Election Petition Tribunals Must Address Pre And Post-Election Controversies, Asserts J.S. Okutepa, SAN

*Calls for Guidance on Pre-Election Issues in Poll Petitions

A Senior Advocate of Nigeria, J.S. Okutepa, has advocated for election petition tribunals in Nigeria to be properly guided on differentiating between pre and post-election controversies when adjudicating electoral cases.

In a comprehensive analysis, Okutepa noted some tribunals are treating fundamental qualification issues as pre-election matters outside their jurisdiction by citing electoral guidelines. He insists qualifications can be challenged both before and after polls.

The legal expert referenced Court of Appeal and Supreme Court judgements stating qualification is a dual pre and post-election issue entertainable by electoral courts. He highlighted provisions of the constitution and Electoral Act listing qualification as an election petition ground.

Okutepa contended it is unsafe to view qualification strictly as an internal party affair. He argues the constitution’s supremacy means its qualification requirements override any contradictory guidelines. Disregarding the constitution with impunity should not go unpunished whether in pre or post-election litigation, he added.

The Senior Advocate stressed that maintaining technicalities over substance will allow unqualified candidates take public offices illegally. He called on the judiciary to hold the political class accountable through both pre and post-election mechanisms.

Okutepa concluded that proper guidance from higher courts is needed so tribunals nationwide consistently uphold constitutional qualification standards for elected offices. He said this will entrench Nigeria’s democratic principles and checkmate audacious impunity.

The legal luminary’s comprehensive analysis aims to reinforce electoral jurisprudence on the critical issue of candidates’ qualifications. His arguments highlight the need to balance party interests with constitutional compliance when determining the rightful winners of polls.

THERE IS A NEED FOR ELECTION PETITION TRIBUNALS IN NIGERIA TO BE PROPERLY GUIDED ON THE QUESTION OF PRE AND POST ELECTION CONTROVERSIES IN ELECTORAL JURISPRUDENCE BY J S OKUTEPA, SAN

Following the 2023 general elections in Nigeria, the Hon President of the Court of Appeal pursuant to section 285 of the 1999 Constitution, constituted Election Petition Court and Tribunals to hear election petitions cases arising out of the elections conducted into the various political offices across Nigeria. Under section 134(1) (a)-(c) of the Electoral Act 2022, there are three grounds a loser of election in Nigeria can rely upon to challenge the winner of election to any of the offices of the President, Governor or Legislative Houses at both the National and State levels.

One of those grounds is found in section 134(1) (a) of the Electoral Act 2022. Section 134(1)(a) of the Act reads that: An election may be questioned on any of the following grounds-(a) a person whose election is questioned was, at the time of the election not qualified to contest the election. From the provision of section 134 (3) of the Electoral Act 2022, any person who did not meet any of the qualifications set out in sections 65, 106, 131 or 177 of the 1999 constitution can his qualification challenged that he or she did not meet the constitutional qualifications set out in the constitution or the Electoral Act.

There appears to be some confusions from the decisions of the various election petition Tribunals across Nigeria, that fundamental issue of qualifications of some winners of the elections are being treated as pre-election matters for which the trial Tribunals are said not to have jurisdiction. The main reason for the decisions of these Tribunals across Nigeria on the question of qualifications to contest election is that qualifications to contest elections in Nigeria is a pre- election matter for which the Tribunals have no jurisdiction. This write up is done to shed light that the question of qualification to contest election in Nigeria is both pre- and post-election matter and it is with respect not correct to treat it merely as pre-election matter.

No doubt under Nigerian Constitution it is required that for anyone to contest elections to the offices of President, Governor or members of the National and State Houses of Assembly, such a person must a member of a political party and is sponsored by that political party. Membership and sponsorship are constitutional question far above internal affairs of political parties.

Clearly membership of political parties and being sponsored by those parties are constitutional requirements for qualification to contest election in Nigeria. The Electoral Act has also set out those who can file election petitions and those who can be made Respondents in the petitions. See section 133 of the Electoral Act 2022. The candidates that contested the elections and their political parties jointly or individually file petitions in the appropriate registries of the tribunals within the time set by law and the Constitution. See section 285(5) of the 1999 constitution as amended. The decisions of the Supreme Court and the Court of Appeal, did not support the positions of some Tribunals across Nigeria that the issue of qualification is pre-election matter for which Election Petition Tribunal lacked jurisdiction to hear.

It is necessary to refer to these decisions to derive home the points being made here. Naturally let me start with the decisions of the Supreme Court which have binding force on all Courts and Tribunals below the Supreme Court. These decisions also bind the Supreme Court unless expressly over ruled by the Supreme Court. In John Kayode Fayemi vs. Adebayo Segun Oni & Ors (2019) LPELR-49291(SC), the Supreme Court Per Galumje, JSC, as he then was, at PP. 19-24, paras. D-A, was clear on the point when his lordship held inter alias as follows: “On the second issue for determination of this appeal, learned counsel for the Appellant submitted that the case of the 1st Respondent cannot be accommodated under Section 87(9) of the Electoral Act 2010 (as amended) because it involves qualification of the Appellant to contest the primary election of the 2nd Respondent. According to the learned counsel qualification to contest the primary election is an internal affair of the 2nd Respondent and no Court has jurisdiction to challenge any issue bordering on qualification of a candidate as same amounts to non-compliance with Article 2 of the Guideline of the 2nd Respondent. In aid learned counsel cited PDP vs. Ezeonwuka (2018) 3 NWLR (Pt 1606) 187.Section 87(9) of the Electoral Act 2010 (as amended) provides as follows:- “Notwithstanding the provisions of the Act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the 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 of a State or FCT for redress.” In the instant case, the complaint against the Appellant is based on Article 2 of the 2nd Respondent’s Guidelines which provides that an aspirant to an elective office shall resign from the public office he is holding, 30 days to the primary Election. It is the contention of the 1st Respondent that the Appellant did not resign from his office as a minister of the Federation 30 days to the Primary Election as such the result of the Primary Election declared in his favour is null and void. I do not agree with the learned counsel that qualification to contest primary election is an internal affair of the party. On the contrary qualification of a candidate is both pre and post-election matter that can be challenged either in the Federal or State High Court or the Tribunal. In Dangana & Anor vs Usman & Ors (2013) 6 NWLR (pt. 1349) 50 this Court, per Onnoghen JSC (as he then was) held:- “An issue of qualification of a candidate to contest an election under the Electoral Act, 2010 (as amended) is both a pre-election and an election matter which both the High Courts and the relevant Election Tribunals have jurisdiction to hear and determine. Where an aggrieved party decides to go through the High Court to challenge or question the qualification of such a candidate, his right of appeal terminates at the Supreme Court. Where however, he decides to go through the Election Tribunal route and the election to which the issue relates is a National or State Houses of Assembly Election, then, his quest for justice constitutionally terminates at the Court of Appeal by operation of Section 246(3) of the 1999 Constitution(Supra). On the other hand, if the election being questioned is a Governorship Election, then the issue of qualification as a ground of questioning the election can be canvassed up to the Supreme Court by virtue of Section 233 (1) (iv) of the said 1999 Constitution. The jurisdiction to hear and determine the issue of qualification of a candidate in an election is therefore parallel-one through the High Courts and the other through the Election Tribunal. It is common knowledge that parallel lines never meet. That being the case it is demonstrably clear that a journey which he started in an Election Tribunal in petition challenging the election of a senator on grounds of qualification, can never end up at the Supreme Court simply because the issue is a pre-election matter over which the High Courts also have jurisdiction.” By the nature of the claim at the trial Court, it is very clear that the case of the 1st respondent was rightly accommodated under Section 87(9) of the Electoral Act 2010 (as amended), thereby conferring jurisdiction on the two lower Courts as well as this Court. One of the 1st respondent claim against the Appellant reads as follows:- “A declaration that the 941 vote credited or recorded as votes cast for the 1st by the 2nd Defendant Election Committee headed by Al- Makura at the 12th May, 2018 APC Governorship Primary Election for the purpose of determining the 2nd Defendant’s candidate for the 14th July, Election for the office of Governor Ekiti State are void, invalid and wasted, the 1st Defendant having not met the minimum qualification to contest in the said Primaries election.” The successful conduct of Primary Election as in this case, is not a bar to question the qualification of a candidate who was decided as the winner, since qualification is both a pre and Post election matter. In PDP vs. Ezeonwuka (supra) the claim by the petitioners in the PDP’s primary election for nominating its candidate for Orumba North/South Federal Constituency of Anambra State was that he won majority of the votes cast, but that his name was not sent to the Independent National Electoral Commission (INEC). Clearly the facts of that case are different from the instant case, where the claim is that the Appellant was not qualified to contest the Primary Election by reason of his failure to resign from his appointment as minister. Since the facts in PDP vs Ezeonwuka are different from the facts of this case, the lower Court was perfectly right by not following the decision of the earlier case. The Appellant in my view has not made out a case for this Court to overturn the decision of the Court below.”

The issue of qualification is both pre and post election matter. See section 138 (1) of the Electoral Act, 2010 (as amended) and section 134 of the Electoral Act 2022. See Dangana vs Usman (2013) 6 NWLR (Pt.1349) 50; Dickson vs. Sylva (2017) 10 NWLR (Pt. 1573) 299 at 342 and recently, Fayemi vs. Oni (2020) 8 NWLR (Pt. 1726) 222 at 250. See also the decision of the Court of Appeal in Independent National Electoral Commision vs Eyitayo Olayinka Jegede & Ors (2021) LPELR-54938(CA) Per Barka, JCA at P. 39, paras. C-D).

Again the Court of Appeal was direct on the point in the case of Olakunle Okunola & Anor vs James Abiodun Falake & Ors (2015) LPELR-26030(CA), where their lordships held that: “The first ground of the petition was hinged on qualification. It states: “(a). That the 1st Respondent was not qualified to contest the election in the Ikeja Federal Constituency 1, not having emerged as the candidate nominated according to law.” The Electoral Act by Section 138(1) provided grounds upon which an election petition can be questioned and it provides thus: “138. (1) An election may be questioned on any of the following grounds, that is to say – (a) That a person whose election is questioned was at the time of the election, not qualified to contest the election;(b) That the election was invalid by reason of corrupt practices or non-compliance with the provisions of this Act; (c) That the Respondent was not duly elected by majority of lawful votes cast at the election; or (d) That the petitioner or its candidate was validly nominated but unlawfully excluded from the election.” The issue of qualification is both constitutional and statutory. By Section 66(1) of the 1999 Constitution, the qualification to stand for elections into the House of Representatives is provided for and taking that along Sections 138 (1) (a) of the Electoral Act, it also provides for questioning candidates qualification before the election. The issue therefore has dual character in that it can be a pre – election matter and post-election matter. Qualification is a ground for challenge before the election petition Tribunal under Section 138(1) (a) of the Electoral Act. Qualification of a candidate can go as far back as to issues of nomination as covered by the various sections of the Electoral Act. There can be no nomination without valid primaries. Valid primaries take roots from Section 85(1) of the Electoral Act 2010 (as amended) which is the quarrel in issue three of this appeal. Breach of statutory provisions therefore can impeach an election as held in the case of BUHARI v OBASANJO (SUPRA). Furthermore, this Court in the case of APC V PDP (2015) LPELR – 24349 (CA) held thus: “The issue of qualification or disqualification to contest an Election being a pre -election and post election matter, can be raised in an Election Tribunal. In the case of DANGANA v USMAN &ORS (SUPRA) at 89 – 90, it was specifically stated: that the qualification/disqualification to contest a matter is both pre – election and an election matter. Also, in WAMBAI v DONATUS & ORS (2014) 14 NWLR (Pt. 1427) 223 at 252 the Court held thus: “It is therefore not a correct statement of the law that all pre – election matter must be instituted and heard and determined by the high Court as the principle admits of exceptions one of which is where the pre -election matter is filed after the conduct and conclusion of an election. It is the relevant Election tribunal that has jurisdiction to hear and determine it.”? The Apex Court has since settled the issue and the position has been reiterated by this Court. The question of qualification can only be classified pre -election or post election depending purely on the Coram and timing of instituting the action. The main character remains qualification and is fundamental to the return of a candidate for any elective seat. I also agree with the appellants that you don’t need to be a candidate at the primaries of a political party before one can question the primaries that threw up a candidate who was returned elected. The trial Tribunal failed to spread its net wide enough in search of guidance in respect of this issue. Authorities abound and it would have been properly guided to avoid an otherwise avoidable slip or error of law.” Per Nimpar, JCA at PP. 18-21, Para D

Again his lordship Bolaji-Yusuff, JCA, put it more in the most binding and admirable fashion when his lordship held that:”Issue 2 is whether the provisions of Section 138 (1) of the Electoral Act which stipulates that an election may be questioned on the ground that a person whose election is questioned was at the time of the election, not qualified to contest the election differentiates between disqualification or qualification under the Constitution and disqualification or qualification under the Electoral Act. S. 285(2) of the FRN Constitution 1999 (as amended), establishes the governorship and legislative House Election Tribunal and conferred on it original jurisdiction to hear and determine an Election Petition as to whether any person has been validly elected to the office of governor. As regards the Electoral Act 2010 (as amended), provisions listed below are germane to the controversy in this appeal: 1) S. 133(1) of the Electoral Act 2010 (as amended)on proceedings to question an election. 2) S. 138 (1) (a) (b) (c) (d) of the Electoral Act 2010 (as amended),on grounds of Petition. 3) S. 31(5) (6) of the Electoral Act 2010 (as amended). By the provisions of Sub-section (5) and (6) of Section 31 of the Electoral Act, any person who believes that information given by a candidate to INEC is false is free to approach the Court to seek declaration to that effect and if the Court comes to this conclusion, would by an order disqualify that candidate. To this extent it is correct and I agree with counsel to the Respondents that the issue of qualification or disqualification of a candidate is matter over which the High Court can exercise jurisdiction being a pre-election matter. See Kolawole V. Fulusho (2009) 8 NWLR (Pt 1143) 338 387-388. However the facts that the Electoral Act and Paragraph 1 to the 2nd schedule thereto was enacted pursuant to Section 4(1),(2) and (3) of the 1999 Constitution (as amended) which empowers the National Assembly to make laws for the peace, order and good government of the Federation. Therefore the Provisions of the Electoral Act cannot run parallel to those of the Constitution of Federal Republic of Nigeria 1999 as amended. Rather, the Provisions of the Electoral Act are meant to complement the Constitution hence the same (Electoral Act 2010, as amended) must be read together with the Provisions of the Constitution. Section 285 (2) of the 1999 Constitution of Federal Republic of Nigeria (as amended) which confers original jurisdiction on Election Tribunal to hear and determine an election Petition also allows any person who participated in an election and who believes that a candidate has not been validly elected to approach the Tribunal for redress. See Ohakim V. Agboso (2010) 19 NWLR (Pt. 1226) 72, 231. This provision in my view is the leeway given to the person who reasonably believes that a candidate was not validly elected to go straight to Election Tribunal and ventilate his grievances against such candidate notwithstanding that he had elected not to explore Provisions of S.31 (5) and (6) of the Electoral Act 2010 (as amended) before the election. It is my considered opinion therefore that the issue of qualification, disqualification or non-qualification of a candidate to contest an election (in this case, Governorship election) is a matter which the High Courts and the Election Tribunal can handle but it is at the Election Tribunal that those grievances can be presented after election has taken place. I refer to the decision of the Supreme Court in Salim V. CPC (2013) 6 NWLR (Pt. 1351) 500. “In conclusion, it has to be stated that the issue of disqualification, nomination, substitution and sponsorship of candidates for an election precede election and are therefore pre-election matters. The instant situation where the appellant as plaintiff did not complain to Court before election and even then 38 days after the election to talk of a pre-election matter for the first time is a pill too difficult to swallow. He by his lack of consciousness took his matter out of the domain of pre-election can only go before the Election Tribunal to try his luck since the status of the matter was post election clearly outside the ambit of either the Federal High Court, State High Court or High Court of the FCT.” See also Dangana V. Usman (2013) 6 NWLR Pt 1349 page 50 at 89-90 where the Supreme Court held as follows: “Section 138(1)(a) of the Electoral Act, 2010 (as amended) provides inter alia, that an election may be questioned on the ground that a “person whose election is questioned was at the time of the election, not qualified to contest the election.” With the above provision in view, it will be very unsafe to agree with the submission of learned senior counsel for the appellant that the issue involved in this case was strictly a pre-election matter in which an Election Tribunal has no jurisdiction to hear and determine and that only the High Courts has jurisdiction to deal with the matter.” I do not agree that the matter envisaged in Section 138(1)(a) of the Electoral Act, 2010 (as amended), is a pre-election matter over which an election tribunal has no jurisdiction. I however agree that the qualification/disqualification to contest anelection is both a pre-election and a post-election matter. However, in the instant case, Section 138(1)(a) of the Electoral Act has clearly made the particular pre-election matter entertainable by an Election Tribunal by expressly making the issue of qualification of a candidate to contest an election a ground in an Election Petition challenging or questioning the return of the winner of the said election, I therefore hold the considered view that an issue of qualification of a candidate to contest an election under the Electoral Act, 2010 (as amended) is both a pre-election and an election matter which both the High Courts and the relevant Election Tribunals have Jurisdiction to hear and determine. ” In view of the clear and firm pronouncements of the Apex Court and which by the age long principle of stare decisis binds this Court, the contention of the learned counsel for the Respondents that the only ground of qualification that is both pre-election and post election and which can be pursued pursuant to Section 138 (1) of the Electoral Act is Constitutional qualifications in Sections 177 and 182 of the Constitution cannot stand. If there is still any doubt as to whether an Election Petition under Section 138(1) of the Electoral Act must relate to or be traceable to the Constitution only, the controversy was laid to rest in P.D.P. V Daniel Sarror & ors Suit No SC/381 and SC/383/2011 where his Lordship Dahuru Musdapher CJN (as he then was) in his lead judgment delivered on 28th November 2011 with a full panel of the Court comprising seven (7) justices of the Court held as follows: “In my view, there is no dispute whatever that the Tribunal can deal with the issue of the qualification of a candidate to contest the particular election and it does not matter whether the impediment is constitutional or otherwise. To dismiss the petition at that stage without hearing evidence against the clear wording of Section 138 (1) of the Electoral Act is clearly wrong’’. See Bolaji-Yusuff, JCA at PP.27-32, paras. F-G in the case of Peoples Democratic Party vs. Independent National Electoral Commission & Ors (2014) LPELR-22892(CA)

Given the weight of judicial decisions, it will amount to great disservice to democratic growth and developments, to allow anyone who did not meet the requirements of qualifications to occupy any public offices in Nigeria on the technical ground that qualification is pre-election matter outside the jurisdiction of the Election Petition Tribunals. We must develop judicial policies that checkmate those who disregards our constitution with such audacity of arrogant and impunity. We must not allow them to go scot-free that it pays to commit constitutional iniquities. There is no doubt that the Nigerian Constitution 1999 as amended is supreme.

That is why the Constitution itself proclaims its supremacy under Section 1(1) which read thus: This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria. No one is exempted from the binding force of the Constitution. All institutions and persons derive their legitimacy from the Constitution. Nigerian political class and politicians are bound by the Constitution. Apart from the Supremacy of the Constitution, the Constitution states that the government of Nigeria at all levels shall be by democratic means. That is what we have agreed to be the mode of choosing our leaders and governments at all levels.

Section 1(2) of the Constitution provides that, the Federal Republic of Nigeria shall not be governed, nor shall any persons or group of persons take control of the Government of Nigeria or any part thereof, except by the provisions of this Constitution. Section 14 (1) of the Constitution emphasizes that the Federal Republic of Nigeria shall be a State based on the principles of democracy and social justice and section 14 (2) (a) of the Constitution boldly declared that sovereignty belongs to the people of Nigeria from whom government through the Constitution derives all its powers and authority. Let the judiciary hold political class accountable and make them to know that anytime they circumvent the Constitution there are consequences either during pre-election litigations or post – election petitions.