A CRITICAL APPRAISAL OF THE DECISIONS OF
ELECTION PETITION TRIBUNALS IN NIGERIA EBONYI STATE AS A CASE STUDY
CHAPTER TWO
Definition of terms and origin of
tribunal in Nigeria
2.1 Introduction
A critical appraisal of judgments of
the Governorship 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.
2.2 Definition
of Terms
2.2.1 Election
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
Dictionary[1],
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 Party[2], 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
declaration of results. This position was well articulated by the court of
appeal in APGA v. Ohakim[3],
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. Obasanjo[4]
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.
2.22 Tribunal
A “Tribunal” according to the
Electoral Act[5] 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.
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 Fawehinmi[7], 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 constitution[8]
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.
2.2.3 Election
Petition
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
2.2.4 Judgment
A judgment according to the Black
Law Dictionary[12] is a
court’s final determination of the rights and obligations of the parties in a
case. The term judgment includes an equitable decree and any order form which
an appeal lies. It also means an opinion delivered by a member of the appellate
committee of the House of Lords, a law Lord’s judicial opinion.
A judgment is the decision or
sentence of a court in a legal proceeding delivered by a judge or judges in an
open Court, unless the court directs otherwise for special reasons. It also
means the reasoning of the judge, which leads him to his decision which may be
reported and cited as an authority, or precedent, if the mater is of
importance.
From the above definition of
judgment, it is very clear that a judgment is the final decision of the court
in a particular case before it. It is also a final part of a court case. A
valid judgment resolves all the contested issues and terminated the lawsuit,
since it is regarded as the court’s official pronouncement of the law on the
action that was pending before it.
Also,
according to the Wikipedia online encyclopedia, a judgment in a legal context
is synonymous with the formal decision made by a court following a lawsuit. At
the same time, the Court may also make a range of court orders, such as
imposing a sentence upon a guilty defendant in a criminal matter, or providing
a remedy for the plaintiff in a civil matter.
Section 294 of the 1999 constitution
(as amended) provides that every court established under the constitution shall
deliver its judgment in writing not later than 90days, or three months after
conclusion of evidence and final address, provided that
(a) It has not adjourned for judgment.
(b) It has
delivered it judgment immediately after conclusion of evidence, and
(c) It has not reserved its judgment sine die.
Where there is more than one address, the last address
is the final address.[13]
It is important to note that except
for the exception stated above, a judgment delivered beyond 90 days or three
months is a nullity.
2.3 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.
2.4 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. ANPP[14]
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.[15]
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 Sylva[16],
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”.
[1] Bryan A.
Garner, Black Law Dictionary Eight
edition p. 557
[2] A.F of Federation V. All Nigerian Peoples
Part (2003)15NWLR (Pt 544) 600
[3] Section
318 of the 1999 constitution (as amended)
[4] Ojukwu V. Obasanjo (2006) EPR 212 p. 292.
[5] First
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 VFawelumin (1985) 2 NWLR (P7)
Pg.300
[8] Section
36(1) (4) 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 Pg. 558
[11]
Paragraph 4(1) of the 1st Schedule to the Electoral Act 2010 (as
amended)
[12] Bryan. A. Garner. The Black Law Dictionary, ninth edition
pg. 918.
[13] Sodipo V Lemmin Kaimen No1 (1985) 2NWLR
(Pt.8) p. 547
[14] Idris V ANPP (2008) 19 NWLR (Pt.1120)
P. 246
[15] PDP V INEC (1999) 11 NWLR (Pt.626)
P.200
[16] Amgbare V Sylva (2005) 13 NWLR (Pt. 942) 319 at 438.