CIVIL LITIGATION:ELECTION PETITION
ELECTION PETITION
MEANING AND GENERAL PRINCIPLES
Election Petition is a complaint by a petitioner against an undue election or undue return of a candidate at a general election. Section 133(1) of the Electoral Act 2010 provides that an election or return of a candidate can only be questioned by petition, otherwise referred to as election petition. It is about the process of the election itself. Anything outside that does not come under election petitions, thus in ANPP v INEC (2004) 7 NWLR (pt 871) 16, the Court held that a complaint against INEC and its officers and agents who conducted the elections for failing to conduct the election as prescribed by the Act does not constitute a competent election petition. It also excludes intra party disputes.
Election petition is a special proceeding guided by a particular electoral law under which the election was held. Thus, it is a proceeding that is sui generis – Yahaya v. Aminu (2004) 7 NWLR (Pt. 871) 159 at 181; Buhari v. Yusuf (2003) 14 NWLR (Pt. 841) 466 at 536.
LAWS REGULATING ELECTION PETITIONS
The 1999 Constitution makes provision for the categories of Courts/Tribunals with jurisdiction on election petitions. These are:
COURT OF APPEAL
Section 239(1) CFRN 1999 (as amended) provides that 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:
COMPOSITION/QUORUM OF THE COURT OF APPEAL
In the hearing and determination of an election petition, the Court of Appeal shall be duly constituted if it consists of at least three (3) Justices of the Court of Appeal – Section 239(2) CFRN 1999 (as amended).
NATIONAL AND STATE HOUSES OF ASSEMBLY ELECTION TRIBUNAL
This shall to the exclusion of any other court, have original jurisdiction to hear and determine petitions as to whether –
QUORUM – Chairman and one member. Section 285(4) CFRN 1999 (as amended).
GOVERNORSHIP ELECTION TRIBUNALS
The tribunal, to the exclusion of any court or tribunal, has original jurisdiction to hear and determine petitions as to whether any person has been duly and validly elected to the office of Governor or Deputy Governor of a State.
COMPOSITION OF GOVERNORSHIP ELECTION TRIBUNALS
QUORUM – Chairman and one member. Section 285(4) CFRN 1999 (as amended).
NOTE: Election tribunals shall be constituted not later than 14 days before the election and shall open their registries for business 7 days before the election.
LOCAL GOVERNMENT/AREA COUNCIL ELECTION TRIBUNAL
This is established at various State levels by laws of each State. For the Federal Capital Territory (FCT), it is established by Section 135 (1) of the Electoral Act.
The Federal Capital Territory Area Council Election Tribunal has exclusive original jurisdiction to hear and determine any question as to whether –
WHO MAY BRING AN ELECTION PETITION
Section 137(1) of the Electoral Act 2010 provides for the class of persons entitled to bring an election petition as follows:
Only the above can present election petition- In Egolum V Obasanjo (1999)7NWLR (Pt611) 355 a person who was neither a candidate at an election nor a member of a political party nor sponsored by a political party to contest the election and who did not specify the nature of his right to present the petition was held incompetent to present a petition.
A person who failed to secure nomination of his party but claims to have been wrongly excluded from contesting the election is incompetent to present an election petition (i.e. intra party dispute) NEC V NRC (1993)1NWLR (Pt 265 )120; Anazodo V Audu (1999) 4 NWLR) (Pt 600 549).
A political party that failed to present a candidate for election is incompetent to present a petition. Egolum V Obasanjo (supra).
But a candidate that contested and lost the election may bring a petition. Nnamani V Nnaji (1999) 7NWLR( Pt 610) 313
Also a person who was properly nominated by his party but was unlawfully excluded by the electoral commission from contesting the election is competent to present a petition. Ojo V Abogunrin (1989) 5 NWLR (Pt120) 162
The Respondent to an election petition is a person whose election is complained of, that is , the successful party at the election. By Section 137(2)&(3) Electoral Act, Respondents shall be the following:
The position of the law before now was that where the petition complains of the conduct of a returning officer, he shall be deemed to be a respondent for all purposes. Thus in Obasanjo v. Yusuf (2004) 9 NWLR (Pt. 877) 144, 185, the Supreme Court held that it is not necessary to make unnamed and unidentified law enforcement officers or political party agents, parties to a petition, whilst accepting that the Electoral Act requires that if a petition complains of the conduct of an Electoral Officer or any other person who took part in an election, that the person ought to be made a party to an election petition. This position has clearly changed.
It should also be noted that non-joinder of some parties does not invariably lead to striking out of the entire petition most especially where there are other grounds of the petition that have nothing to do with the person not joined. All that needs to be done, is to strike out the offending paragraphs – Kalu v. Ohuabunwa (2004) 7 NWLR (Pt. 871) 1. Again, an unsuccessful candidate is not a necessary or statutory party to an election petition – Mogahlu v. Ngige (2005) 4 NWLR (Pt. 914) 1; Buhari v. Yusuf (2003) 14 NWLR (Pt. 841) 446.
GROUNDS FOR AN ELECTION PETITION
Section 138(1) of the Electoral Act, provides that an election may be questioned on any of the following grounds –
Under the first ground stated above, a person is not qualified to contest an election if he is caught within the provisions of the Constitution that spell out the grounds of disqualification to wit, Section 137 (Presidential election); Section 182 (Governorship election); Section 66 (National Assembly election); and Section 107 (House of Assembly election). See Iniama v. Akpabio (2008) 17 NWLR.
It is pertinent in drafting an election petition to ensure that the petition complies with the provisions of the Electoral Act on the grounds for bringing a petition, in other words the grounds on which the petition is based must be those recognized by the Act. In Francis Doukpolagha v Rufus Ada George (1992) 4 NLWR (pt 236) 444, Dr Alex Obi v Chief Evan Enwerem (1992) 2 N.E.P.A.R. 11, both petitions were dismissed because the grounds did not fall within the statutory provisions.
GROUNDS FOR DISQUALIFICATION
Under the various constitutional provisions, a person is unqualified to contest an election if:
Where an elected candidate was not qualified to conduct an election and returned, the petitioner who claims to have polled the next majority votes cannot be declared winner by the tribunal, unless the facts of disqualification were notorious and within the knowledge of the electorate. However, if the facts were not notorious, the tribunal must nullify the election and order a fresh one – Bayo v. Njidda (2004) FWLR (Pt. 192) 19 at 41 and 84.
However, if the ground of the petition is that the respondent did not poll majority of lawful votes cast at the election, the Tribunal or Court, if so satisfied, shall return the candidate that polled the majority of lawful votes cast – Ngige v. Obi (2006) 14 NWLR (Pt. 999) 1 at 226-227, per Omokri JCA.
CONTENTS OF A PETITION
This is made available in Paragraph 4 of the First Schedule to the Electoral Act. Rule 4 of the Rules of Procedure for Election Petition
Rule 4. An election petition under this Act shall-
A petition shall be accompanied by:
All actions arising from the conduct of an election are commenced by way of petition – Section 133(1) of the Electoral Act
An election petition shall be presented or filed within twenty (21) days after the date of the declaration of the result of the election – Section 285(5) CFRN 1999.
SERVICE
Notice of the petition as well as all other documents required to be served on the respondent before his entry of appearance shall be served personally. The fact that the respondent was not served personally will not vitiate the proceedings – Paragraph 48 & 7 of the First Schedule to the Act.
Where personal service could not be served on the respondent, the Tribunal may on application of the petitioner order for substituted service in accordance with the provisions of the Federal High Court Rules – Paragraph 8(2) of the First Schedule to the Act.
A process to be served on a party in an election petition not requiring personal service shall be duly served by delivering it to the person or by leaving it at his last known place of abode in the constituency in question or with any resident in the place who appears to be eighteen (18) years or above – Paragraph 44(1) of the First Schedule to the Act.
APPEARANCE
Respondent is required to enter appearance after being served or within the time specified by the Secretary enter an appearance by filing a memorandum of appearance (in Form TF. 004) if he intends to oppose the petition - Paragraph 9(1) of the First Schedule to the Act, and the respondent is to give the name and address of the solicitor, if any, that is representing him. Either the respondent or his solicitor shall sign the memorandum of appearance and shall furnish as many copies according to the parties in the suit and three (3) extra copies to be left with the Secretary.
Respondent must pay the necessary filing fees and leave enough copies for service failing which the memorandum of appearance will be deemed not to have been filed – Paragraph 9(4)(b) of the First Schedule to the Act.
He should file conditional appearance where he has a preliminary objection to the petition – Paragraph 9(5) of the First Schedule to the Act.
EFFECT OF NOT FILING MEMORANDUM OF APPEARANCE
Any document intended for service on respondent may be posted on Tribunal notice board and shall be sufficient notice to respondent – Paragraph 10(1) of the First Schedule to the Act.
However, the non-filing of a memorandum of appearance will not bar respondent from defending the petition provided he files his reply not later than twenty-one (21) days from receipt of the election petition – Paragraph 10(2) of the First Schedule to the Act.
FILING OF REPLY
In filing of reply, the respondent is given an opportunity to file a reply to the petition.
Under the rules, the respondent shall within fourteen (14) days of entering an appearance file in the registry his reply stating which of the facts or/and figures alleged in the petition he admits or the ones he rejects.
The reply is to be filed and the respondent shall furnish as many copies according to the parties in the suit and ten (10) extra copies to be left with the Secretary – Paragraph 12(4). The reply must be signed by the respondent or solicitor, if any – Paragraph 2(3).
The reply shall be supported by –
EFFECT OF NOT FILING A REPLY
The non-filing of the required copies a reply or does not pay the prescribed fees, the reply shall be deemed not to have been filed except the court or tribunal requires otherwise – Paragraph 12 of the First Schedule to the Act.
AMENDMENT OF PETITION
An election petition can only be amended within the time limited for filing it, which is twenty (21) days from the date of declaration of the result of the election – Ngige v. Obi (supra).
Thereafter, amendment will not be allowed under the following reasons –
However, amendment will be allowed to correct a typographical error on the face of the petition – Chief Bola Ige v. Dr. Omololu Olunloyo (1984)1 SC 258; Aniagala v. Abeh (1997) 7 NWLR (Pt. 611) 454.
PRE-HEARING SESSION AND SCHEDULING
Within seven (7) days of service of reply on the respondent or the petitioner, whichever is the case, the petitioner shall apply for issuance of pre-hearing notice. Thereupon, Tribunal/Court shall issue to parties or their legal practitioners pre-hearing conference notice as in Form TF. 007. The notice is accompanied by pre-hearing information sheet in Form TF. 008 – Paragraph 3(1) & (2).
Where the Petitioner fails to bring the application for issuance of the pre-hearing notice, the respondent may do so or apply for an order to dismiss the petition – Paragraph 3(3).
Where both parties fail to bring the application, the Tribunal/Court shall dismiss the petition as an abandoned petition and shall not entertain any application for extension of time to bring the application.
The dismissal of the petition for failure to apply for pre-hearing notice is final and renders the Tribunal/Court functus officio – Paragraph 3(5).
Pre-hearing session shall be completed within thirty (30) days of its commencement – Paragraph 3(9). The Tribunal/Court shall issue a report at the end of the session to guide subsequent course of proceedings – Paragraph 3(10). Failure of a party to attend satisfactorily in the session or obey the scheduling or pre-hearing order, will lead to dismissal of the petition or entry of judgment as the case may be – Paragraph 3(11).
The judgment may be set aside upon application with undertaking to participate effectively made within seven (7) days of the judgment with order of cost of not less than N20,000 – Paragraph 3(12).
The following should be noted –
The purposes of the conference are –
At the pre- hearing session the Tribunal/Court shall enter a scheduling order for –
HEARING
Petition shall be heard and determined in open court – Paragraph 18.
The petitioner shall prove his case to the satisfaction of the Tribunal/Court in accordance with the petitioner’s reply – Kudu v. Aliyu (1992) 3 NWLR (Pt. 231) 615. Where there are allegations of crime, there must be proved beyond reasonable doubt.
Facts shall be proved by written depositions and oral examination of witnesses in open court – Paragraph 4(1). No oral examination of a witness during his evidence- in- chief save to lead him to adopt his written deposition and tender documents mentioned therein – Paragraph 4(3).
Documents and exhibits admitted by consent of parties at pre-hearing sessions shall be tendered from the bar or by the party – Paragraph 4(2). Parties are required to file written address within the stipulated time.
TIME FOR CONCLUDING HEARING
The election tribunals shall deliver its judgment in writing within 180 days from the date of the filing of the petition. Section 285 1999 CFRN as amended.
JUDGMENT
After conclusion of evidence and address, Tribunal or Court adjourns to a definite date for judgment. The Court or Tribunal may allow or dismiss the petition, that is, it may declare the election void or declare a particular candidate duly elected or retuned; the tribunal may also award cost.
The tribunal or court must deliver its judgment within the time stipulated; otherwise, the judgment shall be a nullity. Immediately the judgment of the tribunal is delivered, the Judge shall certify it to the Electoral Commission, for their notification.
Where a candidate’s election has been nullified by the trial Election Tribunal, the candidate retains his seat until the Court of Appeal delivers a final decision (that is if he appeals the decision within 21 days from the date of the decision). Section 143(1) of the Electoral Act. If the Court of Appeal upholds the nullification of the election by the tribunal, the candidate automatically forfeits his seat until a re-election is held.
On the orders an election tribunal may make, Section 140 of the Electoral Act (as amended) provides that:
Section 140 (1) subject to subsection (2) of this section, if the Tribunal or Court as the case may be, determines that a candidate who was returned as elected was not validly elected on any ground, the Tribunal or the Court shall nullify the election.
(2) Where an Election Tribunal or Court nullifies an election 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 this Act, the tribunal or court shall not declare the person with the second highest votes or any other person as elected, but shall order a fresh election.
(3) If the Tribunal or Court determines that a candidate who was returned as elected was not validly elected on the ground that he did not score the majority of valid votes cast at the election, the Election Tribunal or the Court, as the case may be, shall declare as elected the candidate who scored the highest number of valid votes cast at the election and satisfied the requirements of the Constitution and this Act.
Note also: Section 141 of the Act provides that an election tribunal or court shall not declare any person a winner at an election in which such a person has not fully participated in all the stages of the said election. This has however been held by the Courts to be a legislative interference with judicial powers and functions.
APPEALS
Appeals from Governorship Election Tribunal and National and State House of Assembly Election Tribunal lie to the Court of Appeal. Section 246 (1) CFRN 1999 (as amended) provides that the Court of Appeal has appellate jurisdiction to the exclusion of any other court from decisions of:
It should, be noted that while an appeal may lie from the Court of Appeal to the Supreme Court, in respect of the presidential and governorship election petition, the decision of the Court of Appeal in respect of appeals arising from National and State Assembly Election Tribunals is final – Section 246 (3) CFRN 1999 (as amended) Awuse v. Odili (2003) 18 NWLR (Pt. 851) 116; Onaguluchi v. Ndu (2001) 7 NWLR (Pt. 712) 309.
In respect of the Area Council Election Tribunal of FCT, appeals lie to the Area Council Election Appeal Tribunal and the decision of the Appeal Tribunal is final – Section 143(1) and (2) of the Act. (Equivalent provisions exist in the various state laws with respect to Local Government Election Tribunals).
In respect of the Presidential or Vice Presidential election and Governorship election, appeal lies from the decision of the Court of Appeal to the Supreme Court. The decision of the Supreme Court is final – Section 233 of the Constitution (as amended).
ETHICAL ISSUES
MEANING AND GENERAL PRINCIPLES
Election Petition is a complaint by a petitioner against an undue election or undue return of a candidate at a general election. Section 133(1) of the Electoral Act 2010 provides that an election or return of a candidate can only be questioned by petition, otherwise referred to as election petition. It is about the process of the election itself. Anything outside that does not come under election petitions, thus in ANPP v INEC (2004) 7 NWLR (pt 871) 16, the Court held that a complaint against INEC and its officers and agents who conducted the elections for failing to conduct the election as prescribed by the Act does not constitute a competent election petition. It also excludes intra party disputes.
Election petition is a special proceeding guided by a particular electoral law under which the election was held. Thus, it is a proceeding that is sui generis – Yahaya v. Aminu (2004) 7 NWLR (Pt. 871) 159 at 181; Buhari v. Yusuf (2003) 14 NWLR (Pt. 841) 466 at 536.
LAWS REGULATING ELECTION PETITIONS
- The Constitution of the Federal Republic of Nigeria 1999 (as amended);
- The Electoral Act 2010 (as amended);
- Election Tribunal and Court Practice Directions 2011
- Rules of Procedure for Election Petitions
- Federal High Court Civil Procedure Rules.
The 1999 Constitution makes provision for the categories of Courts/Tribunals with jurisdiction on election petitions. These are:
- Court of Appeal – Section 239 CFRN 1999 (as amended); Section 133(2)(a) of the Electoral Act.
- National and State Houses Assembly Election Tribunals – Section 285(1) CFRN 1999; Section 133(1) of the Electoral Act, 2010 as Amended.
- Governorship Election Tribunals Section 285(2) CFRN 1999; Section 133(1) of the Electoral Act, 2010 as amended.
- Local Government/Area Council Election Tribunal
COURT OF APPEAL
Section 239(1) CFRN 1999 (as amended) provides that 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:
- Any person has been validly elected to the office of the President or Vice President;
- The term of office of the President or Vice President has ceased;
- The office of President or Vice President has become vacant.
COMPOSITION/QUORUM OF THE COURT OF APPEAL
In the hearing and determination of an election petition, the Court of Appeal shall be duly constituted if it consists of at least three (3) Justices of the Court of Appeal – Section 239(2) CFRN 1999 (as amended).
NATIONAL AND STATE HOUSES OF ASSEMBLY ELECTION TRIBUNAL
This shall to the exclusion of any other court, have original jurisdiction to hear and determine petitions as to whether –
- Any person has been validly elected as a member of the National Assembly;
- Any person has been validly elected as a member of the House of Assembly of a State;
- A Chairman who shall be a Judge of the High Court.
- Four (4) members appointed from the judiciary and not below the rank of Chief Magistrate.
QUORUM – Chairman and one member. Section 285(4) CFRN 1999 (as amended).
GOVERNORSHIP ELECTION TRIBUNALS
The tribunal, to the exclusion of any court or tribunal, has original jurisdiction to hear and determine petitions as to whether any person has been duly and validly elected to the office of Governor or Deputy Governor of a State.
COMPOSITION OF GOVERNORSHIP ELECTION TRIBUNALS
- A Chairman who shall be a judge of the High Court.
- Four (4) members appointed from the judiciary and not below the rank of Chief Magistrate.
QUORUM – Chairman and one member. Section 285(4) CFRN 1999 (as amended).
NOTE: Election tribunals shall be constituted not later than 14 days before the election and shall open their registries for business 7 days before the election.
LOCAL GOVERNMENT/AREA COUNCIL ELECTION TRIBUNAL
This is established at various State levels by laws of each State. For the Federal Capital Territory (FCT), it is established by Section 135 (1) of the Electoral Act.
The Federal Capital Territory Area Council Election Tribunal has exclusive original jurisdiction to hear and determine any question as to whether –
- Any person has been validly elected to the office of Chairman, Vice Chairman or Councillor.
- The term of office of the Chairman, Vice Chairman or Councillor has ceased.
- The seat of a member of an Area Council has become vacant.
- A question or petition brought before the Tribunal has been properly or improperly brought.
- A Chairman who shall be a Chief Magistrate.
- Two (2) other members appointed from Magistracy, and legal practitioners of at least 10 years standing, non legal practitioners of unquestionable integrity or other member of the judiciary not below the rank of a Magistrate – Section 136(2) and (3) of the Electoral Act.
WHO MAY BRING AN ELECTION PETITION
Section 137(1) of the Electoral Act 2010 provides for the class of persons entitled to bring an election petition as follows:
- A candidate at the election
- A Political Party that participated at the election
Only the above can present election petition- In Egolum V Obasanjo (1999)7NWLR (Pt611) 355 a person who was neither a candidate at an election nor a member of a political party nor sponsored by a political party to contest the election and who did not specify the nature of his right to present the petition was held incompetent to present a petition.
A person who failed to secure nomination of his party but claims to have been wrongly excluded from contesting the election is incompetent to present an election petition (i.e. intra party dispute) NEC V NRC (1993)1NWLR (Pt 265 )120; Anazodo V Audu (1999) 4 NWLR) (Pt 600 549).
A political party that failed to present a candidate for election is incompetent to present a petition. Egolum V Obasanjo (supra).
But a candidate that contested and lost the election may bring a petition. Nnamani V Nnaji (1999) 7NWLR( Pt 610) 313
Also a person who was properly nominated by his party but was unlawfully excluded by the electoral commission from contesting the election is competent to present a petition. Ojo V Abogunrin (1989) 5 NWLR (Pt120) 162
The Respondent to an election petition is a person whose election is complained of, that is , the successful party at the election. By Section 137(2)&(3) Electoral Act, Respondents shall be the following:
- A person whose election is complained of;
- If the petitioner complains of the conduct of an Electoral Officer, the presiding or returning officer, it shall not be necessary to join such officers or person...the Commission shall, in this instance, be
- made a Respondent; and
- deemed to be defending the petition for itself and on behalf of its officers and such other persons.
The position of the law before now was that where the petition complains of the conduct of a returning officer, he shall be deemed to be a respondent for all purposes. Thus in Obasanjo v. Yusuf (2004) 9 NWLR (Pt. 877) 144, 185, the Supreme Court held that it is not necessary to make unnamed and unidentified law enforcement officers or political party agents, parties to a petition, whilst accepting that the Electoral Act requires that if a petition complains of the conduct of an Electoral Officer or any other person who took part in an election, that the person ought to be made a party to an election petition. This position has clearly changed.
It should also be noted that non-joinder of some parties does not invariably lead to striking out of the entire petition most especially where there are other grounds of the petition that have nothing to do with the person not joined. All that needs to be done, is to strike out the offending paragraphs – Kalu v. Ohuabunwa (2004) 7 NWLR (Pt. 871) 1. Again, an unsuccessful candidate is not a necessary or statutory party to an election petition – Mogahlu v. Ngige (2005) 4 NWLR (Pt. 914) 1; Buhari v. Yusuf (2003) 14 NWLR (Pt. 841) 446.
GROUNDS FOR AN ELECTION PETITION
Section 138(1) of the Electoral Act, provides 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;
- That the respondent was not duly elected by the majority of lawful votes cast at the election; or
- The petitioner or its candidate was validly nominated but unlawfully excluded from the election.
Under the first ground stated above, a person is not qualified to contest an election if he is caught within the provisions of the Constitution that spell out the grounds of disqualification to wit, Section 137 (Presidential election); Section 182 (Governorship election); Section 66 (National Assembly election); and Section 107 (House of Assembly election). See Iniama v. Akpabio (2008) 17 NWLR.
It is pertinent in drafting an election petition to ensure that the petition complies with the provisions of the Electoral Act on the grounds for bringing a petition, in other words the grounds on which the petition is based must be those recognized by the Act. In Francis Doukpolagha v Rufus Ada George (1992) 4 NLWR (pt 236) 444, Dr Alex Obi v Chief Evan Enwerem (1992) 2 N.E.P.A.R. 11, both petitions were dismissed because the grounds did not fall within the statutory provisions.
GROUNDS FOR DISQUALIFICATION
Under the various constitutional provisions, a person is unqualified to contest an election if:
- He is not a Nigerian citizen; because candidates for the Presidential and Governorship elections must be citizens of Nigeria by birth – Sections 131 and 177 of the Constitution;
- He has been elected to the office of the President or Governor at any two previous occasions – Section 137(1)(b); and Section 182(1)(b) of the 1999 Constitution;
- He is adjudged a lunatic or a person of unsound mind;
- He is under a death sentence or a sentence of imprisonment for an offence involving dishonesty or fraud;
- He has been convicted and sentenced for an offence involving dishonesty or he has been found guilty of a contravention of the Code of Conduct within not less than ten years prior to the election.
- He is an undischarged bankrupt.
- He is a staff of the public service of the Federation or of a State and has not resigned, withdrawn or retired thirty (30) days from such employment before the date of the election. It should be noted that a leave of absence does not amount to resignation, withdrawal or retirement – Mbukurta v. Abbo (1998) 6 NWLR (Pt. 595) 425.
- He is a member of any secret society (cult member); he has been indicted for embezzlement or fraud by a judicial or administrative panel of inquiry and the report was accepted by the Government; and
- He has been presented a forged certificate to the Independent National Electoral Commission (INEC).
Where an elected candidate was not qualified to conduct an election and returned, the petitioner who claims to have polled the next majority votes cannot be declared winner by the tribunal, unless the facts of disqualification were notorious and within the knowledge of the electorate. However, if the facts were not notorious, the tribunal must nullify the election and order a fresh one – Bayo v. Njidda (2004) FWLR (Pt. 192) 19 at 41 and 84.
However, if the ground of the petition is that the respondent did not poll majority of lawful votes cast at the election, the Tribunal or Court, if so satisfied, shall return the candidate that polled the majority of lawful votes cast – Ngige v. Obi (2006) 14 NWLR (Pt. 999) 1 at 226-227, per Omokri JCA.
CONTENTS OF A PETITION
This is made available in Paragraph 4 of the First Schedule to the Electoral Act. Rule 4 of the Rules of Procedure for Election Petition
Rule 4. An election petition under this Act shall-
- Specify the parties interested in the petition.
- The right of the petitioner to bring the petition – This means showing that the petitioner contested the election and the capacity and platform on which he contested.
- The holding of the election, the scores of the candidates and the name of the person returned as the winner of the election – Failure to state this renders the petition incompetent and liable to be struck out – Effiong v. Ikpeme (1999) 6 NWLR (Pt. 606) 260. However, the petitioner is not required to state score of political party who did not field any candidate or votes cast for persons that were not candidates in the election – Ajudua v. Nwogu (No. 1) (2004) 16 NWLR (Pt. 893) 56.
- The fact of the petition and the ground on which the petition is based – section 138(1) of the Electoral Act states such grounds which are –
- 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;
- That the respondent was not duly elected by majority of lawful votes cast at the election; or
- That the petitioner or its candidate was validly nominated but was unlawfully excluded from the election.
- Prayer or prayers sought by the petitioner-(R4(3(a). This is the reliefs sought. Any petition not accompanied with prayers is incompetent and will be dismissed. Thus, a petitioner may pray in the alternative that it is either the election be declared null and void or he be declared winner of the election.
- The petition must be signed and by the petitioner or the solicitor named at the foot of the petition –(R4(3(b) An unsigned petition is liable to be struck out – Ibrahim v. Sheriff (2004) 14 NWLR (Pt. 892) 43. Where, however, an unsigned petition is served on a respondent, and he, apart from entering appearance, takes steps, the proceedings will amount to a waiver of his right to complain – Nwankwo v. Dr. Raymond Emerenini (unreported Imo State Appeal Tribunal ORZ/EP/HO/54/91 decided on 5th August 1991).
- It shall contain an address of Petitioner for service – Where the address is not stated the petition will be deemed not to have been filed unless the Tribunal otherwise orders. However, where personal service cannot be made, the Tribunal may order substituted service.
A petition shall be accompanied by:
- A list of witness that the petitioner intend to call in proof of the petition
- Written statement on oath of the witnesses
- Copies or list of every document to be relied on at the hearing of the petition- see R4(5). A petition that falls short of this requirement shall not be accepted for filing by the secretary to the tribunal.
All actions arising from the conduct of an election are commenced by way of petition – Section 133(1) of the Electoral Act
An election petition shall be presented or filed within twenty (21) days after the date of the declaration of the result of the election – Section 285(5) CFRN 1999.
SERVICE
Notice of the petition as well as all other documents required to be served on the respondent before his entry of appearance shall be served personally. The fact that the respondent was not served personally will not vitiate the proceedings – Paragraph 48 & 7 of the First Schedule to the Act.
Where personal service could not be served on the respondent, the Tribunal may on application of the petitioner order for substituted service in accordance with the provisions of the Federal High Court Rules – Paragraph 8(2) of the First Schedule to the Act.
A process to be served on a party in an election petition not requiring personal service shall be duly served by delivering it to the person or by leaving it at his last known place of abode in the constituency in question or with any resident in the place who appears to be eighteen (18) years or above – Paragraph 44(1) of the First Schedule to the Act.
APPEARANCE
Respondent is required to enter appearance after being served or within the time specified by the Secretary enter an appearance by filing a memorandum of appearance (in Form TF. 004) if he intends to oppose the petition - Paragraph 9(1) of the First Schedule to the Act, and the respondent is to give the name and address of the solicitor, if any, that is representing him. Either the respondent or his solicitor shall sign the memorandum of appearance and shall furnish as many copies according to the parties in the suit and three (3) extra copies to be left with the Secretary.
Respondent must pay the necessary filing fees and leave enough copies for service failing which the memorandum of appearance will be deemed not to have been filed – Paragraph 9(4)(b) of the First Schedule to the Act.
He should file conditional appearance where he has a preliminary objection to the petition – Paragraph 9(5) of the First Schedule to the Act.
EFFECT OF NOT FILING MEMORANDUM OF APPEARANCE
Any document intended for service on respondent may be posted on Tribunal notice board and shall be sufficient notice to respondent – Paragraph 10(1) of the First Schedule to the Act.
However, the non-filing of a memorandum of appearance will not bar respondent from defending the petition provided he files his reply not later than twenty-one (21) days from receipt of the election petition – Paragraph 10(2) of the First Schedule to the Act.
FILING OF REPLY
In filing of reply, the respondent is given an opportunity to file a reply to the petition.
Under the rules, the respondent shall within fourteen (14) days of entering an appearance file in the registry his reply stating which of the facts or/and figures alleged in the petition he admits or the ones he rejects.
The reply is to be filed and the respondent shall furnish as many copies according to the parties in the suit and ten (10) extra copies to be left with the Secretary – Paragraph 12(4). The reply must be signed by the respondent or solicitor, if any – Paragraph 2(3).
The reply shall be supported by –
- copies of documentary evidence;
- list of witnesses; and
- the written statement on oath.
EFFECT OF NOT FILING A REPLY
The non-filing of the required copies a reply or does not pay the prescribed fees, the reply shall be deemed not to have been filed except the court or tribunal requires otherwise – Paragraph 12 of the First Schedule to the Act.
AMENDMENT OF PETITION
An election petition can only be amended within the time limited for filing it, which is twenty (21) days from the date of declaration of the result of the election – Ngige v. Obi (supra).
Thereafter, amendment will not be allowed under the following reasons –
- To introduce any of the contents required in Paragraph 4(1) – Opia v. Ibru (1992) 3 NWLR (Pt. 231) 658.
- To effect substantial alteration of the grounds for or prayer in the petition.
- To effect substantial alteration of or addition to the statement of fact relied on to support the ground for or sustain the prayer in the petition except as permitted by the Electoral Act – Paragraph 14(2); Ngige v. Obi (supra), where it was explicitly held that no amendment affecting items listed under paragraph 14(2) of the first schedule to the Electoral Act would be allowed after the expiry of time limited by the Act for presentation of petitions.
However, amendment will be allowed to correct a typographical error on the face of the petition – Chief Bola Ige v. Dr. Omololu Olunloyo (1984)1 SC 258; Aniagala v. Abeh (1997) 7 NWLR (Pt. 611) 454.
PRE-HEARING SESSION AND SCHEDULING
Within seven (7) days of service of reply on the respondent or the petitioner, whichever is the case, the petitioner shall apply for issuance of pre-hearing notice. Thereupon, Tribunal/Court shall issue to parties or their legal practitioners pre-hearing conference notice as in Form TF. 007. The notice is accompanied by pre-hearing information sheet in Form TF. 008 – Paragraph 3(1) & (2).
Where the Petitioner fails to bring the application for issuance of the pre-hearing notice, the respondent may do so or apply for an order to dismiss the petition – Paragraph 3(3).
Where both parties fail to bring the application, the Tribunal/Court shall dismiss the petition as an abandoned petition and shall not entertain any application for extension of time to bring the application.
The dismissal of the petition for failure to apply for pre-hearing notice is final and renders the Tribunal/Court functus officio – Paragraph 3(5).
Pre-hearing session shall be completed within thirty (30) days of its commencement – Paragraph 3(9). The Tribunal/Court shall issue a report at the end of the session to guide subsequent course of proceedings – Paragraph 3(10). Failure of a party to attend satisfactorily in the session or obey the scheduling or pre-hearing order, will lead to dismissal of the petition or entry of judgment as the case may be – Paragraph 3(11).
The judgment may be set aside upon application with undertaking to participate effectively made within seven (7) days of the judgment with order of cost of not less than N20,000 – Paragraph 3(12).
The following should be noted –
- All motions shall be taken at pre-hearing sessions except with leave of court.
- All motions shall be supported by affidavit and written address – Paragraph 6(1), (2) and (3).
- Respondents is to file counter affidavit and written address within seven (7) days of service if he wishes to oppose the motion – Paragraph 6(4)
- Further reply on point of law to be filed within three (3) days – Paragraph 6(5).
The purposes of the conference are –
- Disposal of all matters which can be dealt with on interlocutory application.
- Giving such directions as to the future course of the petition as appear best adapted to serve its just, expeditious and economical disposal in view of the urgency of election petition.
- Giving directions on order of witnesses to be called and such documents to be tendered by each party to prove their cases.
- Fixing clear dates for hearing of the petition – Paragraph 3(1) and (2).
At the pre- hearing session the Tribunal/Court shall enter a scheduling order for –
- Joining other parties to the petition.
- Amending petition or reply or any other process (as allowed by law).
- Filing and adopting of written addresses on all interlocutory application.
- Additional pre-hearing sessions.
- Order of witnesses and tendering of documents.
- Any other matter that will promote quick disposal of the petition – Paragraph 3(6).
HEARING
Petition shall be heard and determined in open court – Paragraph 18.
The petitioner shall prove his case to the satisfaction of the Tribunal/Court in accordance with the petitioner’s reply – Kudu v. Aliyu (1992) 3 NWLR (Pt. 231) 615. Where there are allegations of crime, there must be proved beyond reasonable doubt.
Facts shall be proved by written depositions and oral examination of witnesses in open court – Paragraph 4(1). No oral examination of a witness during his evidence- in- chief save to lead him to adopt his written deposition and tender documents mentioned therein – Paragraph 4(3).
Documents and exhibits admitted by consent of parties at pre-hearing sessions shall be tendered from the bar or by the party – Paragraph 4(2). Parties are required to file written address within the stipulated time.
TIME FOR CONCLUDING HEARING
The election tribunals shall deliver its judgment in writing within 180 days from the date of the filing of the petition. Section 285 1999 CFRN as amended.
JUDGMENT
After conclusion of evidence and address, Tribunal or Court adjourns to a definite date for judgment. The Court or Tribunal may allow or dismiss the petition, that is, it may declare the election void or declare a particular candidate duly elected or retuned; the tribunal may also award cost.
The tribunal or court must deliver its judgment within the time stipulated; otherwise, the judgment shall be a nullity. Immediately the judgment of the tribunal is delivered, the Judge shall certify it to the Electoral Commission, for their notification.
Where a candidate’s election has been nullified by the trial Election Tribunal, the candidate retains his seat until the Court of Appeal delivers a final decision (that is if he appeals the decision within 21 days from the date of the decision). Section 143(1) of the Electoral Act. If the Court of Appeal upholds the nullification of the election by the tribunal, the candidate automatically forfeits his seat until a re-election is held.
On the orders an election tribunal may make, Section 140 of the Electoral Act (as amended) provides that:
Section 140 (1) subject to subsection (2) of this section, if the Tribunal or Court as the case may be, determines that a candidate who was returned as elected was not validly elected on any ground, the Tribunal or the Court shall nullify the election.
(2) Where an Election Tribunal or Court nullifies an election 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 this Act, the tribunal or court shall not declare the person with the second highest votes or any other person as elected, but shall order a fresh election.
(3) If the Tribunal or Court determines that a candidate who was returned as elected was not validly elected on the ground that he did not score the majority of valid votes cast at the election, the Election Tribunal or the Court, as the case may be, shall declare as elected the candidate who scored the highest number of valid votes cast at the election and satisfied the requirements of the Constitution and this Act.
Note also: Section 141 of the Act provides that an election tribunal or court shall not declare any person a winner at an election in which such a person has not fully participated in all the stages of the said election. This has however been held by the Courts to be a legislative interference with judicial powers and functions.
APPEALS
Appeals from Governorship Election Tribunal and National and State House of Assembly Election Tribunal lie to the Court of Appeal. Section 246 (1) CFRN 1999 (as amended) provides that the Court of Appeal has appellate jurisdiction to the exclusion of any other court from decisions of:
- Code of Conduct Tribunal
- National and State Houses of Assembly election Tribunal
- Governorship Election Tribunals
- Any person has been validly elected as a member of the National Assembly a the House of Assembly of a State;
- Any person has been validly elected as to the office of Governor or Deputy; or
- The term of office of any person has ceased or the seat of any such person has become vacant.
It should, be noted that while an appeal may lie from the Court of Appeal to the Supreme Court, in respect of the presidential and governorship election petition, the decision of the Court of Appeal in respect of appeals arising from National and State Assembly Election Tribunals is final – Section 246 (3) CFRN 1999 (as amended) Awuse v. Odili (2003) 18 NWLR (Pt. 851) 116; Onaguluchi v. Ndu (2001) 7 NWLR (Pt. 712) 309.
In respect of the Area Council Election Tribunal of FCT, appeals lie to the Area Council Election Appeal Tribunal and the decision of the Appeal Tribunal is final – Section 143(1) and (2) of the Act. (Equivalent provisions exist in the various state laws with respect to Local Government Election Tribunals).
In respect of the Presidential or Vice Presidential election and Governorship election, appeal lies from the decision of the Court of Appeal to the Supreme Court. The decision of the Supreme Court is final – Section 233 of the Constitution (as amended).
ETHICAL ISSUES
- Rule 14 of the Rules of Professional Conduct (RPC), 2007 – A lawyer shall dedicate and devote his attention to the cause of his client.
- Rule 15 of RPC – A lawyer shall refuse to aid or participate in any conduct which he believes to be unlawful even though there is some support for an argument that the conduct is legal.
- Rule 32(1) of RPC – A lawyer in appearing in his professional capacity before a Court or Tribunal shall not deal with the Court or Tribunal otherwise than candidly and fairly.
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