An aggrieved party or candidate in an election can challenge the validity of the election. The Electoral Act, 2022 (hereinafter referred to as the Act) and the 1999 Constitution of the Federal Republic of Nigeria (as amended) (The Constitution) provides for the process and procedure for challenging the validity of an election. This article explores the procedure and requirements for challenging the validity of an election.

A party aggrieved by the outcome of an election can challenge the election by filing a petition at the appropriate court with jurisdiction to hear and determine the petition.

JURISDICTION OVER ELECTION PETITION

Section 239 of the Constitution provides that the Court of Appeal shall have exclusive jurisdiction to determine the validity of an election to the office of President or Vice President.

Section 285(1) of the Constitution provides for the National and State Houses of Assembly Election Tribunal. The National and State House of Assembly Tribunal shall have exclusive jurisdiction to determine the validity of election into the National and State Houses of Assembly. Section 285 (2) of the Constitution provides for the establishment of the Governorship Election Tribunal, which has exclusive jurisdiction to hear and determine the validity of election into the office of Governor or Deputy Governor.

TIMELINE IN ELECTION PETITION

Election petition cases are sui generis, and time is of the essence in an election petition. The court cannot grant an extension of time in an election petition proceeding. Thus, parties are required to act timeously in accordance with the timeline provided in the constitution and in the Electoral Act.[i]

Section 285(5) of the Constitution provides that an election petition shall be filed within 21 days from the date of declaration of the results. The petition shall be filed at the registry of the appropriate tribunal or court. The Petitioner can amend his petition any time before the expiration of 21 days from the date of the declaration of results. [ii]

The Secretary or Registrar will issue the Respondent a Notice of Petition requiring the Respondent to enter appearance within a period of not less than five (5) days but not more than (7) days from the receipt of the notice. [iii]

The Respondent has twenty-one (21) days to reply to the petition of the Petitioner. The reply shall set out facts and figures the Respondent seeks to rely on in his reply.   The Respondent shall state his objection to the hearing of the petition in his reply, and the objection shall be heard with the substantive suit. [iv]

Where the respondent raises new issues in his reply, the petitioner can file Petitioner’s Reply at the registry of the tribunal or court of appeal within 5 days from the receipt of the respondent’s reply. [v]

An election tribunal shall deliver its judgment in writing within 180 days from the date of filing the petition.  An appeal from an election tribunal or Court of Appeal shall be delivered within 60 days from the date of delivery of the judgment by the tribunal.[vi]

GROUNDS OF ELECTION PETITION

An election may be challenged by a petition on the following grounds

1. The person whose election is questioned was, at the time of the election, not qualified to contest for the election; the required qualification for each elective post is stated in the Constitution.[vii]
2. The election was invalid by reason of corrupt practices or non-compliance with the provisions of this Act. If there is substantive compliance with the Act, the election shall not be invalidated.[viii] The petitioner must be able to show that non-compliance affects the results of the election.[ix] The burden of proving non-compliance or corrupt practices lies solely on the petitioner. Where the conduct alleged is a criminal offense, it must be proved beyond a reasonable doubt.[x]
3. The respondent was not duly elected by the majority votes cast at the election.

PARTIES TO AN ELECTION PETITION

A person challenging the validity of an election is the petitioner, while the person whose election is complained of is the respondent.[xi]  The person entitled to be a petitioner in an election petition are:

1. A candidate in an election
2. A political party that participated in the election

Independent National Electoral Commission (INEC) may be joined as a respondent to the proceeding where the petitioner complains about the conduct of an electoral officer, returning officer, or presiding officer. [xii]

PROCEDURE AND HEARING OF ELECTION PETITION

The petition shall be accompanied by the following documents:

1. A list of witnesses
2. Written statements on oath of the witnesses
3. Copies of documentary evidence[xiii]

There is a pre-trial conference where the parties are required to discuss matters that will enhance the quick adjudication of the petition.

At the hearing, each party shall have 14 days to present his case. The hearing shall be in open court, and as aforesaid, the tribunal must reach its decision within 180 days from the day the petition is filed.

CONCLUSION

The Electoral Act, of 2022 and the Constitution have laid down the procedure for challenging an election. A qualified person or political party who feels aggrieved by the outcome of an election can challenge the outcome of the election within the stipulated period in line with the provisions of the Electoral Act and the Constitution.

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[i] Oke v Mimiko (2013) ALL FWLR PT.693 1853

[ii] Paragraph 14 First Schedule to the Electoral Act 2022

[iii] Paragraph 7(2) First Schedule to the Electoral Act 2022

[iv] Paragraph 12 First Schedule to the Electoral Act 2022

[v] Paragraph 16 First Schedule to the Electoral Act 2022

[vi] S.285(6) of the Constitution

[vii] Sections 65, 106,131, 137(1)(b), 177, 182 (1)(b) of the Constitution

[viii] Section 135 Constitution

[ix] PDP V INEC (2014) LPELR-23808(SC)

[x] Nwobodo v Onuh (1984) All NLR 1.

[xi] Section 133 Electoral Act

[xii] Section 133() Electoral Act

[xiii] Paragraph 12(3) First Schedule to the Electoral Act 2022

Written by Abdulrasheed Badmus for The Trusted Advisors

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