The Courts and Management of Election Petitions: Challenges, Prospects and Solution
Hon. Justice Banji Orilonise (Rtd.)
It is my pleasure and I feel highly honoured to be invited by the Chairman and members of the Board of Trustees of Mustapha Akanbi Foundation to deliver this speech as one of the Guest Speakers at a one day Symposium organized by the foundation. “Mustapha Akanbi Foundation” is presumably named after Hon. Justice Muhammed Mustapha Adebayo Akanbi (CFR), retired President of the Court of Appeal, former Chairman ICPC and one of the most outstanding, knowledgeable, incorruptible, fearless, but God Fearing, courageous, painstaking, gentle and highly respected Justices of our time. I thank the foundation for the opportunity given me.
It is indeed gratifying to note that some eminent Nigerians up there in the name of the Mustapha Akanbi Foundation feel worried about the Courts’ or Tribunals’ Management of election Petitions and are thinking of the challenges and prospects with a view to finding solutions to them.
Please permit me to quote verbatim from 3 paragraphs of the invitation sent to me by the Foundation and dated 28th June, 2010. They read:
“The importance of holding credible periodic election in line with the democratic principle cannot be overemphasized. However, it is common knowledge that our present electoral system is fraught with numerous problems one of which is the handling of election petitions by, Election / Appeal Tribunals. If election petitions are to be effectively, sincerely and expeditiously tackled within a particular time frame, the courts’ management system needs to be critically examined and overhauled.
Recent experience shows that election petition would appear not to have a definite period of completion. The long delay in disposing of election cases tends to undermine the dividend of democracy and constitutes a denial of justice. Voiding election of Governors, Senators, Legislators and Councilors some two, three years or more after their assumption of office is a terrible wastage of public funds and a negation of electoral processes. It is indeed unfortunate that petitions filled in the year 2007 are yet to be concluded and most likely will not be completed before the next election to be held in the year 2011.
Need we say that all sorts of reasons are being given for the delay in the hearing of the cases. Some ascribe it to:
- Corruption at all levels,
- Laziness on the part of the adjudicators,
- Frequency of unnecessary adjournments,
- Improper interference by meddlesome interlopers in the affairs of the Court,
- Delay in settling up of panels to hear cases /appeals,
- Adjourning the delivery of rulings for a considerable length of time on simple applications which ought to be ruled upon in limine,
- Poor time management and control f cases n court and court registry,
- Exploitation of defects in the Electoral Law/Act,
- Conflicting and acrimony arising from the exercise of power by heads of courts,
- Abuse or misuse of judicial powers,
- Conflicting decisions in cases handled by the courts.
There is indeed a compelling need to devise ways and means of ensuring that future election petitions are in the interest of justice and fair play, disposed of expeditiously and not delayed a day longer than necessary.”
Some of these identified causes of delay in hearing and completing election petitions would seem to have covered the ground sufficiently to require no additional comments. Interestingly, some of the major recommendations of the Hon. Justice Muhammed Lawal Uwais panel report seem to have proffered solutions to these problems if only the said report can be adopted as a starting point to finding solutions to our electoral problems.
The recommendation of the Uwais Panel Report on the appointment of the Chairman of the Independent National Electoral Commission by the National Judicial Council and the Council of State seems to have generated such unwholesome political debate that ended in the rejection of the recommendation by the National assembly.
However that may be, other recommendations of the Uwais Panel Report that are relevant to the topic of this symposium include:
- Reduction of the membership of Election Petition Tribunals from 5 to 3.
- Limitation of the time for hearing election petitions and delivering judgments.
- Punishment for filing frivolous election petitions.
- Need to establish an Electoral offences Tribunal.
- The role of the Judiciary.
- Periodic updating of Voters Register
1. Membership of Election Petition Tribunals:
Section 285 (1) & (2) of the 1999 Constitution of the Federal Republic of Nigeria makes provision for the establishment of the National Assembly Election Tribunals as well as the Governorship and Legislative Houses Election tribunals. Their jurisdictions are spelt out. The compositions of the Tribunals are also spelt out in paragraphs A (2) and (3) as well as in B (2) and (3) for the National Assembly Election Tribunal and the Governorship and Legislative Houses Election Tribunal each with 5 members comprising of a Judge of the High Court as Chairman and 4 other members made up of Judges of the High Courts, Kadis of Sharia Court of Appeal, Judges of Customary Court of Appeal or other members of the Judiciary not below the rank of Chief Magistrate. In each case, the quorum is the Chairman and two other members.
In practice, the President of the Court of Appeal who has the responsibility to set up or appoint the members of these tribunals has combined and or fused the two tribunals under section 285 of the Constitution into one, namely; the National Assembly, Governorship and Legislative Houses Election Tribunal.
This fusion makes the work-load heavier on a single tribunal instead of two, while I do not quarrel with the wisdom of the President of the Court of Appeal in establishing a single Tribunal for the National Assembly, Governorship and the Legislative Houses Election, it is suggested that in any State where there are more than 10 election petitions after any election, two tribunals at least should be set up to hear and determine such petitions.
One wonders why Kadis of Sharia Courts of Appeal and or Judges of Customary Courts of Appeal and a Chief magistrate should be members of election petition tribunals. A lot of them other than those who have legal qualifications are mere waste pipes at election Tribunals.
As appellate court judges, they are not used to writing court proceedings or taking evidence of witnesses in long hand and they find it difficult to do so. Some of them cannot even make meaningful contributions to discussions on legal issues not to talk of writing rulings. Such that the High Court Judges among them are unnecessarily over-worked.
The recommendation of the Uwais Panel that membership of Election Petition Tribunals be reduced to 3 instead of 5 is welcome idea as it will make room for the establishment of more tribunals.
However that may be, I humbly think that experimenting with the idea of using able and dedicated retired Justices of the Court of Appeal as Chairman, supported by retired High Court Judges rather than serving Justices or Judges as election petition tribunal members will go a long way in solving the issue of delay in completing election petition cases.
In the first instance, the regular courts cease to function when serving judicial officers are on election petition assignments.
Secondly, the rush to beat the Justice Babalakin Performance Evaluation Committee of NJC in order to avert adverse report of “No performance”, “Low performance” e.t.c by serving Judges in relation to their quarterly returns of cases in their various courts, leads to lack of concentration by such Judges at the tribunals. Chief Judges should be advised not to include the names of Judges on tribunal assignment in conferences and ad hoc seminars for the period of their assignments at the election tribunals.
Judges should not be posted to serve on tribunals in States too close to their states of origin. Judges on election petition tribunals should be made comfortable in their postings to avoid frequency of travels in order to enjoy the comfort of their homes. Some tribunal members have died as a result of road accidents occasioned by distance travels and lack of comfort in their places of assignments.
It is my suggestion that the constitution be amended to make the National Assembly Election Tribunals to be chaired by a retired Justice of the Court of Appeal with a retired High Court Judge and a serving High Court Judge as members. All three members must always sit to form a quorum.
Limitation of Time for Hearing Petitions and Judgments
As per the recommendation of the Justice Uwais Reform Panel, proceedings at the Election Petition Tribunals should not last more than 120 days from the date of the election and all appeals must be disposed of within 60 days fro the date the judgment of the tribunal was delivered. Limiting the time frame within which to determine an election tribunal is a breach of the petitioner’s right to fair hearing.
Similar provisions had been made in previous legislation relating to the conduct of elections. In the general election held in 1992, Decree No 18 of 1992 which governed that election mandatorily prescribed that judgment must be delivered within 2 months from the date of filing the petition. Thus, in Kaigama vs. National Electoral Commission and Anor. (1993) 3 NWLR (Pt 284) 681. Achike JCA as he then was held at pages 709-710:
“At the conclusion of addresses of counsel, the case was adjourned for judgment to 2nd October, 1992. This was a Friday. Had the judgment been delivered on that day, there would be no gain-saying that it would not have been a subject of enquiry in this appeal. For some inexplicable reason at least not apparent on the record, the judgment was infact delivered on 5th of October, 1992.
It is common ground that the petition was filed on 3rdAugust, 1992. On the authority Odofin vs. Agu (Supra), the judgment could safely have been delivered on 2nd October, 1992, while on the authority of Akeredolu vs. Akinremi (Supra), the judgment cannot be delivered beyond 3rd October, 1992. One takes judicial notice that 3rd October, 1992 fell on a Saturday. The only question is, was the Tribunal obliged to deliver its judgment on a Saturday or was it possible for it to deliver same on the next “working” day. I use the word “working” day advisedly……
Sundays and public holidays having been expressly mentioned as holidays, i.e., non dies, it follows that the other days in the week, including Saturday, are excluded from the terminology of a holiday. Consequently, the provision of S. 15(3) cannot operate in favour of the Tribunal to deliver judgment on Monday, 5th October, 1992. That judgment had expired on 3rd October, 1992. Indeed, the record of proceeding is replete with the fact that the Tribunal sat on certain Saturdays. There was obviously no misapprehension on the part of the Tribunal that it could sit on Saturday.
In conclusion, I am of the opinion that the judgment delivered by the Tribunal on 5th October, 1992 was delivered outside the day allowable under Decree No 18 of 1992.
Accordingly, I hold and declare the said judgment a nullity”.
In some of the judgments of the Supreme Court on election petitions, this Provision of Decree No 18 of 1992 and similar provisions of the Electoral Act 1982 were declared unconstitutional.
In Obih vs. Mbakwe (1984) 1 S.C 325, the Supreme Court relied on its earlier decision in Paul Unongo vs. Aper Aku when per Obaseki, JSC it held:
“As the petition was not heard before the 30 days time bar placed on the conclusion of the hearing and determination of election petition by section 140 (2) of the Electoral Act 1982, the High Court of Imo State on 17th day of September, 1983 declared the petition null and void and dismissed it.
That section together with section 129 (2) of the electoral Act 1982 were declared unconstitutional, null and void by this Court on 30th day of September, 1983 and the reasons for the judgment given on the 25th November, 1983 in the case of Paul Unongo vs. Aper Aku & Ors. S.C. 95/ 1983.
His Lordship Hon. Justice Uwais, JSC as the then was concurred with the above quotation in Obih vs. Mbakwe and hit the nail on the head in the lead judgment delivered by him in Unongo vs. Aper Aku when he held on pages 207-208 of the report thus:
“I do not see how a reasonable person will have the impression that a party has a fair hearing where his petition which has been instituted within the time limit stipulated by the Electoral Act cannot be concluded because the time available to the court for the petition to be heard will not be sufficient for either or both parties to the petition to present their cases or will not allow the court at the close of the parties cases sufficient time to deliver its judgment. There can be no doubt that the provisions of sections 129 subsection (3) and 140 subsection (2) of the Electoral Act 1982 neither allow a petitioner or respondent reasonable time to have fair hearing, nor give the court the maximum period of 3 months to deliver its judgment after hearing a petition as envisaged by sections 33 (1) and 258 (1) of the Constitution. Accordingly, the provisions of section 129 (3) and 140(2)of the Electoral Act, 1982 which limit the time for disposing of election petitions by the courts are in my view ultra vires the National Assembly and therefore null and void”.
This is the position of the highest Court of the land. So there can be no time limit for tribunals to complete election petitions.
Role of the judiciary
The Supreme Court has no original jurisdiction in election matters. See section 232 (1) of the 1999 Constitution. Its appellate jurisdiction in election matters is derived from section 233 (2) (e) of the Constitution only in relation to the decision of the Court of Appeal as to whether of not;
(I) any person has been validly elected to the office of president or vice president under the constitution.
(ii) The term of office of the President or Vice President has ceased.
(iii) The office of President or Vice President has become vacant.
Any decision of the Supreme Court from an appeal to it from the decision of the Court of Appeal in this regard is final.
On the other hand, the Court of Appeal is under section 239 (1) of the selfsame 1999 Constitution vested with original jurisdiction to the exclusion of any other Court of Law in Nigeria to determine the question 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 vacant.
The court of Appeal also has appellate jurisdiction to entertain appeals from the decisions of the National Assembly Election Tribunals and the Governorship and Legislative Houses of Assembly election tribunals on whether-
(I) any person has been validly elected as a member of the National Assembly or of a House of Assembly of a State
(ii) Any person has been validly elected to the office of Governor or Deputy Governor, or
(iii) The term of office of any person has ceased or the seat of any such person has become vacant.
The decisions of the Court of Appeal in respect of appeals arising from election petitions are final. See section 246 (1) (b) and (3) of the 1999 constitution of the Federal Republic of Nigeria.
With due respect, I wonder where the Supreme Court derives jurisdiction to entertain applications to it or appeals to it from the decisions of the Court of Appeal in election matters other than the Presidential election petition.
The Supreme Court sits on Appeal in respect of decisions or pronouncements of the Court of Appeal and will and should therefore not entertain any question in which there has been no decision or pronouncement by the Court of Appeal. Section 246(3) 1999 Constitution makes the decision of Court of Appeal in respect of Appeals from Election Petition Tribunals final.
The Supreme Court has no business entertaining any Appeal or application from the decision of the Court of Appeal and or an Election Petition Tribunal safe in respect of the Presidential election only where the Court of Appeal by Section 239(1) (a), (b) and (c) has been conferred with original jurisdiction to determine any question as to whether;
(a) The President or Vice- President has been validly elected.
(b) Whether their term of office has ceased or whether the office has become vacant.
An appellate Court has to decide whether the decision of a trial Tribunal or Court was/ is right and not whether the reasons for such decisions were right. Thus, if the decision/ judgment of a Tribunal or a trial Court was right/correct. It will not be liable to reversal merely because it was anchored on a wrong reason. In every trial/ case, there is the need for the court to consider all the relevant evidence before it.
So, where the findings of a trial Court or Tribunal are per verse or the use made of a document goes beyond it evidential value particularly in respect of documentary evidence, it is the duty of the Appellate Court to reconsider, re-assess the evidence and apply it, if the justice of the case so requires.
This is more so since Section 16 of the Court of Act gives it full jurisdiction over the whole proceedings as if the proceedings had been initiated in the Court of Appeal as the Court of first instance. The Court of Appeal may therefore rehear the case as a Whole or in part or may remit it to the trial Court for the purpose of rehearing or trial de novo.
A rehearing on the part of the Court of Appeal means nothing but a rehearing on the record as if the entire proceeding had been instituted in the Court of Appeal and because time is of the very essence of Election Petitions, the Court of Appeal should be up and doing and must firmly put down its feet in the application and invocation of section 16 of the Court of Appeal Act and rehear such cases rather than passing the bulk to the Election Petition Tribunals by ordering a retrial De novo.
It is time wasting, man power wasting, ridiculous, and myopic to order a retrial two or three years into the life of an undemocratically elected office holder. To this extent Section 149 of the Electoral Act 2006 which permits a person elected to remain in office pending the determination of his appeal where the Tribunal or Court finds him not validly elected and nullifies his election should be repealed. Judgment of the Election Tribunals should be executory and not suspended till the determination of Appeal. A person who has been adjudged not validly elected should despite his appeal vacate his office in line with Tribunal’s decision.
Once an election is declared null and void, the law regards whatever was purportedly done in the name or guise of an election as not having taken place at all. In the eyes of the law, that election is void abinitio and a fresh election has to be conducted as if the earlier election did not take place at all.
Where there is a nullification of an election, the order of the court / tribunal will determine the course of the election to follow.
In Sokoto State for example, the election of Governor Wamako was nullified because he was not entitled to contest the election in the first instance as a PDP candidate. If therefore a rerun election was ordered, he will still not be entitled to take part in the rerun election.
In my humble view where in a general election there is a false start, in the sense that a candidate who ought not (to) have participated in the election was unlawfully included or where there was no level playing ground for all the candidates and that election was subsequently either cancelled by the regulating body/authority like INEC or nullified by an order of the court or Tribunal and a re-run or re-start election is ordered, that re-run or restart election refers to the cancelled or nullified election and is not the same as a by-election which is usually held to fill a vacant post.
If a candidate in any election was declared an unfit or improper person and therefore disqualified to contest an election which was subsequently nullified by a tribunal or court, then only the candidates qualified to contest the election abinitio will, to the exclusion of the disqualified candidate, participate in a fresh or re-run election.
This is so because all the other candidates of other political parties excluding the candidate unlawfully included and his political party, will go back to the starting line for a fair and free contest. It will be erroneous to admit a new candidate in place of the disqualified candidate because the period for nomination and screening of candidates had since elapsed.
In other words where there is nullification of a general election and a re-run election is ordered, only candidates who were nominated and sponsored to contest in the previous elections can contest in the re-run election.
Afortiori, where a candidate in a previous election was disqualified from contesting an election which was subsequently nullified and a rerun election was ordered by the court or tribunal, the disqualified candidate in the previous election cannot participate in the re-run election since abinitio the was not qualified to contest the nullified election.
The decision of the Court of Appeal from a judgment of an Election Petition Tribunal on appeal to it is final. Whether right or wrong the decision of the Court of Appeal in its appellate jurisdiction on election petition matters is final. The Supreme Court, with due respect, has no right to pry into any judgment of the Court of Appeal on election matters on appeal to it from the decision of the election petition tribunals.
All said and done, every final court is final not because it is infallible but it is infallible because if is final. Let the Supreme Court not carry its finality to the point of fallibity as this will certainly erode, the confidence of litigants, nay, politicians in our judicial system. What justifies the Supreme Court in arresting or putting to hold an undelivered or a yet to be delivered judgment of the Court of Appeal in a Governorship petition when there is no right of appeal to the Supreme Court in such a case.
A word, they say, is, enough for the wise and I sincerely believe there are still some wise men in the Supreme Court of Nigeria.
On the allegation of corruption recently levied against some tribunal members by some legal pundits and the press, I join millions of Nigerians in calling on the National Judicial Council to investigate all such allegations. Some of the judgments handed down by some tribunals and even the Court of Appeal are not only ridiculous but outrageously embarrassing. They seem to confirm the allegation that the Tribunals and the Court of Appeal have been compromised or bought over.
It is corruption to pervert the course justice because of a promise to appoint or elevate one to a higher bench. Any Justice of the Court of Appeal who was elevated to the Supreme Court because he or she has been promised elevation on the delivery of a wrong judgment is a corrupt judge and a disgrace to the judiciary. Ditto for a Judge of an Election Petitions Tribunal who, based on such promise, is elevated to the Court of Appeal.
I thank the Mustapha Akanbi Foundation for the opportunity to air my views. God bless you all.