By Emmanuel Jonathan
Periodically, Nigerians go to the polls to cast their votes in a plurality voting system to either elect or re-elect leaders. The offices to which citizens elect officials to include the office of the President and Vice President,109 Senators, 360 House of Representatives members, 36 Governors and diverse persons to occupy the various Houses of Assembly of each state of the federation.
Sometimes after rigorous campaigns, some candidates in the race lose out. The next available option opened to an aggrieved candidate or his/her political party as the case may be is recourse to the election petition tribunals and, in the case of the Presidential election, the Court of Appeal. The Aggrieved applicant/petitioner turns to these special tribunals via the mechanism of the election petition vehicle. Election petitions are not a common feature of our jurisprudence. They are special occasional spurts in our jurisprudential horizon. They are in the words of Ariwoola JSC, “Unique and peculiar, different from other civil matters.” Refer to the case of Ugba v. Suswan (2012) 4 NWLR (Pt. 1345) 427. It was also the opinion of Charles Dadi Onyeama JSC (as he then was) in Oyekan & Anor v. Akinjide & Anor (1965) LPELR-25250 (SC) who stated, reiterating the uniqueness of election petition, “The proceedings on an election petition are special proceedings for which special provisions are made in the constitution…”
Due to the special nature of election petitions, it is the only type of litigation that has a very clearly demarcated and well spelt out lifespan from beginning to end. The Constitution of the Federal Republic of Nigeria (hereinafter CFRN) in section 285 (6) clearly stipulated that the hearing and determination of an election petition shall not exceed 180 (one hundred and eighty) days from the date of filing of the petition to the dissipation of the issues in the petition. Subsection 5 of that same section 285 leaving no room for any form of indecision on the part of the potential petitioner stated that the petition must be brought within 21 days after the declaration of results.
The essence of this rapid quick timelines and time boundaries are to ensure a mandatory dissipation of issues and final determination of election matters and results so as to leave no room for chaos or uncertainty in the political spectrum of a state or the country.
This article will attempt to dissect the election petition backdrop with particular focus on the standard of proof required to obtain the blessings of the election tribunal or court. The major thrust of the article will be to analyze the issue of whether the election petition system is not rigged or judicially biased vis-à-vis the earmarked standards and hurdles seemingly arrayed against the petitioner? This becomes forceful especially when considered under the microscopic focal light of where there is an allegation of fraud or other criminal elements which usually raises the bar to proving the allegations beyond reasonable doubt. A fast fact check of the most recurring ground of petition is the allegation of noncompliance with the Electoral Act (hereinafter ‘The Act’) and acts of fraud. This ground automatically foists the additional requirement of proving the allegations beyond reasonable doubt which said acts of fraud and other criminal elements alleged most times occur under the most difficult to prove circumstances.
Secondly, this article will address head-on, the issue of cost in election petitions. The question will be raised, canvassed and addressed, in light of the provisions of the Electoral Act, whether the Election Petition procedure, the often voluminous and bulky collection of evidence and the financially intensive requirement are not heavy weight which unnecessarily weigh the petitioner’s shoulder grievously?
Thirdly, this article will address critically the 180 days’ timeline mark. But more, the fulcrum of attention will revolve around the automatic and enshrined helplessness of the petitioner who for no fault of his/her may lose out on a well-articulated and presented case, only because the tribunal or the Court as the case may be was either deliberately or not deliberately hamstrung from crossing the finish line before the 180 days’ mark. In this regard, pertinent suggestions will be highlighted and novel recommendations will be proposed which if implemented may, together with the other issues raised rejig and revolve our election petition process towards a more modern judicial practice.
Finally, the article will draw on election petition practices and procedure in the United States of America (hereinafter the “United States” or “USA”). This nexus while marrying seemingly divergent jurisdictions is rather apt as the USA and Nigeria both operate a Republican system and have a similar judicial and litigation system structure, albeit slightly different in hierarchical structure. The positive and glittering highlights of the American election petition system, with particular focus on the Bush- Gore election adjudication will be highlighted, then the article will close on the possible and potential positive points which could be extracted from the US and similar jurisdictions to completely revolutionize our election petition process. The essence will be to show that while we have a working and workable election petition system, that we could still have a better election petition system.
Analyzing the election petition system, structure, practice and procedure in Nigeria
Before we delve headfirst into the election petition system, structure, practice and procedure, it is imperative to state that our discussion will flow from the following headings:
- The available grounds for election petition
- Who are the defined persons and entities capable of bringing an election petition?
- The statutory content of an election petition and accompanying documents
- The available election petition tribunals, and;
- An election petition: How it works, practice and procedure.
After discussing the above issues, we will close in on the thorny subject of the different standards of proof in the predominantly civil suit. The discussion on the appeal process and procedure for enforcing election petition tribunal decisions will be a discussion for a different subsequent article.
In discussing the above outlined subheads, the drafters of the Constitution did not leave the question unanswered as to when an election petition may be brought after an election or who could validly bring the petition. It would have been a dangerous situation if no clearly marked principles were established in this regard. There would have been a floodgate of suits at various times distracting the performance and smooth running of governance. But even more worrisome, it would have led to a situation where meddlesome interlopers who have neither business nor gain in the electoral process would have entered the race to distract the sitting successful candidate. Kindly see the case of Senator Abraham Ade Adesanya v. President of the Federal Republic of Nigeria & Anor 1981 LPELR-SC. 1/1981 where the Supreme Court held that for any person to bring an action, such a person has to show his locus standi or sufficient interest to bring such a suit. The drafters of the Constitution and the Electoral Act, in delimiting the range of persons and the timeline in which a petition can be brought entrenched some useful criteria.
Hence to prevent a situation where the successful candidate was to be left in a perpetual state of abeyance, the drafters of the Constitution as discussed in the introductory paragraph earmarked a ‘living’ period of oxygenated timespan within which a petition could be brought.
The drafters of the Constitution in their wisdom restricted the timeline opened to an aggrieved participant in the election to a 21 (twenty-one) days span. See 285 (5) of the Constitution of the Federal Republic of Nigeria (hereinafter CFRN). Once this period has lapsed, no force above or beneath can resuscitate the right to action. In the very interesting case of Oyekunle Gbenga v. All Progressives Congress & Ors LOR (06/09/2019) SC, the claimant brought an action challenging the declaration of another candidate as the APC flag bearer in the House of Representative election for the Offa/Ifelodun/Oyun constituency after the party primaries. By virtue of Section 285 (9) of the CFRN, all pre-election matters are to be brought within 14 days of the complained action or decision. Mr. Gbenga had waited for a period spanning almost 20 days before bringing the action. The matter had been struck out at the trial court as being statute barred. Upon appeal to the Appeal Court and subsequent appeal to the Supreme Court, the appellate Courts had reaffirmed the decision of the trial Court to dismiss the appeal holding that once the constitutionally sanctioned timeline lapses, that the matter becomes a dead on arrival suit for which no amount of resuscitation can revive.
Hence, any election petition must be commenced within 21 days of the declaration of the results. Failure for same to be commenced within the stipulated timeline will result in the matter being declared statute barred. Kindly see the cases of Maigari v. Malle (2019) 16 NWLR (Pt. 1697) 69], Zayyad Ibrahim v. APC (2019) 16 NWLR (Pt. 1699) 469]. Nigerian Ports Authority Plc v. Lotus Plastics Limited & Anor. (2005) 19 NWLR (Pt. 959) 158 and National Revenue Mobilization Allocation & Fiscal Commission& ors. v. Ajibola Johnson & Ors (2019) 2 NWLR (Pt. 1656) 247.
The Electoral Act going further delimited the factual grounds of what might inspire or ground an election petition to just four grounds. In other words, if the claims or gravamen of the Petitioner cannot be squared into any of the stipulated grounds, then the petitioner could as well bid farewell to any challenge of the election.
The grounds, pursuant to Section 138 (1) (a) – (e) of the Electoral Act are:
- That the person whose election is contested was at the time of the election not qualified to contest the election. We shall briefly discuss this rather crisp ground with all its attendant implications.
- That the election was invalid by reason of corrupt practices or non-compliance with the provisions of the Electoral Act. This ground will bear the weight of our subsequent discussion in this article.
- That the Respondent was not duly elected by majority of the votes cast at the election.
- That the Petitioner or its candidate (where the petitioner is a political party) was validly nominated but was unlawfully (note the term ‘unlawfully’) excluded from the election.
- That the person whose election is questioned had submitted to the Commission (INEC) affidavit containing false information of a fundamental nature in aid of his qualification for the election. It will be recalled that one of the grounds against the election of Governor Godwin Obaseki of Edo state in the recently concluded Edo State Governorship election petition tribunal had been the allegation that the Governor had forged and or falsified his school certificate to INEC. Kindly see the petition in Action Democratic Party & Anor v. INEC & 2 Ors (2021)LCN/15169(CA).
Where an aggrieved candidate or political party in an election cannot ventilate his grievance under any of the above grounds, he may as well bid the petition goodbye.
On the first ground enlisted in Section 138 (1) (a) of the Electoral Act (hereinafter the “EA” or the “Act”) it is clear that what is intended here is that the successful candidate /Respondent was not at the time of the election qualified to contest. It is important here to drag one’s attention to the phrase, “as at the time of the election.” So the principle at equity that equity holds as done that which ought to be done will not avail a Respondent here. It is immaterial that perhaps, after the election the successful candidate/Respondent did become qualified. What matters for all time material is that for the large timespan going backward from the time of the election, the candidate was not qualified.
This directly leads to the question: what determines the qualification of a candidate in an election? In other words, what are the feasible things/facts which a candidate must be seised of before he/she can validly contest an election?
While the different contestable electoral offices carry different criteria for eligibility, yet a common threshold can be gleaned from the relevant provisions of the CFRN stipulating the eligibility criteria which include sections 131 and 137 (which provides qualifications for the office of the President), 177 and 182 (which provides qualifications for office of the Governor of a state), 65 and 66 (which stipulates qualifications for the office of the National Assembly) and sections 106 and 107 (which outline eligibility for House of Assembly contestants). Collectively, any candidate for the above mentioned offices must satisfy the following criteria:
- The candidate must be a Nigerian citizen by birth. For the office of the president, he/she must have attained the age of 35 (thirty-five) at least, the office of the governor, he/she must have attained the age of 35 (thirty-five) at least, for the office of the Senate, he/she must have attained the age of 35 (thirty-five) at least, for the House of Representatives, he/she must have attained the age of 25 (twenty-five) at least. Also for the House of Assembly of a state, he/she should have attained at least 25 (twenty-five) years.
- The candidate must be educated up to at least school certificate level or its equivalent. The outcry has been there and the present researcher also is of the opinion that the barest minimum educational qualification for the above mentioned elective posts ought to be a University degree.
- The candidate must be a member of a political party and must be sponsored by that party.
- He must not be adjudged to be a lunatic or of unsound mind.
- The candidate must not be under any sentence of death or imprisonment for an offence involving dishonesty or fraud (or by whatever name called) or any other offence, imposed on him by any court or tribunal or substituted by a competent authority of any sentence imposed on him by such a court or tribunal.
- Within at least 10 (ten) years, prior to the date of the election, the candidate should not have been convicted and sentenced for an offence involving dishonesty or should not have been found to be guilty of contravening the code of conduct.
- The candidate must not be a member of a secret society.
- Where the candidate is in the employ of the civil or public service of the federation or a state as the case may be, he shall have resigned, withdrawn or retired at least 30 (thirty) days before the date of the election.
- Such a candidate must not be an undischarged bankrupt.
The other requirements for the office of the President as gleaned from section 137 (3) is to the effect that where the candidate succeeded a previous President so as to complete his tenure, that the candidate can only be entitled to a further term of just four years and no more. While the beauty and the timeliness of this provision is apt, especially in the light of the saga that trailed the candidacy of the President Goodluck Jonathan’s declaration to contest the 2015 elections, yet it is the position of the present researcher that this position is stiflingly restrictive and unconstitutional.
The question to be bore at all times ought to be, who contested the foregone election? Who won that election? Who was sworn in ab initio? When these questions are answered accurately it will show that the candidate in contemplation in Section 137 (3) CFRN who succeeded the deceased or removed or resigned person elected is different from that person and ought to be allowed his/her own constitutionally guaranteed two terms of four years each.
Hence it is the suggestion of this article that at the next available opportunity this novel provision should be expunged.
The other criteria for election into the office of the Governor or the President, pursuant to Section 137 (1) (b) and 182 (1) (b) CFRN respectively is that such person should not have been elected to such office at any two previous elections.
Having enunciated the basic requirements to contest the various contestable offices, this directly leads to the next issue. Where a candidate who was validly seised of all these requirements contested and lost out in the elections, can such a candidate contest the election? If yes, can he challenge it alone and who are the possible contenders against whom he or she can contest the election with at the election petition tribunal.
The Act clearly stated that the person(s) entitled to present a petition, pursuant to section 137 (1) (a) (b) are:
- A candidate in the election,
- A political party which participated in the election.
The persons to answer/respond to the petition include, by virtue of Section 137 (2) and (3) the successful candidate who shall be the respondent and, in the event of grievance at the conduct of an electoral officer, a presiding or returning officer, the INEC. It should be noted that the Act stated that it shall suffice to attach INEC as respondent and not necessarily those officers in their personal capacity. In that instance, INEC shall be deemed to defending the petition on behalf of itself and its questioned officers.
An aggrieved candidate can bring the petition jointly with his party as co-petitioner. For a deeper discussion on who can bring an election petition, kindly refer to the cases of Okon v. Bob & Ors (2003) LPELR -6098 (CA) ; Egolum v. Obasanjo (1999) 7 NWLR (pt. 611) Olanrewaju v. INEC & Ors (2010) LPELR -4749 (CA) and Jegede & Anor v. INEC & Ors (2021) LPELR -55481 (SC).
Having seen the persons anointed with the exclusive preserve to pursue and contests an election result, the next issue which comes to the fore is, how can such a person or persons contend the election result or the validity of the election as a whole. The way the Writ of Summons drives the Claimant to the hallowed chambers of justice, the petition sheet and its accompanying documents also ferry the aggrieved candidate or political party or both as the case may be to the Tribunal halls for them to ventilate their grievances.
Before proceeding further, it is very important to note that any aggrieved entity must act timeously by presenting the petition within 21 days of the election. Note that in calculating the 21 days, the time starts to count from the day succeeding the declaration of the result and shall swing from day to day including Saturdays and Sundays. However, as the court held in Kabir v. CAN (2012) All NWLR (Pt. 647) 638, where the 21st day abates on a Sunday, it shall be carried over to the Monday immediately succeeding that Sunday. Hence the 21st day will terminate at 12:00 a.m. on the next Monday. But it is the view of the present researcher that an aggrieved candidate need not wait that long before heading for the tribunal doors. 7 days or 14 at most should be enough for him or her or the political party to have made up its mind to contest the election results from the date of the announcement.
As earlier stated, the vehicle through which an aggrieved entity in an election can bring his grievance is the petition. Paragraph 4, schedule 1 to the Electoral Act presents the statutory contents of an election petition sheet. These include:
- The names of the parties interested in the election petition.
- Specify the right of the petitioner to present the election petition.
- State the holding of the election, the scores of the candidates and the person returned as the winner of the election.
- State clearly the facts of the election petition and the ground or grounds on which the petition is based.
- The relief sought by the petitioner.
Sub 2 states that the petition shall be arranged in paragraphs each of which shall be confined to a distinct issue or major facts and every paragraph shall be numbered accordingly and consecutively. The petition must be signed by the petitioner or by his counsel, if any, named at the foot of the election petition.
The documents to accompany the petition sheet include:
- A list of witnesses the petitioner intends to call in support of his petition. Note that in practice, as well as provided for in the Schedule, the names of the witnesses are not given in full but acronyms to disguise and protect witness identity due to the sensitive nature of electoral matters in Nigeria.
- A written statement on oath of the witnesses.
- Copies of list of every document to be relied upon at the hearing of the petition. Since most of the documents to be relied upon are INEC documents, it is often important to have them certified so as not to raise red flags in their admissibility.
Paragraph 6 (six) clearly states that the wages of failure to comply with the above stipulated requirements of accompanying documents is the rejection of the petition at the tribunal registry. Paragraph 9 states that where there is failure to comply to form in the petition sheet, that the petition is liable to be struck out by the tribunal or court.
Having seen the requisite contents of the election petition sheet and the mandatory accompanying documents, the next question to come to fore is, what then is the procedure for conducting the petition. This all important procedure is very extensively discussed in the 1st schedule to the Electoral Act. We will briefly outline the major key posts in the election petition hearing procedure but before then, it behooves to quickly outline the available tribunals and courts to which an aggrieved political entity may turn to:
- Court of Appeal.
- National Assembly and State Houses of Assembly election tribunal.
- Governorship election tribunal.
- Area Council Election Tribunal and Local Government Election Tribunal.
- Area Council Election Appeal Tribunal.
In discussing the foregone court and tribunals established under the CFRN and the Act, by virtue of Section 239 (1) (a) CFRN, the Court of Appeal is granted the exclusive jurisdiction to the exclusion of all other courts and tribunals to hear and entertain the presidential election petition. Section 239 (2) CFRN outlines the judicial quorum as being 3 (three) justices in hearing and determining an election petition. An entity aggrieved by the ruling of the Court of Appeal in its capacity as the presidential election petition tribunal may proceed to the Supreme Court on appeal pursuant to Section 233 (2) (e) (i) CFRN.
Section 285 (1) CFRN provides for the establishment for each state of the federation and the FCT, one or more election tribunals to be known as the National and State Houses of Assembly Election Tribunals. These Tribunals to the exclusion of all other courts and tribunals are saddled with the original jurisdiction to hear and determine petitions as to whether a person has been validly elected as a member of the National Assembly or State House of Assembly. Sub 2 of that section 285 went further to create and establish for each state of the federation a Governorship election tribunal. Sub 3 made reference to the composition of the National and State Houses of Assembly election petition tribunals as well as the Governorship Election Tribunal. Sub 4 stated that the quorum of an election tribunal established under Section 285 shall be the chairman and one member.
This quorum is odd to the present researcher as a tie can arise where the chairman and member have varying decisions. Although in practice, the chairman and two members often sit, yet the 2-man quorum principle could be problematic in practice. Hence it is the suggestion of the present researcher that this section 285 (4) of the CFRN should as soon as possible be amended to either increase the number of the panel and then make the chairman and two other members of the panel as the quorum or make the quorum of the tribunal to be the chairman and the two members with an auxiliary member who can step in in the event of any vacancy. Therefore, the chairman and two other members will be a safer quorum.
Briefly, considering the composition of the Governorship, National and State Houses of Assembly Election petition, the 6th Schedule to the CFRN particularly A and B provide as follows:
- For National Assembly Election Tribunal, the composition is a chairman (who shall be a judge of a High Court) and 2 other members. The chairman and the 2 other members shall be appointed by the president of the Court of Appeal in consultation with the Chief Judge of the State, the Grand Khadi of the Sharia Court of Appeal or the state or the president of the Customary Court of Appeal of the state as the case may be.
- The composition of the Governorship Election Tribunal shall consist of the chairman (who shall be a judge of a High Court) and 2 other members (who could either be Judges of a High Court, Khadi of a Sharia Court of Appeal or members of the judiciary not below the rank of a Chief Magistrate).
The other election petition tribunals are the Area Council Election Tribunal for the FCT and the Area Council Election Appeal Tribunal by virtue of Section 135 (1) (2) (3) (4) and (5) of the Electoral Act as well as Section 136 (1) to (7) respectively of the same Act. These provisions all relate to the Federal Capital Territory. Corresponding tribunals in the states are the Local Government Election Tribunals.
In contending the victory of a candidate in the election, the aggrieved candidate or the aggrieved political party or both as the case may be, usually commence their legal battle by filing the petition. After the filing of the petition with the secretary of the tribunal, the election petition is formally started. The consequential procedure is straightforward albeit somewhat slightly weighty due to the voluminous content of evidence usually involved.
For a comprehensive insight and understanding as to how the election petition is conducted, kindly read through the whole of the 1st schedule to the Act. But suffice it to be mentioned that a skeletal sketch of the procedure gleaned from practice and the prescription of the 1st schedule to the Act will be presented hereunder.
It is also important to note that the procedural guide for election petition under the Electoral Act is the Civil Procedure Rules of the Federal High Court for the time in force. Schedule 1 paragraph 54 provides that as nearly as possible, the practice and procedure of the Federal High Court in the exercise of its civil jurisdiction shall apply to Election Petition Tribunals with such modifications as may be necessary to render them applicable, having regard to the provisions of the Electoral Act.
The procedure for commencing, conducting and concluding an election petition
The petitioner or his counsel (as is often the case) will present 10 copies of the election petition and the other accompanying documents plus such necessary copies of the filed documents according to the number of the Respondents. Aside merely presenting the petition, the petitioner is required to take further steps like: depositing such security in cash amounting to not less than N 5,000 (five thousand Naira) to cater for such logistical costs as necessary for a witness summoned for him or the respondent. Failure to deposit the security, the petition dies an automatic death. By virtue of Section 4 of the Election Tribunal and Court Practice Directions 2011 the petitioner is further saddled with the responsibility of depositing cost for the service, publication of the petition and certifying the copies of the petition to the tune of N200,000 (two hundred thousand). The Petitioner is further mandated to deposit security for costs in the sum of N 200,000 (two hundred thousand). A critical underscoring of all the financial implications of this mandatory expenses show a heavily expensive system. Though it is not the place of the present researcher to complain on behalf of the petitioner (s), however it is important to state that where the petitioner, due to the attendant cost of the petition is prevented from pursing his claims no matter how genuine, it serves to erode the fundamental purpose for which the election petition system was established.
A pertinent recommendation is that like in the United States jurisdiction (which we shall briefly analyze) election petitions should be filed in regular state courts like any other civil claim, or in the potential event of a bias, the Federal High Court. To ensure a critical assessment of all the facts, allegations and evidence, the numbers of Judges on the petition could be increased to 3 (Three). The essence of this is to reduce cost and assure of a very simple and efficient procedure.
Another key suggestion is the reduction of the numbers of copies of the petition and accompanying documents required. Since the tribunal is made up of three persons, a total of 6 (six) copies of the petition and the accompanying documents in addition to such extra number of copies of documents as there are respondents should suffice instead of the required 10 (ten) copies.
However, in all these, a saving grace provision may be found in Paragraph 3 sub paragraph 4 which provides that in default of payment of the aforementioned necessary fees, the election petition shall be deemed not to have been received unless the tribunal or court otherwise orders. It will seem that an application to the Court (Court of Appeal) or the tribunal under the circumstances can waive or reduce these requirements.
In addition to the petition sheet, the petitioner is further requested to file the respondent’s address for service. This address is to enable personal service. It is important to note that substituted service does not operate in election petitions. Refer to Paragraph 8 (1) (b). This may not be unconnected to the fact that election petitions are time bound. However, to avoid injustice, Paragraph 8 (2) made an allowance for where personal service is not possible. It allowed for something similar to substituted service. However, Paragraph 8 (3) went further to state that the petition shall not be vitiated notwithstanding that there was no personal service or where there was an order for substituted service and such documents did not get to the Respondents. While this provision may seem antithetical to the very essence of service in our jurisprudence, it has to be bore in mind that the drafters were well conversant with the practical reality. It will be very hard for the Respondent’s address for personal service not to be known. The present researcher goes further to suggest that an amendment should be introduced to allow for service at the Respondent’s party office premises and that such service should for all intents and purposes be deemed personal service.
Once the petitioner has taken the above steps, he/she becomes functus officio for the time being.
The secretary of the tribunal then causes notice of the election petition to be served on the Respondent(s). Thereafter, certified true copies of the petition are pasted on the tribunal notice board. Then lastly, the secretary shall dispatch copies to the tribunal adjudicators –i.e. the Chairman and the members.
Within 5-7 days of the service of the notice of petition, the Respondent shall enter appearance. The Respondent is required to leave a copy of the memorandum of appearance for each of the other parties of the petition and three other copies. The good news for the Respondent is that unlike the conventional suits, failure to enter appearance does not lead to the petition being deemed admitted or right to enter defence waived. The Respondent is still entitled notwithstanding his failure to file the Memorandum of Appearance, to within 21 days’ file his Reply. Where the Respondent does not provide an address for service, all documents for his attention are pasted on the tribunal notice board and that shall be sufficient service on the Respondent.
By virtue of Paragraph 12 (1), the Respondent is expected to file its Reply within 14 days. This may seem contradictory with the aforementioned Paragraph 10 (2) which gives the Respondent a 21 days’ latitude. However, it must be noted that this 21 days’ span is activated where the Respondent failed to file his/her Memorandum of Appearance. On the other hand, the 14 days’ span follow where the Respondent filed his Memorandum of Appearance and this is often the obtainable procedure in practice.
In election petitions, any objection contesting the jurisdiction of the tribunal or the validity of the petition itself is heard at the substantive suit.
Paragraph 16 contemplates where the Respondent raises fresh issues of facts which the petition did not deal with, the petitioner is entitled to file his Reply within 5 days of receipt of the Respondent’s Reply. Once pleadings have closed, both parties have 14 days to prove their respective cases.
Before the parties lock horns in full hearing, Paragraph 17 gives the parties a last shot at making any further particulars or seeking any further directions. The parties have from the day after the filing of the Memorandum of Appearance but no more than 10 days after the filing of the Reply. The Act did not mention whose Reply is being contemplated here. But it will likely depend on which party filed last. Where the Respondent filed his Reply last, and the 5 days’ period (which cannot be extended) for the petitioner to file his own Reply lapses, then five days afterwards, the parties will become barred but where the Petitioner files his own Reply, then 10 days after the Petitioner’s Reply, the parties will become barred from bringing any application for further directions or further particulars.
Pre-Hearing Session and Scheduling
Just before the commencement of legal fireworks at the open tribunal by way of hearing, the parties are mandated by the Act to perform a final but ultimately crucial act. Perhaps the most important of all the steps in the petition. The parties are required to seat down with the Chairman and the other members of the tribunal in a pre-hearing and scheduling session. A proper management of these sessions would have successfully completed the petition halfway.
The importance of this session is so weighted that failure to participate will automatically result in grave consequences for either party. It is important to note first, that where the Petitioner (who is the right party to bring an application for the session) fail to apply for the session, the Respondent can move for same to be commenced. See Paragraph 18 (3). However, a more prudent Respondent attorney ought to bring an application for the petition to be dismissed. In fact, by virtue of Paragraph 18 (4) where either party fails to bring an application for scheduling, the tribunal is mandated to throw out the petition. Such petition once thrown out is deemed dismissed and the dismissal is final in the sense of all finality and the tribunal or Court shall be functus officio and the petition can never be heard again.
Having seen the importance of this seemingly trivial pre-hearing stage, the question arises, what happens or what is done at this stage?
First off, this stage is mandated by the Act to be commenced within 7 days after the filing and service of the Petitioner’s Reply on the Respondent or where the Respondent files and serves his own Reply within 7 days of the such Reply. The onus of applying for the pre-hearing form as in Form TF 007 lies on the petitioner since it is his suit. However, the Respondent for any reason, where the Petitioner fails can still undertake the task although in practice it is highly unlikely.
Basically, the business of the day at the Pre-hearing sessions are:
- The disposal of all matters which can be dealt with on an interlocutory application basis.
- Directions on the future procedure of the hearing of the petition which will ensure a speedy, economical and just disposal of the petition especially within the 180 days’ timeline.
- Directions on the order in which witnesses are to be called and the documents each party intends to rely on.
- Fixing clear dates for the hearing of the petition.
After the pre-hearing sessions, the tribunal shall enter a scheduling order for the following category of items:
- Joining other parties to the petition (where necessary).
- Amending the petition or reply or any other processes.
- Filing and adopting Written Addresses.
- Additional Pre-hearing sessions (Where necessary).
- Order of witnesses and tendering of documents that will be necessary for the expeditious disposal of the petition and,
- For any other matters (s) that will facilitate and promote the quick disposal of the petition.
The pre-hearing session has a lifespan of 14 days from commencement to termination. Hearing at these sessions is from day to day, as much as practicable. At the conclusion of the session, a report to guide the Court or Tribunal on subsequent course of the proceedings is published.
Failure of the petitioner or his counsel to attend the pre-hearing session or to attend fully prepared and to participate, the Tribunal is empowered by virtue of Paragraph 11 (a) to dismiss the petition. In the case of the Respondent, the tribunal is empowered to enter judgement against him for failure to attend the session or to attend the session fully prepared. However, this judgement can be set aside upon an application made within 7 (seven) days and these 7 days cannot be extended. Hence if after 7 days there is no application, the judgement of the Tribunal becomes a final judgment and all the necessary steps to enforce the judgement will be activated as if it were a judgement of the tribunal after the full hearing. However where the applicant within 7 days bring an application to set aside, the court will obtain an undertaking from the applicant and his counsel duly signed by both persons to effectively attend and participate in the session. The Tribunal is also empowered to slam costs on the erring party but such cost shall not be in excess of N20,000 (Twenty Thousand Naira).
After the pre-hearing session has been concluded and a pre-hearing report drawn up, the next procedure in the election petition is the full hearing of the petition in the open Court or Tribunal hall.
The procedure and the often interesting legal fireworks that attend the hearing of election petitions will be discussed in the second part of this article. Also, in the second part of the article, we will briefly consider whether the ruling of the Tribunal or the Court is the last hurdle in the election Petition, and if not, then what other procedures follow the judgement in an election petition ruling. Also, in the next part of the article, we will critically review the procedures and the possible posts where reform could be entertained. We will also review all the aforementioned suggestions and pertinent recommendations especially on the need to revisit the herculean standard of proof in election petition where crime is alleged. We will also draw on the US election petition example and possible recommendations that we could extract to engender a better election petition system in Nigeria. We will conclude on fine points from our recommendations which could be implemented, relevant sections to be amended and salient procedures to be adopted.