Burden and Standard of Proof in Election Petitions without Criminal Allegations

Faith O Osadolor

doi:10.5539/jpl.v12n3p156

Abstract

The burden and standard of proof in election petition without criminal allegation is in tandem with the extant Evidence Act, as election petitions is sui generis. The purpose of election laws is to obtain a correct expression of the intent of the voters. However, this paper argues that whereas proof of election petition without criminal allegations requires proof on the preponderance of evidence, the shallow chant of &ldquo;he who asserts must prove&rdquo; in the extant law is a conduit pipe for electoral injustice. This paper therefore makes a clarion call for the amendment of the relevant extant law to usher in a legal regime of burden of proof on the pleadings, where whoever asserts the affirmative or positive must prove on the state of the pleadings.   The rebuttable presumption of the regularity of the conduct of elections and declaration of results, no longer serve the end of justice in our electoral process. This paper therefore argues that the Electoral Act be amended to place the burden of proof of the regularity of elections and declaration of results on the Independent National Electoral Commission (INEC), to meet the desired justice contemplated in the electoral process.

Highlights

The burden and standard of proof in election petition without criminal allegation is in tandem with the extant Evidence Act, as election petitions is sui generis
This paper argues that the Electoral Act be amended to place the burden of proof of the regularity of elections and declaration of results on the Independent National Electoral Commission (INEC), to meet the desired justice contemplated in the electoral process
The Supreme Court held, on rebutting the correctness of a result declared by a returning officer and on effectively discharging the burden of proof, as follows: There is in law a rebuttable presumption that the result of any election declared by the returning officer is correct and authentic by virtue of sections 115, 148(C) and 149(1) of Evidence Act and the burden is on the person who denies the correctness and authenticity of the return to rebut the presumption

Summary

Introduction

“In Nigeria, it may be apt to describe the right to vote as a constitutional right since it is conferred by the Constitution. Nyako,[3] for instance, the petitioners failed because they were unable to discharge the burden of proof on them for their failure to call their polling agents as witnesses of what transpired at the polling station. The court categorically declared that where non-compliance with the Electoral Act is alleged, it raises the mandatory duty on the Petitioner to call their polling agents in proof of the allegation. This must be read in the light of Okechukwu v. INEC,[4] where the Supreme Court held that a polling agent can only testify on what transpired that he saw within his own polling unit and that being a human being, he can only be physically present at only one polling unit at any given time

General Burden of Proof

Burden of Proof in Civil Cases

Standard of Proof in Civil Cases

Nature of Election Petitions and Burden of Proof

Burden and Standard of Proof in Election Petitions

Conclusion