In Ihute v Independent National Electoral Commission (1999) 4 NWLR (Part 599) 360, it was held that in an election petition, when a petitioner makes an allegation of non-compliance with the electoral law as the basis or foundation of his case, he has a heavy burden to show the tribunal by cogent and compelling evidence that the non-compliance is of such a nature as to affect the result of the election. The court followed the decision in Kudu v Aliyu, (supra). The decision was followed in the case of Haruna v Modibbo (2004) 16 NWLR (Part 900) 487. The court added in Haruna that the petitioner must satisfy the tribunal that he is a victim of the alleged malpractices. The court also relied on Nabature v Mahuta (1992) 0 NWLR (Part 263) 585 and Awolowo v Shagari, (supra).
In the instant case, it is fundamental to point out that, from the pleadings, the allegation of non-compliance is generated by the Petitioners. Under Sections 134(1) and 135 of the Electoral Act, the level of proof required for the success of the Petition is doubled. There must be proof of non-compliance and the further proof that the non compliance affected substantially the result of the election. In the face of such an allegation of non-compliance, the court is enjoined by the law not to invalidate an election if it appears that the election was conducted substantially in accordance with the principles of the Electoral Act. All said and done, the Petitioners have the primary burden of proving that there was non-compliance and that the non-compliance affects substantially the result of the election before the burden can shift to the Respondents to establish that there was no substantial non-compliance with the Electoral Act in the conduct of the election.
— H.S. Tsammani, JCA. Atiku v PDP (CA/PEPC/05/2023, 6th of September, 2023)