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