THE PARADOX OF THE ELECTORAL ACT 2010 (AS AMENDED): AN ASSESSMENT OF THE EXPEDITIOUS TRIAL OF ELECTION PETITIONS UNDER THE ACT

1.       Introduction

            The term “Election” has been described as “the process of selecting a person to occupy a position or office, usually a public office”[1]. In A.P.G.A. v. Ohakim,[2] Shoremi, J.C.A. gave an elaborate meaning of an election in the following way:
              
…an election constitutes accreditation, voting, counting of votes, collating at ward and Local Government Council and announcement of votes. Voting alone or voting in a unit does not constitute whole ‘election’[3]


            From the above, one can deduce that an election itself is more than a mere selection of a person to occupy a position and it is over and above mere voting at a polling unit, rather, it encompasses accreditation of voters, voting for candidate of one’s choice, counting of the votes, collating the votes at all levels and announcement of the results of the election. This paper intends to passionately examine the extant electoral Act with the view of discovering how the Act treats the question of expeditious trial of election petitions in Nigeria.

           
2.       Historical Development of Electoral System in Nigeria
           
Before the amalgamation of the Southern and Northern Protectorates into the present day entity known as Nigeria, the various regions of the country never existed as one political unit and each region had its own way of selecting its leaders. For instance, the old Oyo-empire was ruled by king selected from one of the ruling houses. Notable among the ruling houses was the “Oyomesi” and the Secretive Ogboni Society.[4] In fact, the system of selecting political leaders through election was alien to various Kingdoms and Societies in Nigeria. The emergence of the colonial masters in Nigeria did not bring about an immediate introduction of an electoral system as it is today. It took over a century and half before the introduction of a form of electoral process which later developed gradually to what we now witness in the country today.
The History of “elective principle” in Nigeria can be traced back to the 19th century. The demand was first made in 1881 during the agitation for separation of Lagos from the Gold Cost colony. In 1920, there was established the National Congress of British West Africa in Accra by one Joseph Caseley Hayford and Dr. Akinwande Savage of Nigeria (hereinafter referred to as the “Congress”). Among the paramount requests of the congress after its inauguration in 1920 was the grant of elective post, but the Governor of the West African Colonies were opposed to the requests of the congress. In the words of Sir, Hugh Clifford (who later became the Governor of Nigeria), he described the congress requests as follows:
                                 ….loose and gaseous talk emanating from a group of self appointed self selected gentlemen who collectively styled themselves the National Congress of British West Africa.[5] 
            In 1914, there was amalgamation of the Northern and Southern Protectorate having Lord Lugard as the first Governor-General of Nigeria, and in 1922, Sir Hugh Clifford became Governor-General of Nigeria and a new constitution was granted to Nigeria known as Clifford’s constitution which embodied in it, (for the first time in the country) the principle of election. Under this constitution, the new legislative council was to consist of forty six (46) members – twenty seven (27) unofficial members and nineteen (19) official members. Four of the unofficial members were to be elected by an adult male suffrage with residential qualification of one year and a gross income of £100 per annum. Three of them were to represent Lagos and one Calabar because these two (2) towns were considered to be the two major towns in Nigeria at that period that had enough educated people who could be entrusted to use the franchise properly. Lagos was the capital and commercial headquarters of Nigeria while Calabar was leading centre of trade and missionary activities in the Eastern part.  With this elective principle, the new constitution paved way for political organizations in Nigeria and the organizations became effective and efficient means of expressing grievances and aspirations.  
            The Richard’s  constitution of 1946 replaced the Clifford’s constitution of 1922 and it did not increase the number of elective posts as Nigerian has expected even though there had developed other towns in Nigeria with enough educated Nigerians who could exercise the franchise intelligently since western education was considered to be condition precedent to such exercise. Significantly, the 1951 constitution expanded the electoral field. A central Legislative (House of Representatives) was established which was to be made up of One Hundred and Forty Eight (148) members, One Hundred and Thirty Six of whom were to be elected Nigerians.
            The 1954 constitution replaced and repealed the 1951 constitution and further expanded the electoral field as it provided the basis for the independence of Nigeria. Under the constitution, a unicameral legislature of 184 elected members was set up for the country. On the 1st October, 1960, Nigeria became an independent country and the Nigerian Order in Council was passed wherein Nigeria became a sovereign nation with full powers to fill all the elective posts in the country.

3.       Is Expeditious Trial of Election Petitions Under the Electoral Act 2010 (As Amended) A Myth or Reality?
            The Electoral Act, 2010 is an Act promulgated by the National assembly to repeal the Electoral Act No.2, 2006 which regulated the conduct of election of the present political administrations at all levels in Nigeria and its provisions governed the hearing and determination of all election petitions arising from the conduct of that election.[6] The Act also repeals the Independent National Electoral Commission Act, Cap.15, Laws of the Federation Nigeria, 2004. The Electoral Act, 2010 is to regulate conduct of Federal, State and Area Council elections; and for related matters.[7]
            In this paper the relevant aspect of the Electoral Act, 2010 suitable for our discussion is section 134 (1)(2)(3)and (4) which provides inter alia that:
134 (1)            - An Election petition shall be filed within 21 days after the date of the declaration of results of the elections.
       (2) An election tribunal shall deliver its judgment in writing within 180 days from the date of the filing of the petition.
        (3) An Appeal from a decision of an election tribunal or court shall be heard and disposed of within 60 days from the date of the delivery of judgment of the tribunal.
        (4) The Court in all appeals from election tribunals may adopt the practice of first giving its decision and reserve the reasons thereto for the decision to a later date.
           
By virtue of section 134 (2) & (3) of the Electoral Act 2010 (hereinafter referred to as the “Act”) the time within which an election petition shall be heard is limited to One Hundred and Eighty days from the date of filing the petition and any appeal that may arise from the decision of the Election Petition Tribunal shall be concluded within sixty days from the date of delivery of judgment of the tribunal. The question is, what is the rationale for limiting the time within which an election petition may be heard including any appeal arising there from?
            The answer to this question is not farfetched. The intention of the legislature regarding time limit in the determination of election petition is to prevent time wasting in the determination of election matter which had become a watershed in Nigerian politics in the previous elections. this was therefore to remove such menace and accelerate electoral adjudication in order to avoid confusion in the polity. This submission can be buttressed with the wisdom of the learned Justices of the Court of Appeal in the case of Balogun v. Odumosu [8] where the court held that:
                               It must be remembered that the trait of all laws affecting election petition tribunal is that of essentiality of time. The Spirit of the Laws is that as much as possible such petitions are given expeditious adjudication to enable the parties know their status.[9]   
The court further held that:
                 The issue of time to complete the filing of all processes relating to the hearing and determination of an election petition was uppermost in the mind of the legislature. The enactment stretches itself further afield to do away with tardiness and waste of time, and endeavoured to constrict the time of doing a particular act within a time framework. In other words, it is the intention of the legislators that parties stick strictly to the times stated in the Decree. The court would not aid anyone who decides to sleep only to wake up when it is too late.[10]
Section 82 and paragraph 2 (1) Schedule 5 of the Local Government (Basic Constitutional and Transitional Provisions) Decree[11] was interpreted and applied in the Balogun Case. Paragraph 2(1) of Schedule 6 to the State Government (Basic Constitutional and Transitional Provisions) Decree[12] also provided for time limit in election petition relating to the election of Governor of a state. It limited the hearing and determined of such petitions to 30days from the date of which the Petition was filed. Thus, in Jidda v. Kachallah, [13] the Court of Appeal, Jos Division, held thus:

It must be borne in mind that in the determination of all election petition matters, public policy dictates that time is of essence so that as much as possible parties affected and generality of the public would readily know the status of the contestants. While I sympathize very much with the appellant in this matter…
It should be appreciated that state Government (Basic Constitutional and Transitional Provisions) decree No.3 of 1999, is meant to be interpreted strictly with regards to the time frame allowed by the provision of the Decree. The Court cannot grant the relief sought as by the efluxion of time the case before us is now died to all intents and purpose.[14]

            It should be noted that the court or the tribunal cannot, under any circumstance extend the time within which the election petition or any appeal therefrom can be heard and determined, because such power has not been vested on the court or the tribunal by the New Electoral Act, 2010 and even where such provision was made, the court held that the provision limiting the time within which an election petition shall be heard overrides the one giving discretion to the court /tribunal to extend time within which such a matter shall be heard and determined. In the case of Abah v. Robert (supra), the Court of Appeal held that: 
The Election Tribunals are ad hoc bodies constituted for hearing of the petitions. They are enjoined to determine the petitions within a specified period. It is wrong to hold that they can extend the life span of the petition as limited by law and in the instant case, the Lower Tribunal was eminently justified in declining the invitation of learned counsel for extending the time within which to hear and conclude the determination of the petition.[15](Underlining is mine for emphasis).
            Another question that arises as a corollary of the first, is whether the provisions of section 134 (2) and (3) of the Electoral Act, 2010 which limits the time within which an election petition and any appeal arising therefrom shall be heard and determined by the tribunal/ Court constitutes an infringement of fundamental/constitutional  right to fair hearing.
            In one of the decisions of the Court of Appeal, such provision cannot amount to an infringement of fundamental right to fair hearing enshrined in the constitution. Thus, in Abah v. Robert (supra) it was held that:
           
As to whether striking out of the petition in the circumstances narrated above was violative of the petitioner’s right to fair hearing, it has been held that fair hearing must mean a trial conducted  according to all the legal rules formulated to ensure that justice is done to the parties to the case…. (OBASEKI, J.S.C. in the case of Ariori v. Elemo (1983)1 SCNLR; (1983)1 S.C.13 at 29)…The tribunal having adopted the procedure laid down by the enabling Decree in dealing with the petition until it lapsed when it was struck out, the complaint about the appellant’s right to fair hearing cannot be sustained.[16] (Underlining is mine for emphasis).

            However, the Supreme Court took a different stand on this issue and held that such a provision of the Act limiting the time within which election petition shall be heard and determined constitutes an infringement of the petitioner’s fundamental right to fair hearing guaranteed by the constitution of the Federal Republic of Nigeria.[17] In Yusuf v. Obasanjo (supra), the Supreme Court held that:    

The issue in Unongo v. Aku (Supra) was that the Electoral Act of 1982 provided that an election petition should be determined within a period of thirty days. The Supreme Court held that sections 129 (3) and 140 (2) of the Electoral Act deprive the petitioner of his fundamental  right to fair hearing guaranteed by section 33 (1) of the constitution by limiting the period which an election petition must be disposed of and on this account the two sections are unconstitutional  and invalid. It was in that circumstance that Uwais, J.S.C.(as he then was) held that any electoral enactment which specifies a time constraint on the court to determine an election petition, as  distinguished from the time of filing same… is to say the least very absurd and indeed defeats the intention of the constitution and the Electoral Act itself, which is to enable an aggrieved candidate to seek redress in court……what the learned Justice of the Supreme Court described as absurd, and I entirely agree with him, is the fixing of a period for the determination of an election petition. That is certainly against all known principles of fair hearing as the court, by the provision, is hammed to affix date within which it must, as a matter of law, deliver judgment.[18] (underline is mine for emphasis)

On the Principle of Judicial Precedent otherwise known as stare decisis, the decision of the Supreme Court takes precedence over that of the Court of Appeal. It can therefore rightly be said that on the issue of limitation of time within which an election petition shall be heard and determined by the court/tribunal, the decision of the Supreme Court in Yusuf v.Obasanjo (supra) takes precedence over and above the Court of Appeal decision in Balogun v. Odumosu (Supra). The consequence of the above judicial analysis is that the provision of Section 134 (2)(3) of the Electoral Act, 2010 which stipulates time limit within which an election petition could be heard and determined is unconstitutional, Illegal, null and void and of no effect whatsoever to the extent of its inconsistency with the provision of Section 36 (1) of the constitution of the Federal Republic of Nigeria,1999. Reliance is placed on the Supreme Court decision in Dalhatu v. Turaki where Edozie, J.S.C. held thus:

The doctrine of judicial precedent otherwise known as stare decisis is not alien to our jurisprudence. It is a well settled principle of judicial policy which must be strictly adhered to by all lower courts. While such lower Courts may depart from their own decisions reached per incuriam, they cannot refuse to be bound by decisions of higher courts even if those decisions were reached per incuriam. The implication is that a lower court is bound by the decision of a higher court even where that decision was given erroneously.[19]

            Very interestingly, the legislators lifted the provision of section 134 (2) & (3) of the Electoral Act,2010 and inserted same in the amended constitution.[20] So  that if the provision of the Act is declared null and void by the Court for being inconsistent with the constitutional provision, they may seek solace under the constitution to maintain and justify their position as regards limitation of time within which  an election petition may be heard and determined. Section 285 (5) of the constitution as amended provides:-

(a)    ……..
(b)   …an election tribunal shall deliver its judgment in writing within 180 days from the date of the filing of the petition;
(c)    An appeal from a decision of an election tribunal or court shall be heard and disposed of within 60 days from the date of the delivery of judgment of tribunal.
           
We are inclined to settle with the wisdom of the erudite and learned Justices of the Supreme Court in Yusuf v. Obasanjo (supra) that any provision of the Law which tends to limit the period within which an election matter may be heard and determined by the tribunal or court violates the petitioner’s fundamental right to fair hearing as enshrined under section 36 (1) of the constitution. The law further provide at paragraph 41 (10) of Schedule 5 that the petitioner must prove his petition within 14 days of commencement of hearing. The effect of the provision is not farfetched upon due and dispassionate consideration of the Electoral Act which provides that it is only where the petitioner proved that non compliance has substantially affected the election that the election will be nullified. Is it even possible for a petitioner in a presidential election to successfully prove his petition within 14 days in a situation where he has allegations in more than fifteen states of the 36 states of the Federation? Can he prove the allegations in all the polling units in a state within a day? Will he be able to nullify the election if he could prove the allegations in less than 1/3 of the states of the federation? This has shown beyond any doubt that the Electoral Act, 2010 (as amended) was enacted to protect the Respondent who has been declared the winner by the electoral body and not the petitioner for whose purpose it was enacted. Now that the provisions of section 285 (5) and 36 (1) are both constitutional provisions, the task of the petitioner has been made more onerous which portends grave consequences for the polity.
            This undue interference of the legislature with judicial functions may constitute a clog in the wheel of progress and affect the independence of the judiciary which is prohibited under the constitution. thus, in Gade v. Malle[21] the court opined as follows:

By virtue of section 4 (8) of the 1999 constitution, the exercise of legislative powers by the National Assembly or by a House of Assembly shall be subject to the jurisdiction of the courts of law and judicial tribunals established by law, and save as otherwise provided the National Assembly or a House of Assembly cannot enact any law that oust or purports to oust the jurisdiction of a court of law or of a judicial  tribunal established by law.
           
In any event, it has long been settled that where there exists any conflict between the provisions of Chapter four of the constitution (section 36 (1) inclusive) and any other aspect of the constitution, the provisions of chapter four shall prevail over any other provisions of the constitution. Therefore, the provisions of section 36 (1) shall override the provision of section 285 (5) (a) & (b) thereof.[22]

4.       Conclusion
            It goes without saying and without any element of exaggerations that the urge and agitation for expeditious trial of election petition which resulted in the amendment of both the Electoral Act and the Constitution can be best described as a myth and not reality. It is an attempt to preclude the petitioners from ventilating their grievances against the declared candidate successfully.
It is our hope that the National Assembly will as a matter of urgency look into the injustice created by the Electoral Act, 2010 (as amended) and amend its provisions relating to limitation of time within which to conclude an election petition and the appeal arising therefrom. It is not wise to sacrifice justice at the alter of speed. It is suggested that the establishment of a specialized Court (for handling of election cases) is now a necessity in this country.

[1] Black’s Laws Dictionary, 7th Edition, Page 536. See also Ojukwu v. Yar’Adua (2009) 12NWLR (Pt 1154) 50 at 150 Para E  and  A.P.G.A.v.Ohakim (2009) 4NWLR (Pt.1130)116 at 176 Paras C- F.
[2] supra
[3] Ibid
[4] Afe Babalola, Election Law and Practice,(Intec Printers Limited, 2003) ,p. 1.
[5] Ibid, p. 2 (Address by the Governor, Sir Hugh Clifford, to the Nigeria Council, December,29, 1920 p.16)
[6] Electoral Act, 2010 – Preamble (Amended 27/12/2010).
[7] Ibid
[8] (1999)2 NWLR (PT.592)590 at 596 – 597 paras. B- C
[9] ibid
[10] Ibid p.597, paras B - C
[11] No.36, 1998.
[12] No. 3, 1999
[13] (1999) 4 NWLR (Pt 599)426 at 433 – 434 paras. G - A
[14] See also Abah v. Robert (1999)17 NWLR (Pt.597)126 at 136 Paras C – F; Opi v. Ibru (1992) 3 NWLR (Pt 231)658; Flade v. Obasanjo (1999) 6 NWLR (PT. 606)283; Tejuosho v.Omojowogbe (1998) 7 NWLR (Pt. 559) 628 and Waziri v. Daboyi (1999) 4 NWLR (Pt 598)239.
[15] (1999) 4 NWLR (Pt. 597)126 at 136 paras G - H.
[16] Ibid

[17] See Unongo v. Aku (1983) 2 SCNLR 332 and Yusuf v. Obasanjo (2003)16 NWLR (Pt.847)554 at 603- 605 paras G-D.
[18] (2003) 16 NWLR (PT.874)554 at 603 – 605, paras G- D
[19] (2003) 15 N.W.L.R (Pt 843)310 at 350 – 351,paras F-D.
[20] Section 285 (5) (a) & (b), Constitution of the Federal Republic of Nigeria, 1999 (amended) with 1st and 2nd amendment.
[21] (2010)7 NWLR (Pt.1193) 225 at 282 para b – c
[22] See Funmilayo Ransome Kuti v.A.G,Federation (1985) 2 NWLR (Pt.6)211 at 229 - 230
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