• 1. Constitutional governance/government/universal suffrage − s. 1(2) Constitution 1999
* 2. Sui generis nature of election matters / Time is of essence/.
• 3. APPLICABLE LAWS/LEGISLATION (1). The Constitution; (2). Electoral Act, 2022; (3 Rules of Procedure for Election Petitions (RPEP) See s. 140(1) & the 1a Schedule EA 2022; (4). The Federal High Court (Civil Procedure) Rules, 2019; (5). The Election Tribunal and Court Practice Directions 2011 - by the President, Court of Appeal; (6)The Supreme Court Practice Directions 2011. (7). Evidence Act
• The Independent National Electoral Commission- it is a body corporate which can sue and be sued. - s. 153 (1)(f) Constitution; S. 1 Electoral Act 2022.
FUNCTIONS- conducts elections into the Office of the Pres, Vice Pres, Governors, Dep. Gov, members of the National & State Houses of Assembly. - Part 1 Constitution. Also it conducts election if chairmen & 3rd Schedule members of Area Councils in FCT, Abuja (S. 98 EA)
Commissioner + 12 National Electoral Commissioners. Each State + FCT, Abuja has a Resident Electoral Commissioner - REC-Par. 14, Part 1, 3rd Schedule Constitution.
• Each State has her State Independent Electoral Commission- SIEC. - s. 197 (1)(b) Constitution.
• A SIEC conducts elections into the local governments in the state- Par. 3, Part ii, Third Schedule of the Constitution.
1. Nomination of candidates by political parties through direct or indirect primaries (S. 84 EA) /submission of names to INEC
2. Accreditation of voters through a smart card
3. Voting proper - open secret ballot - s. 50 EA. by personal attendance See generally $.51-59 on voting process, voting
4. Vote counting s.60-62 EA and declaration of result - s. 66 EA
PRE-ELECTION MATTERS-S. 285 (14) CONSTITUTION & S.
29(5)&(6) & S. 84(4) ELECTORAL ACT
PRE-ELECTION MATTERS Any suit by an aspirant complaining about non compliance with the Constitution/[A/Party's guidelines on conduct of party primaries as regards selection/nomination/Substitution/Sponsorship of candidates by political parties. - See S. 285 (14)(a) Constitution.
OR where the spirant challenges the INEC on his participation in an election/complaints that INEC has not complied with EA As regards selection/nomination of candidates + participation in election -§. 285 (14)(a) Constitution
•OR a legal challenge by a political party of the INEC's decision disqualifying its candidates/ complaints on non compliance with EA on nomination/timetable for an election/registration of voters, etc. - s.285 (14) Constitution
Only Federal High Court has jurisdiction in respect of pre-election matters, S. 29(5) & 84(14) EA, 2022 Only an aspirant who contested primaries can challenge nomination- s.84(14) & s. 29(5) EA; PDP V INEC (2023)13 NWLR (Pt 1900) 89
S. 285 (9) Constitution- filing pre-election matters 14 days from date of accrual of cause of action.
. 285(10) Const
1. COURT OF APPEAL exclusive original jurisdiction on petitions against the election of the President or the Vice President. s. 239 Constitution, Obasanjo v. Yusuf
2. THE NATIONAL AND STATE HOUSES OF ASSEMBLY ELECTION TRIBUNALS- In each State & the FCT- exclusive original jurisdiction on petitions against elections into the National/State HOA-s. 285 (1) Constitution/s. 285(3) & the 6 Schedule Constitution for the composition
3. THE GOVERNORSHIP ELECTION TRIBUNAL exclusive original Jurisdiction over petitions against election of Governors & Dep Governors. s 285 (2) Constitution
BY PETITION- Isah v INEC- originating summons disallowed- Presentation by the petitioner to a tribunal/court of competence
(1) the person declared as elected or returned - S. 130 (1) EA, 2022; (2) The Political Parties- Parties are body corporate-s. 77 EA
registries open for business 7 days before election. S. 130 (3) EA
an election petition : 3. One or more of the following persons may present
Act ("EA") · -. I. a candidate in the election- s.133(1)( a) Electoral
s. 133 (1) (b) EA -II. a political party which took part in an election-
ill. The person whose election is complained of shall be a respondent - s. 133 (2) EA
4. There is no need to join in a petition any electoral officer, presiding or returning officer against whom there is a complaint once the INEC is named as a party to the petition. s. 133(3) EA
Scenario: Grounds upon which an election may be questioned- s. 134 Electoral Act Chief Nat. John contested & won the Lagos North Senatorial seat. He was born on October 22, 1990. He was a personal assistant to the State Governor until his election. Some thugs were caught disturbing voting at so many polling centers, intimidating voters to vote for Chief John. In fact, an INEC polling official was also caught manipulating figures in favour of Chief Nat John. His opponent, Mercy Graham, has approached you to challenge the election. State the grounds for the petition.
Grounds upon which an election may be questioned- S. 134 Electoral Act
1. That a person whose election is questioned was at the time of the election not qualified to contest.
By s. 134 deems a person qualified, thus making his election un- challengeable on the above ground, if he satisfies the conditions in sections 65, 106, 131, or 177, & and he is not disqualified under $ 66, 107, 137 or 182 of the Constitution. see s. 134(1)(a) & 134(3) EA 2022. & 318 Constitution: Action Congress v INEC
2. That the election was invalid by reason of corrupt practices or non compliance with the Electoral Acts. 134(1)(b) EA 2022- Omishore v Aregbesola 2015; Akpoti v INEC (2022) 9 NWLR (Pt 1836) 403;
• Can a party that nominated a candidate, but its identity is omitted on the ballot paper complain, just as it was the case under the erstwhile EA 2010?
Although it is omitted in the EA 2022, it appears in practice/arguable that such ground will be competent/avail parties, in appropriate cases -see s.32 especially s. 32 (3) and s.42(3) & (4) EA
CONTENTS OF AN ELECTION PETITION- Par 4 PREP FORM TF001 1. Name of the tribunal having 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. State the facts of the election petition and the ground or grounds en which the petition is brought and the relief sought by the petitioner
Each paragraph is dedicated to a distinct issue or major facts. the paragraphs should be numbered consecutively.
7. Contain a prayer or prayers, an example of the prayer may be:
"That the petitioner be declared validly elected or returned, having polled the highest number of lawful votes cast at the election"
See rule 4(1) Rules of Procedure for Election Petitions, First Schedule to the Electoral Act
8. Signature of the petitioner or his solicitor who should be named at the foot of the petition
9. An address of service of the petitioner
1. The list of the witnesses that the petitioner Intends to call in proof of the petition 2. Written statements on path of the witnesses
3. copies or list of every document to be relied on during the petition
Par. 4 (5) of the RPEP Schedule 1 Electoral Act Sanctions Per. 4 RPEP-An election petition that is unaccompanied by the court processes required for frontloading is un-acceptable for filing.
Non-compliance with the requirements of contents of a petition renders the petition defective and
1. The list of the witnesses that the petitioner intends to call in proof of the petition 2. Written statements on oath of the witnesses
• 3. copies or list of every document to be relied on during the petition
Par. 4 (5) of the RPEP Schedule 1 Electoral Act Sanctions- Par 4 RPEP-An election petition that is unaccompanied by the court processes required for frontloading is un-acceptable for filing.
• Non-compliance with the requirements of contents of a petition renders the petition defective and
An Election petition is presented by the petitioner(s) in person, or by the solicitor(s) who must be named at the foot of the election petition. The petition is presented to the secretary to the election petition tribunal
It is important to note that an election petition must be presented or filed within 21 days after the date of the declaration of results of election- section 285 (5) Constitution; s.134 EA, 2022
ELECTION PETITION
An election petition is a complaint by a petitioner against an undue election or undue return of a candidate at the election – S. 130(1) E.A, 2022, ANPP V INEC & Ors (2004) 7 NWLR (Pt. 871) 16 at 55.
•It is called election petition because the electoral laws & regulations provide that the suites arising from election dispute must be commenced by way of petitions before specialized courts/ tribunals to challenge undue elections or undue return of candidates based on specified grounds for bringing such election petitions – S. 130(1) E.A, 2022.
•We shall, therefore, consider the practice and procedure relating to settling of electoral disputes.
•It’s an originating process by which an unsuccessful candidate & or his political party in an election seeks to question the return of a successful candidate & or his party at an election.
•It’s Sui generis i.e., of its own class and kind with a unique & special procedure before a special court different from other civil matters. Thus, should be handled specially. – Buhari v Yusuf, Abubakar v Yar’Adua, Ugba v Suswan.
•Election is described in various ways such as:
i.A Re-run Election: This is a repeat election following the Nullification of one conducted previously.
ii.A Run-off Election: This is a repeat election btw the same candidates that contested the earlier election as a result of a tie.
iii.A By – Election: This is an election to fill a vacancy as a result of either resignation, death etc.
iv.A General Election: This is an election held in the Federation at large which may be at all levels, and at regular intervals to select officers to serve after the expiration of the full terms of their predecessors
Applicable Laws in Nigeria’s Electoral System
The following Laws are
- The CFRN 1999 (AA)
- The Electoral Act 2022 which governs all election petitions in Nigeria including FCT Area Council Election except local government elections in States.
- The Federal High Court (Civil Procedure Rules), 2019 which only applies when there is no provision in the First Schedule to the Electoral Act – Pars. 54 & 55 1st Schd. E.A, 2022.
- The Election Tribunal and Court Practice Direction, 2011 made by the president of the CA pursuant to – S. 152 & Pars. 54 & 55 1st Schd. E.A, 2022.
- Each State (excluding the FCT) has its own Electoral Law that regulates its local govt elections.
- Rules and Regulations made pursuant to – S. 152, Pars. 54 & 55 1st Schd. E.A, 2022.
Courts with Jurisdiction in Electoral Matters
In Nigeria, the following Courts have jurisdiction in Election Petitions
1. Court of Appeal
Established by Section 237(1) of the 1999 CFRN (as amended), the Court of Appeal has exclusive original jurisdiction with respect to matters as to whether:
- any person has been validly elected to the office of President or Vice – President
- the term of office of such a person has ceased
- the office has become vacant – S. 239(1) CFRN 1999 (AA) Atiku v AGF.
•Composition – 3 Justices of the C.A
•Appeals from the C.A in respect of these matters go to the S.C as of Right – See S.233 (2) (e) CFRN, 1999 (AA)
2. National and State Houses of Assembly Election TRIBUNALS
•See S.285(1) of the CFRN 1999 (AA)
•They have original jurisdiction to hear and determine petitions as to whether
–Any person has been validly elected as a member of the National Assembly or
–Any person has been validly elected as a member of the House of Assembly of a State
•See S. 251(4) CFRN 1999 (AA) which confers jurisdiction on the FHC
•To determine any question as to whether the term of office or a seat of a member of the Senate or the House of Representatives has ceased or his seat has become vacant
•Also S. 272 (3) of the CFRN 1999 (AA) which vests jurisdiction in the State High Court to hear and determine whether the term of office of a member of the House of Assembly of a State, a Governor or Deputy Governor has ceased or become vacant
COMPOSITION
•Chairman who shall be a Judge of a High Court
•2 members appointed from the judiciary and not below the rank of Chief Magistrate
•Appointment is done by the President of CA in consultation with the CJ of the State, Grand Kadi of the Sharia Court of Appeal of the State or President of the Customary Court of Appeal of the State – 6th Schedule to the CFRN 1999 (AA)
•Quorum: Chairman and 1 other member – S.285 (4) CFRN 1999 (AA)
•Appeal: Appeals from the National and State Houses of Ass. Election Tribunal go to the C.A by virtue of S. 246 (3) CFRN 1999 (AA),
•The decision of the C.A is final with respect to the above matters.
3. The Governorship Election TRIBUNAL
•S. 285 (2) CFRN 1999 (AA) (2nd Alteration Act) established this tribunal in each State of the Federation and vested it with jurisdiction to determine petitions as to whether:
•Any person has been validly elected to the office of Governor or Deputy Governor of a State.
•Composition – Chairman + 2 members
•Quorum – Chairman + 1 member
•Appeal – lies to the to C.A as of right – S. 246 (1) (c) CFRN 1999 (AA).
•Further appeal goes to the Supreme Court – S. 233 (2) (e) CFRN 1999 (AA)
4. Area Council Election (Appeal) Tribunals SS. 131 & 132 E.A, 2022.
•For the FCT, the Electoral Act established the ACET by – S. 132 (1) E.A, 2022.
•Composition of ACET – Chairman + 2 members – S. 131 (2) E.A, 2022.
•The ACET shall deliver its judgement in writing within 90 days from the date of filing a Petition – 131 (6) E.A, 2022
•Qualification – Chairman (Chief Magistrate) + Other 2 mbrs – magistrates – S. 131 (2 – 4) E.A, 2022.
•Appeal – goes from ACET to Area Council Election Appeal Tribunal (ACEAT) and its decision is final – S. 132 (1) (2) E.A, 2022
•Composition – Chairman + 2 Mbrs – S. 132 (3) E.A, 2022
•Quorum – Chairman + 2 Mbrs. – S. 132 (6) E.A, 2022.
•An appeal from ACET shall be heard and deposed of by the ACEAT within 60 days from the date of the delivery of the judgement of the ACET – S. 132 (9) E.A, 2022.
•The ACEAT may adopt the practice of first giving its decision & reserving the reasons to a later date – S. 132(10) E.A, 2022, S. 285(8) CFRN 1999 (AA)
5. LOCAL GOVERNMENT ELECTION TRIBUNALS
(BY STATES)
•The various state Houses of Assembly is empowered by the CFRN 1999 (AA) to establish by their respective HOA Laws, their election tribunals to hear and determine disputes arising from their respective Local Govt. Elections.
•These election tribunals have two (2) levels consisting of the trial & the appellate tribunals.
•NOTE:
An election tribunal is only given exclusive power to hear and determine election petitions and its power does not extend to the intra party disputes that take place before elections i.e. pre-election matters such as conduct and outcome of primaries of a political party, for nomination or sponsorship of candidates for election. See Duokpolagha v. George (1992) 4 NWLR (Pt. 236) 444
NOTE: An election tribunal must be constituted not later than 30 days before the election. – S. 130 (3) (A) E.A, 2022
Parties to an Election PETITION
•S. 133 (1) E.A, 2022 provides that only the following persons may present an election petition i.e:
1)PETITIONER who is the person presenting the petition or at whose instance it is presented and includes:
•A candidate in an election; or
•A political party which participated in the election – S. 133(1) E.A, 2022, Egolum v. Obasanjo(1999) 7 NWLR (Pt. 611) 355
•Note the following courts interpretation on who can present an E/ Petition
•A person who was neither a candidate in an election nor a member of a political party nor sponsored by a political party to contest the election and who did not specify the nature of his right to present the petition was held incompetent to present a petition. Egolum v. Obasanjo
•A person who failed to secure the nomination of his party but claims to have been wrongly excluded by his party is incompetent to present an election petition (i.e. intra party dispute) NEC v. NRC (1993) 1 NWLR (600) 549; Anazodo v. Audu (1999) 4 NWLR (Pt. 600) 549
•A person who was properly nominated by his party but was unlawfully excluded by the electoral commission from contesting the election is competent to present a petition. Ojo v. Abogunrin (1989) 5 NWLR (Pt. 120) 162
•A political party that failed to present a candidate for election is incompetent to present a petition. Egolum v. Obasanjo
•A candidate that contested and lost the election may bring a petition. Nnamani v. Nnaji (1999) 7 NWLR (Pt. 610) 313
1)RESPONDENT i.e. a person whose election or return is complained of, that is, the successful party at the election – S. 133 (2) E.A, 2022.
•QUERY: can a person who lost an election sue the person who won + another person who lost as a respondent?
•ANSWER: No, a candidate who contested and lost cannot be made a respondent Buhari v. Yusuf (2003) 14NWLR (Pt. 841) 446
•Where the petitioner complains about the conduct of an electoral officer/ agent (whether presiding or returning officer) it shall not be necessary to join such officers notwithstanding the nature of the complaint – S. 133 (3) E.A, 2022.
•INEC shall be made a respondent and will be deemed to be defending the petition for itself and on behalf of its officers. – S. 133 (3) E.A, 2022.
Mode of Presenting an Election PETITION – S. 285(5) CFRN 1999 (AA)
•Disputes arising from elections are resolved by way of presenting petitions before specialised courts/ tribunals.
•The Electoral Act provides that no election or return at an election shall be questioned in any manner other than by a petition presented before competent tribunal – S. 130(1) E.A, 2022.
•Election petition being sui generis, failure to commence such actions by petition (as due process of law) is fatal & goes to the issue of jurisdiction in view of the provision of S. 130(1) E.A, 2022, Madukolu V Nkem dilim (1962) 2 SCNLR 341.
•Though S. 152 of the E.A, 2022 has vaguely defined a petition as an election petition under this Electoral Act, but it is rather a complaint by a petitioner of undue election or the undue return of a candidate in an election – ANPP V INEC & Ors (2004) 7 NWLR (Pt. 871) 16.
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STATUTORY GROUNDS FOR PRESENTING ELECTION PETITION – S. 138 ELECTORAL ACT (AA)
1)That a person whose election is questioned was at the time of the election not qualified to contest the election See S. 134(1) (a) E.A, 2022, SS. 66, 106, 107, 131, 137, 177 & 182 CFRN 1999 (AA).
NOTE: S. 66 (2) (h) has been deleted from the Constitution and is no longer a reason for disqualification
2)That the election was invalid by reason of corrupt practices or non- compliance with the provisions of the Electoral Act – S. 134(1) (b) E.A, 2022.
•NOTE if an election is challenged on the ground of non – compliance with the Electoral Act, it must be shown that such non – compliance is substantial and sufficiently affects the result of the election. A non-compliance that is insubstantial will not invalidate an election – S. 135(1) E.A, 2022.
1)That the respondent was not duly elected by majority of lawful votes cast at the election – S. 134(1) (c) E.A, 2022.
NOTE: A petition containing grounds not known to law is incompetent.
Statutory Contents of an Election Petition
•See generally – Paras. 4, 1st Schd. to the E.A, 2022.
- Names of the parties
- The right of the petitioner to bring or present the petition e.g. that the petitioner contested the election and the capacity and platform on which he contested
- The holding of the election, the scores of the candidates and the person returned as the winner of the election
- An election petition should state the grounds in the election petition
- It must clearly state the facts in support of the grounds in the election petition
1)The Prayer or prayers/ Reliefs sought by the petitioner which can be in the alternative. You can either ask that the court nullifies the election or that the court declares you as winner.
2)It must contain the Names & signature of the petitioner or his Solicitor named at the foot of the petition.
3)It shall contain addresses of the parties for service & the occupier of such addresses at the foot of the petition.
4)Other formals Recruitments of a petition such as the heading of the court/ tribunal in which it is brought, the petition Number, Names & designation of the parties & the title of the petition must be stated.
5)The petition should be in paragraphs numbered consecutively & each paragraph containing a distinct issue or a major fact in the election petition with particulars of allegation
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DOCUMENTS TO ACCOMPANY AN ELECTION PETITION (FRONTLOADING)
•An election petition is required by Para.4(5) E.A, 2022 to be accompanied by:
- List of Witnesses that a petitioner intends to call in proof of the petition
- Written statement on oath of the witnesses; and
- Copies or list of every document the petitioner seeks to rely on during the hearing
PRESENTATION OF Election Petition
The presentation of the election petition shall be made to the Secretary to the tribunal by the petitioner or his solicitor within (21) days after the date of the declaration of results of the election & the petitioner shall at the time of presenting the petition;
•pay the necessary filing fees
•Pay security for cost
•Furnish the address for service on the respondent
•Accompany the petition with all the frontloaded documents
•Deliver to the Sec, a copy of the petition for service on each respondent + 10 other copies to be preserved
NOTE: The effect of failure to frontload necessary documents/ swearing the WSOO before a party’s counsel/ N – Public & non-payment of filing fees.
1)Filing the petition – S. 285(5) CFRN 1999 (AA), Para. 3, 1st Schd. E.A, 2022.
•The Secretary shall after the petition has been presented/ filed, and requisite fees paid, take the following actions:
•Ensure that the petition, notice of petition (Form TF003) &any document required to be served on the respondents are served personally on them except if substituted service is ordered by the court/ tribunal
•Post CTC of the petition on the commission notice board
•Serve CTC of the petition on the tribunal members
1)Service of the Notice of Election Petition – Paras. 7 & 8 1st Schd. E.A, 2022.
•In the notice of presentation of the petition, the Secretary shall state a time, not less than 5 days & not later than 7 days after the date of service of the notice , within which each of the respondents should enter appearance
NOTE: that the rule provides that even where the respondent fails to enter memo of appearance within 5 days after been served, this will not bar him from defending the petition in so far that he files his reply to the petition not later than 21 days after been served with the petition if he intends to oppose the petition – Para. 10 (2) 1st Schd., E.A, 2022.
1)Entry of Appearance – Paras. 7 (2) & 9 1st Schd. E.A, 2022
•A Reply is the response of the Respondent containing facts he relies on in support of his defense which he files after been served with the petition if he intends to oppose the petition after being served if he intends to oppose the petition.
•The respondent is expected to file a reply to a petition within 14 days of service of the petition on him.
•The reply too must comply with the frontloading system
•The respd shall leave with the Sec., copies of the reply for service on the other parties to the E/ Petition + 10 extra copies of the reply to be preserved by the Sec.
•The respd shall pay the prescribed fees for service
Note: Default in leaving extra copies of the reply or pay the fees for service, the reply shall be deemed not to have been filed unless the court/ tribunal otherwise others
•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 substantive petition – Para. 12(5) 1st Schd. E.A, 2022.
1)Filing a Reply/ Preliminary Objection by the Respondent – Para. 12 1st Schd, E.A, 2022.
•Where new issues are raised in the Respd’s reply & which issues have not been sufficiently dealt with by the petitioner, the petitioner is expected to file a reply within 5 days from the date of the service or reply of the respd’s reply to address such new issues.
•This Petitioner’s reply shall not be allowed to introduce new facts/ grounds/ prayers tending to amend or add to the contents of the petition filed by him
•Also, the time for filing this reply shall not be extended by the tribunal/court.
1)Filing a Reply by the Petitioner
Amendment of Petition & Reply – Para. 14 1st Schd. E.A, 2022.
•Any amendment including complete substitution of the petition can be made before expiration of the 21 days from the declaration of result – Para. 14(1) 1st Schd. E.A, 2022.
•No substantial amendment involving the contents of a petition e.g. Names of Parties, Holding of the Election is allowed after the 21 days time allowed for filing a petition – Para. 14(2) (a), 1st Schd. E.A, 2022.
NOTE: that typographical amendments may be allowed even after the 21 days period. – Oki V Mimiko (2013) All FWLR (Pt. 693) 1853
•The above rule also applies to amendment of Respd’s reply e.g. relating to admissions or denials made in the original reply filed or as to the facts set out therein already which have to come within 14 days – Para. 14 (2) (b) 1st Schd. E.A, 2022.
PRE – TRIAL CONFERENCING AND SCHEDULING – PARA. 18, 1ST SCHD. E.A, 2022.
•The Petitioner is to apply for the issuance of pre-hearing notice in Form TF 007 within 7 days of service of petitioner’s reply or respondent’s reply as the case may be. – Para. 18(1) 1st Schd. E.A, 2022.
•The application is usually by a letter or by a motion ex-parte
•The Tribunal is to issue a pre – hearing notice in Form TF 007 accompanied with pre – hearing information sheet in Form TF 008
•Where the time for applying for pre – trial conference lapses, the petition will be deemed abandoned and dismissed and that is final, the tribunal becomes functus officio and the matter can not be re – listed.
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•The pre – hearing session or series of pre-hearing sessions which shall be held from day to day must be completed within 14 days of its commencements – Para. 18(9) 1st Schd. E.A, 2022.
•If the respondent fails to participate in the pre – hearing session judgment can be entered against him. If the default to participate is by the petitioner however, his petition will be dismissed – Para. 18(11) 1st Schd. E.A, 2022.
•The judgment entered against a defaulting Respd may be set aside within 7 days if he & his counsel make the necessary application & jointly sign an undertaking to participate effectively & as well pay N20, 000 cost – Para. 18(12) 1st Schd. E.A, 2022.
•The Tribunal/ Court shall issue a report after the pre-hearing sessions & this report shall guide the subsequent course of the proceedings – Para. 18(10) 1st Schd. E.A, 2022.
Hearing Election Petition – Paras. 19 & 26 1st Schd. E.A, 2022.
•The time & place of hearing is to be fixed by the Tribunal and communicated by the Secretary to the parties through the supplied address or a notice posted on the Tribunals Notice Board at least 5 days before the date of hearing.
•Hearing shall be in the open court by the presentation of evidence – Para. 19 1st Schd. E.A, 2022.
•Hearing shall be from day – day except Sundays & Public Holidays though circumstances may warrant continuation of hearing on Saturdays & Public Holidays.
Evidence during hearing
•Evidence is presented at the hearing by written deposition & oral examination of the witnesses in Open Court. The examination in chief is limited to leading a witness to adopt his WSOO & to tender disputed documents as exhibits.
•Witnesses on subpoena may however be examined orally.
•Para 18 (8) 1st Schd. E.A, 2022. Provides that the tribunal can allot time for the cross examination of witnesses having regard to the number of witnesses to be called.
•Para 41 (10) of the 1st Schd., E.A, 2022. Provides that the petitioner has a maximum of 7 weeks in the case of President to prove his case, while each of the respondent has not more than 10 days to prove his defence.
Burden and Standard of Proof in Election Petitions
In accordance with the provisions of Secrion 135 of the Evidence Act of 2011, Election petitions are civil matters generally, and therefore, it is the same balance of probability or preponderance of evidence that applies. However, allegations of crime such as on ground based on non-compliance with the provisions of the E.A & corrupt practices require proof beyond reasonable doubt. See S. 135(1) EV. Act, Akeredolu v Mimiko; Nwobodo v Onoh; Omoboriowo v Ajasin.
•Where facts that are both civil & criminal are inseparably intertwined, the petitioner in order to succeed, must prove such facts beyond reasonable doubt. In such instance as this, the doctrine of severability of pleadings is inapplicable – ACN V Nyako (2013) All FWLR (Pt. 686) 424 at 452.
WRITTEN ADDRESS IN E/ PETITIONS
(10 x 7 x 5 DAYS)
‐At the conclusion of evidence, the parties are to address the tribunal/ court.
‐Where the respondent does not call evidence (oral or documentary), the petitioner is expected to file his written address within ten (10) days of the close of evidence – Para 46(10) 1st Schd E.A, 2022.
‐Where however, evidence is led by the respondent after the close of the petitioner’s case, the respondent begins by filing his address within ten (10) days of the close of his evidence – Para. 46(11) 1st Schd. E.A, 2022.
‐Upon being served, the other party has seven (7) days within which to file his reply – Para. 46(12) 1st Schd. E.A, 2022.
‐The party beginning also has a right of reply that should be done within five (5) days of the service of the reply on him – Para. 46(13) 1st Schd. E.A, 2022.
Judgment & Effect of Determination of E/PETITION
The Tribunal/ Court shall deliver its judgement within 180 days of the filing of the petition – See S. 285(6) CFRN 1999 (AA), S. 132 (8) E.A, 2022, Para. 28 1st Schd. E.A, 2022.
•At the conclusion of hearing, the tribunal shall determine whether a person whose election is complained of or any other person was validly returned or elected, or whether the election was void
•If the tribunal or court determines that the election is invalid, subject to appeal, a new election shall be held by the commission not later than 3 months from the date of the determination – Para 28 (3) 1st Schd. E.A, 2022.
1)EFFECT OF JUDG. WHERE TRIB/ CT. FINDS A RETURNED CAND. NOT VALIDLY ELECTED.
•If the trib. ct. Determines that a cand. returned as elected was not validly elected on any ground, it shall Nullify the election and order INEC to conduct a fresh election not later than 90 days after the –
a)Decision if an appeal is not filed against the decision; or
b)Nullification of the decision by the ct. having final appellate jurisdiction in respect of the said election – S. 136(1) E.A, 2022.
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1)EFFECT OF JUDG. WHERE TRIB/ CT. FINDS A RETURNED CAND. WAS NOT QUALIFIED TO CONTEST THE ELECTION.
•If the trib. ct. Nullifies the election of a returned candidate on ground of not qualified to contest the election, it shall order as follows: –
a)Declare the person with the 2nd highest No. of valid votes cast at the election & who satisfies the requirements of the CFRN & E.A, as dully elected: PROVIDED that person remains a member of the same political party & on which platform he contested the election OTHERWISE,
b)Declares the candidate with the highest No. Of valid votes in the election who satisfies the same CFRN & E.A requirements as the winner of the election – S. 136(2) E.A, 2022.
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1)EFFECT OF JUDG. WHERE TRIB/ CT. FINDS THAT A RETURNED CAND. DIDN’T SCORE MAJORITY OF VALID VOTES CAST AT THE ELECTION.
•If this is the finding of the trib. ct.; then it shall declare as elected, the candidate who scored the Highest No. of valid votes cast at the election & satisfies the requirements of the CFRN & E.A – S. 136(3) E.A, 2022.
NOTE:
i.Person declared as elected shall remain in office pending determination of appeal (if he files any within the stipulated period of appeal) – S. 138(1) E.A, 2022.
ii.Person declared as elected shall equally remain in office pending the expiration of the period of 21 days whether he appeals or not – S. 138 (2) E.A, 2022.
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The S.C, has held that an election tribunal or court shall not under any circumstance declare any person a winner at an election in which such a person has not fully participated in all the stages of the said election. See the popular – S. 285(13) CFRN 1999, introduced by the (4th Alteration No. 21) Act, 2017. See also Rotimi Amaechi’s Case.
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PERSON RETURNED TO REMAIN IN OFFICE PENDING DETERMINATION OF APPEAL.
•S. 138 (1) (2) E.A, 2022. However provides that:
•Where the person returned is declared not to be validly returned on any ground, then if notice of appeal against that decision is filed within 21 days of the giving of that decision, the candidate returned as elected shall remain in office pending the determination of the appeal (if any), notwithstanding the contrary decision
•Even where notice of appeal is not filed, he shall however still remain in office pending the expiration of the period of 21 days within which an appeal may be brought.
Appeals in Election Petitions
A dissatisfied petitioner or respondent with the judgment of the tribunal/ court has the right to appeal against same following the stipulated constitutional procedure.
‐In all election petition cases, appeals shall be filed within twenty one (21) days of the decision of the tribunal/ court whose decision is being appealed against. – para 6 Election Tribunal & Court practice Direction, 2011.
‐Also, appeal must be heard and determined within sixty (60) days from the date of the judgment of the tribunal/ court appeal against – S. 285(7) CFRN 1999 (AA)
‐The time to file the notice of appeal and the duration for the determination of an appeal in election petition cases cannot be extended – ANPP V Goni (Supra)
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APPELLATE TRIBUNALS/ COURTS
‐From the Presidential Election Tribunal, an appeal shall lie to the Supreme Court.
‐From the National & State Houses of Assembly Elections Tribunals; appeal shall lie to the Court of Appeal
NOTE: No further appeal shall lie to the Supreme Court in respect of these elections as the decisions of the Court of Appeal is final – S. 246(3) CFRN 1999 (second alteration) Act, 2011
‐From the Governorship Election Tribunals, appeal shall lie to the Court of Appeal – S. 246(1) (c) CFRN 1999 (second Alteration) Act, 2011. Also, a right of appeal shall further lie to the Supreme Court. – S. 233(2) (E) CFRN 1999 (second alteration) Act, 2011.
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APPELLATE PROCEDURE
‐Appeal shall be commenced by filing of a notice of appeal at the Registry of the tribunal/ the trial court.
‐The appellant shall pay all the necessary filing & other fees as shall be determined and assessed by the Secretary to the tribunal/ court having regards to the nature of the documents involved.
‐The Secretary shall compile & serve the parties to the appeal, the records of appeals within ten (10) days of the filing of the notice of appeal.
‐The appellant shall file his brief of argument within ten (10) days of the service of the records of appeal on him by the Secretary.
‐The respondent shall within five (5) days of being served with the appellants’ brief of argument, file his own brief of argument.
‐At the hearing, parties have thirty (30) minutes each to present oral arguments in support of their respective cases.
‐An absentee’s party’s brief is deemed argued, in so far he filed one.
‐Cross appeal & respondent’s notice (if any) are argued together with the main appeal.
‐The appellant has the right to begin arguments and to conclude it.
‐See generally paras 7 – 17 of the Election Tribunal & Court practice direction, 2011.
Miscellaneous Election Matters
The practice of courts/ tribunal in all final appeals in election petition cases in first giving their decisions and reserving their reasons till a later date had constitutional backing in S. 285(8) CFRN 1999 (second Alteration) Act, 2011, See also S. 132(10) E.A, 2022.
‐Although this constitutional provision was later deleted, but both the Court of Appeal and Supreme Court, still as a matter of practice & convention in election petition cases, still adopt this practice in all final election appeal cases. See ANPP V Goni
‐An election tribunal/ court has no jurisdiction over pre-election matters such as disputes arising from steps preparatory to elections e.g. nomination & sponsorship of candidates, complaints against either electoral commission or a political party preparatory to an election over which the FHC have jurisdiction – S. 84(14) E.A, 2022.
‐Pre-election matters shall be filed not later than fourteen (14) days from when the cause of action arose and judgment delivered within one hundred and eighty (180) days from date of filing – S. 285(9) CFRN 1999 (3rd Alteration Act) (AA).
‐Appeals on Pre-election matters must be disposed off within sixty (60) days of filing the appeal – Salim V CPC (2013) 6 NWLR (Pt. 1351) 501
SAMPLE DRAFT OF ELECTION PETITION
IN THE NATIONAL AND STATE HOUSES OF ASSEMBLY ELECTION TRIBUNAL
HOLDEN AT KOGI STATE
PETITION NO.:
Election To the Senate For Kogi Central Senatorial District Held on Saturday 23rd June, 2021
BETWEEN:
1. Shehu Musa --------------------------- 1st Petitioner
2. Peoples Reliable Party (PRP) ------------- 2nd Petitioner
AND
1. Maiyaki John ------------------------- 1st Respondent
2. Best Democratic Party (BDP) ----------- 2nd Respondent
3. Inde. Nat. Elec. Comm. (INEC) ---------- 3rd Respondent
PETITION
The Petition of Shehu Musa of No. 238, Opp. Police Barrack, Okene, Kogi State, whose name is herein subscribed
1. Your 1st Petitioner, Shehu Musa was a candidate at the above election & your petitioner state that the election was held on the 23/06/21 where the 1st Respd. was also a candidate
2. Your 1st petitioner contested under the platform of the 2nd petitioner, (PRP). The 1st Respd. Contested under the platform of (BDP)
1.The Results as declared by the 3rd Respd. were as follows:
Maiyaki John ---------------------------------------------- 5,300,000
Shehu Musa ------------------------------------------------ 2,200,000
4. Your 1st petitioner state that the 1st Respd., Maiyaki John was then returned as the elected candidate & the winner of the election
5. Your 1st petitioner shall found & rely on the results declared by the 3rd Respd. at the trial
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SAMPLE DRAFT OF ELECTION PETITION (CONTS.)
GROUNDS OF THE PETITION
Your petitioner states that the ground on which he relies for the petition is as follows:
a)The return of the 1st Respd. as the winner of the election for Kogi Central Senatorial District held on 23rd June, 2021 was invalid by the reason of corrupt practices & non-compliance with the provisions of the E/ Act (AA)
OR
Your petitioner was validly nominated by the 2nd petitioner but was wrongfully excluded from participation in the election by the 3rd Respd (INEC)
FACTS OF THE PETITION
State the facts in support of the ground(s) relied upon above
Reliefs Sought
Your petitioner prays for the following reliefs
b)A declaration that the 1st Respd. was not duly elected or returned
c)A declaration that the election & return of the 1st Respd. Is void, the election having been marred by substantial irregularities
d)An order that a fresh election be conducted by the 1st Respd.
Dated …………… Day of …………………………………………………… 2021
……………………………….……………………….
XX Esq. (Counsel for the Petitioner)
ADDRESSES FOR SERVICE (WITH OCCUPIERS)
Signed By …………………………………… (Shehu Musa)
Signed before me …………………. Day of ………………………………………… 2021
……………………………………………………………………
(Secretary)
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SAMPLE DRAFT OF REPLY TO THE ELECTION PETITION
IN THE NATIONAL AND STATE HOUSES OF ASSEMBLY ELECTION TRIBUNAL
HOLDEN AT KOGI STATE
PETITION NO.:
Election To the Senate For Kogi Central Senatorial District Held on Saturday 23rd June, 2021
BETWEEN:
1. Shehu Musa ------------------------------------------------------ 1st Petitioner
2. Peoples Reliable Party (PRP) ---------------------------------- 2nd Petitioner
AND
1. Maiyaki John ------------------------------ 1st Respondent
2. Best Democratic Party (BDP) -------------- 2nd Respondent
3. Inde. Nat. Elec. Comm. (INEC) ------------- 3rd Respondent
REPLY TO PETITION
1.Your 1st Respd., admits the facts contained in the petition only to the extent as it relates to the bolding, date & results of the election
& no more
2.The 1st Respd. Denies the fact that he connived with the Resident Electoral Officer of the 3rd Respd. & snatched ballot boxes & voting materials at Okene Central & Obangede Wards or any other place
3.The 1st Respd. denies the allegation that the election was Xxed by cases of voters intimidation
4.The 1st Respd. denies the allegation that his agents campaigned on the day of the election
5.The 1st Respd. avers that the election was conducted in substantial compliance with the provisions of the E/ Act, (AA)
6.The 1st Respd. avers that virtually in all the polling units election started & concluded as schd. Peacefully
7.The 1st Respd. shall at the hearing of the petition pray that the court should dismiss the petition with substantial cost
Dated …………………….. Day of ……………………………………………………………… 2021
…………………………………………………….
J.K Esq. (Respondent’s Counsel)
FOR SERVICE ON (ALL THE PARTIES)
Ethical Issues for Legal Practitioners involved in Election Petition
• A Counsel has a duty of dedication, devotion and competence while preparing every Court processes including E/ Petitions herein discussed. He/ She must be dedicated and display competence in ensuring that all the conditions for the grant of the prayers sought are met – Rules 1, 14, 15, & 16 RPC 2007.
•A counsel as a Minister in the Temple of Justice has a duty to state facts correctly and not fabricate them. Counsel have duty to display Candour and assist the Courts in arriving at justice at all times – Rules 30 – 32 RPC 2007
•A Counsel has a duty to file appropriate court processes within the time allowed by the rules of Court in order to avoid judgment and award of cost being entered against His Client in default/ negligence/ misconduct – Rule 55 RPC 2007.
•A Counsel has a duty to represent Client within the bounds of the Law - and not perverse the cause of justice – Rule 15 RPC 2007.
•As an Officer of the Court, a counsel should not do any act that may obstruct, delay or adversely affect the administration of justice – Rule 30 RPC 2007.
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