Challenges Of Successfully Instituting Election Petition In Nigeria.

BEING A PAPER PRESENTED BY OLAWALE FAPOHUNDA ESQ.[1] AT THE EQUITY CHANCERY OF THE FACULTY OF LAW, EKITI STATE UNIVERSITY , ADO EKITI ON THE 17TH DAY OF MAY 2019.

 

BACKGROUND INTRODUCTION.

The conduct of elections in Nigeria has a history which evolved and formed during the colonization of a geographical description of a place in West Africa called Nigeria. The first noticeable form of political participation in Nigeria was under the Clifford Constitution of 1922 which for the first time allowed few Nigerians to participate in the running of affairs of the country though with the influence of the British overlords. It goes without saying that Clifford had the first written constitution that introduced elective principle into Nigerian and Gold Coast (present Ghana). During the window period of the working of the Clifford constitution, the eligible voters were simply citizens who have not less than 100 pounds or N200 as annual income. Under this political participation of Nigerian, the legislative council was made up of 46 members, out of this members, 27 were official while 19 were non officials. Out of 19 non officials members, 15 were nominated while 4 were elected out of four elected members, 3 members came from Lagos and 1 from Calabar.

There were successive Governors General who one way or the other built on this political structure till the independence of the country on October 1st, 1960 where the country inherited parliamentary system of government. The history has it that the first republic broke down in 1966 when the military officers truncated that political architecture and held the country by the jugular till 1979 when the country for the first time had its own home sourced constitution which birthed the present presidential system of government.

The second political participation as I would say was done under the 1979 constitution which ushered the late President Shehu Shagari[2]. Shehu Shagari contested under National Party of Nigeria (NPN) while his political rival, Chief Obafemi Awolowo[3] flew his presidential ticket under the Unity Party of Nigeria (UPN). At the end of the judicial decision of the case at the Supreme Court, Shagari was affirmed winner of the election though there were announced reviews of the decision of the court in both academia and amongst legal analysts[4]. This case I must confess marked the beginning of the modern era of constitutional adjudication of electoral issues in post colonial Nigeria.

From then on, there is no election held in the country that will not have one crisis or the other. It may interest you to know that aside from the political crisis which may emerge from within a political party (intra party rambling), there are visible issues that exist between a political party and other parties on issues that are so vast to define.

Let me not bore you with the stories as they are everywhere and we are in one way or the other have an experience on the issues of election in Nigeria.

CHALLENGES OF SUCCESSFULLIY INSTITUTING ELECTION PETITIONS IN NIGERIA

Let me now go engage the topic of this discussion which is Challenges of Successfully Instituting Elections Petition in Nigeria”. It is important to discuss the concept called “Challenge”. The concept “Challenge” under this discuss will have no specific definition but its character exudes in cases, statutes and facts that will be referred to in this discussion.

There is a pertinent question to ask before drawing the rhymes of this discussion. The question is what is an Election Petition? The working definition that I will like to adopt is as follows; it is “an originating process by which an unsuccessful candidate in an election and/or his political party seeks to question the return of a successful candidate at an election”[5]

It is highly important and imperative to know that to successfully bring an action in election, the Petitioner or the Respondent should know that the election petition is sui generis[6] that is, it is a special procedure before a special court by a law made specially to regulate its proceedings. Failure to give acceptance to this will render the petition incompetent because it is of its own kind and class, unique and peculiar, different from the other civil matters.[7] Other examples cases that are sui generis are actions in Matrimonial cause and Company action under Company and Allied Matters.

APPLICABLE LAWS IN ELECTION PETITION IN NIGERIA

In Nigeria, there are laws that provide and guide the conduction of election petitions. They are

  1. The Constitution of the Federal Republic of Nigeria 1999 as amended.
  2. The Electoral Act 2010
  3. The Election Tribunal and Court Practice Direction 2011
  4. The Rules of the Federal High Court (CIVIL PROCEDURE) 2009.
  5. The Laws of different States on the local government election.

 

THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999 AS AMENDED.

This law provides for the establishment of the electoral commission also referred to as the Independent National Electoral Commission. The law provides for the eligibility of candidates for one political office or the other. The tenure of offices are adequately provided for and lastly, removal of a holder of office for one act of the other are captioned therein.

 

THE ELECTORAL ACT 2010

Though with several amendments, it remains the extant law for the conduct election in Nigeria. The same law is used for the conduct of Area Council election in the Federal Capital Territory. But it does not govern Local Government Election in other States of the Federation.

 

THE ELECTION TRIBUNAL AND COURT PRACTICE DIRECTION 2011

By section 145 (2) of the electoral act which grants the president of the court of appeal to made subsidiary legislation made this rules to guide the practice and procedure of election.

THE RULES OF THE FEDERAL HIGH COURT (CIVIL PROCEDURE) 2009.

It is made subject to the electoral act in determining Election Petition  by virtue of paragraph 54 of first schedule to the Act provides that “

Subject to express provision 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 provision of this Act, as if the Petitioner and the Respondent were respectively the plaintiff and the defendant in an ordinary civil action

 

THE LAWS OF DIFFERENT STATES ON THE LOCAL GOVERNMENT ELECTION.

For example in Ekiti state, there is a law that provides for the Ekiti State Independent Electoral Commission[8]  SIEC.

 

COURTS OR TRIBUNALS VESTED WITH JURISDICTION TO HEAR ELECTION PETITIONS.

The under listed are the courts and tribunals that are saddled with the duties of hearing and determining election petitions in Nigeria

  1. Court of Appeal
  2. National Assembly and House of Assembly Election Tribunal
  3. Governorship Election Tribunal
  4. Area Council Election tribunal
  5. Local Government Election Tribunal
  6. Area Council Appeal Tribunal

Let me point here before going into the main course or put differently, the main discussion, instituting or approaching a wrong court or tribunal indicate that the case or cause of action will suffer a serious setback more so, where time to institute a cause of action is time bound. At the end of the day, the court will strike out that case for want of jurisdiction thereby leaving the aggrieved party or individual to start all over again in the appropriate court. The example is the case of Associated Discount House Limited V Amalgamated Trustees Limited.[9]  The appellant instituted an action in the Federal High Court Lagos to recover a loan of ₦120 million granted to the Respondent. The Respondent filed a preliminary objection challenging the jurisdiction of the Federal High Court on the ground that the dispute did not fall within the subject matter jurisdiction of the Federal High Court. The preliminary objection was upheld.

However, the Federal High Court exercising the powers conferred on it by section 22(2) of the Federal High Court Act, transferred the matter to the State High Court. Upon the transfer, the Respondent again filed objection challenging the jurisdiction of the State High Court to determine the suit. The State High Court dismissed the objection and the Respondent appealed to the Court of Appeal. Surprisingly, the Court Of Appeal allowed the appeal, reversed the decision of the State High Court and ruled that it was the Federal High Court that had jurisdiction. On further appeal to the Supreme Court, the apex court allowed the appeal and held that it was the state high court that had jurisdiction. In his judgment Hon. Justice Pats- Achalonu, JSC asked:

if the Appellant cannot sue in the Federal High Court and at the same time cannot equally sue in Lagos High Court, which court would the action be then commenced?”

If the view of the appellant in this case is sought, will it be that he has received a just and equitable decision despite the fact that the decision was in his favour? Bringing this scenario within the electoral law or act as the case may be, time would have been wasted, tenure of office of the RESPONDENT would be in the last minutes.

See also the case of  Balonwu V Governor of Anambra State[10]  held that;

There are lessons to be learnt from the fact of this appeal. This is a petition that was filed on 16/5/03 following the result of the gubernatorial elections concluded on 19/4/03. It hung in the balance until 12/8/05 when the judgment was delivered by the lower tribunal. This appeal came up for hearing on the 23/1/06 and judgment was delivered today. It has taken 35 months for the 1st Respondent to receive Justice in court of law. 35 months is a very considerable proportion of a 4-year term of office”

This is just to provide an eye opener to what should be done while bringing any action in election petition.

Choice of court against the provision of law is a dangerous terrain to thread in election petition. This poses a great challenge to instituting election petition in Nigeria. In election petition and any other cases, parties cannot by agreement confer jurisdiction on the court. The law is clear also that court or tribunal will assume jurisdiction where it has full jurisdiction not partial jurisdiction[11]

With regards to the statutes enumerated above which provide for the election in Nigeria, in them, there are conditions precedent to instituting an action. The law is clear as crystal that failure to comply with them will make such action to be incompetent in the court. The law is settled for example in the case of Broadbank of Nigeria Ltd v Olayiwola & Sons (2005) 1 SC part 2, (2005) NWLR PART 912 AT Page 434 where the Supreme Court held;

Where a statute prescribes the manner in which a particular action could be done, no person/party or authority either by election or waives circumscribe it act

That being so, under the Electoral Act 2010, for example, stipulates conditions or basic process of conducting an election which are

  1. Accreditation of eligible voters
  2. Voting
  3. Collation and;
  4. Announcing of declaration of results of the election[12]

 

Basic Processes

  1. Accreditation of eligible voters

It is the confirmation of eligible voters during election process by verifying the bio statistics of such prospective voter in the electoral register kept by the electoral umpire.

Voting is the act of casting ballot and it is done by secret ballot.[13]  Ballot boxes in Nigeria are transparent so as to avoid stuffing etc. It is kept by the Electoral Commission with sensitive election materials.

This is done at the end of the voting exercise by the agent of the electoral commission. The ballot papers will be sort along the political parties that participated in that election. The counting of the ballot paper will then begin. The electoral officer will enter the results in the result sheet after announcing the result. Parties at that election through their agents will sign the result sheet together with the security agents and each will be given copies of the result sheet. Once the presiding officer announces the result, he has become functus officio[14]

  1. Declaration of Result

This is the last stage of the electoral process. It is a stage after the counting of the collation. Like I mentioned above, once the presiding officer declares a candidate as the winner, that is the end. A person aggrieved by the result of the election shall have recourse to the tribunal or court for remedy.

Distinguished audience, I will make sure I still stick to the challenges of successfully instituting election petition while not trying to talk around pre election matters which may be a discussion which I set to engage some other time.

It may interest you that failure to strictly comply with the stated processes will have an election defeated even on technical grounds.

For clarity, it is important to bring to the fore the result sheet form that tribunal and court have had course to make judicial pronouncements on. The result sheets are the forms used for election and are provided for in the INEC guidelines. The form are the form EC8 series where are broken down thus;

  1. Poling unit EC8 A
  2. Ward EC8 B
  • Local Government EC8 C
  1. State EC8 D
  2. Declaration of Result EC8 E

In the case of Agagu v Mimiko,[15] it was held that EC8 A[16] is a primary evidence of the votes cast in an election. The form contained the polling station, the number of the registered voters accredited, the serial numbers of the ballot papers issued to polling station, the serial number of the balance of the unused ballot papers and the number of accredited voters standing in the queue at the commencement of voting.

In Agagu v Mimiko, the 1st Respondent contended that there was no election in some polling booths. The Respondent was not able to present EC8 A to dislodge the assertion of the Respondent, the court held failure to find EC8 A, the results contained in other series of EC8 could not be authentic. See also the case of Hashidu V Goje[17] where the court held that the failure of the appellant to plead EC8 A (1), EC8 B (1), EC8 C (1), EC8 D (1)

Another challenge of successfully instituting election petition is the person entitled to present petition. Identification of proper parties in the filing of election petition is fundamental and crucial. Failure to so identify proper party on suing in proper name will rob court of the jurisdiction.[18]  The electoral act enumerated persons entitled to present petition viz;

  1. A candidate at an election.[19]
  2. A political party the participated at the election.[20] No person can contest election in Nigeria unless he is a member of a political party and sponsored by same.[21]
  3. Candidate presented by a political party but was excluded from contesting[22]
  4. Failure to join the party of the person whose election is being challenged will render the petition invalid[23]
  5. The electoral body that conducted the election[24]

Under these challenges identified above, I care to say here that the person who did not participate at the poll and who wish to challenge or present any petition whatsoever is on the wild goose chase. The law referred to such person as an interloper or busy body. For example, in the case of EGOLUM v OBASANJO,[25] the Petitioner did not contest the 1999 presidential election and also had no political party. He asked the court to go ahead to declare him as winner. His petition was dismissed for failure to state the nature of his right to present the petition.

Another identified challenge to instituting election petition may arise where a candidate is unlawfully excluded from the election. This can be viewed in the popular case of PPA v SARAKI. In that case the political party nominated and sponsored the appellant and on the Election Day, the name or the party logo was conspicuously absent on the ballot paper despite the fact that the appellant was screened and not disqualified by the INEC. This act gave the Petitioner to have locus to challenge the election having not participated by sheer error of the electoral body {INEC} as the court held that nomination or sponsorship  of a candidate amounts to participation in the election process under Chapter IV of Electoral Act 2006{same as Electoral Act 2010 as amended}. The political party need not participated in the polls on that polling day.

Another challenge is that of the political party excluding its own member. Under the old Federal Election Commission statute and up to 2003, it viewed that a political party that excluded one of its members and sponsored another member within the political party will not have such intra party issues entertained by the court. See the cases ONUOHA v OKAFOR[26] and DALLHATU v TURAKI[27].

Under the Electoral Act 2006, the position of court not interfering in domestic affairs took a new dimension  which provided that political party can substitute/exclude its candidates 60 days before the date of election but with cogent and verifiable reason.[28] The court can intervene where the person feels that the position taken against him is in the contravention of the Act.[29]

However, under the current electoral act 2010 as amended, it provided for only two grounds on which a substitution can be made.[30] The conditions are;

  1. Death of the candidate;
  2. Withdrawal of the candidate, not less than 45days before the election in accordance with section 35 of the Electoral Act 2010 as amended.

In the light of the provision above, it appears that the cases of Ararume and Amaechi will no longer be the relevant for substitution.

Distinguished audience, another challenge that I will like to discuss is the presentation of petition. There are rules of engaging the filing or presentation of election petition. Like I once pointed out, failure to comply with the precept renders the petition incompetent.

For example, the electoral act provided that from the date of the declaration of result of an election, 21days window period begins to run. It therefore goes without saying that the petition is to be presented within 21days.[31] There is no extension of time here.[32]

In calculating the 21days limited for filing a petition, time begins counting from the next day after the declaration of the election result.[33] There is need to see how the court solve the puzzle of computation of time in the case of KABIR v ACN. [34](although it was decided under the 2006 EA which was 30 days). Tur (JCA) in the lead judgment stated as follows

“ the facts are that the election held on Saturday, 21 April 2007, the 30th day for presentation of the petition at the registry of the tribunal, terminated on Sunday, 20th May 2007for business. The interpretation Act, Cap.192, Laws of the federation of Nigeria, 1990, section 15(2) (a) (b), (3), (4) and (5) considers Sunday as “public holiday”. To expect the Petitioner to present their petition on Sunday is therefore absurd. Section 147 (3) (5) and 164(1) rules of procedure for election petition sets out the duties of the Petitioner when they go to the Secretary of the Tribunal to do upon receiving the petition, namely, received the petition, issue a receipt and certify them as true copies etc. In the absence of evidence that the registry opened on Sunday, May, 20 2007, I hold that it was reasonable for the Petitioners to have filed their Petitioner on Monday, 21 May 2007”

Another challenge that I will like to share with you is the one that can be seen at the registry of the tribunal. This undoubtedly can make or mar the successful instituting an election petition. What do I actually mean? I mean that at the point of filing any petition, the person that presents the petition is so important. The schedule to the Electoral Act[35] prescribes as follows;

  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. An unsigned petition is liable to be struck out.[36] Also, a petition which is signed on behalf of the solicitor named at the foot of the petition does not satisfy the requirement.[37]
  2. The secretary shall give receipt (evidence of payment) in Form TF002 to schedule 2 of the Act. It goes without that payment of filing fees is a condition precedent to instituting election petition.[38]
  3. The Petitioner must as a matter of rule present a copy of the petition and ten other copies to be preserved by the secretary
  4. The secretary shall compare each document file to be sure they are all the same with the particular petition filed particularly to be in accordance with sub paragraph (2) of the original petition.
  5. A deposit of N200, 000. 00[39] by the Petitioner or his Solicitor. The deposit is for certification, publication and service of the petition
  6. The Petitioner shall give N200, 000. 00 as security for cost[40]

Another fundamental challenge that can be brought to the fore is the ground upon which a petition can be found. The grounds upon which a petition may be brought are provided in Section 138 Electoral Act, 2010 as amended. They are as follows:

  1. The qualification and disqualification criteria for contestant: this can be seen under:-
  2. Sections 131 and 137 of the Constitution in respect of the President;
  3. Section 177 and 182 of the Constitution with regard to Governor;
  4. Sections 65 and 66 of the Constitution with regard to National Assembly; and
  5. Sections 106 and 107 of the Constitution with regard to House of Assembly.
  6. A candidate for presidential and Governorship elections, should not have been elected to such office at any two previous occasions.

A potential Petitioner can have serious challenges if he is not aware of other factors/criteria prescribed by law that can make or mar his petition. the general criteria are as follows:[41]

  1. The candidate must be a Nigerian citizen;
  2. He must be educated up to school certificate level or its equivalent
  3. He must not be adjudged a lunatic or of unsound mind;
  4. He must not be under sentence of death or imprisonment for dishonesty or fraud;
  5. He must not be an undischarged bankrupt;
  6. He must not have been convicted and sentenced for dishonesty or found guilty of contravention of code of conduct less than 10 years  before the date of election;
  7. He must not be employed by State or federal public service within 30 days immediately before the date of the election;[42]
  8. He must not be a member of a secret society[43]
  9. Candidate must be a member of a political party and sponsored by that political party.
  10. Indictment by a judicial administrative panel of inquiry is no longer a reason to bar a person from contesting an election. This is because sections 66(1) (h), 137 (1)(h), and 182 (1)(i) which created the bar , have all be deleted following the constitutional amendments.

Distinguished audience, what I want you to take away for value with regards to the above is to know what a potential Petitioner should bear at the back of his mind in order to have a smooth sail petition cognizable without suffering any setback or receiving backlash from the court.

Finally, experience has it that some of the petitions instituted in the past which tribunal and court have decided in one way or the other have it that some petition were seeking nullification of an election and at the same time seeking the tribunal to declare them as winner. This is not possible. The only time such is possible is when such prayers are presented in the alternative.[44]

One of the reasons why petition fails is non compliance with the electoral act, ballot stuffing or other irregularities have occurred. Courts have handed down that the Petitioner has to prove that such irregularities have affected the whole exercise not catalogued instances of irregularities or breach of the electoral Act.[45]

CONCLUSION.

It is highly imperative for a solicitor or a Petitioner though I will place this task on solicitors since they are masters of laws to get themselves acquainted with relevant laws, rules, practice directions etc and also marry facts of the cases they plan to handle for their clients so that the action sought to be instituted don’t suffer any set back.

Thank you.

 

[1]T he Attorney General and Commissioner for Justice, Ekiti State.

[2] The first civilian president of Nigeria from 1979 to 1983.

[3] The first Premier of the Western Region of Nigeria.

[4] Awolowo v Shagari (1979) 6-9 SC 51

[5] Uche Chris (SAN), “Electoral Litigation in the Sustenance of Constitutional Democracy”, para 10.2 being a paper delivered at the Nigerian Law School Headquarters, Bwari Abuja 2014

[6] Abubakar v Yar’ Adua (2008) 4NWLR PT1078 PAGE 512

[7] Ugba v Suswan (2010) 4 NWLR PT1345 PAGE 427

[8] E21 LAWS OF Ekiti 2010

[9] (2006)10NWLR PT 989 at page 635

[10] (2008)19 NWLR PT 1113 at 236 CA

[11] Governor of Kwara State  v Lawal (2007) 13 NWLR PT 1051 page 347 at 374 to 375

[12] Uche, chris (SAN), op.cit; PDP V OKOROCHA (2012) 15 NWLR PT 1323 at 205

[13] S. 52 (1) Electoral Act 2010 as amended

[14] S. 68 (1) (c) ibid

[15] CA/B/EPT/320/07 and CA/EPT/321/07, judgment delivered on 23rd of February 2009

[16] Ibid.

[17] (2003) 15 NWLR  PT 843 page 352 at 382 -383 paras D-A

[18] IKACHI V IGBUDU (2008) ALL FWLR PT 299 PAGE 1420 AT 1423; AMADIUME V IBOK (2006) ALL FWLR PT321 PAGE 1247 AT 1251

[19] S. 137 (1) EA

[20] Ibid

[21] GWEDE v INEC (2014) 18 NWLR pt 1438 page 56

[22] S. 138 (1) (d) EA

[23] PDP V KSIEC (2006) 3 NWLR PT 968 PAGE 565

[24] S 137 (3) EA

[25] (1999 )7 NWLR PT 611

[26] (1983) 2 SCNLR 244

[27] (2003) 15NWLR PT 843 PAGE 310

[28] S. 34(1) ELECTORAL ACT 2006

[29] UGWU v ARARUME (2007) 12 NWLR PT 1048 PAGE 367: AMAECHI V INEC (2008) 5NWLR PT 1080 PAGE 227 AT 325

[30] S. 33 ELECTORAL ACT 2010

[31] S. 285 (5) 1999 Constitution as Amended by Section 9 of the 2nd Alteration Act.

[32] KAMBA V BAWA (2005) 4NWLR PT 914 PAGE 43: MOGHALU V NGIGE (200) 54 NWLR PT 914 PAGE 1

[33] IMERH v OKON (2012) 11NWLR PT 1311 PAGE 270

[34] (2012) ALL WLR PT 647 PAGE 638

[35] PARA 3 (1) OF THE 1ST SCHEDULE

[36] IBRAHIM V SHERIFF (2004) 14 NWLR PT 892 PAGE 43

[37] ORIZU v UGOIWE (1999) 6 NWLR PT 605 PAGE 32

[38] OZOBIA v ANAH (1999)5 NWLR PT 601 PAGE 1

[39] S. 4  ELECTION TRIBUNAL AND COURT PRACTICE DIRECTION, 2011

[40] S. 1  ELECTION TRIBUNAL AND COURT PRACTICE DIRECTION, 2011

[41] M.M STANLEY-IDUM, J.A.AGABA ‘Civil Litigation in Nigeria’ (2015) Nelag & Company Limited

[42] Engr Segun Oni v Dr. kayode Fayemi (2019) supreme court. unreported

[43] S.318 Constitution of the Federal Republic of Nigeria 1999 as amended; Registered Trustees of AMORC v AWONIYI (1994)7-8 SCNJ PT 2 PAGE 390 AT 419 AND 427

[44] OPIA V IBRU (1992) 3 NWLR PT 231 PAGE 658

[45] INIAMA V AKPABIO (2008) 17 NWLR PT 1116 PAGE 225