

 

The provision of sub paragraph 6 went ahead to provide the penalty for non-compliance with the above 

requirement of frontloading. It provides that a petition which fails to comply with sub paragraph (5) of 

this paragraph shall not be accepted for filing by the secretary. That is to say if the petitioner did not 

comply with the provision requiring him to frontload the witness statement on oath as well as copies of 

every document he will rely on, his petition will not be accepted for filing. The gross effect of the 

provision is that where the petition did not obtain all his documents and frontload same within 21 days 

or failed to list them, he cannot bring it later and his petition would not be accepted for filing. This has 

increased the nightmare of the petitioner. Requiring a petitioner to assemble all his witnesses and do 

their deposition within 21 days is to say the least a difficult task. Where a petitioner wants to prove 

widespread irregularities, he is expected to have at least a witness from each polling unit to come and 

testify to that fact.  In an election dealing with a House of Assembly seat, there may well be over 200 

polling units. For this, the petitioner would have to source about 200 witnesses and prepare their written 

depositions within 21 days and as well obtain and frontload the necessary documents within 21 days. 

Additional to this is that by the provision of paragraph 14 (2)(i) of the First Schedule to the Electoral 

Act, any amendment that seeks to introduce any of the requirement under paragraph 4(1) of the First 

Schedule cannot be introduced or granted. To that extent, amendment is largely limited if not barred 

entirely. The import of the provision is that, the parties interested in an election petition, the right of the 

petitioner to present a petition, the winner of the election, the facts of the election petition, the scores of 

the candidate, the holding of the election, the ground of the petition, the relief sought by the petitioner 

cannot be amended or introduced. It means that any genuine mistake of counsel in these arears while 

filing the petition within the short period cannot be forgiven or corrected. This provision is very unfair 

on the petitioner and compounds his burden. 

 

Filing Pre-trial Forms: 

Subparagraph 1 of paragraph 18 provides that: ‘Within 7 days after the filing and service of the 

petitioner's reply on the respondent or 7 days after the filing and service of the respondent's reply as the 

case may be, the petitioner shall apply for the issuance of pre-hearing notice as in Form TF007’. 

 

One surprising feature in this provision is why the duty to apply for form TF 007 is imposed on the 

petitioner. Just as the Secretary effects services and gives notices, would it not be more appropriate and 

meet the ends of justice if the Secretary were to issue this pre-hearing notice form to parties without an 

application from the Petitioner. This provision is one of such provisions made without any legal purpose 

except to constitute another procedural trap for the petitioner with the intent to have him caught up in 

the legal web. The Schedule did not just leave that duty on the petitioner without prescribing penalty 

for failure. Paragraph 18(3) (4) and (5) provides thus: 

‘(3) …… 

(4) Where the petitioner and the respondent fail to bring an application under this 

paragraph, the tribunal or court shall dismiss the petition as abandoned petition and no 

application for extension of time to take that step shall be filed or entertained. 

(5) Dismissal of a petition pursuant to subparagraphs (3) and (4) of this paragraph is 

final, and the tribunal or court shall be functus officio.’ 

 

Therefore, where the petitioner fails to apply for issuance of form TF007, the Respondent may apply 

for the said form or apply by motion that the petition be dismissed. In practice, the Respondent would 



IBE & ONYEKACHI: Proving Substantial Non-Compliance in Election Petition under the Nigerian Electoral 

Act: A Mirage or A Reality? 

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not apply for the issuance of form TF007 but are most often inclined to apply for the dismissal of the 

petition. The subparagraph goes further to provide that the Tribunal shall upon such Respondent’s 

motion dismiss the petition as abandoned petition and the dismissal shall be final.  What is very striking 

is that by subparagraph 4, an extension of time is not tolerated. The real essence of pre-hearing session 

is to avoid delays. However, this noble objective seems to be defeated by the albatross inherent in the 

way and manner applications for pre-hearing session are done. The above provision though made to aid 

the expeditious disposal of election petitions, has rather become counterproductive and self-defeating34.  

There is nothing progressive about the provision of paragraph 18 of the First Schedule. More succinctly, 

the provision does not ensure for speedy hearing of election petition but rather helps in speedy dismissal 

of a petition without substantive determination of the election petition. Such a provision in a country 

that needs to improve her electoral process should not be encouraged. Until the tribunals become more 

liberal in election petitions, Nigerian electoral body will not sit up, and political fraud and irregularity 

will not cease to feature.  The country will continue to be led by people without credibility. 

 

Extension of Time 

A detailed study of the provisions of the First Schedule will reveal that the electoral petition procedure 

is anti-extension of time for the petitioner.  One of the fall outs of human nature is that a party may not 

be able to comply with the time requirements for every step in the litigation process. The court’s cardinal 

foundation is to give parties a listening ear. That explains why there is an in-built mechanism in 

litigation process that accommodates a request for extension of time. It is almost general in all species 

of litigation except election petitions.   Perhaps this is to further make it difficult for the petitioner to 

prove any ground of his petition thereby punishing him for any delay and for non-performance of any 

of the roles imposed on him under the Act, without regards to any extenuating circumstances.  In the 

first place, it has been constitutionally prescribed that the petitioner must present his petition within 21 

days. Time for presentation of petition cannot be extended. In fact, the time limit for presenting election 

petition is in the nature of statute of limitation and its intendment is to oust the jurisdiction of the 

Tribunal once the period prescribed is past. It cannot be extended as it is limited35. This is not healthy; 

more time should be granted the petitioner. In Canada, a jurisdiction where election petition is treated 

summarily, ie where there is no need of frontloading, the petitioner is allowed 30 days to file his 

petition.36 Similarly, in Kenya, a fellow African Country, the petitioner is granted 28 days to file his 

petition.37 These two countries that allow longer time to present a petition both have stronger and more 

responsive institutions than Nigeria in the electoral process. Secondly, time cannot be extended for the 

petitioner for filing his reply. Paragraph 16 (2) of the First Schedule provides that the time limited by 

sub paragraph (1) of this paragraph shall not be extended. The said subparagraph 1 provides that; ‘If a 

person in his reply to the election petition raises new issues of fact in defence of his case which the 

petition has not dealt with, the petitioner shall be entitled to file in the Registry, within five (5) days 

from receipt of the respondent’s reply, a petitioner’s reply in answer to the new issues of fact.’ By that 

provision, the petitioner’s time for filing his Reply cannot be extended. The effect is that if the petitioner 

fails to file a Reply within 5 days from service, he will be deemed at law to have admitted all the new 

factual averments made by the respondent. This is grave and can be fatal to the petition.  By virtue of 

paragraph 10 (2), the Respondent is allowed a period of 21 days to file his reply. He can as well apply 

for and be granted extension of time if he fails to file his reply within 21 days. This is unlike the 

petitioner who cannot obtain extension of time to file petition or extension to file the petitioner’s reply 

or extension of time to apply for the issuance of pre-trial form. In each case where the petitioner fails 

to comply with the time granted to him, his petition will face fatal consequences!  

 

Participation in Pre-trial Proceedings 

Paragraph 18 (11) (a) is another grave provision under the Electoral Act. This section provides that 

where a petitioner fails to attend the pre hearing sessions or fails to obey a scheduling or pre hearing 

order or is substantially unprepared to participate in the session or fails to participate in good faith, the 

                                                           
34 U C Kalu, E O C Obidinma & A O Anazor, ‘Time Limitation in Election Petitions in Nigeria: The Imperative for Further 

Constitutional Reforms’ International Journal of Innovative Research & Development (December 2016, Vol 5 Issue 14) p 46, 

ISSN 2278-0211 (Online). 
35Lamido v Turaki (1999) 4 NWLR (PT.600) 578  
36 Section 527 of Canada Elections Act 
37 Section 74 of Elections Act No 24 of 2011 



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tribunal shall dismiss the petition.  This provision decapitates the petition because of any act perceived 

as indicating lack of seriousness on the part of the petitioner. What constitutes lack of seriousness in 

the mind of the court pursuant to the provisions ranges from being absent in court, to non-filing of issues 

for determination, including other inability to meet stipulated conditions. Paragraph 18(11) provides 

thus: ‘If a party or his legal practitioner fails to attend the pre hearing session or obey a scheduling or 

pre hearing order or is substantially unprepared to participate in the session or fails to participate in 

good faith, the tribunal or court shall in the case of  (a) The petitioner, dismiss the petition; and (b) A 

respondent, enter judgment against him’ Even though, Paragraph 18(11) provided that judgment can be 

entered against the respondent for failure to participate effectively in pre-trial proceedings, the 

respondent unlike the petitioner, can apply to have the judgment entered against him set aside. 

Paragraph 18(12) provides thus: ‘Any judgment given under subparagraph 11 of this paragraph may be 

set aside upon an application made within 7 days of the judgment (which shall not be extended) with 

an order as to cost of a sum not less than N20,000’.    

 

Paragraph 18(12) talks about judgment alone and did not talk about the order of dismissal. In Paragraph 

18(11), two consequences flow. These are order of dismissal against the petitioner and judgment against 

the respondent. Subparagraph 12 only saves the judgment against the respondent and not the order of 

dismissal against the petitioner. In other words, where the petition is dismissed pursuant to subparagraph 

11, the order of dismissal cannot be set aside by an application made within 7 days in line with sub 

paragraph 12! This is the harsh reality of the provision of the Electoral Act. These provisions make life 

unnecessarily difficult for the petitioner. In Solomon v Celestine & Anor38 the court held that the 

provision of paragraph 18 (12) of the First schedule to the Electoral Act dealing with setting aside can 

only apply in a situation where the Respondent has a judgment entered against him under the provision 

of paragraph 18 (11) (b) and does not apply, to a petition dismissed under paragraph 18 (11) (a) of the 

First Schedule. So, the provision of the Act punishes the petitioner for non-participation in pre-trial and 

gives him no remedy to save his petition unlike the respondent that it provides opportunity to set aside 

the judgement. 

 

5. Conclusion and Recommendations 
From the foregoing, substantiated by the outcome of a lot of election petitions, it is obvious that proving 

the ground of substantial non-compliance under the Electoral Act of Nigeria is a herculean, if not an 

impossible task. The combined provisions of section 138(1)(b) and 139(1) have created a high hurdle 

for petitioners to jump. Unfortunately, the existence of this high hurdle is now promoting the current 

high rate of electoral offences witnessed in the country. Since the Act by the above stated provisions 

requires the petitioner to prove that the non-compliance have substantially affected the result of the 

election and substantially detracted from the provisions of the Act, politicians have capitalized on this 

and they commit serial electoral fraud knowing that the Act has made it impossible for the petitioner to 

establish his case.  This has also misled the electoral body into becoming more lackadaisical and 

nonchalant in regards to complying with the provisions of the law.  We have attempted hereinabove to 

show how it is easier for a camel to pass through the needle’s eye than for a petitioner to prove 

substantial non-compliance before an election petition tribunal. No matter how high he jumps, he cannot 

prevail because the hurdle is beyond his reach. Therefore, the parameters need be reset and a return visit 

made on the requirements so as to adjust or reduce the burden.  

 

We recommend as follows:  

(a) Deletion of Section 139 of the Electoral Act. This is to bring an end to the problem of proving 

substantial non-compliance. Section 139 of the Electoral Act can void an election without first 

examining whether such non-compliance substantially affected the result. We have found that it cannot 

even be said whether a non-compliance affected the result substantially as some seemingly little non-

compliance can have a ripple effect in the entire process and thus snowball into derailing the efficacy 

of the entire election. Deleting Section 139 will therefore enthrone some sanity into the system. 

Politicians and political actors will know that it is no more business as usual and will begin to conduct 

                                                           
38(2011) LPELR-9186(CA) 



IBE & ONYEKACHI: Proving Substantial Non-Compliance in Election Petition under the Nigerian Electoral 

Act: A Mirage or A Reality? 

Page | 72 
 

themselves properly during elections thus ensuring integrity in the electoral process. This is what 

obtains in Canada where such anachronistic provision has no room in the electoral law.39 

(b) Section 285(5) and 285(6) of the 1999 Constitution should be amended to extend the time of filing 

election petition to at least 40 days and also extend the time for hearing of a petition to at least 240 days. 

These amendments are suggested so as to provide enough time for the Petitioner to prove any ground 

of his petition.  

(c) Paragraph 14 (2)(i) of the First Schedule to the Electoral Act, should be amended to allow the 

petitioner room to amend any of the requirement of paragraph 4 (1) of the First Schedule except the 

ground of the petition.  

(d) paragraph 18(4) of the First Schedule to Electoral Act should be amended to mandate the secretary 

of the Tribunal to issue pre-trial forms (Form TF 007) and fix a date for filing the answers thereto (Form 

TF008)  

(e) Paragraph 18 (3) & (5) of the First Schedule should be deleted entirely.  

(f) Paragraph 18(12) should also be amended to save petitions. The paragraph should provide that an 

order of dismissal can be set aside just as a judgment against a respondent can be set aside. 

(g) Paragraph 2 of the First Schedule should be deleted entirely.  

(h) Paragraph 16(2) and 45(1) of the First Schedule should all be amended to allow extension of time 

within which the petitioner can file the petitioners reply. 

 

 

 

                                                           
39 Section 524 of Canada Elections Act S.C 2000 c.9. 


