Election Petition Flashcards
What type of procedure is the election petition?
Special nature and as such is said to be sui generis
What are the applicable laws for election petitions?
- Electoral Act 2010 (as amended)
- The 1999 Constitution ( as amended)
- The Election Tribunal and Court Practice Direction 2011
- The Federal High Court ( Civil procedure) rules 2009
What are the 4 grounds for an election petition?
- That a person whose election is questioned was, at the time of the election, not qualified to contest the election.
- That the election was invalid by reason of corrupt practices or non-compliance with the provisions of the Electoral Act.
- That the respondent was not duly elected by majority of lawful votes cast at the election.
- That the petitioner or its candidate was validly nominated but was unlawfully excluded from the election.
S.138 (1) (a)-(d) Electoral Act
What are the grounds for disqualification from running for office?
- The candidate is not a citizen of Nigeria
- The candidate has been elected into such office at any two previous occasions ( applicable to President and Governor only.)
- The candidate is adjudged a lunatic or a person of unsound mind
- The candidate is an undischarged bankrupt.
- The candidate has presented a forged certificate to INEC
- The candidate is under a death sentence or a sentence of imprisonment for an offence involving dishonesty or fraud
- Within a period of 10 years prior to the election, the candidate has been convicted
- The candidate is employed by the public service of the federation or of a state and he does not resign, withdraw, or retire from such employment 30 days before the date of the election.
- He is a member of a secret society
- The candidate has voluntarily acquired the citizenship of a country other than Nigeria
- The candidate has made a declaration of allegiance to such other country
What are the qualifications for the offices of President and Governor?
a. Candidate is a citizen of Nigeria by birth
b. Candidate has attained the age of forty years ( for President); thirty-five years ( for Governor)
c. Candidate is a member of a political party and is sponsored by that political party
d. Candidate has been educated up to at least School Certificate level or its equivalent
What are the qualifications for election to the National Assembly?
- Candidate is a citizen of Nigeria
- Candidate has attained the age of 35 ( for senate); 30 years for (House of Reps)
- Candidate is a member of a political party and is sponsored by that political party
- Candidate has been educated up to at least school certificate level or its equivalent
What are the qualifications for election to the State Houses of Assembly?
- Candidate is a citizen of Nigeria
- Candidate has attained the age of 30 yrs
- Candidate is a member of a political party and is sponsored by that political party
- Candidate has been educated up to at least School certificate level or its equivalent
What is the degree of non-compliance with the electoral act?
Non-compliance is substantial and sufficiently affects the result of the election
what happens if the petitioner fails to prove the degree of non-compliance?
The tribunal/court will not set aside the result of the election
What standard of proof is required to prove allegations of corrupt practices such as bribery or crimes in election petitions?
corrupt practices have to be proved beyond reasonable doubt.
What has to be proved when the ground is that the respondent was not duly elected by a majority of lawful votes?
If the court or tribunal is satisfied that the respondent did not poll majority of the votes cast at the election
The court will make an order returning the candidate that polled the majority of lawful votes cast
when is an election petition filed on the ground that a candidate was validly nominated but was unlawfully excluded from the election
A person who was validly nominated and cleared
But is unlawfully excluded from the election by INEC may file a petition on this ground
When shall an election tribunal be constituted
Not later than 14 days before the day of the election
Who does the tribunal consist of
Chairman and two other members
Who can be the chairman of an election tribunal?
A judge of a high court of the state where the tribunal is being held
Who should make up the other two members in the tribunal
The Judges of a High Court or a Customary Court of Appeal or Kadis of Sharia Court of Appeal
Who appoints the members of an election tribunal
The appointment is made by the president of the court of appeal in consultation with the chief judge of the state , the grand kadi of the sharia court of appeal of the state or the president of the customary court of appeal of the state
Sixth Schedule of the 1999 Constitution (as amended)
Within how many days should an election petition be filed?
An election petition shall be filed within 21 days after the date of the declaration of results of the election
s.285(5) 1999 Constitution (as amended)
Can you file an extension of time for an election petition?
There is no extension of time within which to file a petition.
Once a petitioner fails to file his petition within the stipulated time, he is statute barred and loses his right to relief
Moghalu v Ngige
When will the court/tribunal not have jurisdiction to hear a petition?
If an election has been conducted but there hasn’t been an official return/declaration of results
Within what time frame can a petition be amended?
An election petition can only be amended within the time limited for filing it.
- 21 days from the date of declaration of the result of the election
Who can present a petition?
- A candidate in an election
- A political party which participated at the election
s.137 (1) Electoral Act - A person who was validly nominated by his party, but is unlawfully excluded from the election by INEC may also file an election petition
PPA v Saraki
Is it still an election dispute if the candidate is wrongfully excluded by his party and not by INEC?
if the wrongful exclusion or substitution is done by the political party and not INEC, it is a pre-election matter and the election tribunal will have no jurisdiction
The aggrieved candidate may thus seek redress in the Federal High Court or the High Court of a state
Gassol v Tutare
Can a political party validly change or substitute its candidate before an election?
S.33 Electoral Act permits political parties to change or substitute a candidate only in the case of death or withdrawal by the candidate
How can a candidate withdraw his candidature?
By notice in writing signed by him and delivered by himself to the political party that nominated him
2. The political party shall convey such withdrawal to INEC
When is withdrawal of candidate allowed
Not later than 45 days to the election
Who is the election petition presented to & who presents it?
To the secretary or registrar of election tribunal/court either by the petitioner or his solicitor
What does the petitioner or his solicitor need to bring with the petition?
Payment of filing fees and obtaining a receipt
(Form TF002) for same
Security for costs
Paragraph 3 (1) 1st schedule Electoral Act
What is the implication of failure to pay filing fees on the petition?
It renders the petition invalid and it will be struck out unless the tribunal orders otherwise
Ozobia v Anah
What is the implication of failure to pay security for costs?
It is not fatal but the proceedings will be stayed until the security for cots is paid by the petitioner
Nwodo v Onoh
What documents should be frontloaded with an election petition?
- A list of the witnesses that the petitioner intends to call in proof of the petition
- Written statements on oath of the witnesses
- Copies or list of every document to be relied on at the hearing of the petition.
What is the implication of failure to front load the necessary documents with the petition?
It will lead to the secretary of the tribunal refusing the petition for filing
What documents should be frontloaded with a respondent’s reply?
- A list of witnesses that the respondent intends to call in proof of the petition
- Written statements on oath of the witnesses
- Copies or list of every document to be relied on at the hearing of the petition
How should a notice of presentation of petition be served?
By Personal service using Form TF 003
substituted service may be effected with leave of the court/tribunal
How should a respondent enter appearance?
By filing a memorandum of appearance using Form TF 004 within the time limit stated in the notice of petition
When can a respondent file a conditional memorandum of appearance?
When the respondent has a preliminary objection against the hearing of the election petition on grounds of law, they may file a conditional memorandum of appearance
When can the respondent file a reply to service of petition on him?
Within 14 days of service of the petition on him
What is the consequence of the respondent’s failure to file a memorandum of appearance within the limited time?
He will be deemed to have waived personal service of processes; thus, all processes will be deemed duly served on him by pasting it on the notice board at the tribunal registry
Within how many days can a petitioner reply to a respondent’s reply?
Within 5 days of receiving the respondent’s reply, the petitioner may file a reply to any new issues raised therein
The petitioner cannot introduce new facts at this stage trying to amend the contents of the petition filed by him
When can the petitioner file for issuance of pre-hearing notice?
Within 7 days after the filing and service of the petitioner’s reply on the respondent
OR
7 days after the filing and service of the respondent’s reply
whichever is the case
What form contains pre-hearing notice
Form TF 007
How is the application for issuance of pre-hearing notice made?
Motion on notice, supported by affidavit and written address
What does the tribunal/court issue with the pre-hearing notice
They issue a pre-hearing notice accompanied by a pre-hearing information sheet in Form TF 008
What can the respondent do if the petitioner fails to bring an application for pre-hearing notice?
They may bring the application
Or
Apply for an order dismissing the petition
What happens where both the petitioner and the respondent fail to apply for pre-hearing notice?
The tribunal shall dismiss the petition as an abandoned petition.
This dismissal is final and the tribunal/court becomes functus officio
Within how many days should the pre-hearing session be completed within?
The pre-hearing session must be completed within 14 days of its commencement
What is the effect of failure to attend the pre-hearing session by the petitioner
The petition will be dismissed
What is the effect of failure to attend the pre-hearing session by the respondent
Judgement will be entered against him
Such judgement may be set aside upon an application made by the respondent within 7 days of the judgement
What happens when the party starting has concluded its evidence?
If the other party is not calling evidence, the party beginning shall within 10 days after close of evidence, file a written address
What happens when a party is served with the written address
The other party shall file his own written address within 7 days
What happens when the other party does call evidence
He shall within 10 days after the close of his evidence, file a written address
what does the party beginning do if they are served with the other party’s written address
They shall file their written address within 7 days
Which party has a right of reply on points of law only?
The party who files the first address and the reply shall be filed within 5 days after the service of the other party’s address
How is judgement delivered in an election tribunal?
In writing within 180 days from the date of the filing of the petition
Can the court/tribunal extend the date within which the trial may be held and judgement delivered?
The provision of 180 days is sacrosanct
Provided under S.285(6) CFRN
It cannot be extended or elongated by the court
The court would be out of jurisdiction in respect of the petition
ANPP v Goni
What prayers/reliefs can a petitioner seek?
- That the petitioner be declared validly elected having polled the highest number of lawful votes cast at the election
- That the election be declared nullified and a consequential order of bye-election/fresh election be made
Can both prayers be made in one petition?
It should be one or the other, because both would be contradictory
How can both prayers be made in the same petition?
They should be asked for in the alternative
what orders can the court/tribunal make following the conclusion of proceedings?
- Where the court or tribunal finds that the returned candidate was not validly elected on the ground, the tribunal or court shall nullify the election.
- Where the court or tribunal finds that the person returned had the majority of votes cast but was not qualified to contest the election; a fresh election shall be ordered
- Where the court finds that the candidate returned did not secure the majority of valid votes, the court/tribunal shall declare as elected the candidate who was duly qualified to contest the election, and scored the highest number of valid votes cast at the election.
The court/tribunal may also dismiss the petition and declare the candidate returned as validly elected
Can a court/tribunal declare a candidate as winner of an election if such person did not participate in all the stages of the election?
s.140 Electoral Act provides that an election tribunal or court shall not under any circumstance declare any person a winner at an election in which such a person has not fully participated in all the stages of the said election
What does s.143(2) Electoral Act state?
That if the court/tribunal delivers judgement in an election petition and determines that the candidate who was returned as elected was not validly elected, such a candidate may remain in office pending the expiration of a 21 day period within which an appeal may be brought
Where is an appeal against the decision of a tribunal filed &within how many days?
Filed at the registry of the tribunal within 21 days of the decision being appealed against
para 6 of the Election Tribunal and Court Practice Directions 2011
Within how many days should an election petition appeal be heard and disposed of?
within 60 days from the date of delivery of the judgement
S.285(7) CFRN 1999
