EXAMINING SALIENT ISSUES ON THE ELECTORAL ACT 2011

*AKIN OLAWALE OGUNDAYISI

ABSTRACT

Electoral laws are indispensable to any democratic government

because it forms the basis of its legitimacy. It is the

foundation upon which good governance is built. The Constitution

of the Federal Republic of Nigeria is the supreme document which

most times serves as the basic source of other laws1. Thus, the

Constitution empowers the National Assembly to make law governing

the affairs of the state2. In line with this provision, the

legislature3 deemed it fit to amend the 1999 Constitution and the

Electoral Act 2006. Thus, the current review had amended some

provisions relating to election process in Nigeria. The current

1*LL.B(Hons), LL.M, B.L, ACIArb., Partner, Benakol Consulting, Abuja;07038211889; akinben66@yahoo.com Where any other law is inconsistent with the provisions of the Constitution,the Constitution shall prevail and that other law shall to the extent of itsinconsistency be void- Section 1(3) 1999 Constitution (as amended).2 Section 4 of the 1999 Constitution (as amended)3 Both National and State House of Assembly

electoral law is that of Electoral Act 20104 and also the 1999

Constitution of Federal Republic of Nigeria5

This paper examines the salient issues arising from the extant

legal framework for electoral process and election petition in

Nigeria. The main focus is to analyze the peculiarities of the

Electoral Act 2011 and how it could assist good governance if the

necessary political will is given for its total implementation.

INTRODUCTION

The Constitution of the Federal Republic of Nigeria is the

supreme document which most times serve as the basic source of

other laws. Where any other law is inconsistent with the

provisions of the constitution, the constitution shall prevail

and that other law shall to the extent of its inconsistency be

void. Thus, the constitution empowers the National Assembly to

make law governing the affairs of the state. In line with this

provision, the legislature6 deemed it fit to amend the 19994 (as amended) as at December 29th 20105 (amended) as at 10th January 20116*LL.B(Hons), LL.M, B.L, ACIArb., Principal Partner, Benakol Consulting,Abuja; 07038211889; akinben66@yahoo.com both National and State House of Assembly

Constitution and the Electoral Act 2006. Thus, the current review

had amended some provisions relating to election process in

Nigeria. The current electoral law is that of Electoral Act

20107. Similarly, the 1999 Constitution of Federal Republic of

Nigeria8 has the extant provisions on electoral institutions and

procedure for petition in Nigeria. Thus, the Federal Republic of

Nigeria is a democratic state and can only be governed by any

person or group of persons in accordance with the provisions of

the constitution and current electoral law for the time being in

force.

The extent of this study is to understand the scope of electoral

law in Nigeria, the applicable legislations and rules as well as

the procedure for instituting election petitions in Nigeria under

the new law. The innovations under the Electoral Act shall be

made explicit as different from what obtained under the former

regime.

ESTABLISHMENT OF THE COMMISSION

7 (as amended) as at December 29th 20108 (amended) as at 10th January 2011

The INEC is an establishment of the 1999 Constitution. Section

1(1) of the Electoral Act 2010 (as amended) provides that the

Commission shall be a body corporate with perpetual succession

and may sue and be sued in its corporate name. Contrary to this

provision, the commission only allows itself to be sued rather

than sue especially where there is report of electoral

malpractices and fraud. To shy away from this duty might not

augur well for Nigerian democracy9.

Section 3 further provides for the establishment of INEC Fund.

There shall be paid into the fund established in pursuance to

subsection (i) of this section such sums and payments, aids and

grants available to the Commission for carrying out its functions

and purposes under the Constitution and this Act and all other

assets from time to time accruing. This provision seems to be

enough to ensure the independence of the commission in terms of

finance. However, a lot depend on Executive approval of fund made

available to the commission10.

9 See Electoral Law Reforms and Constitutionalism in Nigeria: Essays in Honourof Justice James Ogebe (JSC) (rtd) edited by Akin Olawale Ogundayisi publishedMarch 2010.10 Sec. 3(2) (a).

The office of INEC is also established in each state of the

Federation and Federal Capital Territory by virtue of Section

7(1) of the Act. The functions of these state offices are those

that may be assigned to it from time to time by the commission.

POWERS AND FUNCTIONS OF THE COMMISSION

Constitutionally, the INEC shall have power to:

(a) organize, undertake and supervise all elections

to the offices of the president and vice-

president, the Governor and Deputy Governor of a

state, and to the membership of the Senate, the

House of Representatives and the House of Assembly

of each State of the Federation;

(b) register political parties in accordance with

the provisions of this constitution and an Act of

the National Assembly;

(c) monitor the organization and operation of the

political parties including their finances;

(d) arrange for the annual examination and auditing

of the fund and accounts of political parties, and

publish a report on such examination and audit for

public information;

(e) arrange and conduct the registration of persons

qualified to vote and prepare, maintain and revise

the register of voters for the purpose of any

election under this constitution;

(f) monitor political campaigns and provide rules

and regulations which shall govern the political

parties;

(g) ensure that all Electoral Commissioners,

Electoral and Returning Officers take and

subscribe the oath of office prescribed by law;

(h) delegate any of its powers to any Resident

Electoral Commissioner, and

(i) carry out such other functions as may be

conferred upon it by an Act of the National

Assembly.

In line with the above provision, the Electoral Act provides an

additional power or functions to the commission. The Commission

is empowered to conduct voter and civic education; promote

knowledge of sound democratic election processes and conduct any

referendum required to be conducted pursuant to the provisions of

the 1999 constitution or nay other law, Act of the National

Assembly.

ESTABLISHMENT OF ELECTION PANELS AND TRIBUNALS

Election tribunals are judicial bodies set up to adjudicate

disputes arising from the conduct of the elections. Section

133(1) of the Electoral Act 2010 (as amended) provides that:

“No election and return at an election under this Act shall be questioned in any

manner other than by a petition complaining of an undue election or undue return

(in this Act referred to as an “Election Petition”) presented to the competent

tribunal or court in accordance with the provision of the constitution or of this Act,

and in which the persons elected or returned is joined as a party.”

The peculiarity of election tribunal also attracts the special

provision in the 1999 Constitution. The Constitution expressly

provides that the chairman and other members shall be appointed

by the president of court of appeal pursuant to paragraph 2(2) of

the 6th Schedule to the 1999 Constitution (as amended). The

appointed members are posted to jurisdictions which differ from

their state of origin. This will surely ensure fairness and

emotional detachment from the issues involved in the election.

It is significant to note that the Act provides for various

levels of tribunals or court vested with jurisdiction to hear and

determine election petitions. Accordingly, Section 133(1) of the

Electoral Act 2010 provides that “tribunal or court” means-

(a) In the case of presidential election, the court of

appeal; and

(b) In the case of any other elections under this Act, the

Election Tribunal established by the Constitution or by

this Act.

Thus, a broad understanding of this provision coupled with the

provision of the constitution vest the following courts with the

jurisdiction to determine election petitions. The election

tribunal shall be constituted not later than 14 days before the

election and when constituted, open their registries for business

7 days before the election11.

(A) Court of Appeal

The combined effect of the provision of Section 133(1)(a) of the

Electoral Act 2010 (as amended) and Section 239 of the 1999

Constitution is to vest in the court of appeal original and

appellate jurisdiction to the exclusion of any other court in

Nigeria to determine any matter in relation to whether any person

has been validly elected to the office of president or vice-

president under the constitution or the term of office of the

president or vice-president has ceased or the office of the

president or vice-president has become vacant. As it has been

categorized by Joshua E. Alobo12, the court of Appeal is

therefore vested with three kinds of jurisdictions namely:

i. Jurisdiction over election matters

ii. Post election matters

iii. The Appellate Jurisdiction.

11 See section 133(2) of Electoral Act 2010.12 Joshua E. Alobo, Election Petition in Nigeria: Cases and Materials 2007 atp.9

It must be borne in mind that no appeal lies to the Court of

Appeal from decisions of Local Government Election Tribunals,

being a Tribunal established by the States Houses of Assembly and

not a Federal law. This was one of issues that came up for

determination in Kwara State I.E.C. v. P.D.P. The appeal to the

Court of Appeal was that the case was against a ruling of the

Kwara State Local Government Election Tribunal established

pursuant to the Local Government Electoral Law, No. 2 of 2004

enacted by the Kwara State House of Assembly. The appellant filed

a motion on notice for leave to use the bundle of documents

therein compiled as the record of appeal. The respondent raised a

preliminary objection on the ground that the Local Government

Electoral Law, No. 2 not being a Federal enactment does not

confer jurisdiction on the Court of Appeal. Having allowed the

motion, the court raised the issue of jurisdiction and called on

counsel’s address on it. The court, in rejecting the appellant’s

argument that Local Government Election Tribunal came within the

jurisdiction of the Court of Appeal made reference to sections

240 and 246 of the 1999 constitution which provides:

Section 246 (1) –

“An appeal to the Court of Appeal shall lie as of right

from (a) decisions of the Code of Conduct Tribunal

established in the fifth schedule to this constitution,

(b) decisions of the National Assembly Election

Tribunals and Governorship and Legislative Houses

Election Tribunals…..”

Subsection 2 provides that the National Assembly may confer

jurisdiction upon the Court of Appeal to hear and determine

appeals from any decision of any other court of law or tribunal

established by the National Assembly. The court held that the

Local Government Electoral Law No. 2 which purportedly conferred

jurisdiction on the Court of Appeal from the decisions of the

Local Government Election Tribunal is a nullity. This is true in

the light of constitutional provision which only confer

jurisdiction on the Court of Appeal. Therefore, a law passed by a

State House of Assembly cannot validly confer jurisdiction on the

Court of Appeal.

(B) The National and State House of Assembly Election

Tribunals

This is created by virtue of Section 285(1) of 1999 Constitution

(as amended). It provides that there shall be established for the

Federation one or more election tribunals to be known as the

National and State House of Assembly Election Tribunals which

shall, to the exclusion of any court or tribunal, have original

jurisdiction to hear and determine petitions as to whether any

person has been validly elected as a member of the National

Assembly or State House of Assembly. The tribunal shall consist

of a Chairman and two other members. The Chairman shall be a

Judge of a High Court and the two other members shall be

appointed from among Judges of a High Court, Kadis of a Sharia

Court of Appeal, Judges of a Customary Court of Appeal or other

members of the judiciary not below the rank of a Chief

Magistrate. The Chairman and other members shall be appointed by

the President of the Court of Appeal in consultation with the

Chief Judge of the State, the Grand Kadi of the Sharia Court of

Appeal or the President of Customary Court of Appeal of the State

as the case may be.

The quorum of the tribunal shall be the Chairman and one other

member.

(C) The Governorship Election Tribunals

These tribunals exist for Governorship Election (Governor and

Deputy Governor). Section 285(2) of 1999 Constitution (as

amended) provides for this. It must be borne in mind that there

is no overlapping of any sort between the jurisdiction of

National Assembly and House of Assembly Election Tribunal and the

Governorship Election Tribunal under the reviewed constitution

and Electoral Act. This was earlier established in Olatunji v.

Akande where the court of appeal held that other “tribunals”

referred to include the tribunals established by section 285 of

the constitution to which section 246 thereof relates. Thus,

“the National Assembly Election Tribunals and the Governorship and Legislative Houses

Election Tribunals; the jurisdiction of these two tribunals does not in any way overlap”.

The tribunal shall consist of a Chairman and two other members.

The Chairman shall be a Judge of a High Court and the two other

members shall be appointed from among Judges of a High Court,

Kadis of a Sharia Court of Appeal, Judges of a Customary Court of

Appeal or other members of the judiciary not below the rank of a

Chief Magistrate. The Chairman and other members shall be

appointed by the President of the Court of Appeal in consultation

with the Chief Judge of the State, the Grand Kadi of the Sharia

Court of Appeal or the President of Customary Court of Appeal of

the State as the case may be13.

(D) Local Government Election Petition Tribunals

The controversy as to which tier of government has power to

establish the above tribunal has been resolved by the Supreme

Court in favour of state government as held in A.G. of Abia State

v. A.G. Federation14. Every State Government have the power to

establish the Election Petition Tribunal by law of the State

House of Assembly. However, the Federal Government through the

13 Unlike what use to be the case prior to the amendment, the quorum of thetribunal shall be the Chairman and one other member.

14 (2002) 3 SCNJ 158

Act of National Assembly has inherent power to establish Local

Government Election Petition Tribunal for the Federal Capital

Territory (FCT) pursuant to the decision in A.G. of Abia v. A.G.

Federation15.

(E) Area Council Election Tribunal (ACET)

This is established for the FCT to exclusively hear and determine

appeals arising from the decisions of the Area Council Election

Tribunal. In line with the decision of the court in A.G. of Abia

State v. A.G. Federation section 135(1) of the Electoral Act 2010

expressly provides that:

“There shall be established for the Federal Capital Territory one

or more Election Tribunal (in this Act referred to as the Area

Council Election Tribunal) which shall, to the exclusion of any

other court or tribunal have original jurisdiction to hear and

determine any question as to whether;

“Any person has been validly elected to the office of

chairman, vice-chairman or councillor,

the terms of office of any person elected to the office of

chairman, vice-chairman or councillors has ceased;

15 Ibid.

the seat of a member of an Area Council has become vacant;

and

A question or petition brought before the Area Council

Election Tribunal has been properly or improperly brought.”

An Area Council Election Tribunal shall consist of a Chairman and

two other members. The Chairman shall be a Chief Magistrate and

two other members shall be appointed from among Magistrates of

the Judiciary of the Federal Capital Territory, Abuja and legal

practitioners of at least 10 years post-call experience, non-

legal practitioners of unquestionable integrity or other members

of the Judiciary of the Federal Capital Territory not below the

rank of a Magistrate16.

(E) Area Council Election Appeal Tribunal (ACEAT)

This tribunal is established by section 136(1) of the Electoral

Act 2010(as amended) the exclusive jurisdiction to hear and

determine appeals arising from the decision of the Area Council

Election petition Tribunal. The Appeal Tribunal17 consists of

chairman who shall be a Judge of the High Court and two(2) other

16 See section 135(2) & (3) Electoral Act 2010 (as amended)17 Section 136(3) Electoral Act 2010

members appointed from amongst Judges of the Federal Capital

Territory judiciary not below the rank of a Chief Magistrates18.

PARTIES ENTITLED TO PRESENT ELECTION PETITION

The electoral regime expressly provides for who can sue and be

sued in election petition. Accordingly, an election petition may

be presented by three persons. These persons include; a candidate

in an election, a political party which participated in the

election, and the person whose election is complained of which is

referred to as the respondent. The law further provides for other

named officials of the electoral commission as respondent where

the petitioner complains of the conduct of such persons in their

officials capacity. They are therefore categorized as necessary

parties provided that where such officer or person is shown to

have acted as an agent of the commission, his non-joinder will not

on its own operate to void the petition if the Commission is made a

party19.

18 The quorum of the tribunal consists of the Chairman and one other member.19 The means that where the Commission, which employs the official (s) and onwhose behalf the agent acts, is properly joined, it will not be compulsory tojoin the official. This provision is impari materia with the law of agency.See section 137 Electoral Act 2010 (as amended)

What constitutes a necessary party was considered in the case of

Tafida v. Bafarawa20. The court, per Muhammad JCA held:

“A necessary party is a party who will be affected by the

decision of a court. His right will be affected either

positively or negatively, by the outcome of the case. It

therefore follows that a necessary party is a party whose

right will be affected by the orders of the court. In our

present case, Alhaji Muhammadu Modi Yabo was the Peoples

Democratic Party’s gubernatorial candidate. From every angle

one looks at the petition, one finds that he will be affected

by the outcome of the petition. If prayers 1 and 3 of the

petition succeed, he will be duly returned as the Governor of

Sokoto State. If it is prayer 4 that succeeds, the election

will be nullified and a new election ordered. It could be

seen that whatever order the tribunal makes, it will affect

him. In my considered opinion, Alhaji Muhammadu Modi Yabo is

a necessary party to the petition.”

In ANPP v. INEC21, the court reaffirmed the right of a political

party to present an election petition. It held that the

appellant, as one of the registered political parties in Nigeria

20 (1999) 4 N.W.L.R. (Part 597) 70 at 8321 (2007) All FWLR Pt. 357 p.88-915

has the right to present a petition before an election tribunal

where its candidate lost in an election. Such petition must

challenge the election or return of the successful candidate in

order to be valid under the constitution and the Electoral Act.

In that case, the appellant sought by their petition to nullify

the election or return of 11 candidates from the three senatorial

districts and eight Houses of Representatives constituencies of

Enugu State. The court, in invalidating the procedure adopted

stated that where a political party decides to challenge the

election of all candidates returned in the National Assembly

election in the whole state, the petition must deal with the

return from each constituency and pray for a separate and

distinct relief against each candidate. The position of the law

is that where an allegation of misconduct is against a particular

electoral officer, the petitioner is duty bound to join that

officer. This is premised on the principle of fair hearing22.

22 The person whose election is complained of (the successful candidate) is anecessary party (respondent) to en election petition. In Nonye v. Anyiechie,the petitioner failed to join the winner of the election in his petition. Itwas held that where the successful candidate whose election was beingchallenged in an election petition was not made the respondent, the electionwas improperly constituted and no order could be made against such candidateto invalidate the election.

The effect of non-joinder of parties to election may be

consequent upon striking out of the offending paragraphs where

allegations are made against the parties not joined. It does not

lead to the striking out of the entire petition. However, where

the allegations in the remaining petition cannot sustain the

petition after severing the offending paragraphs, it might lead

to striking out of the petition. In Oduka v. Okwaranyia, the

court struck out prayers (b) and (d) as incompetent for non

joinder of the officers as required by the law. However, in Jidda

v. Kachallah, the petition was saved except the offending

paragraphs that were invalidated. The same principle of law was

held in Orji v. Ohuabunwa. In that case, the appellant’s petition

along with two others was struck out for non-joinder of necessary

parties. Dissatisfied, the appellant appealed to the Court of

Appeal. The court held that non joinder does not necessarily make

a petition incompetent. That even if the defective paragraphs are

struck out, there are many other allegations left in the petition

that can sustain the petition if the petitioner can establish

them.

CONTENT OF ELECTION PETITION

The content of election petition is a mandatory provision by the

Electoral Act 2010 which, requires strict compliance. Rules 4 of

Rules of Procedure for Election Petition (schedule to the

Electoral Act) provides for what should be contained in an

election petition thus:

(1) An election petition under this Act shall:

(a) specify the parties interested in the election;

(b) specify the right of the petitioner to present the

election petition;

(c) state the holding of the election, the score of the

candidates and the person returned as the winner of the

election; and

(d) 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;

(2) The election petition shall be divided into paragraph each which

shall be confined to a distinct issue or major facts of the election

petition, and every paragraph shall be numbered consecutively.

(3) The election petition shall further:

a) conclude with a prayer or prayers, as for instance, that

the petitioner or one of the petitioners be declared validly

elected, or returned, having polled the highest number of

lawful votes cast at the election or that the election may be

declared nullified, as the case may be; and

b) Be signed by the petitioner or all petitioners or by the

Solicitor, if any named at the foot of the election petition.

4) At the foot of the election petition there shall also be stated an

address in which the documents intended for the petitioner may be left

and its occupier.

5) If an address for service is not stated as specified in subparagraph

(4) of this paragraph not have been filed, unless the tribunal or court

otherwise orders.

6) An election petition, which does not conform with, subparagraph (1) of

this paragraph is defective and may be struck out by the tribunal or

court.”

In Haruna v. Magaji, the court held that a petition that fails to

contain the requirement provided under paragraph 5(4) of the

schedule 6 to Decree No. 3 of 1999 is incompetent and liable to

be struck out by virtue of paragraph 5(5) to the schedule 6 to

the said Decree. Also in Effiong v. Ikpeme it was held by the

Court of Appeal to the effect that where a petition fails to

comply with the mandatory provisions of paragraph 5 Schedules 5

to Decree 36 of 1998, the petition became void and every

proceeding which was founded on it was incurably bad. However,

before such an objection is raised in a court or tribunal, the

court or tribunal may allow an amendment sought on those

mandatory requirements provided the application is made within

the time limit allowed for amendment.

In Dickson v. Balat, the petitioner/appellant challenged the

return of the 1st respondent as a member of the Senate in the

election of 12th April, 2003. The petitioner failed to state the

scores and names of the contestants. The petition did not include

the address for service and the name of the occupier. The case

was struck out for non compliance. On appeal to the Court of

Appeal, it was held per Adamu JCA at pages 296-7 as follows:

“By its second non compliance with the above rules in not

stating the votes scored by the candidates, the petition in

the instant case is riddled with defects and irregularities

and non compliance with the mandatory provisions of the said

rules which rendered it incompetent under the doctrine of non

compliance …such non compliance is also viewed or regarded as

a fundamental failure to comply with the requirement of a

statute and it is not a mere irregularity but a fundamental

vice”

In an election petition presented by more than one petitioner, it

is not a requirement of the law for all the petitioners to sign

the petition. A signature by one of the petitioners would

suffice. Thus, in Ibrahim v. Sheriff, one of the issues for

determination was whether it was necessary for the 2nd and 3rd

petitioners to sign the petition, the 1st appellant having signed

the same and whether the failure to do so is a fundamental vice

that affects the competence of the entire petition. Counsel for

the petitioner had contended that it was sufficient for any of

the three petitioners to endorse the petition. In giving its

decision, the court referred to section 14 (b) Interpretation

Act23 which provided that “words in the singular include plural

and words in the plural include the singular”. It was held that

the word “petitioner” used in Paragraph 4 (3) (b) includes the

plural while the word “all the petitioners” include the singular.

The court further held that the three petitioners need not sign

the petition to be valid. 23 CAP 192 LFN 1990

The purpose of an address in all proceedings a fortiori, election

petition, is to facilitate delivery of processes. In election

petition, the failure to supply the address for service of

process and name of the occupier transcends mere irregularity. It

is a substantial and material omission. The consequence is that

the petition is deemed not to have been filed24.

FILING OF PETITION WITHIN TIME

It is pertinent here to emphasis that the statutory provision for

the filing of petitions is a point of law and bothers on

jurisdiction which the Court ought to take note of. Where this

ground is not raised by Counsel, the Court can raise the issue of

jurisdiction suo motu. The Supreme Court has held that there is a

duty and power of the Court to raise the issue of jurisdiction

suo motu. The new amendment to the Constitution, section 285(5)

1999 Constitution (as amended) provides that:

An election petition shall be filed within twenty one(21) days

after the date of declaration of the result of the election.24 Read more from Electoral Law Reforms and Constitutionalism in Nigeria:Essays in Honour of Justice James Ogebe (JSC) (rtd) edited by Akin OlawaleOgundayisi published March 2010

The implication of filing an election petition within time

constitutes the issue for determination in the case of Agboola

Ajayi v. Olubukola25. The court also distinguished between

statutory limitation and payment of appropriate fees. The facts

of the case were that two election petitions were brought at the

lower tribunal in respect of the election into the House of

Representatives held on 21st day of April 2007 for Ese-Odo/Ilaje

Federal Constituency in which there were Seven Candidates

including Mr. Agboola Ajayi (who stood under the platform of

PDP), Omotoye Bayo (under the platform of the Labour Party) and

Prince Olubukonla Tony Ebietomiye (under the Democratic People’s

Alliance). The first of the petition namely EPT/OND/NA/19/2007

was brought by Tony Ebietomiye against Seven Respondents namely:

Agboola Ajayi, PDP, INEC and its officials, while the Second

Petition No. EPT/OND/NA/242007 was brought by Omotoye Bayo

against Eight Respondents including Ajayi Agboola, PDP, INEC and

its officials. INEC also appealed in both petitions. At the end

of the election Agboola Ajayi was returned as elected hence the

25 Unreported Suit No. EPT/OND/NA/19/2007

two aforesaid petitions. The two petitions were tried by two

different panels. At the conclusion of trial in each Panel, each

of the Panels nullified the election of Agboola Ajayi (1st

Respondent in each of the Petitions) and ordered a fresh

election. Dissatisfied with each of each of Judgments, the said

Agboola Ajayi appealed against each of the Judgment. The two

appeals and the Cross Appeal were consolidated by this Court and

taken together since it was in respect of one election and one

rerun. The court held as follows:

Filing a petition out of time, and filing one within time but

without payment of appropriate fees are two distinct and different

matters. One raises a consideration of the statute of limitation

which bares an action, thus touching on the competence of the

action itself and the jurisdiction of the court to entertain the

action. While the other does not raise the competence of the suit

and the jurisdiction of the Court, but raises a point of mere

irregularity. Statute of limitation is a total bare to an action

as a defence which makes an action that is bared under the statute

completely, absolutely and totally incompetent, and therefore

jurisdictionally unentertainable, as against an action that is

merely procedurally irregular which can be entertained upon a

prescribed cure of the irregularity…In my view, the requirement of

presentation of an election petition within 30 days from the date

of declaration of result is a mandatory creating a statute of

limitation.

The court further held that since the presentation of the

contravened the statutory provision as to time, the action is

statute barred, void and of no effect, that all proceedings based

on it and upon which they are founded including the judgment

giving rise to this appeal are also null and void and of no

effect.

The rule as to computation of time is that when time is to run

from a particular date, it starts to run immediately from the

very date it is so prescribed to run irrespective of the time of

the said date. If a result is declared say by 10 p.m. on 21st of

a month, time starts to run from that moment of declaration at 10

p.m26.

DETERMINATION OF ELECTION PETITION

26 See Electoral Law Reforms and Constitutionalism in Nigeria: Essays inHonour of Justice James Ogebe (JSC) (rtd) edited by Akin Olawale Ogundayisipublished March 2010.

The Electoral Act provides for the determination of election

petitions arising from elections27. The complaint against the

conduct of election petition can only make before court or

tribunal with competent jurisdiction. Section 138 provides

generally for grounds of petition of an election thus:

“Any election may be questioned on any of 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 was

unlawfully excluded from the election28.

However, an act or omission which may be contrary to an

instruction or directive of the commission or of an officer

appointed for the purpose of the election but which is not

contrary to the provisions of this Act shall not of itself be a

27 Part VIII running through Section 133 to 155 of Electoral At 2010 (asamended)28 Section 138 of the Act

ground for questioning the election. As to whether this provision

would be enough to invalidate an election where proved, section

146 (1) answers in the negative. It provides than an election

shall not be liable to be invalidated by reason of non-compliance

with the provisions of this Act if it appears to the Election

Tribunal or court that the election was conducted substantially

in accordance with the principles of this Act and that the non-

compliance did not affect substantially the result of the

election.

The court concluded in a similar case that the fact that election

as conducted in 86 of the 138 polling booths of the constituency

in question was not found wanting, prima facie, shows that there

was substantial compliance with the provisions of Part II of the

Electoral Act in the majority of the polling booths where the

election took place in the constituency. The burden was therefore

on the appellant to sow that the non-compliance which applied to

the 53 polling booths as found by the learned trial judge,

actually vitiated the election in the constituency as whole.

With regard to the Electoral Act 2002, on when non-compliance

with Electoral Act will not invalidate an election Uwais C.J.N.

held as follows in Buhari v. Obasanjo29:

With regard to Section 135 (1) of the Electoral Act, 2002 an

election will not be invalidated by reason of non-compliance with

the provisions of the Act if it appears that the election was

conducted substantially in accordance with the principles of the

Act and that the non-compliance did not affect substantially the

result of the election.

Pursuant to Section 46(1) of Electoral Act 2006, the court of

appeal in the case of Yar’Adua v. Buhari agreed with Buhari that

the ballot papers used were not numbered serially as required by

law but it said he failed to show that the ballot papers used did

not tally with votes cast. The court therefore held that “the

petitioner has failed to show that non-compliance substantially

affected the results of the election. However, the established

rule was departed from in a dissenting judgment of Justice Wali

Basir on the election petition between Governor Aloa Akala of

P.D.P. and Ajimobi of A.N.P.P. at the Justice Teni Yusuf-Hassan

29 (2005) All F.W.L.R (Part 258) 1604

Led Tribunal in Ibadan. In Basir’s minority judgment, he said his

departure from the majority judgment dealt with the substantial

non-compliance with the Electoral Act in the areas of over-

voting, non-accreditation, non-signing and stamping of result of

Form EC& A. According to him:

I am of the view, therefore that the petitioner, by the weight of

evidence, has established the case of non-compliance with Ea. In

all, 309 polling units were affected by the malpractice and the

petitioner has discharged the onus of proof of non-compliance by

the total number of votes invalidated by over-voting. It follows,

therefore, in this circumstance that the burden of proof has

shifted automatically to the respondent to prove that the non-

compliance complained of did not substantially affect the result

of the election.

The provisions in Section 141 of the Electoral Act 2006 and

Paragraph 14(2) of the schedule has further been subject to

judicial interpretation in the case of Yusuf v. Obasanjo where it

was held by the court of appeal that from the provisions of

paragraph 14 (2) of the first schedule to the Electoral Act No. 4

of 2002 read jointly with Section 132 of the Act, no amendment

introducing substantial or material alteration can be effected on

an election petition outside 30 days of declaration of the

result.

EFFECTS OF NON COMPLIANCE WITH THE ELECTORAL ACT

Where there is substantial non-compliance with the provisions of

Electoral Act, the petition is invalid and liable to be struck

out. For instance, Rule 4(6) of the Rules of Rules and Procedure

of Election Petition is to the effect that an election petition

which does not conform with sub-paragraph (1) of that rule or any

of the provisions of the sub paragraph is defective and may be

struck out by the Tribunal or Court. In Ojong v. Duke30, it was

held that the provisions of Paragraph 4 (1) (c) of the First

Schedule to the Electoral Act and non compliance with it in any

election petition rendered such petition void.

A general allegation of non-compliance without more is not

sufficient to invalidate an election. Accordingly, section 139

provides:

30 (2004) All FWLR Pt. 226, 363-406.

(1) An Election shall not be liable to be invalidated by reason of

non-compliance with the provisions of this Act if it appears to the

Election Tribunal or Court that the election was conducted

substantially in accordance with the principles of this Act and that

the non-compliance did not affect substantially the result of the

election.

(2) An election shall not be liable to be questioned by reason of a

defect in the title, or want of title of the person conducting the

election or acting in the office provided such a person has the

right or authority of the Commission to conduct the election.

The petitioner has to prove that the non compliance substantially

affected the result of the election. This was held in Alaikwu v.

Yaba. The facts of the case were that the appellant petitioned

the result of bye-election by reason of non compliance with the

provisions of the Electoral Act and by reasons of corrupt

practices. The court held that there are two requirements to be

satisfied if an election is not to be invalidated by reasons of

non compliance with the provisions of the Electoral Act. Firstly,

the election must have been conducted substantially in accordance

with the provisions of the Act and secondly, the non compliance

must not have substantially affected the result of the election.

The burden of satisfying the Tribunal or Court that the alleged

non compliance substantially affected the result of the election

is on the person who seeks to invalidate the election on grounds

of non compliance.

It should be noted that an act or omission may be contrary to an

instruction or directive of the Commission or of an officer

appointed for the purpose of the election but which is not

contrary to the provisions of the Act. Such act shall not itself

be a ground for questioning the election31.

JUDGMENT

The judgment of the tribunals is expected to be delivered in

writing not later than the days stipulated for it by the

constitution in the case of election petition after the

conclusion of evidence and final addressed and furnish all

parties to the cause or matter determined with duly authenticated

copies of the decision within seen days of the delivery thereof.

Unlike the general provision of the constitution regarding the

31 See section 138(2) Electoral Act 2010 (as amended).

time limit within which the judgment of a court is to be

delivered, the amended constitution provide a special limitation

of time within which election petition is to be delivered. Thus,

section 285(6) of Constitution (as amended) stated that:

An Election Tribunal shall deliver its judgment in writing within

180 days from the date of the filing of the petition.

In the same manner, an appeal from a decision of election

tribunal or court of appeal in an election matter shall be heard

and disposed of within 60 days from the date of the delivery of

the judgment of the tribunal or Court of Appeal. Certain

principles could be resolved from the provisions above. The

number of days is inclusive of weekends and public holidays.

Again, 180 days in the case of trial tribunal and 60 days on

appeal is different from 3 months and 2 months respectively and

the days begin to count from the date the petition is filed or

when the appeal is made.

The judgment of the tribunal or appeal court should comply with

the characteristic feature of a valid judgment. Besides being in

writing, it should contain decisions of the court on different

issues raised. The judgment must also analyze evidence adduced by

both parties. The ratio decidendi (reason for the decision) must

also be made out by the court. However, section 285(8) of the

1999 Constitution (as amended) gives an exception to Court of

Appeal (in case of appeal from Tribunals) and the Supreme Court,

when appeal is brought on Presidential Election Petition, to

deliver its decision and reserve its reason to later date.

APPEALS

The right of appeal from decisions of electoral tribunal is

statutory. Section 246 (1) (b) of the 1999 constitution provides:

“An appeal to the Court of Appeal shall lie as of right from decisions

of the National Assembly Election Tribunals and Governorship and

Legislative Houses Election Tribunal on any question as to whether-

i. any person has been validly elected as a member of the National

Assembly or a House of Assembly of a state under this constitution

ii. any person has been validly elected to the office of Governor or

Deputy Governor

iii. the term of office of any person has ceased or the seat of any

such person has become vacant.

In Okon v. Bob32, the notice of appeal was filed following the

order striking out the petition. The court held as follows:

“…An appeal will only lie to the election tribunal to the

Court of Appeal if there is any decision by the election

tribunal whether any person has been validly elected as a

member of the National Assembly or state House of Assembly ;

the office of the Governor or Deputy Governor as the case may

be. Such an appeal will only come within the provisions of

section 246 (1) (b) of the 1999 constitution if there is a

determination of the petition on the merit and any other

decision made in the course of the election proceedings which

is a decision is not covered by section 246 (1) (b)”

However, in Usani v. Duke33, the court, in what appeared to be a

contrary decision held that a decision striking out an election

petition was appealable. The position is that there is right of

appeal whether an appeal was allowed, dismissed or struck out.

This is more so that the Electoral Act does not make any specific

provision on appeal34.32 (2005) All FWLR pt. 243

33 (2005) All FWLR Pt. 244 at p.960

34 The Supreme Court held in Ibori v. Ogboru that the definition of ‘decision’under the constitution did not distinguish between an interlocutory and a

Where an appeal is from the tribunals as stated above, the

decision of the Court of Appeal is final. In Waziri v. Ibrahim35,

the court held that by virtue of section 246 (3), the Court of

Appeal is the final port of call in respect of appeals arising

from election petitions except the presidential election.

It should be clear that the Court of Appeal exercises to the

exclusion of any other court in Nigeria original jurisdiction to

hear and determine question as to whether:

a. any person has been validly elected to the office of

President or Vice President

b. the term of office of the President or Vice President has

ceased; or

c. the office of President or Vice President has become

vacant36

final decision in an election petition.35 (2009) All FWLR Pt. 465 at 171236 See Electoral Law Reforms and Constitutionalism in Nigeria: Essays inHonour of Justice James Ogebe (JSC) (rtd) edited by Akin Olawale Ogundayisipublished March 2010.

An appeal from presidential election lies to the Supreme Court.

In Awuse v. Odili37, the Supreme Court observed that it is in

respect of Presidential and not Governorship election that an

appeal lies from the Court of Appeal to the Supreme Court.

However, the decision has now been reversed by the new amendment

in the Constitution38. The Supreme now entertain appeals form the

Court of Appeal on both Governorship and Presidential election

petition.

A party who is dissatisfied with the decision of the Tribunal is

required to file his notice of appeal within 21 days of the

delivery of judgment39. The court has power to strike out an

application for an extension of time. Thus, the court struck out

the application for extension for incompetence in Sidi-Ali v.

P.D.P40 per I.T. Muhammad JCA, as follows:

37 (2003) 18 NWLR (PT. 851) 116

38 Section 232-233 of the Constitution on the jurisdiction of Supreme Court toentertain appeals on Governorship election petition.39 Where the appellant fails to file his notice of appeal within the timestipulated by law, his appeal lapses because the tribunal has no jurisdictionto extend the time within which to appeal. In Bouwe v. Erijo, the court heldthat it has no jurisdiction to extend the time stipulated in section 138 ofthe Electoral Act 2002 within which to appeal (or cross appeal) against thedecision of the Election Petition Tribunal.40 (2004) All FWLR Pt.202 1903-1919

“Although it is within the discretion of the court to grant an application for

extension of time to appeal, and that discretion would be exercised in favour of the

applicant in ordinary civil appeals where acceptable reasons are advanced for the

delay, the position is however different in election matters, same being sui generis.

My understanding of the provisions made in the Electoral Act and the Practice

Direction dealing with the specific time for doing an act is that compliance with

limitation of the time specified thereon is imperative and mandatory,

contravention of which is fatal in election petition cases.”

CONCLUSION

Nigeria is very good at enacting new laws. What however remains

the shortcoming of its legal regimes are lack of implementation

strategies and political will. With respect to the Electoral Act

2010 (as amended), it appears that without the political will of

the stakeholders, it is most likely the Act will not last long

before another amendment will overtake it just to fulfill the

selfish desire and crave for power of the political actors.

Hence, for a sustainable Electoral reform and dependable

electoral regime to stand, the whims and caprices of political

parties must be limited. The judiciary must be given its

independence not in the cloak of pretence and manipulation. Laws

are meant to regulate behaviours and the common good of the

society. But where the will is absent to implement the law that

is when it becomes an ass.