A CLOSER LOOK AT THE UNIQUE JURISPRUDENCE OF ELECTION PETITIONS By Ademola A. Adewale
Election Petitions are unique judicial proceedings that do not conform to regular civil proceedings they are thus regarded as Sui generis - "(Latin; of its own kind) "or its own kind or class, unique or peculiar". This peculiarity is of course understandable, election petitions being a mix of legality and politics, two usually distinct realms, die one being the exclusive preserve of the law the other a realm from which the law normally stays away because it is impolitic or inexpedient to take jurisdiction. "And because the Courts have neither the experience wisdom, facilities nor responsibility to undertake political matters". A.G. fed VAG Abia State (2001) 7S. C. (pt 1) 32 at 107/108.
Indeed, these political matters are matters that our "Constitution has left the performance of many duties in our governmental scheme to depend on the fidelity of the executive and legislative action, and ultimately on the vigilance of the people in exercising their political rights". Per Justice Frankfurter - US. Supreme Court m South V. Peters 339 U. S. 276 (1950).
Thus normally it is of no moment to the Courts whether the Peoples Democratic Party POP wins the Presidential Election as opposed to the All Nigerian Peoples Party ANPPP, The Action Congress, the A. C. makes a clean sweep of the House Assembly seats in Lagos State or whether the PDP presents Rotimi Amaechi or Celestine Omeiha in River State or Ugwu instead of Araraume in Imo State as its Governorship candidate.
But in the knowledge that justifiable disputes are bound to arise in otherwise strictly political matters such as whether a candidate was duly returned or whether an election was duly held. Section 140(1) of the Election Act 2006, Whether a candidate for election by a party was validly substituted for Cogent and Verifiable reasons - Section 34(2) of the Electoral Act, whether a candidate was validly returned as the President of the Federal Republic of Nigeria - Section 134 of the Constitution, whether in fact a person was qualified to run for the office of President, Governor, Senate, House of Representatives, State House of Assembly etc. Whether a person was validly elected into both the National Assembly or State House of Assembly, as Governor, whether the term of office of a Governor has ceased and such other questions which may affect the nation's interest in such areas as defence public safety, public order or public morality were vested in die court particularly the Election Tribunals under section 246 and 285 and other relevant Sections of our Constitution and the Electoral Acts.
The above thus lays the necessary legal frame work for the Court to dabble into matters mat are naturally sensitive and volatile with predictable results: a mixed bag of kudos and knocks.
This essay will attempt to examine some of the more contentious aspects of the jurisprudence of Election Petitions.
Duration of Election Petition
This has been a lot of debate not just in recent times but from the 2nd Republic i.e 5979 -1983 when Nigeria first practiced the Presidential system of Government on the desirability of having a fixed period to conclude the hearing of Election Petitions arid other related matters. It is worth noting that the celebrated case of Awolowo V Shagari (1979) 6 - 9 S. C (Reprint) 37 took less than 3 months from hearing of Petitions and the appeal to determine. And both stages of proceedings were concluded before the swearing in of the President. When under that dispensation the legality of a time frame for determining an election Petition came up for the Consideration under sections 129(3) and 140(2) of Electoral Act 1982 which gave a time limit of 30 days to determine Petitions. The Supreme Court was clearly of the view that the setting of a time limit for the determination of an election Petition was unconstitutional. Unongo V. Aku (1983) 14 NSCC 563 @ 567. The Supreme Court held "Any electoral enactment which specified a time constraint on the Court to determine an election Petition ............... is to say the least very absurd and indeed defeats the intention of the Constitution and the Electoral Act itself, which is to enable an aggrieved candidate to an election seek redress in Court".
However, Political events that have arisen from the 2003 till elections till date have made many scholars and stakeholders to question the wisdom of not having a time-frame within which to conclude the hearing of election Petitions, appeals inclusive.
In Anambra State it took almost 3 years to conclude the election Petition into the Anambra State Gubernatorial Post in April 2003, while Chris Ngige was sworn in on May 29 2003, Peter Obi only succeeded in his Petition and was sworn in as Governor on 17th March 2006.
The Presidential Election petition brought by General Buhari (Rtd) against President Olusegun Obasanjo's election lasted 19 months while the Appeal lasted another 7 months thus leaving about 26 months to conclude.
Mindful of the havoc caused by the inordinate delays the Appeal Court with a view to fast -tracking the process of the election petitions to ensure that petitions are determined timeously to prevent a situation where a person who validly won an election is only able to spend only a fraction of the period of the mandate given to him by the electorate or eats deep into another person mandate. The Court of Appeal issued the Election Tribunal and Court Practice Directions No 1 and 2 of 2007. "E P. D 2007". The major features of E. P. D. 2007 which is fashioned after the Lagos State Civil Procedure Rules 2004 include:
1. The front-loading: attachment - of all Court processes and relevant documents from inception.
2. The elimination of long winded rendition of evidence by scores of witness
3. The elimination of stay of proceedings pending interlocutory appeals.
4. Statutory abridgment of time in the filing of Court processes.
All these drastic measures have not done much to improve the speedy hearing and determination of Election petitions
Abubakar V Yaradua (2008) 1 S. C. (Pt 1) 77
The Election Petitions in several states are yet to be concluded: in Oyo State the Appeal Tribunal has just determined the Election Petition Appeal in September 2008.
The petitions in Osun, Ondo, Edo and Ekiti are still on appeal, while the Presidential Elections Petition is still on appeal at the Supreme Court.
Accelerated Hearing of Petitions
In view of the "Perishable" nature of me various public offices into which elections are held: most constitutional offices from the State House of Assembly to the President have a tenure of 4 years, and the fact the interest of communities (Wards, Local Government Area even Senatorial Zones), States and the whole nation are affected by the verdict of an election petition. Thus in section 148 of the Electoral Act of 2006,- election petitions "shall be given accelerated hearing and shall have precedence over all other cases or matters before the Tribunal or Court". Yet as already pointed this statutory provisions in addition to the recently introduced fast-track procedure has not substantially improved the average time for the determination of Election Petitions. In the circumstances many look back with nostalgia on the Awolowo V Shagari situation where the election petition was disposed off promptly, while others make romantic reference to the Bush V Gore situation in America in the year 2000 when in spite of contentious dispute over electoral votes in some parts of Florida, the U- S. Supreme Court was able to resolve the dispute well before the 21st January 2001 swearing-in date for the U. S. President for an election that took place on the first Tuesday of November 2000.
Thus there are increased calls for a definite timetable to resolve election disputes similar to sections 129(3) and 140 (2) of the 1982 (8) which prescribed a definite time - frame for disposing off Election Petitions but were held to be unconstitutional and a fetter to a citizen's right to fully ventilate his electoral grievance in Unongo V Aku (1983) 14 NSCC. 563.
Attractive as these arguments are they only represent one side of the coin: To start with, comparisons to either the past or other jurisdictions may be more theoretical than practical, in 1979 there were only 19 states and fewer local government to the present 36 states and the Federal Capital Territory and 773 local governments (with the exclusion of Bakassi) it might not be realistic to expect that Election Petitions will be so easily concluded as they were between) 1979 - 1983.
Even the reference to the U. S. may not be appropriate, the 2000 Electoral dispute was a much localized one: only the State of Florida out of a total of 50 constituent
units and then only to a number of Counties at best the size of a Senatorial District, even then it took several weeks for the U. S Supreme Court to resolve the dispute. Till date the Bush V Gore Verdict just like the earlier Nigerian Supreme Court decision of Awolowo V Shagari has not gone down well with a cross section of the American populace just like the Nigerian decision remains permanently contentious.
On the other hand the Constitutional and Statutory preference given to Election Petitions over other matters is not always "defensible", a litigant whose constitutional right perhaps to liberty is being threatened is not likely to be impressed that his application to enforce his fundamental right or his application to bail cannot be taken because the Court is fully engaged for the time being with election petitions neither can the man whose buildings is being threatened with demolition nor the man who has been ordered to pay N10 million but cannot afford N1 million be happy that his motion for interlocutory injunction or stay of execution respectively cannot be accommodated by the Court because the judge is away on election petition matters. In fact for this class of citizens, who are in the majority, the creed that the Court is the last hope of the common man sounds very hollow and unconvincing. It is very tempting for these citizens to walk away believing that justice is actually for the "big man" - the Gubernatorial, House of Assembly, Senate and House of Representatives candidate and not himself the “common man”
Persons elected being sworn in while petition is pending or remaining in office pending determination of the appeal.
One of me most controversial aspects of Election Petition jurisprudence is the transitional provisions that allows a person declared the victorious candidate to be sworn-in pending the hearing and determination of the election petition against him and the other allowing a person whose electoral victory has been a declared a nullity to remain in office while he prosecutes the appeal against the nullification of his election. This has happened in several places in Lagos State, in Adamawa State, in Ondo and Edo States and also in respect of the Senate President's seat before the Appeal Tribunal confirmed the senate President's electoral victory.
Many wonder why a person whose electoral mandate is still subject to judicial challenge should either assume office or continue in office and in fact once in office use public funds to prosecute or defend has questionable electoral mandate and in fact utilize a dubious or fraudulent electoral mandate to govern the people. The case of Dr. Chris Ngige in Anambra State who continued in office as Governor for almost 3 years before his fraudulent electoral mandate was nullified is cited as a classic illustration of this aberration.
The legality of this "transitional or transient provisions designed to take care of a contingency" which will definitely phase out or fade away on the completion of the election petition on appeal "was tested in Buhari V. Obasanjo (2003) 11 S. C. 74 Where the Applicant by a motion for Interlocutory injection sought to restrain the 1st Respondent from being sworn in as President of the Federal Republic of Nigeria pending the determination of the Election Petition against the 1st Respondent had argued that based on certain Obiter dicta in the case of Obih V. Mbakwe (1984) 1 SCNLR 192 that where an election is challenged in a Court of
law the person declared the winner cannot take office until completion of the hearing and determination of the election Petition challenging such an election.
The Supreme Court had roundly rejected such an argument holding that the view quoted from the Obih V. Mbakwe about the inability of the declared winner being able to take office until the completion of the election petition as mere Obiter and not the Ratio of the Obih V. Mbakwe case. Most importantly, the constitution should not be construed to give meaning that will create an embarrassing anomaly that can result in the vacuum of any office or cause serious crisis in the polity".
Thus Section 138 of the Electoral Act 2002 which is the equivalent of Section 149 of me Electoral Act 2006 was held to be legal and constitutional.
In view of this subsisting decision of the Supreme Court in Buhari V. Obasanjo (2003) U.S. C. 74, are me complaints against sitting Presidents, governors or law makers whose electoral victories are under legal challenge valid?
Election Petitions are unique judicial proceedings that do not conform to regular civil proceedings they are thus regarded as Sui generis - "(Latin; of its own kind) "or its own kind or class, unique or peculiar". This peculiarity is of course understandable, election petitions being a mix of legality and politics, two usually distinct realms, die one being the exclusive preserve of the law the other a realm from which the law normally stays away because it is impolitic or inexpedient to take jurisdiction. "And because the Courts have neither the experience wisdom, facilities nor responsibility to undertake political matters". A.G. fed VAG Abia State (2001) 7S. C. (pt 1) 32 at 107/108.
Indeed, these political matters are matters that our "Constitution has left the performance of many duties in our governmental scheme to depend on the fidelity of the executive and legislative action, and ultimately on the vigilance of the people in exercising their political rights". Per Justice Frankfurter - US. Supreme Court m South V. Peters 339 U. S. 276 (1950).
Thus normally it is of no moment to the Courts whether the Peoples Democratic Party POP wins the Presidential Election as opposed to the All Nigerian Peoples Party ANPPP, The Action Congress, the A. C. makes a clean sweep of the House Assembly seats in Lagos State or whether the PDP presents Rotimi Amaechi or Celestine Omeiha in River State or Ugwu instead of Araraume in Imo State as its Governorship candidate.
But in the knowledge that justifiable disputes are bound to arise in otherwise strictly political matters such as whether a candidate was duly returned or whether an election was duly held. Section 140(1) of the Election Act 2006, Whether a candidate for election by a party was validly substituted for Cogent and Verifiable reasons - Section 34(2) of the Electoral Act, whether a candidate was validly returned as the President of the Federal Republic of Nigeria - Section 134 of the Constitution, whether in fact a person was qualified to run for the office of President, Governor, Senate, House of Representatives, State House of Assembly etc. Whether a person was validly elected into both the National Assembly or State House of Assembly, as Governor, whether the term of office of a Governor has ceased and such other questions which may affect the nation's interest in such areas as defence public safety, public order or public morality were vested in die court particularly the Election Tribunals under section 246 and 285 and other relevant Sections of our Constitution and the Electoral Acts.
The above thus lays the necessary legal frame work for the Court to dabble into matters mat are naturally sensitive and volatile with predictable results: a mixed bag of kudos and knocks.
This essay will attempt to examine some of the more contentious aspects of the jurisprudence of Election Petitions.
Duration of Election Petition
This has been a lot of debate not just in recent times but from the 2nd Republic i.e 5979 -1983 when Nigeria first practiced the Presidential system of Government on the desirability of having a fixed period to conclude the hearing of Election Petitions arid other related matters. It is worth noting that the celebrated case of Awolowo V Shagari (1979) 6 - 9 S. C (Reprint) 37 took less than 3 months from hearing of Petitions and the appeal to determine. And both stages of proceedings were concluded before the swearing in of the President. When under that dispensation the legality of a time frame for determining an election Petition came up for the Consideration under sections 129(3) and 140(2) of Electoral Act 1982 which gave a time limit of 30 days to determine Petitions. The Supreme Court was clearly of the view that the setting of a time limit for the determination of an election Petition was unconstitutional. Unongo V. Aku (1983) 14 NSCC 563 @ 567. The Supreme Court held "Any electoral enactment which specified a time constraint on the Court to determine an election Petition ............... is to say the least very absurd and indeed defeats the intention of the Constitution and the Electoral Act itself, which is to enable an aggrieved candidate to an election seek redress in Court".
However, Political events that have arisen from the 2003 till elections till date have made many scholars and stakeholders to question the wisdom of not having a time-frame within which to conclude the hearing of election Petitions, appeals inclusive.
In Anambra State it took almost 3 years to conclude the election Petition into the Anambra State Gubernatorial Post in April 2003, while Chris Ngige was sworn in on May 29 2003, Peter Obi only succeeded in his Petition and was sworn in as Governor on 17th March 2006.
The Presidential Election petition brought by General Buhari (Rtd) against President Olusegun Obasanjo's election lasted 19 months while the Appeal lasted another 7 months thus leaving about 26 months to conclude.
Mindful of the havoc caused by the inordinate delays the Appeal Court with a view to fast -tracking the process of the election petitions to ensure that petitions are determined timeously to prevent a situation where a person who validly won an election is only able to spend only a fraction of the period of the mandate given to him by the electorate or eats deep into another person mandate. The Court of Appeal issued the Election Tribunal and Court Practice Directions No 1 and 2 of 2007. "E P. D 2007". The major features of E. P. D. 2007 which is fashioned after the Lagos State Civil Procedure Rules 2004 include:
1. The front-loading: attachment - of all Court processes and relevant documents from inception.
2. The elimination of long winded rendition of evidence by scores of witness
3. The elimination of stay of proceedings pending interlocutory appeals.
4. Statutory abridgment of time in the filing of Court processes.
All these drastic measures have not done much to improve the speedy hearing and determination of Election petitions
Abubakar V Yaradua (2008) 1 S. C. (Pt 1) 77
The Election Petitions in several states are yet to be concluded: in Oyo State the Appeal Tribunal has just determined the Election Petition Appeal in September 2008.
The petitions in Osun, Ondo, Edo and Ekiti are still on appeal, while the Presidential Elections Petition is still on appeal at the Supreme Court.
Accelerated Hearing of Petitions
In view of the "Perishable" nature of me various public offices into which elections are held: most constitutional offices from the State House of Assembly to the President have a tenure of 4 years, and the fact the interest of communities (Wards, Local Government Area even Senatorial Zones), States and the whole nation are affected by the verdict of an election petition. Thus in section 148 of the Electoral Act of 2006,- election petitions "shall be given accelerated hearing and shall have precedence over all other cases or matters before the Tribunal or Court". Yet as already pointed this statutory provisions in addition to the recently introduced fast-track procedure has not substantially improved the average time for the determination of Election Petitions. In the circumstances many look back with nostalgia on the Awolowo V Shagari situation where the election petition was disposed off promptly, while others make romantic reference to the Bush V Gore situation in America in the year 2000 when in spite of contentious dispute over electoral votes in some parts of Florida, the U- S. Supreme Court was able to resolve the dispute well before the 21st January 2001 swearing-in date for the U. S. President for an election that took place on the first Tuesday of November 2000.
Thus there are increased calls for a definite timetable to resolve election disputes similar to sections 129(3) and 140 (2) of the 1982 (8) which prescribed a definite time - frame for disposing off Election Petitions but were held to be unconstitutional and a fetter to a citizen's right to fully ventilate his electoral grievance in Unongo V Aku (1983) 14 NSCC. 563.
Attractive as these arguments are they only represent one side of the coin: To start with, comparisons to either the past or other jurisdictions may be more theoretical than practical, in 1979 there were only 19 states and fewer local government to the present 36 states and the Federal Capital Territory and 773 local governments (with the exclusion of Bakassi) it might not be realistic to expect that Election Petitions will be so easily concluded as they were between) 1979 - 1983.
Even the reference to the U. S. may not be appropriate, the 2000 Electoral dispute was a much localized one: only the State of Florida out of a total of 50 constituent
units and then only to a number of Counties at best the size of a Senatorial District, even then it took several weeks for the U. S Supreme Court to resolve the dispute. Till date the Bush V Gore Verdict just like the earlier Nigerian Supreme Court decision of Awolowo V Shagari has not gone down well with a cross section of the American populace just like the Nigerian decision remains permanently contentious.
On the other hand the Constitutional and Statutory preference given to Election Petitions over other matters is not always "defensible", a litigant whose constitutional right perhaps to liberty is being threatened is not likely to be impressed that his application to enforce his fundamental right or his application to bail cannot be taken because the Court is fully engaged for the time being with election petitions neither can the man whose buildings is being threatened with demolition nor the man who has been ordered to pay N10 million but cannot afford N1 million be happy that his motion for interlocutory injunction or stay of execution respectively cannot be accommodated by the Court because the judge is away on election petition matters. In fact for this class of citizens, who are in the majority, the creed that the Court is the last hope of the common man sounds very hollow and unconvincing. It is very tempting for these citizens to walk away believing that justice is actually for the "big man" - the Gubernatorial, House of Assembly, Senate and House of Representatives candidate and not himself the “common man”
Persons elected being sworn in while petition is pending or remaining in office pending determination of the appeal.
One of me most controversial aspects of Election Petition jurisprudence is the transitional provisions that allows a person declared the victorious candidate to be sworn-in pending the hearing and determination of the election petition against him and the other allowing a person whose electoral victory has been a declared a nullity to remain in office while he prosecutes the appeal against the nullification of his election. This has happened in several places in Lagos State, in Adamawa State, in Ondo and Edo States and also in respect of the Senate President's seat before the Appeal Tribunal confirmed the senate President's electoral victory.
Many wonder why a person whose electoral mandate is still subject to judicial challenge should either assume office or continue in office and in fact once in office use public funds to prosecute or defend has questionable electoral mandate and in fact utilize a dubious or fraudulent electoral mandate to govern the people. The case of Dr. Chris Ngige in Anambra State who continued in office as Governor for almost 3 years before his fraudulent electoral mandate was nullified is cited as a classic illustration of this aberration.
The legality of this "transitional or transient provisions designed to take care of a contingency" which will definitely phase out or fade away on the completion of the election petition on appeal "was tested in Buhari V. Obasanjo (2003) 11 S. C. 74 Where the Applicant by a motion for Interlocutory injection sought to restrain the 1st Respondent from being sworn in as President of the Federal Republic of Nigeria pending the determination of the Election Petition against the 1st Respondent had argued that based on certain Obiter dicta in the case of Obih V. Mbakwe (1984) 1 SCNLR 192 that where an election is challenged in a Court of
law the person declared the winner cannot take office until completion of the hearing and determination of the election Petition challenging such an election.
The Supreme Court had roundly rejected such an argument holding that the view quoted from the Obih V. Mbakwe about the inability of the declared winner being able to take office until the completion of the election petition as mere Obiter and not the Ratio of the Obih V. Mbakwe case. Most importantly, the constitution should not be construed to give meaning that will create an embarrassing anomaly that can result in the vacuum of any office or cause serious crisis in the polity".
Thus Section 138 of the Electoral Act 2002 which is the equivalent of Section 149 of me Electoral Act 2006 was held to be legal and constitutional.
In view of this subsisting decision of the Supreme Court in Buhari V. Obasanjo (2003) U.S. C. 74, are me complaints against sitting Presidents, governors or law makers whose electoral victories are under legal challenge valid?
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