Defences in Pre and Post-Election Litigation in Nigeria

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Introduction/Background

It is often said that election petitions are sui generis. This means that they are distinct from regular civil proceedings: ORUBU v N.E.C (1988) 5 NWLR Pt. 94 pg. 323 and GBE v ESEWE (1988) 4 NWLR Pt. 89 Page 435 at 443. 

Pre-election matters, are simply causes which originate prior to elections. By contrast, post-election matters arise from elections and are founded on alleged irregularities in the conduct of those elections.

The courts have recognised the following causes as pre-election matters, vis:-

i. Nomination of candidates;

ii. Double nomination of a candidate;

iii. Disqualification of candidate;

iv. Wrongful substitution of a successful candidate’s name by the electoral umpire (INEC);

v. Wrongful omission of a successful candidate’s name on the register;

vi. Complaints about the conduct of primaries;

vii. False declaration on oath about particulars of a candidate.

See MODIBO v USMAN (2020) 3 NWLR Pt. 1712 Page 470 at 500 – 515.

See also Section 284(14) of the 1999 Constitution, which addresses the following scenarios:

i. Non-compliance by a political party with the Electoral Act, the political party’s constitution or guidelines in the conduct of party primaries;

ii. Complaints by an aspirant or candidate of non-compliance by the electoral umpire (INEC) with the Electoral Act or any other Act of the National Assembly;

iii. The third situation deals with complaints by a political party, that INEC’s administrative decisions or actions violated the rights of a party’s candidate in terms of his/her nomination or disqualification.

Beyond the foregoing, it appears that yet another class of pre-election matters is recognised by Section 29(5) of the Electoral Act, 2022, which provides that: “any aspirant who participated in the primaries of his political party and who has reasonable grounds to believe that any information given by a candidate in the affidavit or any document submitted by that candidate is false, may file a suit at the Federal High Court against such person seeking a declaration that the information contained in the affidavit is false”. See ABUBAKAR v INEC (2020) 12 NWLR Pt. 1737 Page 37. 

A similar provision is contained in Section 84(14) of the Electoral Act 2022 which provides that: “An aspirant who complains that any of the provisions of this Act and the Guidelines of a political party have not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court for redress”. More on both provisions shortly.

Defences to Pre-election Matters

A respondent to a pre-election matter can challenge it on a number of grounds, one of which is that it was filed and/or determined outside the period stipulated by the law. In this regard, Section 285(9) of the Constitution provides that “a pre-election matter shall be filed not later than 14 days from the date of the occurrence of the event, decision or action complained about in the suit”. See GARBA v APC (2020) 2 NWLR Pt. 1708 Page 345 at 360.

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A related provision is Section 285(10) of the Constitution which stipulates that “a court in every pre-election matter shall deliver its judgement in writing within 180 days from the date of filing of the suit”. See USMAN TUGGAR v ADAMU BULKACHUWA (2019) LPELR 47883.

Yet another statute-bar, is Section 285(11) of the Constitution which provides that: “an appeal from a decision in a pre-election matter shall be filed within 14 days from the date of delivery of the judgement appealed against”

Finally, Section 285(12) of the Constitution provides that “an appeal from a decision of a court in a pre-election matter shall be heard and disposed of within 60 days from the date of filing of the appeal”. See TOYIN v MUSA (2019) NWLR Pt. 1676 Page 22.

Jurisdiction in respect of False Information Submitted by Candidate Prior to Election 

The Federal High Court possesses sole jurisdiction, in respect of allegations of false information contained in an affidavit or other document presented to INEC by a candidate. That right only inheres in a fellow party member who contested in the party primaries: Section 29(5) of the new Electoral Act 2022. This is a departure from Section 31(5) of the Electoral Act 2010 which conferred concurrent jurisdiction on the Federal High Court, State High Courts and High Court of the FCT in such matters.

Jurisdiction over Conduct of Party Primaries

Contrary to Section 87(9) of the Electoral Act, 2010 which gave concurrent jurisdiction to Federal, State and FCT High Courts over such matters, by virtue of Section 84(14) of the Electoral Act, 2022 only the Federal High Court possesses jurisdiction in such disputes. Secondly, to the extent that submission of false documents to INEC and nomination of candidates are internal affairs of a party, a non-party member lacks locus standi to challenge an election on that ground.

Practice and Procedure in Filing Defences to Pre-election Matters

Paragraph 54 of the 1st Schedule to the Electoral Act 2022 provides that the practice and procedure of the court or tribunal in election petitions shall approximate as much as possible, to the practice and procedure of the Federal High Court in exercise of its jurisdiction and that its Civil Procedure Rules shall apply, mutatis mutandis, as if the Petitioner and Respondent were the Plaintiff and Defendant in ordinary civil proceedings in those courts. In this regard, the relevant statute is the Federal High Court Civil Procedure Rules 2019. 

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Accordingly, the provisions of those Rules are applicable to the filing of defences to both pre-election and post-election matters. By way of caveat, however, it is pertinent to observe that Section 44(1) of the Federal High Court Act, provides that such Rules require the approval of the National Council of Ministers before they can be enacted. The implication of this is that, if those Rules lack the said approval, they are invalid.

Issues and Defences to Post-Election Petitions Locus Standi

A petitioner must establish his or her capacity to challenge an election. This is called locus standi. Such persons include the following:

i. One who claims to have had a right to contest the election;

ii. One who claims to have had a right to be returned (as duly elected) at the election;

iii. A candidate at the election;

iv. A political party.

See, generally, EGOLUM v OBASANJO (1999) 7 NWLR Pt. 611 Page 355.

Such categories of suitors, are normally specifically named in relevant electoral statutes. See Section 133(1) of the Electoral Act, 2022. Where a statute confers locus or capacity to sue on a petitioner, it cannot be denied to him: NNAMANI v NNAJI (1999) 7 NWLR Pt. 610  Page 313. 

Grounds of the Petition

By virtue of Section 134(1) of the Electoral Act, 2022, an election may only be questioned on any of the following grounds:-

(a) That the person returned as elected was at the time of the election, unqualified to contest;

(b) That the election was invalid by reason of corrupt practices or non-compliance with the Electoral Act;

(c) The respondent was not duly elected by majority of lawful votes cast at the election. The mere fact that an act or omission is contrary to a directive of INEC or one of its officers, is no ground for challenging the election – provided such an act or omission is not inconsistent with the Electoral Act: Section 134(2) of the Act 2022.

In addition, Section 134(3) of the Electoral Act, 2022, provides that a person’s election shall not be challenged on the ground of qualification, once the person satisfies the relevant provisions of Sections 65, 106, 131 or 177 of the Constitution and he/she is not in breach of Sections 66, 107, 137 or 182 of the Constitution, as the case may be. This is because he or she is deemed to have been pre-qualified for the election, as it were.

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Furthermore, Section 135(1) of the Electoral Act, 2022 provides that an election cannot be invalidated by reason of mere non-compliance with the provisions of the Electoral Act if, in the opinion of the Election Tribunal or court, such election was conducted substantially in accordance with the principles of the Act, and the non-compliance did not affect substantially the result of the election.

Defending Post-Election Petitions 

By virtue of Paragraph 9(1) of the Rules of Procedure for Election Petitions contained in the First Schedule to the Electoral Act 2022, where the respondent intends to oppose an election petition, he shall, within the stipulated time after service on him or the petition, file a Memo of Appearance stating that he intends to oppose the petition.

Suffice it to say that, the relevant provisions of the current Electoral Act in this regard are contained in Paragraphs 9-18, 34, 44, 46, 49, 51, 53 & 54 in the First Schedule to the Act

Conclusion 

It can be seen that, beyond the normal onus which the law casts on a petitioner or plaintiff, as the case may be, of proving that an election or nomination falls short of the requisite legal standards, the main issues which arise in such actions essentially revolve around jurisdiction.

This is because, questions about a petitioner’s capacity to challenge a candidate or a return (that is, his locus standi), the timing of filing the action and its determination (statute-bar), and the legal capacity or competence of the adjudicating court or tribunal are all jurisdictional.

In terms of differences between the previous and the current Electoral Acts vis-à-vis defences to pre and post-election litigation, the following appear to stand out:

i. Section 84(12) of the current Electoral Act which excludes so-called political appointees from voting and being voted for in party primaries;

ii. the court with jurisdiction in pre-election matters, which is now restricted to only the Federal High Court under the current law, and,

iii. the persons who can challenge the outcome of party primaries, which the new law restricts to only participants in party primaries;

iv. the persons who can complain of the falsity of any information contained in an affidavit or other document submitted by a candidate in a party primary, which is similarly restricted by the new law to only an aspirant who participated therein.

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