ELECTION PETITION IN NIGERIA

ELECTION PETITION IN NIGERIA

BY

          EDIKAN UMO EDEM, Esq., L.L.B., B.L.

MEANING OF ELECTION:

Election is defined by the Appellate Court in the case of ALL PROGRESSIVE ALLIANCE & ANOR V. SARAKI & ANOR (2007) 17 N.W.L.R. (PT.1064) 453 as the process of choosing especially by voting. It is not just the process of choosing an actual date of election but a process that starts from nomination of candidates by political parties, i.e. goes back to the primaries of political parties. It is the democratic process of choosing those to administer the political affairs of the people.

NATURE OF ELECTION PETITION:

Elections are sui generis and thus are distinct, peculiar and a different character from normal civil proceedings. See BUHARI V. INEC and NWOBODO V. ONOH. The procedure for election petition is provided for in the 1999 Constitution and other specific statutes and relevant rules unlike other civil proceedings, which are regulated by the Rules of Court. More so, election petitions unlike civil proceedings do not deal with the civil rights and obligations of litigants in a strict sense of the word. The electoral dispute is the dispute that arose from the conduct of elections.

THE APPLICABLE LAWS:

1999 Constitution of the Federal Republic of Nigeria As Amended;

1999 Constitution of the Federal Republic of Nigeria (Second Alteration) Act 2010;

1999 Constitution of the Federal Republic of Nigeria (First Alteration) Act 2010;

Electoral Act 2010 (As Amended 2011);

Election Tribunal and Court Practice Direction 2011;

Rules of Procedure for Election Petition (First Schedule to the Act).

COURTS WITH JURISDICTION OVER ELECTION PETITIONS:

The 1999 Constitution has vested jurisdiction in different tribunals as follows:

For the office of the President or Vice President: the Court of Appeal sits as Election Tribunal. It sits only on Presidential election (President and Vice President) in its original jurisdiction. See Sections 239(1) and 285 of the 1999 Constitution. See also Section 7 of the 2nd Alteration Act 2010, as well as Section 133(2) of the Electoral Act 2010.

The composition is at least three Justices of the Court of Appeal.

Appeals go as of right from the Court of Appeal to the Supreme Court (5 Justices sitting – Section 233 of the Constitution).

For the office of Governor or Deputy Governor: the Governorship Election Tribunal has exclusive jurisdiction – Section 9(2) of the 2nd Alteration Act 2010.

Appeals from the decision of the Governorship Election Tribunal goes to the Court of Appeal, and then to the Supreme Court which is the final Court.

The composition of the Governorship Election Tribunal shall be a Chairman and two other Members – See the Sixth Schedule, Section 2(1) to the 2nd Alteration Act of the 1999 Constitution as Amended.

For the offices of the National and State Houses of Assembly: the National and State Houses of Assembly Election Tribunal has exclusive jurisdiction. See Section 9(1) of the 2nd Alteration Act 2010. The composition of National and Houses Tribunal State Houses of Assembly shall be a Chairman and two other Members – See the Sixth Schedule, Section 1(1) to the 2nd Alteration Act of the 1999 Constitution as Amended.

Appeals from the decision of the National and State Houses of Assembly Election Petition Tribunal goes to the Court of Appeal which is the final court. - Section 246(3) of the 1999 Constitution.

For the office of Local Government Chairman & Councilors: The Local Government Election Petition Tribunal are created by State Laws.

For the office of Area Council Chairman and Councilors in the Federal Capital Territory: The Area Council Election Tribunal has exclusive jurisdiction. See Section 135(1) of the Electoral Act 2010 (As Amended).

The Area Council Election Appeal Tribunal has exclusive jurisdiction to hear and determine appeals arising from the decision of the Area Council Election Petition Tribunal. – Section 136(1) of the Electoral Act 2010 (As Amended).

CRITERIA FOR ELIGIBILITY OF CANDIDATES FOR POLITICAL OFFICES IN NIGERIA

You must belong to a political party and be sponsored by them;

You must be a Nigerian Citizen;

You must be educated up to School Certificate;

You must not be adjudged to be a lunatic;

You must not be adjudged or declared bankrupt;

You must not be sentenced to death or imprisonment;

You must not be a member of any secret society;

You must not be employed in state/federal civil service within 30 days before the date f election;

You must not be convicted or sentenced for dishonesty of fraud less than ten years before the date of election.

 You must, at least, attain the following age:

40 years for President;

35 years for Governor;

30 years for Legislative Houses.

See Sections 137&138 of the 1999 Constitution (for President), 182&183 (for Governors), 65&66 (for Members of the National Assembly), and 106&107 (for Members of the Houses of Assembly of each State of the Federation.

TENURE OF OFFICE:

The office of the President and Governor is limited to two terms.

Tenure starts counting from the time of swearing in (taking oath of office).

Their terms of office will only count if held under a valid election.

RIGHT TO PRESENT AN ELECTION PETITION:

This means the locus standi of persons applying for the review of election. By virtue of Section 137(1) of the Electoral Act 2010 as Amended 2011, only two persons or entities are entitled to present an election petition. They are;

A candidate in an election. This also includes a person nominated and cleared but was wrongly excluded by INEC. Se Section 138(1)(d) of the Electoral Act. See also P.P.A. V. SARAKI.

A political party which participated in the election. – See EGOLUM V. OBASANJO.

PARTIES TO ELECTION PETITION

PETITIONER: This refers to a person who participated in an election and is aggrieved with the conduct of the election or a political party which participated in the election. – Section 137(3) of the Electoral Act 2010.

THE RESPONDENT: This is usually the successful party who may be:

A successful party whose election is complained of or

The Electoral Commission who conducted the election.

See Section 137(2) of the Electoral Act 2010.

See also BUHARI V. YUSUF (2003).

SUBSTITUTION OF CANDIDATE FOR ELECTION UNDER THE ELECTORAL ACT 2010:

By virtue of section 33 of the Electoral Act 2010, this is only possible:

If the eligible candidate is dead and notice is given to INEC by his political party within 14 days from the date of death (Section 36(1) of the Electoral Act 2010); or

If the eligible candidate files notice of withdrawal not less than 45 days before the election (Section 35 of the Electoral Act 2010).

Note that by Section 141 of the Electoral Act 2010, an election tribunal or court shall not under any circumstance declare any person a winner at an election in which such a person has no fully participated in all the stages of the said election. This provision negates the Supreme Court’s decision in AMAECHI V. INEC.

COMMENCEMENT OF ELECTION PETITION:

This is regulated by the First Schedule to the Electoral Act 2010 (As Amended), as follows:

Election Petition in Nigeria is commenced by filing a Petition at the appropriate court earlier listed above. See Paragraph 3 of the First Schedule.

An Election Petition must be divided into paragraphs each of which shall be confined to a distinct issue or major facts of the election petition and shall be numbered accordingly. The paragraphs shall specify:

The parties interested in the election petition;

The right of the petitioner to present the election petition (condition is met if you state that the petitioner was a candidate at the election or a political party that sponsored a candidate at the election.);

The holding of the election;

The score of the candidates (plead the scores as declared by INEC, even for the political parties that did not sponsor a candidate, otherwise the petition will be incompetent);

The person returned as winner of the election;

The succinct facts of the election petition;

The grounds upon which the petition is based;

The prayer(s)/relief(s) sought by the petitioner.

The date of the Petition;

The signature of the petitioner or all petitioners or that of the Solicitor named at the foot of the Petition. Note that if the Petition is not signed, it is a worthless paper. See NWANKWO V. RAYMOND; and ORIZU V. UZPEGWU. However, this requirement will be deemed waived when the Respondent takes steps in the matter.

See Paragraph 4 of the First Schedule.

DOCUMENTS TO BE FRONTLOADED:

By virtue of Paragraph 4(5) of the First Schedule to the Electoral Act 2010 (As Amended), the Election Petition shall be accompanied by:

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

Written statements on oath of the witnesses; and

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

However, Paragraphs 1&2 of the Election Tribunal & Court Practice Direction 2011 provides that the requirement as to List of Witnesses referred to in Paragraphs 4(5)(a) of the 1st Schedule to the Electoral Act 2010 as Amended shall be deemed to be complied with where the identity of witnesses are represented by initials, alphabets or a combination of both.

GROUNDS FOR ELECTION PETITION:

According to Section 133(1) of the Electoral Act 2010 as Amended, an election can only be challenged on two grounds, that is:

Undue election; or

Undue return.

Section 138(1) of the Electoral Act 2010 as Amended throws more light on the above grounds by providing that an election may be questioned on any of the following grounds:

That a person whose election is questioned was, at the time of the election, not qualified to contest the election;

That the election was invalid by reason of corrupt practices or non-compliance with the provisions of the Electoral Act 2010 as Amended;

That the Respondent was not duly elected by majority of the lawful votes cast at the election; or

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

Note that it is not sufficient to allege grounds only. Each ground must have particulars.

THE PRAYERS/RELIEFS TO BE SOUGHT BY THE PETITIONER:

Paragraph 4(3)(a) of the 1st Schedule to the Electoral Act 2010 as Amended provides that the election petition shall further conclude with a prayer or prayers as for instance;

That the petitioner or one of the petitioners be declared validly elected; or

That the petitioner or one of the petitioners be declared validly returned, having polled the highest number of lawful votes cast at the election; or

That the election may be declared nullified, as the case may be.

DATE OF FILING ELECTION PETITION:

According to section 9(5) of the 2nd Alteration Act 2010, an election petition shall be filed within 21 days after the date of the declaration of result of the elections. See also Section 285(5) of the 1999 Constitution, and the locus classicus case of UDOKPO V. ARCHIBONG.

The date of declaration of the results is excluded from computation. See Section 15(2) of the Interpretation Act.

The period for the presentation of the election petition cannot be extended. If an election petition is presented out of time, it will be struck out. See MARWA V. NYAKO; and FALAE V. OBASANJO.

THE PLACE FOR THE PRESENTATION OF AN ELECTION PETITION:

It must be presented before the Secretary of the Election Tribunal whose office is at the Registry of the Election Tribunal/Court. See Section 3(1) of the 1st Schedule to the Electoral Act 2010 as Amended.

The Secretary upon receipt of the petition will cause a notice of the presentation of the election petition to be served on each of the Respondents. He shall also post on the tribunal notice board a certified copy of the election petition, and shall set aside a certified copy for onward transmission to the person or persons required by law to adjudicate and determine the election petition. (See Paragraph 7 of the 1st Schedule to the Electoral Act 2010 as Amended).

ENTRY OF APPEARANCE:

Where the Respondent intends to oppose the election petition, he shall enter an appearance by filing in the Registry a Memorandum of Appearance not less than 5 days and not more than 7 days of the receipt of the petition. (Paragraph 9(1) of the 1st Schedule to the Electoral Act 2010 as Amended).

If the Respondent does not file a Memorandum of Appearance as required under Paragraph 9 of the 1st Schedule, it shall not bar the Respondent from defending the election petition if the respondent files his reply to the election petition in the Registry within a reasonable time, but, in any case, not later than 21 days from the receipt of the election petition. (Paragraph 10(2) of the 1st Schedule to the Electoral Act 2010 as Amended).

FILING A REPLY:

According to Paragraph 12(1) of the 1st Schedule to the Electoral Act 2010 as Amended), the Respondent shall, within with 14 days of service of the petition on him file the Registry his reply, specifying in it which of the facts alleged in the election petition he admits and which he denies, and setting out the facts on which he relies in opposition to the election petition.

PRE-HEARING AND SCHEDULING:

Pre-hearing session is a condition precedent to the hearing of an election petition. See Paragraph 18 of the 1st Schedule to the Electoral Act 2010 as Amended).

HEARING OF ELECTION PETITION:

Every election petition shall be heard and determined in an open tribunal or court. – Paragraph 19 of the 1st Schedule.

The time and place of hearing of an election petition shall be fixed by the tribunal and Hearing Notices are to be served on the parties. - Paragraphs 20(1) and 21 of the 1st Schedule to the Electoral Act 2010 as Amended.

TIME LIMIT FOR CONCLUSION OF TRIAL AND JUDGMENT:

According to Section 285(6) of the 1999 Constitution, an election tribunal shall deliver its judgment in writing within 180 days from the date of the filing of the petition. See also Section 9(6) of the 2nd Alteration Act 2010.

POSSIBLE ORDERS THE COURT CAN MAKE:

An Order nullifying the election on any of the grounds mentioned in Section 138(1) (a)-(d) of the Electoral Act 2010 as Amended. – Section 140(1) of the Electoral Act 2010 as Amended.

An Order for a fresh election where the election is nullified on the ground that the person who obtained the highest votes at the election was not qualified to contest the election or that the election was marred by substantial irregularities or non-compliance with the provisions of the Electoral Act 2010 as Amended. - Section 140(2) of the Electoral Act 2010 as Amended

An Order declaring as elected the candidate who scored the highest number of valid votes cast at the election and satisfied the requirements of the Constitution and the Electoral Act 2010 as Amended. - Section 140(3) of the Electoral Act 2010 as Amended

An Order dismissing the petition as being frivolous – UDOEDEGHE V. AKPABIO.

APPEALS:

A Notice of Appeal challenging the judgment of a Court or tribunal on election petition cases is to be presented within 21 days of the receipt of the judgment. – Section 143 of the Electoral Act 2010 as Amended.

An appeal from a decision of an election tribunal or Court of Appeal in an election matter shall be heard and disposed of within 60 days from the date of the delivery of judgment of the tribunal or Court of Appeal. – Section 285(7) of the 1999 Constitution, and Section 9(7) of the 2nd Alteration Act 2010. Time limit cannot be extended. See MARWA V. NYAKO.

The effect of an appeal on incumbent political office holder is that if the incumbent was not declared the winner of the election and he appealed, he is to remain in office until the appeal is determined. However, if the incumbent failed to appeal or his appeal has been exhausted, he is to remain in office for 21 days after the receipt of the judgment and will then cease to hold the office. – Section 143 of the Electoral Act 2010 as Amended.