ELECTION PETITION

ELECTION PETITION

MEANING OF ELECTION PETITION

• Petition complaining of an undue election or undue return of a candidate at a general election.

Section 140(1) ,Electoral Act,2006. ANPP V INEC (2004) 7 NWLR (Pt 871) 16• Excludes intra party disputesDoukpolagha V George (1992)

2NWLR(PT236)444Enagi V Inuwa(1992)2NWLR(Pt231)548

APPLICABLE LAW

• Electoral Act 2006Governs all election petitions in Nigeria

except local government elections in states ( not FCT).

• Constitution of Federal Republic of Nigeria,1999

• Federal High Court Rules• Election Tribunal & Court Practice

Directions, 2007

COURT WITH JURISDICTION

COURT OF APPEAL

• Has exclusive original jurisdiction in respect of the foll matters:

• Any question as to whether any person has been validly elected to the office of president or vice president

• Whether the term of office of such a person has ceased

• Whether the office has become vacantS239(1) ’99 Const.

CONSTITUTION OF C/A

• 3 JCAs

S.239(2) Const.

NATIONAL ASSEMBLY ELECTION TRIBUNALS

• Established & vested with jurd by S285(1) of the Const.• Has exclusive original jurisdiction with respect to

petitions as to whether:a)Any person has been validly elected as a member of the

National Assemblyb)The term of office has ceasedc)The seat of a member of NASS has become vacantd)A question or petition brought b/4 the election tribunal

has been properly or improperly brought• Q Are (b) & (c) proper?

COMPOSITION OF NAET

• Chairman who shall be a judge of H/C

• 4 members appointed from the judiciary and not below the rank of chief magistrate.

• Appointment done by President of Court of Appeal in consultation with CJ of the state, Grand Kadi SCA of the state or Presd of CCA of the state. S.285(3) Const.,Para 1 of sixth schedule

QUORUM OF NAET

• Chairman and 2 other members

S.285(4)

GOVERNORSHIP & LEGISLATIVE HOUSES ELECTION TRIBUNALS

• Established in each state of the federation by S.285(2)of the Const. and vested with jurisd to determine petitions as to whether:

a)any person has been validly elected as Governor or Deputy Governor

b)Any person has been validly elected as member of House of Assembly of a state.

COMPOSITION OF GLHET

• Chairman who shall be a Judge as in NAET

• 4 other members from judiciary as in NAET

• Appointment by PCA as in NAET.

s.285(3) & Para 2 in Sixth Schedule

QUORUM OFGLHET

• Chairman and 2 other members

LOCAL GOVERNMENT/AREA COUNCIL ELECTION TRIBUNAL

• Established at various state level by laws of each state.

• For FCT, established by S.142(1) of the Electoral Act, 2006.

JURISDICTION OF FCT AREA COUNCIL ELECTION TRIBUNAL

• Exclusive original jurisd to hear and determine any question as to whether:

a)Any person has been validly elected to the office of chairman, vice chairman or councillor

b)The term of office of any of the above has ceased

c)The seat of a member of an Area Council has become vacant

d)A question or petition brought b/4 the Tribunal has been properly or improperly brought.

Q Propriety of (b) & (c).

COMPOSITION OF ACET

• Chairman who shall be a Chief Mag

• Four other members appointed from magistracy,LPs of at least 10 years standing and non LPs of unquestionable integrity.

S.142 (2) & (3) of the Act

QUORUM FOR SITTING OF ACET

• Chairman and 2 other members

S.143(4)

TIME FOR CONSTITUTION OF ELECTION TRIBUNAL

• Not later than 14 days before the election

S.140(3) of the Act.

PRESENTATION OF ELECTION PETITION

• To present an election petition means to file the petition as required by law.This entails the following:

a)The petition shall be presented to the secretary by the petitioner in person or by his solicitor named at the foot of the petition.(Note that petition filed in wrong registry-secretariat- cannot be transferred –Olaniyonu V Emeh Awa)

b)The secretary shall give a receiptc)Petitioner shall file a copy of the petition for each

respondent and ten other copies

• d)payment of the prescribed fees for filing, service, publication and certification of the petition

Para 3 of the Rules of procedure for Election Petitions(First Schedule)

• e)Giving security for cost not less than N5,000 as prescribed by law

Para 2(1) Rules

f)Petition must be accompanied by• List of witnesses intended by the petitioner• Written statement on oath of the witnesses• Copies or list of every document to be relied

on at the hearing.

Note that a petition that fails to comply with this requirement will not be accepted for filing

Para 1 Election Tribunal &Court Practice Direction,2007.

• See the foll: Ogbolumani V Okobi (1959)WRNLR 11

• Olaniyonu V Emeh Awah(1989)5 NWLR (PT 122) 493

TIME FOR PRESENTING A PETITION

• 30 days from the date the result of the election is declared.

S.141 of the Act• It is mandatory for all petitioners to

comply with this provision and failure to comply will deprive the Tribunal of jurisdiction to entertain the petition.

Otu v. INEC (1999) 5 NWLR (Pt.602) 250

• Any petition filed out of time will be held to be incompetent and will be struck out.

Alataha v. Asin (1999) 6 NWLR (Pt.601) 32; Obasanya v. Babafemi (2000) 15 NWLR (Pt.689) 1.

Ogbefor v. Danjuma (2003) 15 NWLR (Pt.843) 403 at 432.

• Malah v. Kachallah(1999) 3 NWLR (Pt.594) 309.-Held that administrative difficulties notwithstanding.

See further Kamba V Bawa (2005)4 NWLR (Pt 914) 43

Moghalu V Ngige (2005) 4 NWLR (Pt 914) 1

• Tribunal cannot extend the time within which to file a petition.

Falae v. Obasanjo (1999) 6 NWLR (Pt.606) 283 at 290.

Olaniyonu V Emeh Awah

WHO MAY PRESENT PETITION AGAINST WHO

• Petitioner is the person who presents the petition or at whose instance it is presented.

• S.144(1) provides that the following persons may present a petition

a)A candidate at the electionb)A political party that participated at the

election• Only the above can present election petition-

Egolum V Obasanjo (1999)7NWLR (Pt611) 355

• Note the following interpretation:

1. A person who was neither a candidate at an election nor a member of a political party nor sponsored by a political party to contest the election and who did not specify the nature of his right to present the petition was held incompetent to present a petition. Egolum V Obasanjo

2. A person who failed to secure nomination of his party but claims to have been wrongly excluded from contesting the election is incompetent to present an election petition( i.e.intra party dispute)

NEC V NRC (1993)1NWLR (Pt 265 )120

Anazodo V Audu (1999) 4 NWLR)(Pt 600 549)

3. A political party that failed to present a candidate for election is incompetent to present a petition

Egolum V Obasanjo

4.But a candidate that contested and lost the election may bring a petition

Nnamani V Nnaji (1999) 7NWLR( Pt 610) 313

5. Also a person who was properly nominated by his party but was unlawfully excluded by the electoral commission from contesting the election is competent to present a petition.

Ojo V Abogunrin (1989)5NWLR (Pt120) 162

• Respondent is a person whose election is complained of, that is , the successful party at the election.

• Note that a successful party must be joined as respondent otherwise the petition is invalid

TafidaVBafarawa(1999)4NWLR(Pt577) 70

• Where the petitioner complains about the conduct of an electoral officer, returning officer, presiding officer or any person who took part in the conduct of the election, such a person shall be joined as necessary party(as respd) except where he acted as agent of the commission and the commission is made a party.

S.144(2) of the Act

• A candidate who contested and lost cannot be made a respondent

Buhari V Yusuf(2003)14NWLR (Pt841) 446

CONTENT OF ELECTION PETITION

• See genarally Para 4 of the Rules in First Schedule to the Act

a)Names of the parties- It shall specify the the parties interested in the petition

b)It shall specify the right of the petitioner to present the petition e.g that the petitioner contested the and the capacity and platform on which he contested

c)The holding of the election, the scores of the candidates and the person returned as the winner of the election.

Note:1. FaiIure to state renders petition incompetent and liable

to be struck out – Effiong V Ikpeme (1999)6NWLR (Pt606)260

2. Petitioner not required to state score of political party who did not field any candidate or votes cast for persons that were not candidates in the election – Ajudua V Nwogu(No.1)(2004)16 NWLR (Pt893) 56

d) The fact of the petition and the ground on which the petition is based

See S145(1) of the Act for the grounds1. 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 the Electoral Act;

3. That the respondent was not duly elected by majority of lawfulvotes cast at the election.

4. That the petitioner or its candidate was validly nominated but was unlawfully excluded from the election.

• Note that a petition containing grounds not recognized by law is incompetent.

Doukpolagha v. George (1992) 2 NWLR (Pt.236) 444. ;Obasanjo V Yusuf

• Note also that failure to comply with the above content renders the petition invalid and liable to be struck out. Para 4(6) of the Rules

e)Prayer or prayers sought by the petitionerSee S147 of the Act for the orders the

Tribunal may make f)The petition must be signed by the

petitioner or the solicitor named at the foot of the petition

Unsigned petition is liable to be struck out –Ibrahim V Sheriff(2004)14NWLR(Pt892)43

Para4(6) of Rules

g) It shall contain an address of Petitioner for service

Note that if not stated the petition will be deemed not to have been filed unless the Tribunal otherwise orders.

Para4(5) Rules

SERVICE OF PETITION

• Notice of the petition as well as all other documents required to be served on the respondent before his entry of appearance shall be served personally.

Para 8(1)

• Failure to serve personally does not vitiate the proceedings

• Where personal service on the respd is required but cannot be effected, the Tribunal may on application of the petitioner order for substituted service in accordance with the provisions of the Federal High Court Rules. Para 8(2) Rules

• A process not requiring personal service shall be duly served by delivering it to the or by leaving it at his last known place of abode in the constituency with any resident in the place who appears to be 18years or more. Para 44(1) Rules

APPEARANCE

• Respd is required to enter appearance after being served if he intends to oppose the petition. Para 9(1) Rules

• He should file conditional appearance where he has a preliminary objection to the petition. Para 9(5)

• Memo shall be signed by the resp or his solicitor. Para 9(3)

Memo of Appearance is in Form TF.004

• Resp must state address for service otherwise the memo will be deemed not to have been filed unless otherwise ordered by the Tribunal/court. Para 9(2)

• Resp must pay the necessary filing fees and leave enough copies for service failing which the memo will be deemed not to have been filed. Para9(4)(b)

Effect of not filing memo of appearance

• 1. Any doc intended for service on resp may be posted on Tribunal notice board & shall be sufficient notice to resp. Para10(1)

• Does not bar resp from defending the petition provided he files his reply not later than 21 days from receipt of the petition. Para10(2)

FILING OF REPLY

• Resp’s reply shall be a statement in summary form. Para 2 Practice Direction

• Where resp enters appearance he has 14 days to file his reply stating facts and figures to be admitted or denied or relied upon. Para12(1) Rules

Where he does not enter appearance he has 21 to file a reply. Para10(2) Rules

• The reply shall be supported by a)copies of documentary evidence b) list of witnesses and c)the written statement on oath. Para 2 of Practice Direction• Reply shall be signed by resp or his sol. Para

2(3) Rules• Sufficient copies plus 10 additional copies of the

reply shall be left with the Sec for service. Para12(4) Rules

PETITIONER’S REPLY

• Petitioner has 5 days from receipt of resp’s reply to file his reply only where new issues of fact are raised in the resp’s reply.

Para16(1)

• This time cannot be extended

Para 16(2)

AMENDMENT OF PETITION AND REPLY

• Before expiration of time limited for presentation of petition(30 days from result)amendment will be allowed.

• Thereafter amendment will not be allowed in the following respect:

1. To introduce any of the contents required in para4(1) – Opia V Ibru(1992)3NWLR(Pt231)658

2.To effect substantial alteration of the grounds for or prayer in the petition

3.To effect substantial alteration of or addition to the statement of fact relied on to support the ground for or sustain the prayer in the petition except as permitted by the Act.

Para14(2) Rules

• Amendment will however be allowed to correct a typographical error on the face of the petition.

Chief Bola Ige V Dr Omololu Olunloyo(1984)1SC258

Aniagala V Abeh(1997)7NWLR(Pt611)454It seems the amendments are to be done at

pre hearing conference. Para3(6)(b) Pr.Dir

PRE-HEARING SESSION AND SCHEDULING

• Within 7 days of service of reply on the respondent or the petitioner whichever in the case, the pet shall apply for issuuance of pre-hearing notice

• Thereupon Trib/Court shall issue to parties or their LPs pre-hearing conference notice as in Form TF007

• The notice is accompanied by pre hearing information sheet in Form TF008. Para3(1)&(2)PD

• Where the Petitioner fails to bring the application for issuance of the pre- hearing notice, the respd may do so or apply for an order to dismiss the petition.

Para3(3)PD

• Where both parties fail to bring the application, the Tribunal/ Court shall dismiss the petition as abandoned petition and shall not entertain any application for extension of time to bring the application.

Para3(4)PD

• The dismissal of the petition for failure to apply for pre-hearing notice is final and renders the Tribunal/Court functus officio

Para3(5)PD

• Pre-hearing session shall be completed within 30days of its commencement

Para3(9)PD

• Tribunal/Ct shall issue a report at the end of the session to guide subsequent course of proceedings

Para3(10)PD

• Failure of a party to attend satisfactorily participate in the session or obey the scheduling or pre- hearing order will lead to dismissal of the petition or entry of judgment as the case may be.

Para3(11) PD

• The judgment may be set aside upon application with undertaking to participate effectively made within 7 days of the judgment with order of cost of not less than N20,000

Para3(12)PD

• NOTE:

1. All motions shall be taken at pre-hearing sessions except with leave of court

2.All motions shall be supported by affidavit and written address

Para6(1),(2)&(3)

3.Resp to file counter affid and written address within 7 days of service if he wishes to oppose the motion. Para6(4)PD

4.Further reply on point of law to be filed within 3 days. Para6(5)

PURPOSE OF THE CONFERENCE

The purposes of the conference are:

1. Disposal of all matters which can be dealt with on interlocutory applicatio

2. Giving such directions as to the future course of the petition as appear best adapted to serve its just, expeditious and economical disposal in view of the urgency of election petition

1. Giving directions on order of witnesses to be called and such documents to be tendered by each party to prove their cases.

2. Fixing clear dates for hearing of the petition

Para3(1)&(2) PD

ORDERS THE TRIB MAY MAKE AT CONF

At the pre- hearing session the Trib/Court shall enter a scheduling order for:

1. Joining other parties to the petition

2. Amending petition or reply or any other process (as allowed by law)

3. Filing and adopting of written addresses on all interlocutoryapplication

4.Additional pre-hearing sessions

5.Order of witnesses and tendering of documents

6.Any other matter that will promote quick disposal of the petition.

Para3(6)

• For othr actions that the Trib/Ct can take and other rules relating to the conference see Para 3 PD generally.

HEARING

• Petition shall be heard and determined in open court. Par18 Rules

• The petitioner shall prove his case to satisfaction of Trib/Ct in accordance with the pet oe reply. Kudu V Aliyu (1992)3NWLR(Pt231)615

• Allegations of crime to be proved beyond reasonable doubt. Nwobodo V Onoh; Omoboriowo V Ajasin

• Facts shall be proved by written depositions and oral examination of witnesses in open court. Para4(1) PD

• No oral exam of a witness during hie evidence- in- chief save to lead him to adopt his written deposition and tender documents mentioned therein. Para4(3) PD

• Docs and exhibits admitted by consent of parties at pre hearing sessions shall be tendered from the bar or by the party. Para4(2)

• Parties are required to file written address

• See Para5(11-14) for time for filing address

• For the order and procedure at hearing including see generally Para5 PD

TIME FOR CONCLUDING HEARING

• Note that the Act does not stipulate time limit for hearing a petition but it enjoins the Trib/ Ct to give it accelerated hearing.

S.148 of the Act.

JUDGEMENT

• Upon conclusion of evidence and address, tribunal/court adjourns to a definite date for judgment.

• The Tribunal/court may allow or dismiss the petition i.e. may declare the election void or declare a particular candidate duly elected or retuned; the tribunal may also award cost.

• Immediately the judgment of the tribunal is delivered, the Judge shall certify it to the Electoral Commission

• Where a candidate’s election has been nullified by the trial Election Tribunal, the candidate retains his seat until the Court of Appeal delivers a final decision. If the Court of Appeal upholds the nullification of the election by the trial tribunal, the candidate automatically forfeits his seat until a bye-election is held. Section 149(1) Electoral Act

APPEALS

• Appeals from Governorship and Legislative Houses Election Tribunal &National Assembly Election Tribunal lie to the Court of Appeal. S.246(1)(b)

• The decision of the C/A in respect of appeals from election petition is final. Section 234 99’ Const, Awuse v. Odili (2003) 18 NWLR

(Pt.851) 116, Onaguluchi v. Ndu (2001) 7 NWLR (Pt.712) 309.

Q Does this include appeals from S.246(1)(b)(iii) Const?

•

• In respect of the Area Council Election Tribunal of FCT, appeals lie to the Area Council Election Appeal Tribunal and the decision of the Appeal Tribunal is final. S.143(1)&(2) of the Act. (Equivalent provisions exist in the various state laws with respect to Local Government Election Tribunals)

• In respect of the Presidential or Vice Presidential election, appeal lies from the decision of the Court of Appeal to the Supreme Court. The decision of the Supreme Court is final. S.235 Const.

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