Section 135
Certain defects not to invalidate election(1) An election shall not be liable to be invalidated by reason of noncompliance 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 non-compliance did not affect substantially the result of the election.
(2) An election shall not be liable to be questioned by reason of a defect in the title or want of title of the person conducting the election or acting in the office provided such a person has the right or authority of the Commission to conduct the election.
(3) No election shall be questioned or cancelled by reason that there is a mistake, conflict or inconsistency in the date contained in the result of such election signed by a returning officer or any other officer of the Commission.
This Section acknowledges the fact that there is no perfect election anywhere in the world and thus, seek to prevent the Election Tribunal from unnecessarily nullifying an election based on minor errors or mistakes.
It addresses the issue of compliance with the provisions of the Electoral Act highlighted in section 131 (1) (b), in which case an election result will be upheld if there was substantial compliance.
The Section prohibits the following; Election Tribunal from invalidating any election provided it is established that the election was conducted in substantial compliance with the Electoral Act and that the non-compliance did not substantially affect the outcome of the election;
It also prohibits an election from being questioned or cancelled on the ground of any defect in the title of the person who conducted the election provided it is shown that such person has the authority of the INEC;
mistake, conflict or inconsistency in date shall not be a basis for questioning or cancelling an election result duly signed by a Returning Officer or any other Officer of the Commission.
On Proof of Substantial Non-compliance with the Electoral Act
ATIKU & ANOR. V. INEC & 2 ORS. (Unreported) SC/CV/935/2023
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 non-compliance did not substantially affect the result of the election.” In the words of the Supreme Court, “a petitioner in this situation must therefore adopt a kind of double barrel approach, you don't fire one barrel and leave the other intact. Both must be fired together at the same time.”
HON. OLADIPOPU ADEBUTU & PDP v. INEC, ABIODUN ADEDAPO OLUSEUN & APC (Unreported) Appeal No. CA/IB/EP/GOV/OG/22/2023 Per Ikyegh, JCA @ Pg. 41
The Court of Appeal in elucidating the standard of proof required to prove the Petitioner’s allegations of non-compliance with the provisions of the Electoral Act
in the conduct of the elections held as follows:
“With respect to burden of proof on non-compliance, the petitioner has to tender credible, cogent and compelling evidence to prove such non-compliance
occurred in the election that the alleged non compliance substantially affected the election to the detriment of the petitioner.”
BUHARI & ANOR. V. OBASANJO & ORS. (2005) ALL FWLR (PT. 273) 1 at. 145,
The Supreme Court held as follows:
“Where it appears to the court or election tribunal that there was substantial compliance to the provisions of the Electoral Act such that the results are not
affected substantially, the results will be upheld. It also held that the onus lies on the appellants to first establish substantial non – compliance and secondly,
that it did or could have affected the result of the election. It is after the appellants established the foregoing that the onus would have shifted to the respondents
to establish that the result is not affected.”
EMMANUEL V. UMANA (No. 1) (2016) 12 NWLR (PT. 1526) 179 at 256-257, Paras. G - C; NYESOM V. PETERSIDE (2016) 7 NWLR (PT. 1512) 425
Respondents in election petitions based on non-compliance with the Electoral Act usually rest their cases on substantial compliance with the Act and not on an
absolute compliance with the provisions of the Act in order to sustain the return of the declared winner of the election. Consequently, the Petitioner who alleges
non-compliance with the Electoral Act must call credible witnesses to prove that there was substantial non-compliance with the Electoral Act.
Some irregularities are incapable of affecting the results of an election
JIBRIN MUHAMMAD BARDE & 1 0r. v. INEC & 2 Ors. (SC/CV/1226/2023) (Unreported) Per. Olatokumbo Kekere-Ekun, JSC @ Pg. 42-43
The Supreme Court in throwing more light on the application of Section 135 of the Electoral Act held that:
“There is no doubt that this clear and unambiguous provision was inserted in the Electoral Act, 2022 to ensure that an election is not nullified or
canceled owing to a genuine error in the date endorsed on the result of an election. The section acknowledges the possibility of human error,
which should not be allowed to defeat the outcome of an otherwise duly conducted election reflecting the will of the electorate.
Furthermore, where there is a complaint of non-compliance with the provisions of the Electoral Act, the petitioner must go further to prove that the alleged
non-compliance substantially affected the outcome of the election.”
Read BIYU & ANOR V. IBRAHIM & ANOR (2005) LPELR-7450 (CA) AND OMISORE & ANOR V. AREGBESOLA & ORS (2015) LPELR-24803 (SC).
The Supreme Court in BUHARI & ANOR. V. OBASANJO & ORS. (2005) ALL FWLR (PT. 273) 1 at. 145, in construing Section 135 (1) of the Electoral Act, 2002 (former Section 139 (1) of the Electoral Act, 2010 held that:
Where it appears to the court or election tribunal that there was substantial compliance to the provisions of the Electoral Act such that the results are not affected substantially, the results will be upheld.
It also held that the onus lies on the appellants to first establish substantial non – compliance and secondly, that it di d or could have affected the result of the election.
It is after the appellants established the foregoing that the onus would have shifted to the respondents to establish that the result is not affected.”
Note however that if the infraction or non-compliance goes to the root of the conduct of the election, the election would be nullified. See OKECHUKWU V. INEC (2014) 17 NWLR (PT. 1436) 255 at 309.
Mistake, conflict or inconsistency in date shall not be a basis for questioning or cancelling an election result duly signed by a Returning Officer or any other Officer of the Commission. - INEC v. OSHIOMOLE (2009) 4 NWLR (PT: 1132) 607 at 675
