Contents

1. General principles, Court/Tribunal with jurisdiction and composition of Election Petition Courts/Tribunals;
2. Contents of election petitions 

3. The procedure: Commencement of election petition and the sequence of events up to conclusion of trial;
4. Ethical issues arising from election petitions.

 

Outcomes

At the end of this lesson Students would be able to:

1. Explain and discuss the general principles including the courts that exercise jurisdiction on election petitions.     
2. State and discuss the content and material facts to be pleaded and proved in election petition cases.
3. Explain the procedure and sequence of events involved in Election petitions up to the conclusion of trial.
4.  Discuss standard of proof in election petitions: (a) on a general proof (b) where fraud, illegality, crime, etc is alleged.
5. Draft an Election petition and the Reply to it.
6. Identify and discuss ethical issues arising from election petitions.

 

General principles

1. It is sui generis. Special procedure guided by its own rules/laws

See CHIME V EZEA (2009) 34 WRN 39, ALSO SEE ORUBO V NEC (1988) 5 NWLR (PT.94) 323 at 347

2. Time is of essence – timeline must be complied with.
3. Election petitions and appeals therefrom enjoy accelerated hearing and are given precedence over other cases.
4. There must be strict compliance with the prescribed procedure.

 

There are pre-election matters and post elections matters. Law school only focuses on post election matters

 

The persons who may present an election petition are

1. A candidate in the election – s 137 (1)(a) electoral act
2. A political party which took part in an election – s 137 (1)(b) E.A
3. A candidate that was unlawfully excluded from the elections – s 138 (1)(d) EA SARAKI V PPA

 

Applicable laws and rules

1. The constitution of the Federal Republic of Nigeria 1999 (As amended)
2. Electoral act 2010 (as amended)
3. The Rules of procedure for Election Petition First schedule to the act – (“RPEP”)
4. The election tribunal & court practice directions 2011- made by the president, court of appeal pursuant to s.145 (2) EA
5. Federal High Court rules
6. Evidence act

Stages of election

1. Nomination
2. Accreditation of voters
3. Voting
4. Collation
5. Declaration of results

No election tribunal/court can declare any person a winner at an election in which such person has not fully participated in all the stages of the election – s 141 Electoral Act

Note that the day of voting is not necessarily the date of declaration of result, and it’s the date of declaration of result that is pertinent to the calculation of days. 

 

Types of election matters

Election matters are either

1. Pre-election matters (commencement is by anyone of the means of commencing actions in the high courts): pre –election matters can go to state high court or Federal High Court, they both have jurisdiction in respect of pre-election matters see s 87(10) Electoral act, S31(5) Electoral Act. This jurisdiction vest in either high court, even as the INEC, an agency of the federal government, is always a party to such pre-election matters – S. 87(1) E.A; SALIM V CPC.

Pre-election matters relate to:

• Nomination;
• Disqualification;
• Substitution;
• And sponsorship of candidates by political parties – SALIM V CPC

A party that sleeps on its pre-election matters until after the election in issue had taken place will be unable to invoke the jurisdiction of either of the high courts.

In SALIM V  3CPC it was held that the complaint brought 38 days after an election held robbed Kano State High Court its jurisdiction to hear the case as a pre-election matter.or

2. Post – election matters – (commencement by petitions)

Electoral Umpires/bodies that can conduct election

• The independent national electoral commission (INEC): over elections of the president/vice president / governor/ deputy governor/ members of the national assembly / members of each state’s house of assembly. S153 Const.
• State Independent Electoral Commission (SIEC) – they conduct local government elections, INEC doesn’t conduct local government election. Each sate has its own SIEC e.g. Delta SIEC, Ogun SIEC

 

Jurisdiction over election petitions

The constitution vests jurisdiction in the following courts/tribunals to hear/determine election petitions

• The National Assembly and State Houses of Assembly Election Tribunal – s.285 const.
• Governorship election tribunal –S 285 Const. appeals from here lie to the court of appeal and then to the supreme court
• Court of Appeal - S 239.

 

Court of appeal  - s239

It has exclusive original jurisdiction to hear/ determine petitions against the election of the president or the vice president. S. 239 (1) Const.; OBASANJO V YUSUF

Composition – the court of appeal sitting in its original jurisdiction over an election petition pursuant to s. 239 (1) (a) of the constitution will be properly constituted with at least 3 justices of the court of appeal. S 239(2) const.

 

The National Assembly and State Houses of Assembly Election Tribunal

Constitution – s 285(3) Const. and par 1(1) & (2) , 6^th schedule to the constitution.

It is to be established in each state and the FCT.It has Exclusive Original Jurisdiction – their jurisdiction is to determine whether a person has been validly elected as a member of the National Assembly (both senate and house of reps) or State House of Assembly.

It shall consist of a chairman and two other members. The chairman is usually a high court judge.Two other members appointed from judges of High Court, Kadis of Sharia Court of Appeal, judges of the Customary Court of Appeal or other members of the judiciary not below the rank of chief magistrate. They are to be appointed by President of the Court of Appeal (PCA) in consultation with Chief Justice of the State, the Grand kadi of the Sharia Court of Appeal or the President of the Customary Court of Appeal of the state – section 1(1)(3) of sixth schedule.

 

The Governorship Election Tribunal

It has exclusive Original Jurisdiction over petitions against election of any governor & deputy governor. S.285(2) constitution

Composition and appointment: Same as above – in the National Assembly and State Houses of Assembly Election Tribunal. See s.285 Const. and par.2 6^th schedule to the constitution 

 

Origination process in an action challenging an election

The result of an election can only be challenged by a petition presented to the tribunal or court with competence. S.133 ELECTORAL ACT

Such petition shall name the person elected or returned in the election as a party – a respondent

 

Contents of election petition

1. Name of the tribunal vested with jurisdiction
2. Specify the parties interested in the election
3. The right of the petitioner to present the election petition
4. State the holding of the election
5. The scores of the candidate
6. The person returned as the winner of the election
7. The facts of the election petition and the ground or grounds on which the petition is brought and the relief sought by the petitioner

- The petition should be divided into paragraphs, see Para 4 RAPEP

 

Documents required to be presented in an election petition. Or documents to be frontloaded

1. The election petition
2. A list of the witnesses that the petitioner intends to call in proof of the petition
3. Written statement on oath of the witnesses; and
4. Copies or list of every document to be relied on during the petition

para. 4(5) of the R.P.E.P schedule 1 Electoral act

 

Class work – Draft an election petition

 

IN THE GOVERNORSHIP ELECTORAL TRIBUNAL OF LAGOS STATE

HOLDEN AT IKEJA

PETITION NO:

 

IN THE MATTER OF THE GOVERNORHSIP ELECTION AT LAGOS STATE

 

BETWEEN

1) PROSPERITY UNUKEGWO

2) PEOPLE DEMOCRATIC PARTY (PDP)………………….…………….PETITIONER

AND

INDEPENDENT NATIONAL ELECTORAL COMMISSION …………RESPONDENT

 

PETITION

 

Introduction

1.1. The governorship electoral tribunal is duly vested with the jurisdiction to hear the petition, S.285 of the Constitution of the federal republic of Nigeria

1.2. The parties interested in the election petition are the people democratic party and the Independent National Electoral commission

1.3. Your petitioner was a candidate in the election conducted on the 20^th day of March 2018 in Lagos State.

 

Grounds for the petition

1. That the candidate of the political party was validly nominated but unlawfully excluded from election.

 Note: Use a table to show the name of the party, candidate and what they scored in the election and the total. If you’re challenging what was published by INEC, after stating the published one, you then state your own version.

Note: “holden at” – it usually holds at the capital of the state, don’t put the state name.

Prayer

That the

 

 

Grounds upon which an election may be questioned/ grounds of an election petition

1. That a person whose election is questioned was at the time of the election not qualified to contest

See s 137,182,66,107 of the constitution for the disqualifying factors;

It includes:

• He is an Undischarged bankrupt
• He is not a citizen of Nigeria by birth. Candidates for the presidential or governorship elections must be citizens of Nigeria by birth.
• He has presented a forged certificate to INEC
• He is under a death sentence or a sentence of imprisonment or fine for an offence involving dishonesty or fraud by a court of competent jurisdiction.
• He is a member of a secret society. See definition of secret society in s.318 CFRN; Registered Trustees of AMORC v Awoniyi.

2. That the election was invalid by reason of corrupt practices or non-compliance with the Electoral act. Note the acts under reference must have been committed by the respondent or his agent acting under his authorization – BUHARI V OBASANJO

Note also s 139 of the electoral act, which says that if there is substantial compliance with the principles of the act, the election would not be invalidated. The non-compliance has to substantially affect the result of the election.

3. That the respondent was not duly elected by majority of lawful votes cast at the election.
4. That the petitioner or its candidate was validly nominated but was unlawfully excluded from the election. S.138 EA; PPA V SARAKI

 

PRESENTATION OF THE PETITION

1. The petition is presented by the petitioner(s)

• Either in person, or
• By the solicitor named at the foot of the election petition

2. The election petition must be filed within 21 days after the date of declaration of results of election – s 285 (5) constitution; s.134 Electoral act. – filing of election petition amounts to presentation of the petition.
3. The petition is filed/ presented to the secretary to the election petition tribunal par.3 (1) RPEP
4. The secretary must thereafter give a receipt as evidence of the presentation. - After receiving the petition the secretary must carry out three assignments.
5. The petitioner is required to deliver 10 copies and a copy for each of the respondent – par 3(2) RPEP
6. The secretary then has to compare the copies with the original petition, and thereafter certifies the copies as true copies of the original petition. Par. 3(3) RPEP SCH 1 ELECTORAL ACT

 

Steps to be taken by the secretary following the presentation

1. He causes notice of the presentation of the election petition to be served on each of the respondents to the petition.

• Such notice of presentation of election petition will contain a time set by the secretary within which each respondent should enter an appearance. The period should not be less than 5 days but not more than 7 days after the date of service of the notice.

2. He posts a certified copy of the election petition on the notice board of the election tribunal namely a notice board placed at its registry or the place of hearing.
3. He sets aside a certified copy for onward transmission to the person(s) required by law to adjudicate and determine the petition.

 

Service of petition

Every originating process must be served personally likewise a petition should be served personally. Personal service of the notice of presentation or any other document for service prior to the entry of appearance is required – par 8(1) RPEP 1st Schedule Electoral act.

However the tribunal may order the substituted service of such court processes, where it is shown that attempts at personal service where futile – par 8 (2) RPEP

Want of personal service or the fact that process served by substituted service did not actually reach the respondent will not invalidate the proceedings.

 

 

APPPEARNACE

• The respondent who wishes to resist the petition files a memorandum of appearance, stating therein the name and address of the solicitor, unless he states that he wants to act for himself. In the latter case he must furnish an address for service
• The memo should be signed by the respondent or his solicitor and filed within the time limited by the secretary.
• Failure to state an address for service renders the memo incompetent as it will be deemed not filed, except the tribunal otherwise directs.
• Where the respondent wishes to raise a preliminary objection on grounds of law against the petition, he files a conditional appearance – par 9 (5)
• The effect of non filing of memo of appearance is that any subsequent process for service on the respondent may be served through posting…..

 

REPLY TO AN ELECTION PETITION

The respondent who wishes to contest an election petition is required to file in the registry a reply within 14 days of service of the petition on him – par. 12

He should explicitly state the allegation of facts in the petition that he wishes to admit and those he denies. He should state the facts relied on for his opposition to the petition.

The reply shall be signed by the respondent or his solicitor, with his address for service

 It should be accompanied by

• Copies of documentary evidence
• List of witnesses
• Written statement on oaths of witnesses – par 12 (3) RPEP

 

The reply is filed along with as many copies as will be required for service on other parties to the petition, with 10 extra copies.

The respondent is also required at the point of filing to pay the prescribed fees for service.

Failure to comply with the 2 foregoing requirement means that the reply will be deemed not to have been filed, unless the tribunal or court otherwise orders.

 

Time- line for election petitions

• Election tribunal shall be constituted not later than fourteen (14) days before the day of the election, and its registries must be open for business seven (7) days before the election. – See section 133(3)(a) & (b) Electoral Act
• Election petition must be filed within 21 days after the date of declaration of results of election. There is no extension of time within which to file the petition. Once a petitioner fails to file his petition within 21 days, he is statute barred and loses his right to relief. See Kamba v Bawa (2005); MOGHALU V NGIGE
• An election tribunal shall deliver its judgment in writing within 180 daysfrom the date of filing the petition. See s. 285(6) CFRN; s 134(2) Electoral Act
• An appeal has to be heard and disposed within 60 days from the date of delivery of judgement of the tribunal or court. Each appeal has 60 days. OKOROCHA V PDP. By virtue of para6 election tribunal and court practice direction 2011, the appellant shall file in the registry of tribunal his notice and grounds of appeal within 21 days from the date of the decision appealed against.

 

 

PRE-HEARING AND SCHEDULING

See par 18, RPEP , 1^ST SCHEDULE electoral act

Within 7 days after the filing and service of the petitioners reply on the respondent or 7 days after the filing of & service of the respondents reply, the petitioner applies for issuance of pre-hearing notice – FORM TF007

The tribunal issues the pre-hearing conference notice form TF007 and pre-hearing information sheet TF008.

 

Purposes

See par 18(2) RPEP

The respondent is also allowed to bring the application where the petitioner fails to do so, or he may by a motion on notice returnable in 3 clear days apply for dismissal of the petition.

 

Hearing of the petition

• Hearing of an election petition is in open tribunal or court.
• Hearing of a petition is continued from day to day
• Documents which parties consented to at the pre- hearing session to exhibits are tendered from the bar or by a party where there is no representation. Par 41 RPEP
• Examination in chief is merely to adopt the witness statement on oath and tender any disputed document or other exhibit referred to in the statement/ deposition. Par. 41 RPEP. Hearing is continued from day to day. Par.25 RPEP

 

Standard for poof

Generally allegations in Election petitions are proved on the standard of proof in civil cases - balance of probabilities – s.134 Evidence Act. However where the commission of a crime by a party to petition is directly in issue it must be proved beyond reasonable doubt -See 135 (1) EA;  IKPEAZU V OTTI & ORS (2016) LPELR -40055 (SC); NWOBODO V ONOH & ORS; OMOBORIOWO V AJASIN

Note furthermore that in appropriate cases the principle of severance of pleadings will also apply to allegations in election petitions. See NWOBODO V ONOH & ORS; OMOBORIOWO V AJASIN

 

Para 14(2) RPEP says you can amend election petition after expiration of section 135 of the electoral act.

 

Class scenario – Election results were declared on the 2^nd august 2011, filed get 21^st September 2011, hearing of the election 21^st April 2012, filed appealed 2^nd May

Comment on the regularity