Election Petition Litigation: Key Legal Issues To Note By Prince Ikechukwu Nwafuru

Introduction

Election Petition Litigation is a very critical component of post electioneering process especially in a developing country such as Nigeria where mis-trust, corruption and manipulations of electoral process often make it impossible for losers in electoral contests to heed the call to exhibit grace in defeat and move on. The rare sportsmanship displayed by the former President, Goodluck Ebele Jonathan in congratulating the current President even before the result was declared and in refusing to challenge the outcome of 2015 Presidential election at the Election Petition Tribunal/Court of Appeal has remained the exception rather than the rule.

Whilst it is my hope that those who lost in the last Presidential and National Assembly Elections held on 23 February 2019 and those who will lose in the Governorship and State Houses of Assembly elections scheduled to take place on 09 March 2019 should demonstrate the hackneyed sportsmanship and sheath their litigation swords, however, the point must be made that it is within the constitutional right of any contestant to challenge the outcome of  any election where he or she feels strongly that there are cases of irregularities, corrupt practices or substantial non-compliance with the laws. Without doubt, petitioners have reclaimed their stolen mandates at the Tribunals and appellate courts in the past. Thus, rather than being viewed only from the myopic prism of being lawyers’ cash cow, election petition litigation should be considered in a broader perspective as it often turns out to be the true test of credibility of our electoral process. Of course I am not unmindful of the herculean task of proving election petition in Nigeria. To successfully prove election petition in Nigeria is akin to looking for a needle in a haystack. Nonetheless, at the minimum, the process should have some psychological and soothing effects on losers who feel cheated. More importantly, the process offers an avenue to interrogate the credibility of the election itself.  Beyond this, recent reforms and amendments witnessed in our electoral laws came about as a result of the interplay of arguments of counsel and proceedings at election petition litigation. For instance, as it relates to the 2015 elections, yours truly was in one of the legal teams at the various Governorship Election Tribunals and up to the Supreme Court, who pressed the card reader arguments and the need to amend the Electoral Act to make provision for the use of the device in the conduct of elections. Our arguments stemmed from the fact that there is no provision for the use of card reader in the Electoral Act 2010 (as amended) as only the use of Voters’ Register was envisaged in the Act. In other words, the INEC Guidelines which provide for the use of card reader, being a subsidiary legislation cannot override the provision of the Electoral Act. This apparent lacuna was exploited by election petition lawyers at the Tribunals in respect of the 2015 elections. Interestingly, our arguments have led to the amendment of the Electoral Act to make the use of card reader mandatory except that the amendment is yet to receive the assent of the current President as a result of back and forth that has characterized the Electoral Act, 2018 Amendment Bill.

That said, this non-exhaustive guidepost is meant to draw attention to the critical legal issues in election petition litigation as experience has shown that minor mistake or tardiness of counsel is capable of ruining one’s political career at the Tribunal and Appellate Courts. However, this highlight is merely a guide and should not be taken as a substitute for proper legal advice.

Time is of the Essence – Election Petition is sui generis

Unlike other civil matters, the timeline for the litigation of election petition dispute is constitutionally provided. This gives rise to the popular aphorism that time is of essence in election petition and also accounts for the sui generis nature of proceedings at the Election Petition Tribunals. Unlike in regular courts where extension of time application is a norm and often considered harmless and innocuous, at election petition Tribunal, parties must comply with the time provided in the Constitution and Practice Directions. In the case of PDP V. INEC & ORS(2014) LPELR-23808(SC), the Supreme Court put the point succinctly as follows:

“It has been stated in quite a number of decisions in this Court that election matters are sui generis and as such must be conducted strictly in compliance with the rules guiding them. Thus by Section 285(7) of the Constitution of the Federal Republic of Nigeria,1999 (as amended) this Court shall hear appeals from the Court of Appeal arising from election matters within sixty (60) days from the date of the delivery of the judgment appealed against. In order to regulate and manage the 60 days allotted by the Constitution, the Practice Directions has prescribed time within which each party is to comply with the processes leading to the hearing of the appeal. It is thus my view that in the circumstance such as this, no party is allowed to default and then turn around to plead the Interpretation Act. The combined effect of section 285 (7) of the 1999 Constitution (as amended) and paragraph 6 of the Practice Directions is that they limit the doing of any act to the period prescribed therein. Any action done outside the period prescribed is, to say the least, a nullity. The use of the word “shall’ in paragraph 6 of the Practice Directions, makes it mandatory. No party or this Court has any discretion in the matter. The 26th respondent was served on 22nd August, 2014. Its time started to run from that same date irrespective of the fact that it was served at 4.00 pm or thereabout. Accordingly it’s time for filing its brief expired on 26th August, 2014. The subsequent filing of the brief on 27th August, 2014 was done outside the time allowed by the Practice Directions. See: CPC V. INEC (2011) 18 NWLR (Pt. 1279) 493; ACN V. Nyako…”

From the foregoing, extension of time application is ruled out at the Election Petition Tribunals as anything done outside the prescribed time limit is null and void. This is not to say that lawyers do not apply for extension of time at the Tribunals as most of them often argue that the above decision for instance, applies only to time provided under the Constitution and does not extend to time provided under the various Rules and Practice Directions. Similarly, the Rules under the 1^st Schedule to the Electoral Act and Federal High Court Civil Procedure Rules, 2009 which apply when there is a lacuna in the 1^st Schedule, both give parties right to seek extension of time in appropriate cases. However, given the decisions of Court on this point, any party applying for extension of time does so at his own risk. As noted by the Supreme Court in PDP v. INEC, neither the Tribunal nor the Court has discretion to extend time in election petition proceedings. With this in mind, parties should be aware of time limit provided under the Constitution and various Rules and Practice Directions regulating proceedings at election petition Tribunals and Court.

A petitioner or Cross-petitioner has 21 days to file or present the petition or a cross-petition and time start counting from the date of declaration of results. The respondent has 5 days to file a memorandum of appearance. However, non-filing of a memorandum of appearance shall not bar the respondent from defending the petition provided he files his Reply not later than 21 days. Paragraph 12 of the 1^st Schedule to the Electoral Act also allows the Respondent to file his Reply within 14 days while the Petitioner has 5 days to file the Petitioner’s reply. In practice, Respondents often opt for the 21-day option for filing of Reply as it clearly affords them more time. Paragraph 14 (2) (a-b) of the 1^st  Schedule and the case of  Ngige Vs Obi [2006] 14 NWLR (pt. 999) 1 are to the effect that no amendment affecting the substance of the election shall be allowed after the 21 days provided for filing of petition. In practice, amendment of the petition no matter how inconsequential after 21 days is often opposed vehemently by the opposing counsel.

After the close of pleadings, there will be pre-hearing session. The purpose of the pre-hearing session is to dispose all interlocutory matters, giving such directions for expeditious and economic and urgent disposal of the matter. Please note that any Application made outside pre-hearing session must have a relief specifically seeking the leave of the Court to hear such application outside the pre-hearing session. The petitioner shall within 7 days after filing and service of the Petitioner’s Reply or 7 days after the filing and service of the Respondent’s reply, as the case may be, apply for the issuance of pre-hearing notice. Trial is commenced after pre-hearing. Petitioner has 14 days to prove his case, while Respondent has 10 days. After trial, the Respondent shall file his Final Written Address within 10 days, while Petitioner has 7 days and then 5 days for the Respondent to file a Reply on point of law. The Tribunal has 180 days to deliver its judgment from the date of filing of the petition.

In respect of appeal, the Appellant shall file his Notice Appeal within 21 days from the date of the decision appealed against whether interlocutory or final. The Appellant is expected to file his Brief of Arguments within 10 days of receiving the Records and serve same on the respondents immediately. The Respondent shall file in the Court, his own Brief of Arguments within 5 days of service of the Appellant’s Brief. The Appellant may file his Reply Brief within 3 days of the service of the Respondent’s Brief. Every Brief and Reply shall not exceed 40 pages. Any appeal arising from the decision of the Tribunal to the Court of Appeal shall be determined within 60 days from the date of the delivery of Judgment of the Tribunal or Court of Appeal.

Know your Grounds and seek proper reliefs

In terms of content, the petition should contain the parties interested. When there is a complaint against any official of Independent National Electoral Commission (INEC), it is proper to sue INEC rather than the named official who committed the infraction and this also extends to criminal allegation as the Tribunal does not have jurisdiction to try electoral offences. All that is required is to prove the allegation of crime beyond reasonable doubt. It has however, been argued that in cases involving criminal allegation against INEC official, it is better to join the offending official so that he can personally answer for the crime except that such joinder often makes the petition clumsy and acts as a clog in the proceedings. Strategically and given the time constraint, it is safer to join only INEC rather than the offending official. The petition must also contain facts relating to the holding of the election, the scores of the candidates and the person returned as the winner of the election. See Ojong v. Duke (2003) 14 NWLR (pt.  841) 581 on the effect of not stating scores of the candidates who contested the election in body of the petition. Non-compliance renders the petition void. The petition should also contain the grounds upon which the petition is based and reliefs sought by the petitioner. Frontloading is part of election petition litigation. Whilst the petitioner has the option of filing alongside the petition, copies or list of documents to be relied on, the Respondent is only permitted to file copies of documents. There is no justification for this discriminatory provision which gives the petitioner the option of filing list of documents but restricts the Respondent to copies only. Obtaining copies of documents from INEC within 21 days is not an easy task. In preparing the petition, the petitioner must be wary of unwieldy grounds. Section 138 (1) (a)-(d) of the Electoral Act, 2010 (as amended) lists the grounds upon which an election may be questioned to wit:

1. that a person whose election is questioned was at the time of the election not qualified to contest the election
2. that the election was invalid by reason of corrupt practices or non-compliance with the provisions of this Act.
3. that the respondent was not duly elected by a majority of lawful votes cast at the election or
4. that the petitioner or its candidate was validly nominated but unlawfully excluded from the election.

In the case of Dim C.O. Ojukwu v. Alhaji Umaru Yar’adua & Ors (2009) 12 NWLR (pt. 1154) 50 at 142 the Supreme Court, per Muhammed, JSC emphasized the need to comply with the grounds as stated in the Electoral Act. As noted by the Apex Court:

“Although election cases are sui generis; the general law is that procedures, or conditions provided by a statute within which a petition can be initiated, and except where the statute admits of exemptions, such procedures or conditions must be complied with in order to inject life into the petition. Thus, claims or petitions must be made within the dictates of the statutory procedures. Where grounds set out in an election petition are not in conformity with the provision of section 145 of the Act, those grounds are liable to be struck out for incompetence. This is because such ground(s) are the initiating processes which ab initio must be solid, valid and competent”

In Goyol v. INEC (No.2) (2012) 11 NWLR (pt.1311) 218 at 299 the Court of Appeal held that the use of ‘or’ in section 138(1) of the Electoral Act 2010 (as amended) connotes an alternative or an option. Consequently, corrupt practices and non-compliance should not be joined together as one ground in an election petition. The principle is that where a statute provides for a particular method of performing a duty regulated by statute that method, and no other, must have to be adopted.

In seeking reliefs in a petition, it is improper for a petitioner who pleads facts and seeks a declaration that the respondent did not score the majority of lawful votes cast at the election to plead facts and also pray that the election be annulled. In ONUIGWE v. EMELUMBA (2010) ALL FWLR (PT. 517) 698 at 732, the Court of Appeal held that: it is a contradiction in terms for a petitioner in an election petition to ask that an election be declared void and at the same time ask that he be declared the winner. This is because if the election is void, there would be no winner and the logical consequence would be a by-election. A Petitioner cannot have his cake and eat it. He cannot ask for avoidance of the whole election and still benefit from the nullification by being returned under the void election. Also in DINGYADI v. WAMMAKO (2008) 17 NWLR (PT. 1116) 395 AT 447, the Court held that a petitioner who has challenged the regularity of the conduct of the election is not entitled to be returned as the candidate duly elected with the majority of the valid and lawful votes cast at the election. With these decisions, the fate of a petitioner whose grounds of petition are not in line with the provisions of section 138(1) of Electoral Act, 2010 (as amended) and whose reliefs are contradictory is settled.

Pleadings/Proof

It is elementary principle of law that evidence cannot be adduced in proof of facts not pleaded. The nature of pleadings in election petition depends largely on the ground upon which the election is being challenged. The Supreme Court emphasized the importance of pleadings and the need to specifically plead material facts in election petition in the case of Ojukwu v. Yar’adua (2008) 4 NWLR 435 (pt. 1078) at page 462.

Where a petition is based on the ground of substantial non-compliance with the provisions of Electoral Act, the petitioner must not only plead and prove substantial non-compliance but must also plead and prove that the non-compliance substantially affected the result of the election.  Non-compliance with the provisions of the Act without more is not sufficient to invalidate an election.  See Buhari v Obasanjo (2005) 2 NWLR (pt.910) 241; Yusuf v Obasanjo (2005) 18 NWLR (pt.956) 96.  It follows that where insufficient facts or none at all are pleaded to establish substantial effect of the non-compliance on the result of the election, no reasonable cause of action has been made out. Some species of allegations deserve some particulars. Where disenfranchisement of voters is alleged, such facts must be pleaded and proved “polling unit by polling unit” ward by ward, and the persons best eligible to testify as to what happened in the polling units are the polling agents. See Ucha & 1 other v Elechi & 1774 others (2012) 13 NWLR (pt.1317) 330. In fact, as often said in election petition parlance, the polling unit is the foundation upon which the pyramid of an election process is built and this was very much the view of the Supreme Court in the case of Nwobodo v. Onoh (1984) 1 SCNLR 1. The standard of proof required to prove allegation of disenfranchisement in an election petition, was demonstrated by the Supreme Court in NGIGE V. INEC (2015) 1NWLR (Pt. 1414) P. 281  as follows:

“A voter is disenfranchised when his right to vote is taken away. That is to say he claims to be registered but was not allowed to vote. When would the court be satisfied that voters were disenfranchised?

• The disenfranchised voters must give evidence to establish the fact that they were registered but were not allowed to vote.
• The voters card and voters register for the polling unit must be tendered.
• All the disenfranchised voters must testify to show that if they were allowed to vote their candidate would have won the election. See Ucha v. Elechi (2012) 13 NWLR (Pt. 1317) 330;

Thus, to succeed in allegation of disenfranchisement of voters, the petitioner ought to have called all the disenfranchised voters or as many of them that would show that if they were allowed to vote, their members added up, the petitioner would be the winner as he would have more votes. If this is not done, then it is fatal to the issue of voters being disenfranchised. In relation to allegation of over-voting, to prove it, the petitioner needs to tender the register of voters for the entire constituency, the ballot boxes containing the ballot papers and the statement of result from all or at least the affected polling stations in the constituency. The petitioner would then proceed to demonstrate and establish from those documents tendered, how the over-voting occurred. He must then establish through evidence that, the total number of votes cast at the election exceeded the total number of votes on the register. See INIAMA V AKPABIO (2008) 17 NWLR (Pt.1116) p.225 and AWUSE V ODILI (2005) 16 NWLR (pt.952) p.416.

More recently the Supreme Court in SHINKAFI & ANOR V. YARI & ORS (2016) LPELR-26050(SC) held that to prove over-voting, the petitioner must do the following: 1. tender the voters’ register. 2. tender the Statement of Result in the appropriate forms which would show the number of registered accredited voters and number of actual votes. 3. relate each of the documents to the specific area of his case in respect of which the documents are tendered. 4. show that the figure representing the over-voting if removed would result in victory for the petitioner. Note that the Supreme Court decision above and other subsequent related decisions do not recognize the card reader Report as a means of proving over-voting. This is because the card reader requirement is not part of the Electoral Act yet as the Act thereof only recognizes the Voters’ Register.

Documents tendered in the course of proceedings, must be tied to specific aspects of the case for which the documents are tendered by leading evidence of the purport of the document in relation to that aspect of the case. It is not the duty of the Tribunal to speculate as to the purport of the documents or to forage in the multitude of documents dumped by the petitioners’ counsel for the purport of the documents. Dumping of documents on the Tribunal without linking same to one’s case is fatal. See PDP & Anor. v. Abari & Ors (2009) LPELR-4835(CA).

Similarly, where a petition is premised on allegation of corrupt practices, the requirement is even higher being a criminal allegation, the particulars must be pleaded and proof is beyond reasonable doubt. The law is that allegations of thuggery, violence and hijacking election materials are criminal allegations which must be proved beyond reasonable doubt. In ANPP V Usman  (2008) 12 NWLR (Pt 1100) 1 @ 86, Aboki JCA stated the law thus: An allegation of falsification of result is criminal in nature, the position of the law is that it must be proved beyond reasonable doubt. In Abdulmalik v Tijani (2012) LPELR-19731(CA) the Court stated the ingredients for establishing fraudulent cancellations, mutilations and alterations of electoral results with the following words:

“It is trite that a Petitioner who based his case on fraudulent cancellations, mutilations or alterations must establish two ingredients, i.e.

1. “That there were cancellations, alterations or mutilations in the electoral documents, and
2. “That the cancellations, alterations or mutilation were dishonestly made with a view to falsifying the result of the election.

“The two ingredients must both be established together before the result of an election can be cancelled on those grounds. “This Court in Terab vs Lawan (1992) 3 NWLR Part 231 Page 569 at 594 Paragraphs C-D, held as follows: ‘While it is true that some of these forms show that alterations and cancellations were made on them, it has not been made clear at what stage the alterations and cancellations were made . . . Falsification of results at the election in December 1991 is a criminal offence which requires proof beyond reasonable doubt.  See Nwobodo vs. Onoh (1984) 1 SC Page 1 at 118-119’.”

Similarly, allegation of alterations of results need to be specifically pleaded to show at what stage the alterations was made as was held in Terab vs Lawan (1992) 3 NWLR (Pt 231) 569. It is suggested that allegation of crimes should be pleaded distinctly from non-compliance allegation so that it will set a stage for severance of pleadings at the pre-hearing session when necessary. It is not uncommon to see petitioners applying for severance of allegation of corrupt practices from those of non-compliance. The Supreme Court has held in the case of Udom Gabriel Emmanuel v. Umana Okon Umana & 5 Ors- (2016) LPELR-40659(SC) that the appropriate avenue to apply for severance of pleadings is at the pre-hearing session and not in the final written address or brief of arguments as often done by some lawyers. Thus, clarity in pleadings will aid the petitioners to severe when appropriate as it will be a difficult task to severe pleadings where the allegation of corrupt practices are inextricably intertwined with the non-compliance such that severance becomes near impossible.

For a petition premised on the ground that the respondent did not score the majority of lawful votes case, the Court in ANOZIE V. OBICHERE (2006) 8 NWLR (PT 981) 140 AT 155-156 noted that it is an invitation to compare and contrast figures. To establish the complaint there must be proper tabulation of the registered voters, the total number of votes cast, the votes scored by each candidate.

Lastly, where the petition is on the ground of qualification, it is submitted that the ground must be confined to qualification under the Constitution. There is always the tendency to import the provisions of the Electoral Act when challenging the qualification of the Respondent to contest the election. The Tribunal and Courts often frown at that. Distinction must be drawn between the qualification that usually ground pre-election matters and the one that supports election petition. In SAIDU V ABUBAKAR [2008] 12 NWLR (PT 1100) 201 at 265 the Court of Appeal dealt with the issue of qualification as a ground for challenging an election under section 145(1)(a) of the Electoral Act 2006 which is impari materia with section 138(1)(a) of the Electoral Act 2010 (as amended) when it held as follows:

“The question whether or not a person is qualified to contest an election within the meaning of section 145(1) (a) of the Electoral Act 2006 is to be determined exclusively by reference to the constitutional requirements for qualification to contest. THEREFORE, A PETITIONER CAN ONLY SUCCEED IN A COMPLAINT FOUND ON SECTION 145(1) (A) OF THE ACT IF H ALLEGES FACTS AMOUNTING TO A CONSTITUTIONAL BAR.” (Emphasis supplied).

The Electoral Act cannot expand the criteria for qualification to contest an election under the constitution as such attempt is null and void. See In ATTORNEY GENERAL OF ABIA STATE V ATTORNEY GENERAL OF THE FEDERATION (2002) 6 NWLR (Pt 763) Pg 264.

Application for stay of proceedings not relevant

Unlike in traditional civil matters where upon filing of an appeal, the Appellant may apply for a stay of proceedings, the situation is different in election petition proceedings. Paragraph 18 of the Practice Direction expressly provides that an interlocutory appeal shall not operate as a stay of proceedings nor form a ground for a stay of proceedings before a Tribunal.

Know the Rules

Litigation in election petition Tribunals and Courts are governed by the electoral laws, Rules and Practice Directions. Practitioners must take note of the relevant provisions of the Constitution, Electoral Act, 2010 (as amended); Rules of Procedure for Election Petitions, Election Petition Practice Directions, 2011; Court of Appeal Practice Directions for election Petition; INEC Guidelines and Manuals and the Evidence Act, 2011. The Civil Procedure Rules of various Court also apply where there is a lacuna in the Practice Directions and Rules, For instance, the Federal High Court (Civil Procedure) Rules 2009 applies at the Tribunal level whilst the Court of Appeal Rules, 2016 and the Supreme Court Rules, 1999 (as amended) apply on Appeal. Please note that election petition Rules and Practice Directions are often reviewed from time to time and it is important that litigants and their legal representatives keep pace with developments in this area.

Conclusion

The season is here again for election petition galore and lawyers who play in this space are already positioning themselves for the juicy briefs. It is important that we appreciate the peculiarity of the exercise and the rules that regulate the proceedings. Instances where lawyers and even very senior lawyers lose election cases on grounds of technicalities and mistake of counsel should be minimized. Legal practitioners engaged in these all-important exercise should demonstrate high level of dexterity and adroitness in handling election petition as the stakes are high and margin of errors should be low or non-existent. In the same vein, judges engaged in election petition are encouraged to focus more on substantial justice rather than technicalities often seen in some of the decisions. It is suggested that the Tribunal members should remove the garb of traditional civil matters and appreciate the peculiarity of the election petition litigation particularly in time management. For the neophytes, though the Rules and the Practice Directions are there to guide all, there is no crime in seeking assistance from experienced hands and where necessary partnering with them to achieve clients’ objectives. Election petition has nothing to do with the age of a lawyer at the Bar as what counts is experience. I have seen and heard a very senior lawyer argue confidently that the Evidence Act does not apply to proceedings at the Election Petition Tribunal. His arguments elicited not only laughter from the Tribunal chairman but also earned him some scornful comments. Again, the point must be made that the usual excuse of “mistake of counsel” given by lawyers in ordinary civil matters may not avail litigants whose processes are not proper before the Tribunal or Court. The Court of Appeal ably and aptly percolated the principle that undergirds the strictness and stringency of election petition proceedings in the case of GEBI v. DAHIRU (2012) 1 NWLR (PT. 1282) 560 at 617 thus: “Due to the special nature of election proceedings, any default in complying with a mandatory procedural step which otherwise could either be cured or waived in ordinary civil proceedings would have fatal consequences in electoral proceedings.”

About the author:

Prince is a Lagos based lawyer with special focus on corporate and commercial Litigation and Dispute Resolution. He was in the team of lawyers involved in most of the highly-complex election petitions arising from the 2015 general elections at the Election Petition Tribunals and up to the Supreme Court.