Section 134
Grounds of petition(1) An election may be questioned on any of the following grounds—
(a) a person whose election is questioned was, at the time of the election, not qualified to contest the election;
(b) the election was invalid by reason of corrupt practices or noncompliance with the provisions of this Act; or
(c) the respondent was not duly elected by majority of lawful votes cast at the election.
(2) An act or omission which may be contrary to an instruction or directive of the Commission or of an officer appointed for the purpose of the election but which is not contrary to the provisions of this Act shall not of itself be a ground for questioning the election.
(3) With respect to subsection (1) (a), a person is deemed to be qualified for an elective office and his election shall not be questioned on grounds of qualification if, with respect to the particular election in question, he meets the applicable requirements of sections 65, 106, 131 or 177 of the Constitution and he is not, as may be applicable, in breach of sections 66, 107, 137 or 182 of the Constitution.
Cap. C23 LFN, 2004.This Section seeks to prevent filing of frivolous Petitions by specifically stating the basis or grounds upon which a party can file an election petition.
These are the grounds for bringing an election petition and they include; (1) non-qualification of the person that was declared winner; (2) that the election is invalid by reason of corrupt practices; (3) that the election is invalid by reason of non-compliance with the provisions of the Electoral Act; and (4) that it was the Petitioner that scored the majority of the lawful votes cast at the election not the person that was declared the winner by the INEC.
Note that the courts have held that ground of corrupt practices and the ground of non-compliance are two separate grounds even though listed under the same subsection (S. 134 (b) E.A, 2022).
- Also note that it is only when an election is questioned on the ground that the person that was declared winner did not win the election by majority of lawful votes cast that the Tribunal can make an order returning the Petitioner as winner if he succeeds in proving same.
Read Section 136 of the Electoral Act, 2022
Note: Two additional grounds for petition which were in the 2015 amendment to the 2010 Electoral Act are now deleted in the 2022 Act (that a candidate was excluded from nominations and that a candidate submitted a false affidavit to support his qualification for the election. These two seem covered under pre-election issues).
Note also that 134(3) is a new provision that re-inforces the constitutional provisions on qualification for elective offices. Therefore, with respect to 134 (1) (a), a Petitioner can only limit his/her complaint on qualifications and disqualifications outlined in the constitution e.g., age, citizenship, school certificate, membership of a political party, no bankruptcy, no past conviction for offences etc. See: Sections 65, 106, 131, 177 and 66, 107, 137 and 182 of the 1999 Constitution.
OJUKWU V. YAR’ADUA & ORS. (2009) 12 NWLR (PT. 1154) 50
The Supreme Court held that the grounds for challenging an election petition must be those stated in the Electoral Act and where a
petitioner chooses to use his own words, the words used must convey the exact intent and purpose as those used by the
legislature in the Electoral Act.
PETER OBI & ANOR v. INEC & ORS (CA/PEPC/03/2023) (Unreported)
By Section 134(2) of the Electoral Act, 2022 only an act or omission which is contrary to the Electoral Act, 2022 can be a ground
for questioning an election. Thus, complaints relating to non-compliance with provisions of the Regulations and Guidelines or the
Manual of Election Officials are not legally cognizable complaints for questioning an election.
On grounds unknown to law
AKPAN JEREMIAH UDOH & 1 OR. V. INEC & 2 ORS. (CA/C/EP/GOV/AKW/25/2023) (Unreported) Per Obande Festus Oguanyi, JCA @ Pg. 23 – 24
The Court held that:
“A ground of petition not midwifed by the provision is rendered an orphan. I have given a clinical examination to the clear provision of
section 134 (1) of the Electoral Act. Incidentally, I am unable to find, even in the prying eagle-eye of an appellate court, where unlawful
exclusion is sanctioned in the provision as a ground for a petition that challenges an election... A ground oxygenates a petition.
A petition bereft of a competent ground is a hallow petition which is likened to an animal drained of blood. In the eyes of the law,
the indelible incompetence of the ground, premised on account of its non-existence in the provision of section 134 (1), contaminates
the purity of the petition and smears it with incompetence.”
On Mandatory requirement of couching or drafting grounds within the purview of S. 134(1).
THADDEUS AFFATTAH & 1 OR V. OBANIKORO IBRAHIM BABAJIDE & 2 ORS (CA/LA/EP/HR/LAG/19/2023) (Unreported) Per Muhammed L. Shuaibu, JCA @ Pg. 21.
The Court of Appeal while emphasizing the need for a petitioner’s grounds to be formulated in a manner as to reflect the letters and spirit of the above mentioned section held thus:
“I have taken a hard look of both sections 24 (2) and (3), 47 (3) and 51 (2) of the Electoral Act, 2022 and same in my view are not meant to supplement or expand the
frontiers of section 134 (1) of the extant Electoral Act. Both sections 24 (2) and (3) and 51 (2) of the Electoral Act are merely providing circumstances where election
may be postponed and/or canceled. That being the case, the said ground 2 did not reflect the letters and spirit of the provisions of Section 134(1) of the Electoral Act, 2022.
Even though the Petitioners may decide to use his own language but he cannot add or substitute from the provisions of Section 134 (1) of the Act.”
On grounds not having a link to S. 177 and 182 of the CFRN 1999 (dealing with qualification for governorship election)
ONI V. OYEBANJI (2023) NWLR(Pt.1902) 507 Per Agim JSC.
The Supreme Court in emphasizing the needs for a petitioners grounds to be raised pursuant to the eligibility set out by the Constitution pronounced as follows:
”The provision of section 134(1) (a) of the Electoral Act, 2022 that an election may be questioned on the ground that a person whose election is questioned was,
at the time of the election not qualified to contest the election, cannot be applied in such a manner as to permit the challenge of the qualification of an elected
Governor on grounds not contained in sections 177 and 182 of the Constitution 1999. Such an application of that provision would render it inconsistent with sections
177 and 182 of the 1999 Constitution and void to the extent of that inconsistency."
See also: OKEWULONU & ANOR V. APC & ORS (2021) LPELR-55395(CA).
On Lumping the Grounds of a Petition
The general practice is for the grounds of non-compliance and corrupt practices to be separated. The use of the word 'OR' connotes alternatives therefore quoting S.134(1)(b) verbatim would amount to lumping grounds and thus liable to be struck out.
See: Linus Abaa Okorie & LP v. INEC, Engr. David Nweze Umahi & APC. (Unreported) Appeal No. CA/ABJ/EP/SEN/EB/74/2023 per Abraham Georgewill, JCA at page 22
“It is important to state at once that whilst an allegation of corrupt practices is criminal in nature and must be proved beyond reasonable doubt as required by law, it is not so with an allegation of non-compliance, which is civil in nature and it to be proved on a balance of probability or on preponderance of evidence. Thus, in my view, these two grounds are separate, distinct and independent under Section 134 (1)(b) of the Electoral Act 2022.”
See also: DANDAM & ANOR V. INEC & ORS (2019) LPELR-49517(CA) AND OMAR & ANOR V. INEC & ORS (2020) LPELR-51459(CA).
On Proving Corrupt Practices or Criminal Allegations in a Petition.
WADA V. INEC (2022) 11 NWLR (PT. 1841) 293 @ 232 paras E-G, the Supreme Court held that:
"Criminal allegations in election Petitions are personal to the person who committed the offences.
Such criminal allegations cannot be transferred from one person to another. It follows that where an allegation of crime is
made against a person who is not joined in the Petition, the paragraphs of the Petition where such allegations are made are
liable to be struck out. The simple reason being that you cannot prove an allegation of crime against a person who is not before
the Court and who is not given an opportunity of being heard or of defending himself.”
On the Standard of Proof where Corrupt Practices are alleged
PETER OBI & LP. v. INEC & 3 ORS (CA/PEPC/03/2023) (Unreported) @page 281 to 283 held as follows citing the following cases:
HARUNA V. MODIBBO (2004)16 NWLR (Pt. 900) 487 at 542, KAKIH V. PDP & ORS. (2012) LPELR 23277(SC) at pages 51-52;
BUHARI V OBASANJO (2005) 13 NWLR (Pt. 941) 1 at 200- 201; IKPEAZU V. OTTI (2016) LPELR- 40055 (SC) at pages 15 - 16;
ADEWALE V. OLAIFA (2012) 17 NWLR (Pt. 1330) 478 at 516.
“Where a Petition is based on allegation of incidents of fraudulent acts, mutilation of results or falsification of results,
that allegation is criminal in nature and evidence required in proof thereof must be clear and unambiguous. In other words,
the proof must be beyond reasonable doubt."
HON. OLADIPUPO ADEBUTU & PDP v. INEC, ABIODUN ADEDAPO OLUSEUN & APC (Unreported) Appeal No. CA/IB/EP/GOV/OG/22/2023 Per Ikyegh, JCA @ Pg. 41
On proving allegations of corrupt practices in the conduct of elections, the Court of Appeal held as follows:
“it is necessary to emphasize that where there is a complaint about violence and thuggery (criminal acts), there must be established nexus
between the perpetrators and the winner of the election (respondent) by credible evidence and that the act not only adversely affected the
conduct of the election but also, substantially affected the result of the election…”
Read: OKEWULOWU & ANOR V. APC & ORS (2021) LPELR-55395(CA).
The ground of corrupt practices and the ground of non-compliance are two separate grounds even though listed under the same subsection -
DANDAM & ANOR V. INEC & ORS (2019) LPELR-49517(CA) AND OMAR & ANOR V. INEC & ORS (2020) LPELR-51459(CA).
It is only when an election is questioned on the ground that the person that was declared winner did not win the election by majority of lawful votes cast that the Tribunal can make an order returning the Petitioner as winner if he succeeds in proving same - DEEN & ANOR V. INEC & ORS (2019) LPELR-49041(CA).
In NYESOM V. PETERSIDE (2016) 17 NWLR (PT. 1512) 452 at 528, the Court held that the grounds for questioning an election provided in the Electoral Act are sacrosanct and admits no addition.
SALIM V. C.P.C. (2013) 6 NWLR (PT. 1351) 501 at 523-524
After a general election, the question of nomination, which is a pre-election matter ceases to exist, leaving only the election proper to be
questioned and the proper place to do so is the Election Tribunal, not the regular Court. Where the election has taken place, any grievance
arising therefrom can only be entertained by the election Tribunal.
On substantial non-compliance:
BUHARI & ANOR. V. OBASANJO & ORS. (2005) ALL FWLR (PT. 273) 1 at. 145, 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.
See also: 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.
On standard of proof where corruption is claimed:
The standard of proof for corrupt practices in election petition cases is beyond reasonable doubt. However, the standard of proof for non-compliance
with the provisions of the Electoral Act, 2022 is on preponderance of evidence. See UCHA V. ELECHI (2012) LPELR – 7823 (SC), OMISORE V. AREGBESOLA (2015) LPELR – 24803 (SC).
