An Election petition refers to the procedure for challenging the result of an election. Election petitions are instituted to challenge the validity of an election or for disputing the due return of a candidate and are the only legal way to do so under Nigerian law. It is usually presented by a candidate in an election or a political party that took part in the elections.

An election petition is referred to as sui generis in law because it has its peculiarities with legal procedures and processes that are different from normal civil proceedings.

APPLICABLE LAWS

Electoral Act 2022 and the Nigerian constitution 1999 (as amended) provide for the procedure of election petition. These laws provide for the courts that have jurisdiction to entertain electoral disputes. Petitions arising from National Assembly elections are to be heard by designated tribunals. The Governorship and Legislative Houses Election Tribunals handle petitions arising from elections conducted in the states of the federation for governorship and houses of assembly. For presidential elections, the appropriate court to hear election petitions is the Court of Appeal.

TIMELINE FOR THE COMMENCEMENT OF ELECTION PETITIONS

In Nigeria, Election petitions are time-bound actions and must be brought within the time prescribed. The timeframe for filing an election petition depends on the type of election.

For the presidential election, Section 134(2) of the Electoral Act 2010 (as amended) stipulates that an election petition challenging the outcome of the presidential election must be filed within 21 days after the date of the declaration of the results by the Independent National Electoral Commission (INEC).

For governorship and legislative elections (i.e., elections into the Senate and House of Representatives), Section 138(2) of the Electoral Act provides that an election petition must be filed within 21 days after the date of the declaration of the results by INEC.

It is important to note that the 21-day period for filing an election petition is a strict and mandatory deadline, and failure to comply with this deadline may result in the dismissal of the petition by the court.

CONCLUSIONS 

Elections make a fundamental contribution to democratic governance. The Legislature understands this importance hence the detailed provisions of the law on electoral disputes. The non-conformity with the provided timelines is a ground upon which the court can disregard the suit.

Introduction 

On May 28, 2022, the All-Progressive Congress conducted a primary election to nominate a senatorial candidate. Bashir Machina was declared the winner unopposed in the primary election.

On the other hand, Ahmed Lawan, the incumbent Senate President, was at the time of the primary election a presidential Aspirant. Ahmed Lawan lost the primary election. 

For ease of reference, section 115(d) of the Electoral Act 2022 provides that:

(1) A person who signs a nomination paper or result form as a candidate in more than one constituency at the same election commits an offence and is liable on conviction to a maximum term of imprisonment of two years.

This provision of the law prevented Ahmed Lawan from obtaining the two forms at a time.

Ahmed Lawan haven lost the bid to emerge as a presidential candidate of the All Progressive Congress, the refusal of Bashir Machina to step down for him led to the conduct of another APC primary election on June 6 2022, for Yobe North Senatorial Candidate where Ahmed Lawan was declared as a winner.

Dissatisfied, Bashir Machina filed a case against Ahmed Lawan in the Federal High Court. Machina was affirmed as the Yobe North Senatorial Candidate in the Federal High Court and the Court of Appeal respectively. On February 6, 2023, the Supreme Court upturned the two decisions of the lower courts and declared Ahmed Lawan as the winner. 

The Crux of the Supreme Court Judgment 

In law, there are different ways of commencing an action in a court via

1. Writ of Summons is a formal document addressed to the defendant requiring him to appear before the court if he/she wishes to defend himself against the plaintiff’s claim. It is the most common way of instituting court actions and is used for contentious matters.

2. Originating Summons: This is used to commence an action with undisputed facts. Here the court is tasked to interpret a document or law.

3. Originating Motion: where statute/rules mandate its use. usually for prerogative orders (habeas corpus, mandamus, prohibition, and certiorari) 

4. Petition: This is used to initiate cases like custody of a child, divorce etc

Every court in the Nigerian legal system has rules that bind the Court, Litigants and Legal Practitioners. The provisions of the Court Rules must be strictly followed when instituting/commencing an action in the court. 

In the supreme court judgement of Machina v. Lawan, Justice Centus Chima Nweze, who delivered the majority judgment of the Supreme Court, held that Machina ought to have commenced his case at the Federal High Court with a writ of summons given allegations made against the defendants in his suit. He said that hostile issues were alleged in Machina’s matter that could not be resolved through originating summons. It is noteworthy that Justices Adamu Jauro and Emmanuel Akomaye Agim disagreed with the majority judgment and held that both the Federal High Court and the Court of Appeal were correct in declaring Machina as APC’s Yobe North Senatorial candidate.

“Although the Federal High Court practice direction says that pre-election matters be instituted by way of Originating Summons, the Supreme Court has held in a plethora of authorities that the rules of court supersede a practice direction. And by the rules of court, an allegation of fraud should be brought by way of a Writ of Summons. This has been the consistent holding of the Supreme Court in a plethora of matters, and it won’t stop now”

Conclusion

Technical justice is a wheel in the clog of social justice. Technical justice pays more attention to the procedure that has to be followed at the expense of the substance of the case. Due to procedural technicality, Machina lost his case with the court holding that Machina’s case ought to have commenced by way of writ of summons and not originating summon due to the presence of contentious allegations. Any contentious matter ought to be initiated by Writ of Summons.

The Electoral Act 2022 introduced some novel changes that promise to make coming elections transparent and less problematic.

First, Section 9 of the Electoral Act 2022 mandates INEC to keep the Register of Voters at its National Headquarters and other locations in both electronic in its central database) and hardcopy.

Secondly, section 47 and 50 of the Electoral Act 2022 permits the use of electronic and tech devices like electronic voting machines, smart-card readers, etc., in the voters’ accreditation process for voters and general elections and the electronic transmission of election results, the procedure is to be determined by INEC. These provisions will mark a significant shift in transparency and meeting world standards compared to previous Nigeria’s general elections.

Also, section 51 of the Electoral Act 2022 provides that on election day, if the number of electoral votes cast at any polling unit exceeds the number of voters accredited at the polling unit on Election Day (overvoting), the Presiding officer is granted the right to cancel the election results in that polling unit. In the recently held Osun elections (August 2022) the victory of  Ademola Adeleke as governor of the state was nullified. The tribunal held that Adeleke did not score the majority of lawful votes during the July 16 governorship election in the state because there was overvoting in 749 polling units across 10 LGAs of the state and that Adeleke’s victory should be nullified.

Furthermore, the tribunal, the court, and INEC possess the power to review the final decision of a returning officer on questions of a rejected ballot paper, unmarked ballot paper, return of candidate, and declaration of candidate scores. Additionally, INEC has the power to not only review but also return where the returning officer’s declaration is found to be involuntary or made contrary to the provisions of the law or the election guidelines.

Additionally, it is no longer news that  Section 84 (12) of the electoral act makes political appointees ineligible as candidates or delegates in the electoral processes. This particular section has been under many criticisms. This was the reason why the former Minister of Transportation,  Rotimi Amaechi, resigned as a Minister before participating in the presidential primary.

In the past, the death of an electoral candidate created many problems leading to court cases. To curb this, the electoral act provided that If a candidate dies after polls, before the announcement of the final result, the election will be suspended (for not more than 21 days). If a candidate dies before the commencement of polls, the election shall be postponed and commenced within 14 days of the candidate’s death. Where it is a legislative position election, the election shall start afresh, and the political party (whose candidate died) shall if it intends to continue to participate in the elections, conduct a new primary within 14 days of the death of its candidate and submit the name of the new candidate INEC for replacement. For presidential, gubernatorial, and FCT area council elections, the running mate of the deceased candidate is to continue with the elections as the new candidate and nominate a new running mate. Section 34, Electoral Act 2021.

These provisions, if implemented, possess the means to give a smooth and transparent election in Nigeria. Follow me on khadfora.com for more.