CIVIL WEEK 18: ELECTION PETITION
WEEK 18
ELECTION PETITION (in curriculum, Torti v Ukpabi, Ngige v Obi and Nwobodo v Onoh are listed)
:: GENERAL INTRODUCTION AND PRINCIPLES.
An election petition is a sui generis procedure (and originating process) (Buhari v INEC, Abubakar v Yar’Adua);
– Challenging the validity of an election OR
– Disputing the due return of a candidate. OR
– Claiming the return of a candidate.
Applicable laws[1];
– Electoral Act 2010; – CFRN; – Election Tribunal and Court of Appeal Practice Direction 2011 made by the president of the court of appeal pursuant to powers under c 145 ElAct.
:: JURISDICTION AND COMPOSITION (ELECTION PETITION COURTS/TRIBUNALS). S 285 CFRN is instructive:
– The Court of Appeal has original jurisdiction to determine whether a person was validly elected as president or vice-president; and whether the office of president or vice-president has ceased or become vacant At least 3 COA justices must be sitting but they are usually 5 because constitutional matters are bound to arise Section 233, 239 (2) CFRN.
– National and State House of Assembly Election Tribunals: decides whether a person was validly elected to the National or state legislature. Composition is a chairman High Court Judge and two members appointed by the president of the court of appeal. Quorum is the chairman and two members. Appeal is to the COA.
Governorship Election Tribunal: determine whether a person was validly elected as Governor or Deputy Governor or as a member of a legislative house Section 285 (2) CFRN.
Quorum is the chairman and two members appointed by the COA president. Appeal is to the COA.
Local Government or Area Council (F.C.T) Election Tribunal: L.G.E.T is not recognized by the Electoral Act but by state laws allowing them to entertain local government disputes as to the election of a chairman, vice-chairman, councillor, term of office, and vacancy thereof via petition. It comprises a chairman chief magistrate and two members appointed from the magistracy. Appeals go to the Area Council Election Appeal Tribunal, whose decisions are final[2]. Chk 135 and 136 Electoral Act, AG Abia v AG Federation.
Other Pre-election matters like, issues on disqualification, nomination, substitution, sponsorship, etc. They may seek the High Court or FHC. But if the issue can constitute one of the grounds to challenge the result of the election, he shall approach the appropriate election petition court or tribunal.
:: CONTENTS OF ELECTION PETITION, MATERIAL FACTS TO BE PLEADED AND PROVED.
As stipulated by EA, CFRN, other laws and cases; An election petition must clearly contain: Paragraph 4 Electoral Act Schedule 1
- Parties and their capacities/designation: petitioner being challenger and respondent being the successful candidate at the election. The Chief Electoral Officer of the Federation/State where the petition relates to President, Vice, Governor or Deputy respectively. The Electoral Officer of Senatorial District, Federal Constituency, State Constituency where the election relates to a senator, Members of HOR, member of SHA respectively. Where conduct of official is complained of, he should be joined.
- Date and Place: of the election.
- Result/scores.
- Grounds of the Petition: Section 138(1). The main ground is a complaint of undue election or undue return. Then he can hinge it only on any of the following[3]… on the fact that the:
– Respondent was at the time of the election not qualified to contest the election.
– Election was invalid by reason of corrupt practices or non-compliance with the Electoral Act.
– Respondent was not duly elected by majority of lawful votes cast at the election[4].
– The petitioner (or its candidate) was validly nominated but was unlawfully excluded from the election.
- Prayers or reliefs sought i.e. that the petitioner be declared validly elected or returned or that the election be declared null and void.
- Signature of Petitioner or his solicitor named at the foot thereof.
- Address (of petitioner and respondent) for service within jurisdiction.
See Generally; first Schedule Electoral Act.
Frontloading is needed. I.e. an election petition must be accompanied by list of witnesses[5], witness’s statement on oath, and list n copies of documents to be relied on in court. See First Schedule EA. CAN v Lamido. So must the reply.
Petition shall be divided into paragraphs and numbered serially each confined to a distinct issue.
:: STANDARD OF PROOF IN ELECTION PETITION CASES (ON GENERAL PROOF AND WHERE FRAUD OR CRIME IS ALLEGED.
:: PROCEDURE (COMMENCEMENT TO CONCLUSION OF TRIAL). See First Schedule EA, Section 1-4 ETCPD2011.
First: The signed petition must be presented within 21 days after the declaration of the result of the election result-285 CFRN, 133, 141 ElA. (a petition is presented where it has been filed in appropriate court/registry and prescribed fees paid)-Idris v ANPP. (Does Buhari v INEC come in? Oke v Mimiko.
It may be amended within this 21 days but amendment should not introduce fresh prayers or materially alter the facts or grounds or prayer. Such allowable amendments include those to correct typographical error. Oke v Mimiko.
NB: The petition can only be presented by a candidate at the election or a political party which participated at the election, or wrongfully excluded person)-S 137 EA. The person whose election is complained of shall be the respondent. An electoral officer or the Commission (defending itself and its officers) can be made a respondent.
NEXT: notice of presentation of petition is served on respondents and each given within 5-7 days for them to enter appearance. Also a CTC of petition should be given to the tribunal and other persons required by law to adjudicate and determine the petition. Address for service should be indicated.
NEXT: Respondent shall within 14 days of service of the petition file a reply (signed by him or his solicitor) precisely specifying facts he denies and facts and figures which he relies upon in opposition to the election petition[6].
NEXT: There must be a pre-trial session-Awojobi v INEC, within 7 days from the filing of respondent’s reply or petitioner’s reply whichever comes later. The petitioner is to apply for issuance of a pre-hearing information sheet as in form TF 007 failing which respondent may do so or apply to dismiss the petition[7] . During the pre-trial session, scheduling orders shall be enetered for matters that would promote quick disposal of the petition in the circumstances like, joining of parties, amending the processes, tendering of documents, additional pre-hearing sessions, etc. Petition could be dismissed for failure to attend the sessions. The time and place for hearing shall be fixed by the tribunal and communicated to the parties at least 5 days to the day fixed for hearing.
NEXT: the petition shall be heard in open court from day to day and no formal adjournment shall be necessary. It can even be heard during public holiday or Saturday where deserving. Standard of proof is on preponderance of evidence-Section 135 EA except crime is alleged-Torti v Ukpabi. Petitioner has 14 days to present his case and respondent 10 days.
The Election Tribunal should deliver its judgment in writing within 180 days from the date of filing the petition. S 285(6) CFRN ANPP V GONI.
Immediately judgment is delivered, the tribunal or court shall certify it to the Resident Electoral Commissioner / Commission. The judgment should be complied with but 21 days lee is granted for a party that wants to appeal. Appeal should be within 21 days from the delivery of the judgment. Brief of Argument to be filed within 10 days from service of Record of Proceedings. BOA should contain not more than 40 A4 pages Times New Roman 30 minutes of oral argument to emphasise or clarify written argument.
:: DRAFT ELECTION PETITION AND REPLY TO IT.
[1] In passing; note the qualifications to contest for election (Nigerian Citizen, School Certificate or its equivalent, Sound Mind, not under sentence of death or imprisonment for offence involving dishonesty or fraud or contravention of Code of Conduct (including up to ten years before the date of the election), not undisharged bankrupt, not employed by state or federal public service within 30 days immediately before the election, not member of secret society-RT-AMORC v Awoniyi, of age (at least 40, 35 and 30 for president, governor and Legislative house respectively, must be a member of a political party and is sponsored by the political party, not have been elected to the contesting post up to twice before. Indictment by panel of inquiry no longer a requirement).
[2] Chairman of the Area Council Election Appeal Tribunal must be a High Court Judge backed by two members not below chief magistrate.
[3] No other grounds. E.g. in Buhari v Obasanjo, undue influence was held not to be a ground, so also inequitable treatment. Only ground which falls within the ambit of Section 138 of the Electoral Act listed above.
[4] It appears it is the collation officers who counted the votes cast that should be brought to testify in court as to the allegation.
[5] Their names might be put in initials to safeguard.
[6] If new issues are raised in the respondent’s reply the petitioner has 5 days from receipt of same to file his own reply to the new issues. These petitions and replies can be amended within the 21 days allowed for filing of election petition. Such amendments should not introduce a new issue or be a substantial alteration-Ngige v Obi.
[7] Dismissal is final and the tribunal becomes functus officio.
