Election Petitions & Appeals: The Practice & Procedure in Nigeria.

INTRODUCTION:

The learned Author defined election petition as “The word election is a generic term: A process which embraces the entire gamut of activities ranging from accreditation, voting, collation to recording on all the relevant INEC forms and declaration of results. For an election known to law to have taken place, all these constituent elements of an election must be shown to have taken place. If any of these constituent of activities is disturbed, it affects the conclusion of the election by way of an election petition. In other words election petitions, basically complaints about election or conducts of elections and technically are said to be sue generis- that it’s in a class by itself. A proceeding that is of its own kind, possessing an individualistic character unique or like only to itself.

The Amended Electoral Act, 2010 does not define election petition in one way or the other. However, in A.N.P.P. V. INEC & ORS, the court defined election petition as “A formal written request presented to a court or tribunal for enquiry into the validity or otherwise of a candidate’s return when such return is allegedly invalid.”

Election petitions are distinct and different from all other civil proceedings. In some certain circumstances, non-compliance with the ordinary civil proceedings might be cured and are often waved. However, in election petition proceedings, every petitioner is required to strictly comply with the provisions of the statutes while presenting and prosecuting his petition and failure to comply with the said statutes, the petitioner could suffer fatal consequences to his petition.

THE ELECTION TRIBUNALS:

By virtue of section 285 there shall be established two types of election tribunal for each state of the federation which are vested with original jurisdiction over the trial of election petitions. The first of the election Tribunals is the National and State Houses of Assembly Election Tribunals that deals with the petition from the national and state Houses of Assembly. The said Tribunals is vested with exclusive original jurisdiction to hear and determine whether any person has been validly elected as a member of the National and State Houses Of Assembly. The second of the election Tribunal is the governorship election tribunal which is vested with exclusive original jurisdiction to hear and determine petitions as to whether any person has been validly elected to the Office of Governor and Deputy Governor.

The Quorum of the National and state Houses of Assembly Election Tribunal and the Governorship Election Tribunal as well is composed of three (3) members made up of the chairman who shall be a Judge Of High Court and two other members appointed from the ranks, of Judges Of The High Court, Kadis of Shari’ah court of Appeal, Judges of the customary court of Appeal or other members of the judiciary not below the rank of the Chief Magistrate.

Election petition may be presented by the candidate or by the political party which participate at the election or by the two of them jointly. Election petition are simply complaints of an undue election or undue return of a candidate at a general election.This is in line with the enactment in section 138 (1). 

“No election and no return at an election under this act shall be questioned in any matter other than by a petition complaining of an undue election or undue return presented to the competent tribunal or court in accordance with provision of the constitution or of this Act and in which the person elected or returned is joined as a party.’

However, you cannot claim to have succeeded in proving an election petition without specifically succeeding on any of the grounds of your petition. Section 138 of the Act provides thus; “An election may be questioned on any of the following at the time of the election ,not qualified to contest the election: That the election was invalid by reason of corrupt practices or non-compliance with the provisions of this Act.

By virtue of the section 137 (2)&(3)(a)(b) of the Act. The following persons are necessary respondents to an election petition:  The person whose election is complained of. i.e. the successful candidate. The INEC- as the case may be where the petitioner files complaints against the said commission or its members.

Similarly, in practice, INEC happened to be 1st respondent in majority of all the petitions as complaints usually made against the conduct of it. The 2nd respondent is ordinarily successful candidate and the 3rd respondent is the political party whom sponsored the successful candidate and in some cases some officers of INEC are joined to be respondents although the INEC is party. See the case of HON.ISAH SALIHU BASHIR & I ANOR V YUSUF ISAH KURDULA & 16 ORS.

After complying the substantive and procedural jurisdiction of election Tribunals by the petitioner as well as the conditions precedent of valid presentation of petition such as:

•petition must be filled within time limited by the constitution under section 285(5).

•Security costs must be paid.

•Fees for service, publication and certifying copies of the petition must be paid.

•Hearing fees must be paid.

•The required number of copies of the petition must be filed.

By virtue of the Section 285(5), the petitioner must file his petition within twenty one (21) days including the date of the deceleration of the result. See the case of Muhammad Maccido V Wamakko Aliyu Magatakarda, The petitioner in his petition addresses has to be endorsed for service on the respondents and within fourteen (14) days as provided under para.12(1) shall file his reply after the service of the petition on him personally or by substituted means as per leave of the tribunal. Where no petitioner’s reply within the (5) days as provided under paragraph16 (1). The petitioner is required within seven (7) days to apply formally for the issuance of form TF007 accompanied with form TF008 after the filing and service of the respondent’s reply to him and or after the time within which the respondent can file his reply to the petition had elapsed. Therefore it’s the duty of the petitioner to apply for the issuance of the said forms as provided under paragraph 18(1) and for default in applying same or to apply out of time, the respondents to the petition is in power as granted to him in paragraph18(3) to apply formally for an order of the tribunal to dismiss the petition as abandoned and no application for extension of time to take that step shall be filled or entertained. See the case of Malami Muhammad Galadanchi & anor V Haliru Buhari & 2ors.

Pleadings are deemed closed once request is made for the issuance of the aforesaid forms. However if the petitioner is still within time to file his reply after ever earlier applied, the first request for issuance of pre-hearing session must be withdrawn and the new request made after the filing of a petitioner’s reply.

In response to pre-hearing notice (form TF007) the both petitioner and the respondent shall file their answers to pre-hearing information sheet (form TF 008) formally. All the motions shall be moved and counter if any during pre-hearing session whilst the ruling on them are to be delivered along with the judgment of the Tribunal especially if that can terminate the petition at the threshold. The pre-hearing session will continue up till the stage where the petitioner and respondent adopt their filed and formulated issues for determination.

After the close of pre-hearing session the Tribunal will issue a report of all what happened at the said pre-hearing session into like five(5) to six(6) pages and that will guide the subsequent course of proceedings as provided under paragraph18(10). The tribunal in making the report will ensure that hearing is not delayed by the list of the witnesses called by the parties and the tribunal controls the number of witnesses parries intend to call, a lot times for evidence in chief, cross-examination and re-examination of witnesses respectively. The tribunal is required to consider and take appropriate action where necessary in respect of objection to document to be tendered, inspection and production of documents, consolidation of Action, joinder/misjoinder of parties, service of any expert witnesses parties intend to call and the need of service of the interpreters.

As regards to commencement of the trial the parties are entitled to (14) days for each one of them as provided under paragraph 16 and once trial commences there is no adjournments as hearing goes on day to day including Saturdays and Sundays because all in all, the election Tribunals have (180) days for hearing and the delivery of judgments and  the days starts counting from the day of filing the petition.

The commencement of hearing is nothing but the presentation of the case by all the parties before a court, the process and the procedure of notice to produce a documents to adverse party, calling and presentation of willing or voluntary witnesses (Adoption of their witnesses deposition) and subpoena witnesses. Subpoena witnesses this is the process, writ or order of the court to command any person to attend the court for the purpose of testifying or produce documents on behalf of the party who applied for the issuance of such subpoena. Subpoena witnesses for the purpose of testifying in court is called subpoena ad testificandum and for the witnesses to produce certain documents at the trial, it’s called subpoena ducestecum. Where apart of producing document the witness is also to give evidence, the subpoena is called, subpoena ad testificandum et ducestecum.

The respondent shall have (7) days after the close of his defence to file his final written Address. The petitioner also has seven (7)days to file his own after the service of the respondent’s final address on him. Where necessary the respondent shall also have three (3) days to file reply to the petitioner’s final written Address after the service of the petitioner’s final written address on him.

Sequel to the above, the court will fix the date for the adoption of the said applications and after parties adopt same, the court will give judgment instantly or adjourn same to another date.

By virtue of paragraph 6, an aggrieved  party shall file his notice  of Appeal within 21 days from the date of the judgment delivered. However, if he is still within the limits time, he may start by filling application for the CTC of judgment, record of proceeding as well as transmitted same to the court of Appeal.

The Tribunal secretary upon the receipt of the notice and grounds of Appeal and upon served same to the respondent. Then he/she would invite the parties to his/her office for the settlement of record. The record of Appeal shall have to be settled and compiled as well as transmitted to the court of Appeal and shall be served on all the parties all in (10) days .

This is an appellate court in respect of the final and interlocutory decision of the National and State Houses of Assembly Election Tribunal And Governorship Election petition Tribunal. In view of the provision of section 285 (7), an appeal from a decision of an election tribunal or court either in an interlocutory proceeding or final decision must be heard by the appellate court and disposed of within sixty (60) days from the date of delivery of judgment. Therefore, filing and service of notice and grounds of appeal, compilation and transmission as well as service of record of appeal, filing and service of the appellant’s brief of argument, filing and service of the respondent’s brief, filing and service of the appellant’s reply to the respondent brief as the case may be and hearing of the appeal must be concluded all within (60) days from the date of judgment of the election Tribunal.

The appeal has brought before the appellate court and all the parties were served with the said record of appeal. Therefore the appellant must file his brief within (10) days after the service of the record of appeal on him, the respondent also must file his brief within five (5) days of service of the appellant’s brief on him and where necessary the appellant’s reply to respondent’s brief must file within three (3) days of the service of the respondent’s brief on him.

After taking the above prescribed steps by all the parties, the case is said to be for hearing.

An Appellate court does not conduct trials. It reviews papers, exhibits and all the proceedings taking in the lower trial court. These items are the record of appeal and are used to determine whether the trial court correctly followed the law in making decision or not.

What ordinarily happens during the hearing in the court of appeal is adoption of briefs by the parties. Though the court may hear oral arguments from the parties if they intend to so do before the court adjourned for judgment. In the process of hearing at the court of appeal. Experience has shown that  respondents of the main appeal may file an appeal which is called cross-appeal, it is an appeal on itself by the respondent and it has its own briefs unlike preliminary objection that ought to be incorporated in the brief of argument.

Court of Appeal judges have three (3) choices when making a decision/judgment.

1. Affirm (agree with) the lower trial court decision. See the case of Muhammad Maccido v Wammako Aliyu Magatakarda.

Set aside the judgment of the lower trial court. See the case of SENATOR ABDULLAHI DANBAB 7 ANOR  V ABUBAKAR SHEHU TAMBUWAL & 20RS.

2. Transmit the case (send the case back to the lower trial court) for hearing denovo or hearing some part of it per se. See the case of HON. ISAH SALIHU BASHIR & I ANORE V YUSUF ISAH KURDULA & 15 ORS. See also the case of MUHAMMED TUKUR & ANOR V AMINU MAGAJI & 2 ORS.

The court of Appeal is vested with the powers to hear Appeal from election tribunals in respect of the National and State Houses of Assembly Election Petitions. Its decision is final in that regard. See Section 246 (3) of the CFRN 1999 as amended. See also the Ruling Of The Supreme Court in MOTION NO. SC1063/2019.BETWEEN HON. SALIHU MAIDAJI & ANOR V SENATOR ABDULLAHI GOBIR & 2 ORS.

Being noted in the above mentioned section and in the case of HON. SALIHU MAIDAJI & ANOR V. SENATOR ABDULLAHI GOBIR & 2 ORS (Supra), Court of Appeal is the final court of the aforesaid cases it does not matter whether it decided rightly or wrongly. However, where it’s wrong, its up to that court alone to review its earlier decision upon filing appropriate application to that effect before it, not the appellate court. See ABUBAKAR ABDULLAHI AHMAD & 1 ANOR V ABUBAKAR III HASSAN BALA & 20RS.

However, Dispute arising from the election of Governor and deputy Governor enjoy two appeals: first at the court of Appeal and finally at the Supreme court of Nigeria.

The appellant is required to file his notice and grounds of Appeal within 14 days from the date of the decision of the court of appeal. The registrar of the court of Appeal upon receipt of the notice and grounds of Appeal and upon being served same on all the respondents. Then he/she would invite all the parties to his/her office for the settlement of records. The record of proceeding shall have to be settled and compiled as well as transmitted to the apex court by the said registrar of the court of Appeal and shall be served on all the parties all in (10) days.The appellant shall have (10) days to file his brief of rrgument to the apex court. The days starts counting from the date of service of the record of appeal on him. The respondent also shall file his brief within (5) days from the date of service of appellant’s brief on him and where necessary the appellant has (3) days to file his reply to the respondent’s brief from the date of service the respondent’s brief on him.

SUPREME COURT:

It’s appropriate at this juncture to have a close look at the provision of section 233(2) of the CFRN 1999 as amended. The section states as follows: An appeal shall lie from the decisions of the court of Appeal to the supreme court as of right in the following cases. Amongst the cases as provided under sub section (e) of the same section include:

(iv) whether any person has been validly elected to the office of Governor or Deputy Governor.

The importance of the above provision is that, the supreme court can exercise jurisdiction in a Dispute arising from the Elections of Governor and or Deputy Governor.

The supreme court of Nigeria is the highest and the final court of Appeal in Nigeria and its decisions binding and enforceable by all courts or tribunals including the court of Appeal. Once the decision or judgment have been delivered in respect of Governorship election Appeal by the supreme court of Nigeria ,such decisions has air or force of finality and cannot be appealed against or reviewed by it except in the exceptional circumstances as provided under Order 8 Rule 16.

CONCLUSION:

From the forgoing discussion it can be seen that this article has attempted to give an idea into the aspect of election petitions and appeals, the practice and procedural chain governing it before the Tribunals, Court Of Appeal And up till the apex Court of The Land. It’s also safe to conclude that the issue of timeline for the valid presentation of election petition is very paramount and could make petition fatal. This is because when petition and or some of its process(s) were filed out of time as prescribed under the constitution and Electoral Act 2010 as amended. That is the end of the petitioner’s petition.

About the author

Maiwa’azu Bilyaminu is a paralegal and a legal researcher. He writes from Northern Nigeria.

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