Definition of terms and origin of tribunal in Nigeria
A critical appraisal of decision of the Election Petition Tribunal in Nigeria cannot be complete without some conceptional clarification of the subject matter. So, this chapter inter alia seeks to define some of the terms usually associated with the concept of Election Petition Tribunals
This chapter further attempts to explain the origin of tribunals in Nigeria from the British style of tribunal.
Definition of Terms
Election is the hallmark of democracy. It is the democratic process of electing candidates into political offices. Election connotes the act of choosing from several candidates vying for a particular office.
According to the Black Law Dictionary1, Election is the exercise of choice; especially the act of choosing from several possible rights or remedies in way that it precludes the use of other rights and remedies; the doctrine by which a person is compelled to choose between accepting a benefit under a legal instrument and retaining some property rights to which the person is already entitled; an obligation imposed on party to choose between alternative rights or claims, so that the party is entitled to enjoy only one; the process of selecting a person to occupy an office.
From the above definition, it is observed that election is just a process of electing people into offices. It could be political office, organizations, companies etc. it is normally done by way of voting.
The concept of election was defined in A.G of the Federation V. All Nigerian People Party2, Where it was held that
“It is generally held to mean the action or an instance of choosing by vote one or more of the candidates for a position especially a political office”.
The concept of election involves a wide range of processes of choosing by votes, a candidate for a political office in a democratic system of government. Election is primarily conducted to ascertain the wish of the people as to those eligible to pilot the affairs of governance. And it is not limited to what transpired on the day of the polls. It encompasses the process of constituting accreditation, voting, collection, recording of results and 0declaration of results. This position was well articulated by the court of appeal in APGA v. Ohakim3, where it was held that:
…” The purpose of holding an election in a democratic setup is to determine the wishes of the people as to who should represent them in the legislature and executive setup. It is therefore necessary to ensure that any election conducted is done in a way that would substantially ensure that the main objectives are substantially met.”
There is a lacuna as to the definition of the concept of election in the Constitution. Section 137(1) (b) and 182(1) (b) of the 1999 constitution (as amended) provide as follows “he has been elected to such office at any two previous election”. The electoral Act, 2010 (as amended) does not sufficiently supply the missing link to the definition as found in the 1999 Constitution. Section 156 of the Electoral Act, 2010 (as amended) defines election as: any election held under this Act and includes a referendum; it should be noted that this definition is without defect as it appear to be a practical definition.
Happily, the courts have risen to challenge by proffering thought provoking definitions to the concept of election to enrich the jurisprudence of election petition. The word election has been interpreted by the Supreme Court and the appropriate meaning ascribed to the concept of election in the celebrated case of Ojukwu v. Obasanjo4 per Edozie, JCS at 292 as follows:
“I am of the view of that word ‘election’ in the context in which it was used in section 137(1) (b) of the constitution means a process of choosing by popular votes a candidate for political office in a democratic system of government. It is my candid opinion that the 1st respondent’s 1976 appointment does not fall within the ambit of section 137(1) (b) of the 1999 constitution. Put differently, the 1st respondent was not in 1976 appointed to the office of the president of the Federal Republic of Nigeria let alone by the popular Vote of the people of this country”.
The word election in the context of section 137(1)(b) of the 1999 Constitution means the process of choosing by popular votes of a candidate for a political office in a democratic system of government. And the process starts from the voting by party members to choose a candidate to represent the party at ward level and the primaries up to the polling day when the candidates are presented by the parties to the electorate.
A “Tribunal” according to the Electoral Act5 means an election tribunal established under this Act or the Court of Appeal. By this definition, it therefore means that any tribunal dully established under the Electoral Act or the Court of Appeal qualifies to be an Election Petition Tribunal.
According to the Black Law Dictionary,6 a tribunal is defined as a court or other adjudicatory body; the seat, bench or place where a judge sits.
A tribunal is a body with political or quasi judicial functions set up by law and existing outside the usual court hierarchy. It is a special court of temporal nature set up by law to try identifiable person for special offence. In this case, electoral offences arising from irregularities in the conduct of Governorship election in Nigeria. It is only when a tribunal is set up by law that it can exercise judicial power.
In L.P.D.C V Fawehinmi7, the supreme court held the test for determining whether a body has judicial powers to act as a tribunal are: whether the decision of the body is binding and whether the decision is cohesive and final.
The 1999 Constitution8 made allusion to the existence of tribunal in our legal system. Among the principal reasons for the establishment of tribunals in contrast to regular courts are their ability to quickly dispense justice, their flexibility, cheapness and informality.
Granted that the above is true of tribunals, their low points are that, most often and for diverse reasons, they do not measure up to the required standard of justice demanded of any body performing a judicial function.
Election petition is the only acceptable mode of challenging the conduct of election. Section 133(1) of the Electoral Act 2010 (as amended) is apt in this respect. It provides as follows:
“No election and section of election 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 election petition) presented to the competent tribunal or court in accordance with the provisions of the constitution or this Act, and in which the person elected or returned is joined as a party”9
By this provision of the Electoral Act, the challenge of any election conducted in this country must be brought by way of petition and the person elected or returned must be joined as a party.
According to the black law dictionary,10 it means a petition for inquiry into the validity of a parliament member election, when the members returned are allegedly invalid for bribery or other reasons. This definition talks about the members of parliament only. It should be noted that in Nigeria irregular conduct resulting from the conduct of Presidential or Governorship election can also be challenged by way of petition.
There are specific requirements expected to be incorporated in the content of an election petition. These requirements are mandatory in nature and are expected to be present in any valid election petition. The electoral Act provides for the content of election petition. It provides thus: An election under this Act shall;
(a) Specify the parties interested in the election petition;
(b) Specify the right of the petitioner to present the election petition.
(c) State the holding of the election, the scores 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 and the relief sought by the petitioner.11
Thus, a petitioner is required as a matter of necessity to state in clear terms the facts giving rise to ground or grounds upon which he based his petition. Anything short of that renders the ground or grounds ambiguous, vague and incomprehensible.
Origin of Tribunal in Nigeria
Dating back to the 17th century, Britain had given Commissioners of customers and Excise judicial powers by the statute. Over the centuries, more administrative bodies such as Land Tax Commissioners, Board of Railway Commissioner and the Railway and Canal Commission were given judicial powers. Prof. Wade writing about the origin of Tribunal in Britain stated that “Tribunals are mainly a twentieth century phenomenon, for it was long part of the conception of the rule of law that the determination of questions of law-that is to say, questions which require the finding of facts and the application of definite legal rules of or principles-belonged to the Courts exclusively.
In the USA, apart from the regular Courts, there are administrative Courts and special Courts. In the administrative Court, administrative law judges are appointed to oversee the adjudicatory functions of the courts. The administrative law judges are assigned to State Department Agencies such as the U.S. Securities & Exchange Commission, Federal Communication Commission e.t.c, where courtroom space, is made available for the hearing and determination of cases. Their decisions are not final and may be subject to ratification by the department agency such as in the U.S. Security & Exchange Commission.
In Nigeria, the Federal Government imported the English legal system of Tribunal administration. Tribunals are subject to the general law, its enabling statute, and the rules of natural justice and fair hearing.
Generally, prior to the 21st century, it was common to align tribunals with the military with an assumption that it is a criminal matter. This is because in the history of Nigeria, tribunals were mostly set up by the military that drew up special rules of procedure that had no regard for the rules of evidence. These tribunals by their enabling Decrees barred appeals from decisions of such tribunals, and instead the jurisdiction of Court to inquire into the validity of its establishment or its enable Decree.
The perception of militarianism in the establishment of a tribunal has however affected its acceptance by professionals and the public.
Establishment of Election Tribunals in Nigeria
Election Petition Tribunals are set up for the purpose of determining electoral disputes arising from elections. There is hardly any election conducted in Nigeria that will not be subjected to litigation. It is seminal to assert that the right to seek redress in an election matter as conferred by the Electoral Act and the Constitution is all encompassing. It serves both parties and the public better to know how a declared winner of an election obtained his mandate. This can only be determined at the Election tribunals. The court of Appeal has affirmed the petitioners and respondents of their unhindered access to Election Tribunal or Courts in Idris v. ANPP12 where it was held that:
The Nigerian constitution afford a complainant the opportunity to vent his grouse in a court of law, on the principle that whenever a wrong is alleged, there must be an avenue for redress as encapsulated in the maxim “Ubi jus Ibi remeduim”, meaning: where there is wrong there is a remedy.
In the instance case, section 145(1) (d) of the Electoral Act gave the 2nd petitioner a right against unlawful exclusion from election. Consequently, the 2nd petitioner must have unhindered access to court to protect that right. In the circumstance, the 2nd petitioner had locus standi to file his petitions and the tribunal erred when it held otherwise and struck out the petition.13
It is imperative to assert that access of petitioners and respondents to Election Tribunal or Court is a fundamental parameter for determining compliance with rules of law in a country.
It is logical to assert that the reasons for the establishment of Election Tribunal are obvious because of our nascent democracy and nature of politics/elections as captured above and the constitutional right of petitioners and respondents to access Election Tribunal or Court to ventilate their grievances.
There are two distinct Election Tribunal established pursuant to Section 285(1) and (2) of the 1999 Constitution (as amended). They are
(a) The National Assembly and State Houses of Assembly Election Petition Tribunal.
(b) The Governorship Election Tribunal.
But for the purpose of this study, we shall concentrate on the Governorship Election Petition Tribunal. It is pertinent to assert that the two tribunals set up, operate independently as their jurisdictions differs.
It is instructive to observe that prior to the amendment of the constitution; the Governorship and Legislative Houses Tribunal were fussed. The Creation of Governorship Election Tribunals is therefore novel and a welcome development. The jurisdiction is explicit as can be geared from the name. However, section 285 (2) of the 1999 Constitution (as amended) vests it with the original jurisdiction to hear and determine petitions as to whether any person has been validly elected to the office of a Governor or Deputy Governor. It is pertinent to assert that several decisions of the courts of Appeal prior to distinct Tribunals created as a result of amendment to the 1999 Constitution are still relevant with modifications.
Also, in Amgbare V Sylva14, it was held:
By virtue of section 285 (2) of the Constitution of the Federal Republic of Nigeria 1999, the Governorship and Legislative House Election Tribunal shall, to the exclusion of any Court or Tribunal, have original Jurisdiction to hear and determine petition as to whether any person has been validly elected to the office of Governor of Deputy Governor or as a member of any Legislative House.
Thus, it is only the Election Tribunal that has exclusive jurisdiction to deal with the election matters. No High Court has original Jurisdiction or otherwise to adjudicate over election matters.
The subject matter is a long standing issue and in which field many authors and researchers have dealt extensively based on their ideologies, background, exposure and views. Nevertheless the scope of this work has made it almost impossible not to refer to text of some celebrated authors like A.F Afolayan and P.C Okorie15 in the book modern civil procedure law where they wrote on election petition process in Nigeria generally they did well by not attempting to divorce the two concept, though the tone of his writing was skeptical and not well detailed enough.
In the naming of Nigerians who are vast in the knowledge of election petition, mention must be made of Chief Afe Babalola16 whose book, law and election in Nigeria, has aided this research by it simplicity and directness. He has also indeed dealt with the peculiar nature of petition by that election petition are ‘SUI GENERIS’ and as such they are considered to be distinct and completely divorced from civil proceedings.
Similar view was expressed by UWAIS J.S.C (as he then was) in Jim Nwobodo V.C.C Onoh17
“an election petition is not the same as ordinary civil proceedings, it is a special proceedings because of the peculiar nature of elections which by reasons of their importance to the well-being of a democratic society, are regarded with an aura that places them over and above the normal day to day truncation between individuals which give rise to ordinary or general claims in court. As a matter of deliberate policy to enhance urgency, election petitions are expected to be devoid of the procedural clogs that cause delay in the disposition of the substantive dispute”.
It is though open to criticisms by reasons of his main focused on old use of statues and act compared to 2001 when the book was written.
Compendium of Laws by Chief Abubakar Sadip Ogwuche Esq18 has a worthy contribution to the development of our legal system, it has also rendered an invaluable service, not only to the legal profession and the legal fraternity as a whole, but also to any interested in the electoral Laws. In a unique way, though this book, the author has handed the key to the rich treasures of our electoral Laws to all who care to benefit form that treasure, be it a professional or a layman. It is fitting to acknowledge this worthy contribution to our electoral system and to the expanding world of legal knowledge.
Abubakar went further in dissecting the Electoral Law and process in Nigeria by giving the essential features of election with the aim of discovering the purpose and intention of the Law makers of the electoral Act and Nigerian Constitution at any point in time to achieve a free and fair election. On the whole, the chapters on Electoral law and process are in no small measure relevant to the success of this project. However, the author, paper is general about election in Nigeria.
It is hope that this work will also contribute its own quota to the better understanding of the subject matter in Nigeria especially the critical appraisal on the Decision of election petition tribunal in Nigeria.
1 Bryan A. Garner, Black Law Dictionary Eight edition p. 557
2 A.G of Federation v. All Nigerian Peoples Party(2003) 15(NWLR (Pt 544) 600
3 Section 318 of the 1999 Constitution (as amended)
4 Ojukwu v. Obasanjo (2006) EPR 212 p. 292.
5First schedule to section 140(4) and 145(1) of the Electoral Act 2010 (as amended) P. 115
6 Bryan A. Garner: Black Law Dictionary, Eight Edition page 1544.
7 L.P.D.C V Fawelumin (1985) 2 NWLR (P7) P. 300
8 Section 36(1) of the 1999 Constitution (as amended). This section deals with the principle of fair hearing
9 Section 133 (1) of the Electoral Act, 2010 (as amended).
10 Bryan .A. Garner “The Black Law Dictionary” eight edition P. 558
11 Paragraph 4(1) of the 1st Schedule to the electoral Act 2010 (as amended)
12 Idries V ANPP (2008) 19 NWLR (Pt 1120) P.. 246
13 PDP V INEC (1999) 11 NWLR (Pt. 626) P. 200
14Amgbare V Sylva (2005) 13 NWLR (Pt. 942) 319 at 438.
15 A.F Afolayan and P.C Okorie, Modern Civil Procedure Law INTEC Printers Limited Old Lagos Road Ibadan, 2003. P. 17
16 Chief Afe Babalola, Law and Election in Nigeria, making spectrum Ltd, Ibadan 2006 P.221
17 Jim Nwobodo V.C.C Onoh (1984) 1 SC P. 195
18 Chief Abubakar Sadip Ogwuche, Compendium of Laws St. Paul Publishing House P. 295