LEGAL IDEAS FORUM

Establishment and Jurisdiction of Election Tribunals

Uchenna Chinedu

 

The principal laws in relation to election matters in Nigeria are the 1999 Constitution of the Federal Republic of Nigeria (as amended 2011) and The Electoral Act 2010. Election Tribunals were established in Nigeria by virtue of Section 285 of the 1999 Constitution. Section 285 provides as follows:
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 Houses of Assembly 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 as a member of the National Assembly ; and
Any person has been validly elected as member of the House Assembly of a State.
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.
The composition of the above mentioned tribunals by virtue of Section 285(3), is as set out in the Sixth schedule to the Constitution. The sixth schedule is to the effect that the National and State Houses of Assembly Election Tribunal shall consist of a Chairman and four other members. On the other hand, the Governorship election tribunal shall consist of a chairman and two other members.
Section 285(4) provides that the quorum of the election tribunals shall be the Chairman and two other members.
To vest jurisdiction on any of the tribunals, a petition must be presented within the time stipulated by law. Section 285(5) CFRN provides that an Election petition shall be filed within 21 days after the date of the declaration of result of the elections.
JURISDICTION OF COURTS GENERALLY ON ELECTION MATTERS
Jurisdiction is the legal power or authority which a court must have to decide a matter litigated before it, or to take cognizance of matters presented in a formal way for its decision and the limit of this legal power or authority are circumscribed by the statute. See Oduko v. Govt. of Ebonyi State (2009) 25 WRN 1 @ Pp.10-11 lines 45-5 per Aderemi, JSC. 
Jurisdiction is also described as the cornerstone of all litigation. See Dapialong v. Dariye (2007) 27 WRN I; Governor Kwara State v. Lawal (2007)13 NWLR (pt.1050) 347
The law is settled that if a court is bereft of jurisdiction to hear and determine a matter before it, any steps taken in the matter is a nullity. See Kotoye v. Saraki (2001) 48 WRN 1; (1994) 7 NWLR (pt. 357) 414; Rhoda v. FRN (2015) 1-2 MJSC [email protected] Pp. 21-22paras.
For the purpose of determining the court with jurisdiction in election matters, distinction will be drawn between the courts with jurisdiction in pre-election matters and election petition matters.
JURISDICTION OF COURTS IN PRE-ELECTION MATTERS
In Ayebo Stephen igbekele & Anor v INEC & Ors (2019) LPELR-48536(CA), a pre-election matter was defined as any matter which relates to the selection, nomination of candidates and participation in an election or time table for an election, registration of voters and other activities of the commission in respect of preparation for an election. Also in IBRAHIM V UMAR (2013) LPELR – 22805 (CA) the court defined the term to mean ‘action, conduct or any event taking place or occurring before the election.
SECTION 285(14) of the 1999 Constitution (Fourth Alteration No 21) Act, 2017 defines a ‘pre-election’ matter as follows: (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 the guidelines of a political party for conduct of party primaries has 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 Act 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 actions, 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.
The Electoral Act 2010 makes provision for the jurisdiction of Courts with regard to pre-election matters. Section 31(5) of the Act provides as follows:  Any person who has reasonable grounds to believe that any information given by a candidate in the affidavit or any document submitted by that candidate is false, may file a suit at the Federal High Court, the High Court of a State or FCT against such person seeking declaration that the information contained in the affidavit is false. Section 87(9) further provides as follows:  Notwithstanding the provision of this Act or rules of a political party, an aspirant who complains that any of the provision of this Act or 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 or the High Court of a State or High Court of FCT for redress. See Salim v CPC & ORS (2013) 6 NWLR PT 1351 @ 504
Flowing from the foregoing, it is evident that the Federal High Court, the High Court of a State and High Court of FCT have concurrent jurisdiction in respect of pre-election matters. It was previously argued that in light of the provisions of Section 251 of the 1999 CFRN, the Federal High Court will only assume jurisdiction over a pre-election matter if a Federal Government Agency is made a party to the suit and the principal reliefs are directed against the Federal Government or any of its agencies. See Kakih v PDP (2014) 15NWLR (pt.1430) 374 @ Pp.413-415  
Contrary to the above, the controversy on the jurisdiction of the Federal High Court and the State High Court to adjudicate on pre-election matters has been settled by the Supreme Court in her recent decisions. The current position of the law is that the jurisdiction over pre-election matters is exercisable either by the Federal High Court or the High Court of a State or High Court of FCT In the case of Salim v. CPC (2013) 6 NWLR (Pt 1351) @ 521, the Supreme Court Per Peter Odili JSC, Held thus;
 “It is therefore to be said in view of this novel provision, that the previous all-embracing interpretation of section 251 of the 1999 Constitution is given once the Federal Government or its agencies are involved would have to be given broad view in the co-existing situation of the provisions of section 87(9) Electoral Act and the sui generic nature of the subject matter. In that whole picture therefore, Section 251 would be applied subject to this specific legislation in factors of play. That was the mind of this court as anchored by Mohammed, JSC in Adetayo v. Ademola (2010) All FWLR (pt.533) 1806 @ 1823-1828 when he stated thus:
‘On the face of the provisions of the Constitution, it appears that impression have been created that the Federal High Court has exclusive jurisdiction to the exclusion of all other courts in Nigeria in any civil case or proceedings in which the Federal Government or any of its agencies is a party. However, a very close, careful and proper interpretation or construction of the provision would show that this is not necessarily the true position. This is because in my view, it is the facts and Circumstances of each case that determines…
The need to examine parties in the litigation as well as the subject matter of the litigation was strongly advice for close scrutiny.’ I would also refer to the cases of Adigun v. Asugbon (2008) NSCQLR Vol. 36 (pt.1) 171 @193; Dingyadi v. INEC  & Ors (2011) 4 SCNJ @38.
The conclusion from the above is that the Court of Appeal was in error in holding that the Federal High Court had the exclusive jurisdiction to adjudicate on this pre-election dispute to the exclusion of the State High Court.This is because the jurisdiction is exercisable by either the Federal High Court or the State High Court or High Court of the Federal Capital Territory”
JURISDICTION OF COURTS IN ELECTION PETITIONS
Unlike other matters, election matters are heard by specialized courts called tribunals, established by law. The constitution of the federal republic of Nigeria establishes three categories of election tribunals:
National and state Houses of assembly election tribunals- Section 285(1) CFRN
Governorship election tribunals- Section 285(2) CFRN
It is the Court of Appeal that has exclusive original jurisdiction to hear matters pertaining to the presidential election- Section 239(1) CFRN
Like the designations imply, the National and State Houses of Assembly Election Tribunals determine all matters arising from conduct of Election into the two houses of the National Assembly ie House of Representatives and the Senate; and State Houses of Assembly.
The Governorship Election Tribunals hear disputes arising from gubernatorial elections.
The court of Appeal as stated above functions as the Election tribunal to determine disputes arising from the presidential election. This is a special original jurisdiction outside its normal Appellate jurisdiction.
It is pertinent to note however, that while an appeal may lie from the court of appeal to the Supreme Court, in respect of the presidential and governorship elections by virtue of Section 233(2) (e) of 1999 CFRN, the decision of the court of appeal on a matter that arises on appeal from national and state houses of assembly election petitions is final. See Section 246(3) of 1999 CFRN as Amended 2011; Abubakar & Anor v Usman & 2 Ors (2017) LPELR- 41915 (SC)
About the author
Uchenna Chinedu is a legal practitioner, an accomplished scholar and author. He writes from Lagos
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