Being a paper presented at the NBA YLF
YENAGOA bar 3-day Conference...
A.
ELECTION AND CONDUCT OF ELECTION IN
NIGERIA.
The bedrock of
any democratic process is the sanctity of the Electoral process. The outcome of
an election goes far beyond the individual candidates who contest for different
positions and the political parties who presented candidates for the different
political offices. They carry on their shoulders the mandate of the electorate,
which should never be tampered with for personal, political or religious gain.
See the Supreme Court case of PDP V EZEONWUKA (2019) ALL FWLR (PT. 987) at page
769, Ratio 3, where Kekerekun-Ekun JSC held per incurium.
B.
WHAT THEN IS THE MEANING OF ELECTION?
According to
Black’s Law Dictionary, Ninth Edition, ELECTION is defined as “the process of
selecting a person to occupy a public office”
According to
Section 137(1)(b) of the 1999 Constitution of the Federal Republic of Nigeria
as amended in 2018 and the case of OJUKWU V OBANSANJO (2004) ALL FWLR (PT 222)
at page 1680,Ratio 12, the Supreme Court defined Election to mean;“Exercise of
an adult suffrage, which involves voters, materials for voting and supervision
and counting of votes by electoral personnel”.
And in the
case of ALL PROGRSSIVE CONGRESS V UMAR (2020)ALL FWLR (PT 1033) 747, The Court
defined Election to mean the process of choosing by popular votes, a candidate
for political office in a democratic government.
Also, in the
case of OGBORU V UDUAGHAN (2011) ALL FWLR(Pt. 577) page 650 at 656 ratio 8, the
court of Appealheld that “ELECTION is a generic term; a process which embraces
the entire gamut of activities ranging from accreditation, voting, collation to
recording on all relevant INEC forms and declaration of results.
By the
combined provisions of Section 153 of the 1999 Constitution of the Federal
Republic of Nigeria (As amended) and Section 2 of the Electoral Act 2020 (as
amended), the Independent National Electoral Commission (INEC), is empowered by
law to conduct various elections in Nigeria.
C.
THE GOVERNING INSTANT LAWS IN NIGERIA
Tracing the Electoral laws in Nigeria dates back to
the 1922 Clifford Constitution that stood as a catalyst to the evolution of
Electoral systems in Nigeria.The Richard Constitution of 1946, Macpherson
Constitution of 1951, The Lyttelton Constitution of 1954, the 1957 and 1958
Constitutional guidelines which made several improvements on electoral processes
and representation in Nigeria until in 1959 when we first had our official Federal
Election in Nigeria. In 1960, Nigeria gained independence and we had a
parliamentary system of Government. In 1963, we had a Republican Constitution
in Nigeria.
The historical
evolution of our Federal Laws dates back to 1955. The chronicles of the
Nigerian Electoral laws are as follows:
·
The
Parliamentary and Local Government Electoral Regulations, 1955
·
The
Supreme Court (Election Petition) Rules 1957
·
The
1960 Constitution
·
The
Electoral Act, 1962
·
1963
Republican Constitution
·
1979
Constitution
·
The
Electoral Act of 1982
·
The
Local Government Electoral Decree No 37 of 1987
·
Participations
in Public and Elections (Prohibitions) No. 25 of 1987
·
Federal
Legislative House (Disputed Seats) Regulation LN 247 of 1959
·
Local
Government Electoral Regulations of 1976
·
Transition
to Civil Rules (Political Programme) Decree No. 19 of 1987
·
Local
Government (Basic Constitutional and Transitional Provisions) Decree No. 15 of
1989
·
Local
Government (Basic Constitutional and Transitional Provisional) Decree No. 36
1989
·
The
Electoral Act, 1977
·
Eastern
Region Local Government Law, 1955
·
Election
(House of Representatives) Regulations 1958
·
Local
Government (Basic Constitutional and Constitutional Provision) Decree No. 50
1989
·
Local
Government Decree No. 6 1996
·
National
Assembly (Basic Constitutional and Transitional Provisions) Decree No. 18, 1992
·
State
Government (Basic Constitutional and Transitional Amendment Decree No. 53, 1991
·
Participation
in Politics and Elections (Prohibition) Act, Cap 342, L.F.N 1990
·
Parliamentary
Electoral Regulation, 1960
·
The
Presidential Election (Basic Constitutional and Transitional) Decree No. 13
1993
·
The
Constitution of Federal Republic of Nigeria, 1999 (hereinafter called 1999
Constitution)
·
The
Electoral Act, 2001
·
The
Electoral Act, 2002
·
The
Electoral Act, 2006
As a result of the complex nature of Nigeria in terms of
language, tribe, politics, religion, security challenges, political clubs, the
lucrative offices, ruling class interest, several political parties, there is bound
to beelectoral dispute, and the only way to settle such electoral dispute is
through the relevant Tribunals and Courts.
D.
THE NATURE OF ELECTION PETIITIONS
Election matters are considered
special, almost governed by their own special laws.They are time bound and
there is no provision for extension of time stipulated in the Practice
Direction. It is in public interest that such matters be disposed of timeously
and any extension will defeat the purpose of the Practice Direction.
THE INSTANT ELECTORAL LAWS IN NIGERIA
These Electoral laws are:
(1) The 1999 Constitution of the Federal
Republic of Nigeria (as amended)
(2) Electoral Act, 2010 (as amended 2015)
(3) Evidence Act 2011
(4) Statute of Limitation Act
(5) Case Law – particularly Court of
Appeal and Supreme Court
(6) Practice Direction (Election Appeals
to the Supreme Court
(7) Court of Appeal Election Tribunal and
Court Practice Direction
(8) Court of Appeal and Supreme Court Act
and Rules
(9) Federal High Court (civil procedure) Rules
(10)
INEC
Electoral Guidelines
(11)
Public
Holidays Act
(12)
Constitution
of the political parties
(13)
Sheriffs
and Civil Process Act Cap 56, Laws of the Federation of Nigeria, 2004.
(14)
Rules
of Professional Conduct for Legal Practitioners, made pursuant to S.12 of the
Legal Practitioners Act Cap 12
It is important to state that an
Election Petition is not the same as ordinary Civil Suit/proceeding. Election
Petition is a special Proceeding because of the peculiar nature of elections,
which by reason of its importance to the well-being of a democratic society,it
is regarded with the aura that places it over and above the normal day to day
transactions between individuals which give rise to ordinary or general claims
in court. See the Supreme Court case of PDP V EZEONWUKA (2019) AFWLR (Pt 987)
page 748 at 775, ratio 8.
In Polycarp Danladi V Nasir Ahmed El- Rufai& 2 Ors (2018) AFWLR (Pt.
924) page 118 at 132, the Court of Appeal held that Election Petitions are
very much unlike civil matters. They are indeed Sui generis. The relevant
Statutes and Procedural Rules regulating the Election Petition must be adhered
to and strictly complied with, with a view to safeguarding the Jurisprudential
competence of Election Tribunals and Courts saddled with arduous task of
adjudicating election matters.
In the case of Hon. (Mrs.) DorathyNkito V Hon. IorwaseHerman Hember& 2 Ors (20180
AFWLR (Pt. 925) page 146 at 155; per Onoghen CJN (as he then was) stated on
the sui generis nature of election petitions or maters that ‘it is now well
settled that election petitions or election matters are sui generis and time is
of the essence. It needs to be emphasized that where the res in a suit before
the Court is in danger of being dissipated and wiped out, the Court must take
the fast lane and do all it takes to give it a speedy trial.
According to the Learned Authors, M.A
Stanley-Idum (Mrs.) and J.A Agaba, PhD in their book titled “Civil Litigation
in Nigeria (3rd Edition, 2020), the Learned Authors have this to say
about Election Petition;
“An Election Petition shall be defined as
an originating process by which an unsuccessful candidate in an election and/or
his political party questions the return of a successful candidate at an
election”.
Election Petition is the only medium
recognized by law for challenging or questioning a concluded election. See section
133(1) of the Electoral Act 2010 (as amended).
Election Petition is therefore sue
generis; of its own kind and class. It is unique and peculiar, different from
other civil matters. Hence it is handled specially and speedily too.
PRE-ELECTION PETITION MATTERS
There has been some form of confusion
concerning what pre-election matters entail as distinct from a proper Election
matter before the Tribunal. The 1999 Constitution of the Federal Republic of
Nigeria (as amended), the Electoral Act and several decided cases have helped
to clarify the grey areas.
Also to be discussed under this topic
are definition of Pre-Election matters, when to file same, the statutory time
allowed to adjudicate and conclude matters, what constitutes a pre-election
dispute or matter. For emphasis, cases, actions or activities carried out under
sections 9,10,11,12,13,14,15,16,17,18,19,30,31,32,33,34,35, and 36 of the
Electoral Act, 2010 (as amended) can safely be classified as Pre-Election
Matters. These sections regulate activities of voters register, continuous
registration of voters or updating of same, qualification for registration,
transfer of registered voters, demand for informationregarding registration,
printing and issuance of voters’ register, issuance of duplicate of voters’
cards, display of the copies of voters’ list, notice of candidates and their
affidavits by political parties, changing of candidates, publication of
nomination, withdrawal of candidate and procedure to adopt when a nominated
candidate dies.
WHAT CONSTITUTES PRE-ELECTION MATTER?
Pre-election matter according to the
Supreme Court in the case ofALL
PROGRESSIVE CONGRESS V IBRAHIM UMAR & 22 ORS (2020) AFWLR (PT.1033),
Page 743 at 748 means “Any preparation or process embarked upon by a political
party in preparation for an election can as well be regarded as pre-election or
prior to the election as opposed to post-election which would obviously relate
to any exercise or process done after the election. The process or exercise
embarked upon by a political party such as Congress, nomination exercise, etc.
are all pre-election matters or exercise.
The Court of Appeal in the case of RT. HON. ETA MBORA V AKIBA .B. EKPENYONG
& ANOR (2020) AFWLR (PT. 1046) PAGE 937 AT 948further states what
attributes pre-election dispute. The Court held that “By provision of Section
87(9) of the Electoral Act, 2010, a dispute is a pre-election dispute when the
following situations are present;
a.
A
disputant is an aspirant who participated in primary election of his political
party.
b.
The
complaint must arise from non-compliance with the party’s constitution
In other words, the dispute must be
an intra-party dispute betweenmembers of a Political Party on one hand and/or
between a member and the Political party on the other hand. See the case of MBORA V EKPENYONG (SUPRA).
Section 14 (a)(b)(c) of the
Constitution of the Federal Republic of Nigeria, 1999 (Fourth Alteration, No.
21) Act, 2017also defines “pre-election matter” thus;
(14). For the purpose of this Section, “pre-election
matter” means any suit by-
(a)
An
aspirant who complains that any of the provisions of the Electoral Act or any
Act of the National Assembly regulating the conduct of primaries of political
parties and the provisions of guidelines of a political party for conduct of
party primaries have not been complied with by a political party in respect of
the selection or nomination of candidates for an election;
(b)
An
aspirant challenging the actions, decisions or activities of the Independent
National Electoral Commission in respect of his participation in an election or
who complains that the provisions of the Electoral Act or any Law of the
National Assembly regulating elections in Nigeria has not been complied with by
the Independent National Electoral Commission in respect of the selection or
nomination of candidates and participation in an election; and
(c)
A
political party challenging the elections, decisions or activities of the
Independent National Electoral Commission disqualifying its candidate from
participating in an election or a complaint that the provisions of the
Electoral Act or any other applicable law has not been complied with by the
Independent National Electoral Commission in respect of the nomination of
candidates of political parties for an election, timetable for an election,
registration of voters and other activities of the Commission in respect of
preparation for an election.”
WHICH COURT IS SEIZED WITH THE JURISDICTION TO HANDLE
PRE-ELECTION MATTERS?
The Law is very clear on this point.
Both the state High Court and the Federal High Court have jurisdiction to entertain pre-election
matters. Section 87(9) of the Electoral Act 2010 (as amended) states that
“Notwithstanding the provisions of this Act or rules of a political party, an
aspirant who complains that any of the provisions of this Act and the
guidelines of a political party has not been complied with in the selection or
nomination of a candidate of a political party for election, may apply to the
Federal High Court of a state or FCT, for redress. This position was confirmed
by Per ONOGHEN CJN ( as he then was) in the Supreme Court case of HON. MRS DORATHY MATO V HON. IORWASE .H.
HEMBER (2018) AFWLR ( PT 925) PAGE 146 AT 152-153. The Learned CJN (as he
then was) said “This Court has stated in quite a number of decisions that
matters which are pursuant to Section 87(9) of the Electoral Act, 2010 (as
amended) can be ventilated in the Federal High Court or State High Court or the
High Court of the Federal Capital Territory provided they are filed before the
holding of the general election even if it was filed a day before the election,
it will still suffice and can still be referred to as pre-election matter. See
also the case of BOKO V NUNGWA (2019)
AFWLR (PT 1000) PAGE 617 AT 631, RATION 12.In this case, the Supreme Court
held that “A pre-election matter or an appeal arising from same is not
extinguished by the mere fact that the election took place and the winner sworn
into office. A pre-election matter that was instituted prior to the conduct of
an election subsists and the Court in which it was instituted continues to have
jurisdiction to hear and determine the said pre-election matter even after the
conduct of the election”.
WHO MAY FILE A COMPLAINT UNDER
SECTION 87(9) OF THE ELECTORAL ACT AND THE RATIONALE THEREFORE?
Usually, an aspirant who participated
in the primary election of a political party can file a complaint under section
87(9) of the Electoral Act, and the complaint must relate to non-compliance
with the provisions of the Electoral Act or the guidelines and/or the
Constitution of the Political Party.The Courts have held that the rationale for
this position is that the nomination and sponsorship of a candidate for an
election is within the domestic affairs of a Political Party and the Courts
have no jurisdiction to nominate a candidate for any party. See the Supreme
Court case ofPDP V EZEONWUKA (2019) ALL
FWLR (PT 987) PAGE 768 AT 773, RATIO 5.
STATUTORY TIME PRESCRIBED TO FILE
PRE-ELECTION MATTERS AND TIME TO APPEAL SAME
As stated earlier,Election Petition is
sue generis and as such, they are time bound.Conversely, for a case to qualify
as Pre-Election Matter, it must meet the requirements of section 27(9) of the
Electoral Act 2010 (as amended), section 285(9) of the 1999 Constitution of the
Federal Republic of Nigeria (as amended), the Fourth Alteration Act No 21 of
2017. Adisputant must bring such action and it must be filed before a general
election takes place even though it is filed a day before the main election.
It suffices to say that a Pre-Election
Petition apart from the other criteria must be filed not later than 14 days
from the date of the occurrence of the event, decision or action complained of
in the suit.In the case of UCHECHUKWU
.S. OGAH V CHIEF IKECHI EMENIKE & 2 ORS (2019) ALL FWLR (PT 1021) page 239
at 241, Ratio1.On the Statutory prescribed period to appeal in a
pre-election matter and whether leave of Court is required? The Court of Appeal
held that by the provisions of section 285(11), Fourth Alteration Act, 2017, an
aggrieved person in a pre-election matter can file the appeal within 14 days of
the date of judgment. An Appellant does not require leave to appeal the
decision of the High Court therein. All the Applicant is mandatorily required
to do is to file the appeal within 14 days. In the instant case, where the Appellant
appealed within the prescribed time, the Court of Appeal deemed the appeal
filed competent.
Also, section 285(10) of the 1999
Constitution (as amended) provides that a Court in every Pre-Election matter
shall deliver its judgment in writing within 180 days from the date of filing
of the suit. Appeals from a decision in a pre-election matter shall be filed
within 14 days from the date of delivery of the judgment appealed against, and
the Appeal from a decision of a Court in a pre-election matter shall be heard
and disposed of within 60 days from the date of filing the appeal. See section
285(11) & (12) of the 1999 Constitution of the Federal Republic of Nigeria
(as amended) by (Fourth Alteration, No. 21) Act 2017. In the Supreme Court case
of APC V IBRAHIM UMAR & 22 ORS
(2020) ALL FWLR (pt 1033) page 743 at 746, Sanusi JSC held per incuria that
“Pre-election appeal must be filed within 14 days from the date of the
judgment. In the same vein, the Court of Appeal in the case of DR. UCHECHUKWU .S. OGAH V CHIEF IKECHI
EMENIKE & 2 ORS (2019) ALL FWLR (PT 1021) page 239 at 241, held that by
the provision of section 285 (11); Fourth Alteration Act, 2017, an aggrieved
person in a pre-election matter can file the appeal within 14 days of the date
of judgment and the appellant does not require leave to appeal the decision of
the High Court therein.
STRUCTURE, COMPOSITION AND
JURISDICTION OF ELECTION TRIBUNAL AND COURTS
The structure and composition of the
ElectionTribunals are as shown in the below diagram by the combined provisions
of Section 285 (1) (a)-(c), (2), (3), (4) of the 1999 Constitution of the
Federal Republic of Nigeria (as amended) :
|
The Supreme Court Final Court for (B)&(C) |
(B)
|
(C) The Court of Appeal Sitting as Court of 1st instance in A presidential Election |
|
The Court of Appeal Final Court for (A) |
|
(B) The Governorship Election Tribunal |
|
(A) The National and State Houses of Assembly Election Tribunal |
Legally speaking, two Election
Tribunals and a Court are vested with original jurisdiction in Election matters,
apart from Area Council Election Tribunal, Local Government Election Tribunal
and Area Council Election Appeal Tribunal.
The National and State Houses of
Assembly Election is the first in the pack and the second Tribunal is that of
Governorship Election Tribunal while the Court of Appeal sits and exercises
original jurisdiction as a competent Court of first instance over Presidential
election.
THE NATIONAL AND STATE HOUSES
ASSEMBLY ELECTION TRIBUNALS
According to Section 285 (1) of the
1999 Constitution of the Federal Republic of Nigeria (as amended), subsection
(1) provides that “There shall be established for each state of the Federation
and the Federal Capital Territory, one or more Election Tribunals to be known
as the National and State House of Assembly Election Tribunals which shall, to
the exclusion of any Court or Tribunal, have ORIGINAL JURISDICTION to hear and
determine petitions as to whether -;
a.
Any
person has been validly elected as a member of the National Assembly; or
b.
Any
person has been validly elected as a member of the House of Assembly of a
State.
By the express provisions, this
Tribunal has Original Jurisdiction to hear complaints concerning the election
of National Assembly or State Houses of Assembly members.
COMPOSITION OF THE TRIBUNAL
According to the sixth schedule to
the Constitution of the Federal Republic of Nigeria 1999 (as amended), the Tribunal
shall consist of a chairman and two other members but the quorum according to
section 385(4), comprises of chairman and one other member.
The chairman must be a High Court
Judge and the two other members shall be appointed from among Judges of a High
Court, Khadis of Sharia Court of Appeal, and Judges of a Customary Court of
Appeal or other members of the Judiciary not below the rank of Chief Magistrate.
The Chairman and other members of the
Tribunal must be appointed by the President of the Court of Appeal in
consultation with the Chief Judge of the State, the Grand Kadi of the Sharia
Court of Appeal of the State or the President of the Customary Court of Appeal
of the State, as the case may be.
GOVERNORSHIP ELECTION TRIBUNAL
According to Section 285 (2) of the
1999 Constitution of the Federal Republic of Nigeria (as amended), it states
that “There shall be established in each State of the Federation, an Election
Tribunal to be known as the Governorship Election Tribunal which shall to the
exclusion of any Court or Tribunal, have ORIGINAL JURISDICTION to hear and
determine petitions as to whether any person has been validly elected to the
office of Governor or Deputy Governor of a state.
From the above, the Governorship
Election Tribunal has original exclusive jurisdiction to determine and hear
complaints or petitions in respect of the election of a Governor or Deputy
Governor of a State.
COMPOSITION OF THE
GOVERNORSHIP ELECTION TRIBUNAL
According to Section 285 (2) of the
1999 Constitution of the Federal Republic of Nigeria (as amended), the Tribunal
shall consist of a Chairman and two other members but the quorum of the
Tribunal shall be the Chairman and one other member.
The chairman of this Tribunal shall
be a Judge of a High Court and two other members shall be appointed from among
Judges of a High Court, Kadis of a Sharia Court of Appeal, Judges of a
Customary Court of Appeal or members of the Judiciary not below the rank of a
Chief Magistrate.
The president of the Court of Appeal
Court of Appeal is saddled with the responsibility of appointing the chairman
and other members of the Tribunal in consultation with the Chief Judge of the
state, the Grand Kadi of the Sharia Court of Appeal of the State or the
President of the Customary Court of Appeal of the State, as the case may be.
See 2(1), (2) and (3) of the Constitution of the Federal Republic of Nigeria (second
Alteration) Act 2010.
THE COURT OF APPEAL
WITH ORIGINAL JURISDICTION
The only Court seized with the
Jurisdiction to hear and determine Election Petition matter and serves as an appellate
Court for decisions from both the National and State Houses of Assembly
Election Tribunals and Governorship Election Tribunals.
Section 239 (1) of the 1999
Constitution of the Federal Republic of Nigeria (as amended by the Second
Alteration Act 2010), states that “subject to the provisions of this
Constitution, the Court of Appeal shall to the exclusion of any other Court of
Law in Nigeria, have ORIGINAL JURISDICTION to hear and determine any question
as to whether -;
a.
Any
person has been validly elected into the office of President of Vice President
under this Constitution or
b.
The
term of office of the President or Vice President has ceased; or
c.
The
office of the President has become Vacant
COMPOSITION OF THE COURT OF APPEAL IN CONSIDERING ELECTION
MATTERS
The Court of Appeal is duly
constituted if at least three (3) Justices of the Court sit in a panel. See
Section 239 (2) of the 1999 Constitution (as amended).
THE SUPREME COURT
The Supreme
Court is the Apex and final Court of arbiter in all Litigation including
election petition cases. Apart from election petition in respect of National
and State Houses of Assembly matters which the Court of Appeal serves as the
final Court of Arbiter, Appeals from the Court of Appeal Sitting as a Court of
first instance over presidential election and Appeals from the decision Court
of Appeal sitting as an Appellate Court in Governorship Election petition lies
to Supreme Court. This Court also entertains pre-election appeal cases. See
section 233(2) (e) of the Constitution of the Federal Republic of Nigeria (as
amended) by Section 6 of the 2nd Alteration Act 2010.
AREA COUNCIL ELECTION TRIBUNAL
This Tribunal is established by
section 135(1) Electoral Act 2010 as amended and has exclusive original
jurisdiction to hear Area Council election petitions in the Federal Capital
Territory (FCT). It is duly composed of a Chairman and two members. The
Chairman and members must be persons who are Chief Magistrate and Magistrates
respectively. Appeals from their decisions go to the Area Council Election
Appeal Tribunal.
LOCAL GOVERNMENT ELECTION TRIBUNALS
The Electoral Act does not create
this class of Tribunals. The laws of the various states create these Tribunals
to entertain disputes arising from Local Government Council elections. In AG (ABIA) V AGF (2002) 6 NWLR PT. 763 PG.
764)the Supreme Court held that the States have power to legislate on Local
Government Councils.
AREA COUNCIL ELECTION APPEAL TRIBUNAL
This Tribunal is established by
section 136(1) of the Electoral Act 2010 as amended and is vested with
exclusive jurisdiction to hear appeals from Area Council Election Tribunal. Its
decisions are final. It is composed of a Chairman and two other members. The
Chairman must not be below a High Court judge while the other two members must
be appointed from among Judges of the High Court or Kadis of the Sharia Court
of Appeal or Judges of the Customary Court of Appeal of the Federal Capital
Territory or member of the FCT Judiciary not below a Chief Magistrate.
PRESENTATION OF AN ELECTION PETITION
Presentation of an Election Petition includes
filing the petition within the prescribed time, at the appropriate Tribunal or
Court that has jurisdiction, and compliance with other relevant requirements in
accordance with the Electoral Act (as amended). Paragraph 3(1),(2),(3) & (4)
of the First Schedule to the Electoral Act 2010 (as amended) states;
Paragraph 3 (1);The presentation of
an election petition under this Act shall be made by the petitioner (or petitioners
if more than one) in person, or by his Solicitor, if any, named at the foot of
the election petition to the Secretary, and the Secretary shall give a receipt.
(2) The Petitioner shall, at the time
of presenting the election petition, deliver to the Secretary a copy of the
election petition for each Respondent and ten other copies to be preserved by
the Secretary.
(3)The Secretary shall compare the
copies of the election petition received in accordance with subparagraph (2) of
this paragraph with the original petition and shall certify them as true copies
of the election petition on being satisfied by the comparison that they are
true copies of the election petition.
(4) The petitioner or his Solicitor,
as the case may be, shall at the time of presenting the election petition, pay
the fees for the service and the publication of the petition, and for
certifying the copies and, in default of the payment, the election petition
shall be deemed not to have been received; unless the Tribunal or Court otherwise
orders.
Before presenting Electoral Petition,
care should be taken strictly to adhere to the prescribed time by the
Constitution, the Electoral Act and various Practice Directions from time to
time. The stipulated time within which to file Election Petitions has not been
considered before. Meanwhile, the Supreme Court has clearly set out in plethora
of cases, the conditions to be considered before a Court can assume
jurisdiction and there is no exception in Election matters. In the case of PDP & 4 ORS V BARR SOPULUCHUKWU
EZEONWUKA (2019) ALL FLR (PT 987) AT PAGE 747 AT 776, the Supreme Court
held that a Court is competent when;
a.
It
is properly constituted as regards number and qualifications of members of the
Bench, and no member is disqualified for one reason or the other.
b.
The
subject matter of the case is within its Jurisdiction and there is no feature
in the case which prevents the Courts from exercising its jurisdiction, and
c.
The
case comes before the Court initiated by due process of law, and upon fulfillment
of any condition precedent to the exercise of jurisdiction. See also MADSUKOLU V NKEMDILIM (1962) 2 NSCIC 374 PT
1601, RATIO 15.
For the sake
of emphasis, the Petitioner has Twenty-One days (21) days from the day of the
announcement of the Election Result by INEC to file his Petitionwhile the
Respondent has fourteen (14) of service of the petition on him to file his
reply. See paragraph 12(1) of the first Schedule to the Electoral Act, 2010 (as
amended). The Petitioner in accordance with paragraph16(1), First Schedule,
Electoral Act 2010 (as amended) has five (5) days to file Petitioner’s Reply if
the Respondent’s Reply raises new issues.
The Appellant
has fourteen (14) days of the receipt of the Judgment of the Tribunal to file
his Notice of Appeal, Appellant’s brief and all other Appeal Processes, and hearing
of the Appeal must be completed within sixty (60) days and everything
concerning the Petition concluded within 180 days.
In computation
of time,the Interpretation Act Cap 123 and vol. 8 LFN, 2004 and the Public
Holidays Act, Cap P40 VVI 14, Laws of the Federation of Nigeria 2004 is very
relevant. The Act states that the days mentioned in the Schedule to the Act
shall be kept as public holidays throughout Nigeria and such dates are;
a.
New
Year’s Day
b.
Good
Friday
c.
Easter
Monday
d.
Worker’s
day (1st May)
e.
National
day (1st October)
f.
Christmas
day
g.
Such
day as Ministers may declare to be a public holiday in celebration of the
Muslim festival of Id el Fitri.
h.
Such
day as the Minister may declare to be a public holiday in celebration of the
Muslim festival of Id el Kabir
i.
Such
day as the Minister may declare to be a public holiday in the celebration of
the birthday of the Prophet Muhammad ( Id el Maulud)
It suffices to
say that all days including Saturdays and Sundays counts because the Registries
are open for business. The only exclusion are days referred to in the Public Holidays
Act.
For a valid
Election Petition to be said to have been filed, the following must be noted
and followed strictly:
1.
Adherence
to the prescribed time of filing the Petition. An Election Petition must be
filed within 21 days by the Petitioner.
2.
Payment
of security cost of not less than N5, 000 or as may be ordered by the Tribunal
or Court. See paragraph 2(1) and (2), First Schedule, Electoral Act, 2010 (as
amended)
3.
Payment
of Fees for Service, Publication and Certifying Copies of the Petition:
The Petitioner or his Solicitor, as the case may be is
obligated to pay the above fees if not the Petition shall be deemed not to have
been received; unless the Tribunal or Court otherwise orders. See paragraph
3(4) First Schedule, Electoral Act, 2010 (as amended).
The Courts have held severally that refusal to adhere
to the conditions precedent, namely;
Payment of security for cost, for service, for
publication and for certifying the copies of the Petition, the petition will be
deemed invalid. See REMI V SUNDAY (1999)
2 NWLR (PT 613)92.
4.
Payment of Hearing Fee-According to paragraphs 37 (1), (2)
& (3), (4), (5) & (6)of the First Schedule to the Electoral Act 2010, hearing
fees must be paid. The paragraphs provide as follows;
Paragraphs 37(1);the
fee payable on the presentation of an election petition shall not be less than
N1, 000.00
(2) A hearing
fee shall be payable for the hearing at the rate of N40 per day of the hearing
but not exceeding N200 in all, but the Tribunal or Court may direct a different
fee to be charged for any day of the hearing.
(3) For the
purpose of subparagraph (2) of this paragraph, the Petitioners shall make a
deposit of not less than N2000 at the time of presenting his petition.
(4) Subject to
the provisions of this paragraph, the fees payable in connection with an Election
Petition shall be at the rate prescribed for in civil proceedings in the
Federal High Court.
(5) No fees
shall be payable by the Attorney-General of the Federation (acting in person or
through any other Legal Officer) the Commission or any of its officers
appointed pursuant to the provisions of this Act
(6) No fees
shall be payable for the summoning of witnesses by the Tribunal or Court at its
own instance.
5.
Payment of Multiple Filing Fees For
Multiple Petitions - Due
to multiplicity of cases that might arise from same set of facts or election,
the Law permits that two or more candidates in an election may be allowed to be
Respondents in the same petition. See paragraph 49, first Schedule, Electoral Act 2010 (as amended).
6.
Provision of The Required Number of
the Copies of the Petition -It is the duty of the
Petitioner to when filing an Election Petition to present to the Tribunal or
secretary of the Tribunal a copy of the Election Petition for each Respondent
and ten (10) other copies to be presented by the secretary. See paragraphs 3(2)
& (3) of the First Schedule, Electoral Act, 2010 (as amended).
If the
Petitioner or his Solicitor complies with the six (6) conditions mentioned
above, the responsibility of the Petitioner ceases. See the case of BUHARI V
OBANSANJO……
CONTENTS OF ELECTION PETITION
It is mandatory to comply with all the contents of an
Election Petition. What an Election Petition should contain are stated in
paragraphs 4 (1), (2), (3), (4), (5), (6) and 5, First Schedule, Electoral Act,
2010 (as amended). The above paragraphs provides as follows;
4(1) An election petition under this Act shall-
(a) Specify the parties interested in the
Election Petition
(b) Specify the right of the Petitioner
to present the election petition
(c) State the holding of the election,
the scores of the candidates and the person returned as the winner of the
election; and
(d) State clearly the facts of the Election
Petition and the grounds on which the petition is based and the relief sought
by the petition
(2) The election petition shall be divided into paragraphs each
of which shall be confined to a distinct issue or major facts of the election
petition, and every paragraph shall be numbered consecutively
(3) The election petition shall further-
(a) Conclude with a prayer or prayers, as for instance, that
the petitioner or one of the Petitioners be declared validly elected or
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: and
(b) Be
signed by the Petitioner or all Petitioners or by their Solicitor, if any,
named at the foot of the Election Petition.
(4) At
the foot of the Election Petition, there shall also be stated an address of the
Petitioner for service at which address documents intended for the Petitioner
may be left and its occupier.
(5)
(i) The Election Petition shall be accompanied by-
(a) A
list of witnesses that the petitioner intends to call in proof of the petition
(b) Written statements on oath of the witnesses; and
(c)
Copies or list of every document to be relied on at the hearing of the petition
(ii) A
petition which fails to comply with the subparagraph (1) of this paragraph
shall not be accepted for filing by the Secretary
(6)
The election petition shall be accompanied by;
(a) A
list of witnesses that the petitioner intends to call in proof of the petition
(b) Written statements on oath of the witnesses; and
(c)
Copies or list of every document to be relied on at the hearing of the petition.
(5)
Evidence need not be stated in the election petition, but the Tribunal or Court
may order such further particulars as may be necessary-
(a) To prevent surprise and unnecessary expense;
(b) To ensure fair and proper hearing in the same way as in a
civil action in the Federal High Court: and
(c) On such terms as to cost or otherwise as may be ordered
by the Tribunal or Court.
GROUNDS OF PETITION
In order to avoid legal arguments at the Tribunal or Court,
the petitioner should where necessary and practicable, copy copiously the
provision of section 138 (1) (a) or (b) or (c) or (d) where applicable as
grounds in compliance with paragraph 4(1)(d), First Schedule, Electoral Act
2010 (as amended). Section 138 (1) (a)-(d) provides as follows;
An
election may be questioned in any of the following grounds, that is to say;
a.
That
a person whose election is questioned was at the time of the election, not
qualified to contest the election
b.
That
the election was invalid by reason of corrupt practices or non-compliance with
the provisions of this Act;
c.
That
the Respondent was not duly elected by majority of lawful votes cast at the
election or
d.
That
the Petitioner or its candidate was validly nominated but was unlawfully
excluded from the election.
It
should be noted with care that paragraph 15, First Schedule, Electoral Act,
2010 (as amended) provides that when a Petitioner claims the seat by alleging
that he had the highest number of valid votes cast at the election, the party
defending the election or return at the election shall set out clearly in his
reply, particulars of the votes, if any, which he objects to and reasons for
his objection against such votes, showing how he intends to prove at the
hearing that the Petitioner is not entitled to succeed.
Please
note that a Petitioner who files a petition under section 136 (1) of the
Evidence Act has the burden to prove the ground(s). This is because he is the
party alleging the ground(s) and he has a duty to prove the affirmative. He is
the party who would lose if no evidence is given on the grounds. See the Court
of Appeal case of BUSARI V ADEPOJU
(2017) ALL FWLR (PT. 878), page 464 at 471.
Meanwhile
an election shall not be invalidated by mere allegations of non-compliance with
the provisions of the Electoral Act. See section 139 (1) and (2) of the
Electoral Act, 2010 (as amended).
In the
Court of Appeal case of POLYCARP DANLADI
V NASIR AHMED EL-RUFAI (2018) ALL FWLR (pt 924), page 118 at 131-132. The
Court of Appeal on the mandatory contents of election petition, held that by
the provision of paragraph 4 (1) (d) of First Schedule of the Electoral Act
2010 (as amended) Election Petition shall state clearly the facts of the Election
Petition, the grounds upon which the petition is predicated and the reliefs
being sought by the Petitioner.
ADDRESS FOR SERVICES OF THE PETITION
According to
Paragraph 6, First Schedule Electoral Act 2010 (as amended), the Petitioner is
under obligation to furnish the secretary of the Tribunal with the address of
the Respondents’ abode or the addresses or places where personal service can be
effected on the Respondents.
SERVICE OF PROCESSES AND APPEARANCE
IN ELECTION PETITION
The service of Originating Processes
in Election matters, like other Processes are fundamental to the Tribunal. The
preparation of Election Petition, filing of same, making available the
prescribed copies of the Petition along with all the accompanying documents as
required by the Electoral Act,2010 (as amended), paragraph 7 (1) (a), (b) &
(c) First Schedule, Electoral Act 2010 (as amended), empowers the Secretary to
the appropriate Tribunal to cause a Notice of Presentation of the Election
Petition to be served on each of the Respondents, post on the Tribunal notice
board a certified true copy of the Election Petition for onward transmission to
the person or persons required by Law to adjudicate and determine the Election
Petition.
In the body of the Petition, the
written addresses of the Respondents are provided and personal service of the Petition
and other accompanying documents like;
a.
List
of witnesses
b.
Written
statement on oath of the witnesses
c.
Copies
or list of documents to be relied upon at the hearing must be served personally
on the Respondents because it is an Originating Process.
The Independent NationalElectoral Commission
(INEC) here is a statutory Respondent.This position was canvassed by the Court
of Appeal in the case of BUHARI V
OBASANJO (supra). Also paragraph 54 of the First Schedule, Electoral Act
2010 (as amended) incorporating Order 6 Rule 8 of the Federal High Court (Civil
Procedure) Rules 2009 states that;
“Subject to
the express provisions of this Act, the practice and procedure of the Tribunal
or the Court in relation to an Election Petition shall be as nearly as
possible, similar to the practice and procedure of the Federal High Court in
the exercise of its civil jurisdiction and the Civil Procedure Rules, shall
apply with such modifications as may be necessary to render them applicable,
having regard to the provisions of this Act, as if the Petitioner and the
Respondent were respectively the Plaintiff and the Defendant in an ordinary
civil action”
SUBSTITUTED SERVICE
Substituted service of Election
Petition Processes becomes operative when personal service to the Respondent(s)
fails or is impossible. Election Petition litigants and lawyers should be ontop
of their game because the process is time bound, hence, the earlier the process
is served, the better.
Order 6 Rules 5, Federal High Court
(Civil Procedure) Rules, 2019 provides as follows;
“where it appears to the Court either after or without
an attempt at personal service that for any reason personal service cannot be
conveniently effected, the Court may order that service be effected either-
(a) By delivery 0f the document to an
adult person at the usual or last known place of abode or business of the
person to be served;
(b) By delivery of the document to a
person being an agent of the person to be served to any other person, on it
being proved that there is reasonable probability that the document may in the
ordinary course, through that agent or other person, come to the knowledge of
the person to be served;
(c) By advertisement in the Federal Government
Official Gazette, or in a newspaper circulating within the jurisdiction;
(d) By notice put up at-
(i)
The
principal Court -House of, or some other place of public resort in the judicial
division wherein the proceeding in respect of which the service is made is
instituted, or
(ii)
At
the usual or last known place of abode, or of business, of the person to be
served;
(e) By service where a party is
represented by a Legal Practitioner, of notice, pleading, petition, order,
summons, warrant and other proceeding, document or written communication on the
Legal Practitioner or his clerk
Order 6 Rule 4, Federal High Court
(Civil Procedure) Rules, 2009 gave the Court in Civil cases the right to
exerciseits discretion to appoint a special bailiff for reason sufficient for
it to serve Court Processes. See the case of AYOGU V NNAMANI (2004) 15 NWLR (PT 895) 134. Here the lower Court
appointed J.H.C Okolo, SAN upon his offer to effect service on the first Respondent
when there was difficulty of service by the Appellant and the Court of Appeal
held that it was a good service.
SERVICE OF NON-ORIGINATING PROCESSES
Personal
service or service by a Solicitor or his clerk on the Respondents of
non-originating Processes such as Summons, a notice or document are all deemed
to be good services of Processes.
PROOF OF SERVICE
When an
adverse party makes a conditional appearance; presence or representation of the
person served with Court Process, serves as best prove of service of a court
Process unless it is challenged.
In
practice, affidavit of service is a valid proof of service of Court Process
unless such is challenged by a counter affidavit. In this instance or
instances, the Court is bound to call oral evidence to resolve the impasse.
See the
case of AFRIBANK (NIG) PLC V YELWA
(2011) 12 NWLR (PT 1261) 268,where the Court held asfollows;
APPEARANCE
After the
service of all Originating Process on the Respondent(s) in Election Matters,
the Respondent may elect to file a memorandum of appearance within 7 days of
Serviceor not file same and file his reply to the Election Petition within 21
days from the receipt of the Election Petition. See paragraph 10(2) First
Schedule, Electoral Act, 2010 (as amended). See ALI V OSAKWE (2009) 14 NWLR (PT 1160) 75, 132.
Where the
Respondent wants to oppose the election, he shall according to paragraph
9(1)(a)(b)(2)(3) &(4)(a) &(b) of the Electoral Act, 2010 (as amended)
which states as follows;
(1)
Where
the Respondent intends to oppose the election petition, he shall-
(a)
Within
such time after being served or deemed to have been served with the election
petition; or
(b)
Where
the secretary has stated a time under subparagraph (2) of paragraph 7 of this
Schedule, within such time as it is stated by the Secretary, enter an
appearance stating that he intends to oppose the election petition and giving
the name and addresses of the Solicitor, if any, representing him or stating
that he acts for himself, as the case may be, and, in either case, giving an
address for service at which documents intended for him may be left or served.
(2)
If
an address for service and its occupiers are not stated, the memorandum of
appearance shall be deemed not to have been filed, unless the Tribunal or Court
otherwise orders.
(3)
The
memorandum of appearance shall be signed by the Respondent or his Solicitor, if
any.
(4)
At
the time of filing the memorandum of appearance, the Respondent or his
Solicitor, as the case may be, shall-
(a)
Leave
a copy of the memorandum of appearance for each of the other parties to the
election petition and three other copies of the memorandum of appearance to be
preserved by the Secretary and in default of the copies being left and the fees
being paid at the time of filling the memorandum of appearance, the memorandum
of appearance Shall be deemed not to have been filed, unless the Tribunal or
Court otherwise orders.
Appearance
may be conditional or unconditional depending on whether the Respondent finds
something objectionable or not.
HOW DOES THE COURT TREAT PRELIMINARY
OBJECTIONS IN ELECTION MATTERS?
Paragraph
12(5) First Schedule, Electoral Act, 2010 (as amended) provides that a
Respondent who has an objection to the hearing of the Petition shall file his
reply and state the objection therein; and the objection shall be heard along
with the substantial Petition.
AMENDMENT OF ELECTION PETITION AND
REPLY
As a general
rule, amendment of Election Petition and Reply are not permitted after the
expiration of the time stipulated by the Electoral Act.
Paragraph 14(1), (2) (a) (i)(ii)&(iii),
(b) (i) &(ii) provides thus;
14 (1)
subject to subparagraph (2) of this paragraph, the provision of the Civil
Procedure Rules relating to amendment of pleadings shall apply in relation to
an election petition or a reply to the election petition as if for the words
“any proceedings” in those provisions there were substituted with the words
“the election petition or reply”.
(2) After
the expiration of the time limited by-
(a) Section
134 (1) of this Act for presenting the election petition, no amendment shall be
made:
(i) Introducing
any of the requirements of subparagraph (1) of paragraph 4 of this Schedule not
contained in the original Election petition filed, or
(ii)
Effecting a substantial alteration of the ground for, or the prayer in, the
election petition, or
(iii)except
anything which may be done or under the provisions of subparagraph (3) of this
paragraph, effecting a substantial alteration of or addition to, the statement
of facts relied on to support the ground for, or sustain the prayer in the
election petition; and
(b)
Paragraph
12 of the Schedule for filing the reply, no amendment shall be made-
(i)
Alleging
that the claim of the seat or office by the petitioner is incorrect or false;
or
(ii)
Except
anything which may be done under the provisions of subparagraph (3) of this
paragraph, effecting any substantial alteration in or addition to the
admissions or the denials contained in the original reply filed, or to the
facts set out in the reply.
FURTHER PARTICULARS
According to
paragraph 5 First Schedule, Electoral Act, 2010 (as amended), Evidence need not
be stated in the Election Petition, but the Tribunal or Court may order such
further particulars as may be necessary
a.
To
prevent surprise and unnecessary expense.
b.
To
ensure fair and proper hearing in the same way as in a civil action in the
Federal High Court; and
c.
On
such terms, as to costs or otherwise as may be ordered by the Tribunal or
Court.
Paragraph 17 First Schedule, Electoral Act, 2010 (as amended) further
provides as follows:
(1) If a party in an Election Petition
wishes to have further particulars or other directions of the Tribunal or
Court; he may at any time after entry of appearance; but not later than 10 days
after the filing of the reply, apply to the Tribunal or Court specifying in his
notice or motion the direction for which he prays and the motion shall, unless
the Tribunal or Court otherwise orders, be set down for hearing on the first
available day. Without such applications, within the 10 days, the party is barred
from requesting for further particulars.
It should be noted that the party required to provide further
particular shall not be entitled to go beyond the ambit of supplying such
further particulars as have been demanded by the other party, and embark on
undue amendment of, or addition to his Petition or Reply contrary to paragraph
14 of this Schedule. See paragraph 17 (2) & (3) First Schedule, Electoral
Act 2010 (as amended).
PRE-HEARING SESSION AND SCHEDULING
Pre –hearing session or conference
takes place after the filing and service of the Petitioner’s Reply on the
Respondent or 7 days after the filing and service of the Respondent’s Reply as
the case may be. The Petitioner is expected to apply for the issuance of the
pre-hearing notice as in Form TF 008.
Upon the said Application by the
Petitioner, the Tribunal or Court shall issue to the parties or their Legal
Practitioners(if any) a pre-hearing conference notice as in Form 008
accompanied by a pre-hearing information sheet as in Form TF 009. Section 18(11
& 12) First Schedule of the Electoral Act, 2010 as amended states as
follows;
(11) If a party or his Legal
Practitioner fails to attend the pre-hearing sessions or obey a scheduling or
pre-hearing order or is substantially unprepared to participate in the session
or fails to participate in good faith, the Tribunal or Court shall;
(a) In the case of the Petitioner,
dismiss the petition; and
(b) In the case of a Respondent enter
judgment against him.
(2) Any judgment given under
subparagraph (11) may be set aside upon an Applicationmade within 7 days of the Judgment (which shall not be
extended) with an order as to costs of a sum not less than N20,000.00
IMPLICATION OF REFUSAL TO APPLY FOR
PRE-HEARING NOTICE
The Respondent can via motion served
on the Petitioner and returnable in 3 clear days; apply for an Order to dismiss
the Petition. See paragraph 18 (3) First Schedule, Electoral Act, 2010 (as
amended);
18(3) The Respondent may bring the
Application in accordance with subparagraph (1) where the Petitioner fails to
do so, or by motion which shall be served on the Petitioner and returnable in 3
clear days, apply for an order to dismiss the petition.
PURPOSE OF PRE-HEARING NOTICE
The essence of filing the pre-hearing
notice as in For TF 008 and the answers thereto as in Form TF 009 by the
Petitioner is to give the Respondent an insight on the issues to be dealt with
and narrowed down during the pre-hearing session. The purpose of the pre
–hearing notice is to inform the parties of the impending hearing to ensure
attendance at the hearing. If for any reason or by any means this purpose is
achieved without formal Application for the issuance of a pre-hearing notice, a party who has taken
part in the proceedings cannot be heard to argue that the rule was not complied
with, more so when there is allegation of miscarriage of justice from the
non-compliance. See the Court of Appeal case of HON. (DR) VIRGINIA ITAM ABANG V BARR SEBASTINE UBUA ANYIA & 3 ORS
(2019) AFWLR(PT. 1022) page 426 at 430. However, Paragraph 18(4) and (5)
empowers the Tribunal or Court to dismiss the Petition where both the
Petitioner and the Respondent fail to bring Application under paragraph 18(4)
of the First Schedule.
IS PRE-HEARING SESSION (TRIAL) CONDITION PRECEDENT TO
DETERMINATION OF ELECTION PETITION OR MATTER?
The answer is YES. In the case of Rt.
HON. ETA MBORA V AKIBA .B. EKPENYONG
(2020) AFWLR (P 7 1046) 937 AT 947, the Court of Appeal held that by the provisions
of paragraph 47(1), First Schedule, Electoral Act, 2010 (as amended), pre-trial
Sessions are a condition precedent before a Tribunal or Court proceeds to
entertain any election Petition matters related thereto. For a party to bring
an Application before the commencement of Pre-Hearing Session the following
conditions must be met and these are;
a.
That
the circumstances for bringing the Motion must be of extreme nature,and
b.
It
must be with leave of the Tribunal or Court, first sought and obtained.
Paragraph 47(1), (2), (3), (4), &
(5)First Schedule, Electoral Act 2010 (as amended) provides as follows:
47 (1) No motion shall be moved and
all motions shall come up at the pre-hearing session except in extreme
circumstances with leave of Tribunal or Court.
(2) Where by these Rules any application
is authorized to be made to the Tribunal or Court, such application shall be
made by motion which may be supported by affidavit and shall state under what
rule or law the Application is brought and shall be served on the Respondent.
(3) Every such application shall be accompanied by
a written address in support of the reliefs sought.
(4) Where the Respondent to the motion intends to
oppose the Application, he shall within 7 days of the service on him of such
application file his written address and may accompany it with a counter
affidavit.
(5) The Applicant may, on being served
with the written address of the respondent file and serve an address in reply
on points of law within 3 days of being served and where a counter affidavit is
served on the Applicant he may file further affidavit with his reply.
SCHEDULING ORDER DURING PRE-HEARING
According to paragraph 18(6) First
Schedule to the Electoral Act, 2010 (as amended), the Tribunal or Court shall
enter a Scheduling Order for:
a.
Joining
other parties to the petition
b.
Amend
petition or reply or reply or handle any other processes
c.
Filing
and adoption of written addresses on all interlocutory Applications
d.
Additional
pre-hearing session
e.
Order
of witnesses and tendering of documents that will be necessary for the
expedition disposal of the Petition, and
f.
Any
other matter that will promote the quick disposal of the petition in the
circumstance.
FURTHER ACTIONS AT THE TRIBUNAL OR
COURT PRE-HEARING
In accordance with paragraph 18(7)
First Schedule, Electoral Act 2010 (as amended), the Tribunal or Court can
consider and take appropriate action(s) in respect of:
a.
Amendment
and further and better particulars subject to paragraph 14, First Schedule to
the Electoral Act, 2010 (as amended)
b.
Admission
of facts, documents and other relevant evidence
c.
Formulation
and settlement of issues for trial
d.
Hearing
and determination of objections on point of law
e.
Control
and scheduling of discovery, inspection and production of documents
f.
Narrowing
the field of dispute between certain types of witnesses especially the
Commission’s staff and witnesses that officiated at the election by their
participation at pre-hearing session or in any manner
g.
Giving
orders or directions for hearing of cross-petitions or any particular issue in
the petition or for consolidation with other petitions
h.
Determine
the form and substance of the pre-hearing order
i.
Such
other matters as may facilitate the just and speedy disposal of the election
petition bearing in mind the urgency of election petitions
STATUTORY TIME FOR PRE-HEARING
The time allowed by law for
pre-hearing session or sessions is 14 days of its commencement and the parties
and Legal Practitioners are enjoined to cooperate with the Tribunal or Court.
See paragraph 18(9) First Schedule, Electoral Act, 2010 (as amended).
PRE-HEARING REPORT
This is normally issued by the
Tribunal or Court after a pre-hearing session or series of pre-hearing
sessions. See paragraph 18(10) First Schedule, Electoral Act, 2010 (as amended).
DISMISSAL OF PETITION AND ENTERING OF JUDGMENT AT PRE-HEARING
SESSSION
If a party or his Legal Practitioner
fails to attend the pre-hearing session or obey a scheduling or pre-hearing
order or is substantially unprepared to participate in the session or fails to
participate in good faith, the Tribunal or Court shall dismiss the petition of
the Petitioner or enter judgment against the Respondent. See paragraph 18(11)
(a) & (b) First Schedule, Electoral Act, 2010 (as amended);
(10) After a pre-hearing session or
series of pre-hearing sessions the Tribunal or Court shall issue a report and
this report shall guide the subsequent course of the proceedings unless
modified by the Tribunal or Court.
However, any judgment given under
paragraph 18(11) (a) &(b) may be set aside within 7 days of the judgment
with a cost of N20,000.00 or more.
The Application shall be accompanied
by an undertaking to participate effectively in the pre-hearing sessions,
jointly signed by the applicant and the Legal Practitioner if represented. See paragraph
18(12) &(13) First Schedule, Electoral Act 2010 (as amended)
WHAT IS THE MEANING OF RUN-OFF, BY-ELECTION,AND RE-RUN
ELECTION?
A)
BY-ELECTION
This type of
election is held when a vacancy arises as a result of death or resignation of
an elected candidate.
B)
RE-RUN ELECTION
Thistype of election takes place
where the same candidates repeat the election as a result of the earlier
candidate declared winner did not actually win the election.
C)
RUN-OFF ELECTION
This occurs when there is a repeat
election between the same candidates that contested an earlier election as a
result of maybe a tie between two of the candidates at the first election.
OTHER IMPORTANT THINGS TO KNOW ABOUT ELECTION PETITION
1.
On
the issue of the Petitioner alleging corrupt practices and non-compliance with
the Electoral Act provision, section 138(1)(b) and 139 of the Evidence Act,
2011 provides thus;
138(1)(b) That the election was
invalid by reason of corrupt practices or non-compliance with the provisions of
this Act;
139(1) 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
non-compliance did not affect substantially the result of the election.
2.
On the issue of whether provisions of the
Federal High Court Civil Procedure Rules and Sheriffs and Civil Process Act,
sections 97-99 are applicable to issuance and service of Election Petition. The
Supreme Court in WIKE NYESOM V DAKUKU
PETERSIDE & 3 ORS (2016) ALL FWLR (pt 842), page 1573 at 1586-1590,
Ratio 5, KEKERE-EKUN JSC said that;
“Specifically, any recourse to the Federal High Court
(civil procedure) Rules must be ‘subject to the express provisions’ of the Act.
It follows that it is only where the Electoral Act or First Schedule does not
provide for a particular situation that reference would be made to the Federal
High Court (civil procedure) Rules with necessary modification”.
3.
On
the issue of whether failure to affix NBA approved stamp and seal renders the
process filed incompetent, the Supreme Court in WIKE NYESOM V DAKUKU PETERSIDE & 3 ORS (2016) ALL FWLR (pt 842),
page 1602, Ratio 17, KEKERE-EKUN JSC stated in line with a recent decision
of the Court held that;
“Failure to affix the approved seal and stamp of the
NBA on a process does not render the process null and void. It is an
irregularity that can be cured by an application for the extension of time and
a deeming order. Paragraph 53(2)of the
First Schedule provides that an application to set aside an Election Petition or
a proceeding resulting therefrom for irregularity or for being a nullity shall
not be allowed unless made within a reasonable time and when the party making
the application has not taken any fresh step in the proceeding after knowledge
of the defect”.
4.
On
the issue of competence of the Court, the Supreme Court in WIKE NYESOM V DAKUKU PETERSIDE & 3 ORS (2016) ALL FWLR (pt 842),
page 1601, Ratio 15, the court held that;
A court is competent to adjudicate
when:
a)
It
is properly constituted with respect to the number and qualification of its
members;
b)
The
subject matter of the action is within its jurisdiction;
c)
The
action is initiated by due process of law;
d)
Any
condition precedent to the exercise of its jurisdiction has been fulfilled.
