Understanding Election petition Practice And Procedures In Nigeria [Part 1] By Frank Nabena


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.

                                                

                                                         


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