By JUSTICE USMAN BUKAR BWALA
ONCE more we are confronted with the issue of pre-election matters and election petitions matters and directly or indirectly the issue of regular court versus election petition tribunals. A basic understanding of the laws setting up regular courts and election petitions tribunals and the jurisdictions of each is paramount at this stage. What matters should go to regular court and what matters should go to election petition tribunal are directly in issue. Is there any conflict of jurisdiction between the two?
Regular courts are established by high court of law of each state and FCT. They try civil and criminal matters filed before them and are not limited by time within which to complete a case. Reasonable time to complete a case is the yardstick. Decisions of regular courts can go to the Supreme Court being the apex court. Regular courts are open throughout a year except during vacations.
Election petition tribunals on the other hand are established by the Constitution as amended in section 285 and section 133 of the Electoral Act 2011 as amended. Section 133 (i) reads as follows: “No election and return at an election under this Act shall be questioned in any manner other than by a petition complaining of undue election or undue return (in this Act referred to as an “Election Petition”) presented to the competent tribunal or court in accordance with provisions of the Constitution or of this Act, and in which the person elected or returned is joined as a party”. Election petition tribunals are established after election only to handle disputes that may arise because of the elections.
Thus, any issue as to who won or otherwise of an election can only be presented before an election petition tribunal. Section 133 (3) of Electoral Act mandates that election petition tribunals shall be constituted not later than 14 days before an election is held. Proceedings in regular courts are regulated by High Court Civil Procedure Rules and High Court Laws. On the other hand Election Petition Tribunals function within the ambit of the Electoral Act supra, the Schedule to the Act, Rules and procedures and Practice Directions made pursuant to the Act supra.
Election Petition Tribunals is sui generis governed by its own procedure. For instance, Silas Bounure Vs President Electoral Commissioner Delta 2006 1 NWLR (Pt 961) 2 86 at 316 where it was held as follows, “Election Petition and the rules applicable to it and its procedure are unique. It is for this reason why election petitions are described as sui generis. They are different from other civil proceedings”
An Election Petition Tribunal has limited period within which to hear and determine cases before it. Section 285 (i) of the 1999 Constitution as amended reads “There shall be established for each state of the Federation and the Federal Capital Territory, one or more Election Tribunals to be known as the National and State Houses of Assembly Election Tribunal which shall, to the exclusion of any Court or Tribunal have original jurisdiction to hear and determine election petitions”.
Section 258 (6) of the Constitution reads “An Election Tribunal shall deliver its judgment in writing within 180 days from the date of the filing of the petition”. Any judgment of an Election Petition Tribunal delivered outside 180 days of filing of the petition will be null and void. No High Court has power to stay proceedings before an Election Petition Tribunal Hon. Justice Nabaruma Vs Hon. Chudi Offadile 2004 13 NWLR (Pt 891) 599 at 632.
An understanding of what is election is relevant at this stage. What is election? Election Petition Tribunal hear issues pertaining to election which is a process starting with accreditation on election day and conclude with declaration of result INEC Vs Onyimbah 2004 14 NWLR (Pt 892) 92 at 123. Election Petition cases of State Assembly, House of Representatives and Senate appeals ends with an appeal to the Court of Appeal while Governorship and Presidential election petition ends in the Supreme Court. All appeals must be filed within 21 days of the decisions of the Election Petition Tribunal Section 143 of the Act. Any nullification or removal of an elected officer who has filed appeal shall remain in office until his appeal is determined, as per section 143 of the Act.
What is the position of pre-election issues that occur in elections conducted by parties in choosing which candidate shall represent a party during an election. As we have seen, an Election Petition Tribunal is the only bodies charged with determining election of any candidate. Can an Election Petition Tribunal hear issues that arise before an election? Answer to the above question was given in the case of Ayogu Vs Nnamani 2006 NWLR (Pt 981) 160 at 208 as “An election tribunal has no power to investigate matters which took place before the conduct of an election the subject matter before it”. It was put in a forceful and clear manner in Jonah Vs Dariye 2003 15 NWLR (Pt 843) 436 at 460 as “an election tribunal is only given exclusive power to hear election petitions and that its said powers does not extend to powers to conduct all trials in respect of elections nor does it confer its authority to handle preliminary issues or matters that take place before elections are held.” Thus, conclusively Election Petition Tribunals have no jurisdiction to try pre-election matters.
Pre election matters do occur particularly during party congresses and election, to fill party offences and electing candidates to contest political offices are all pre election issues. Political parties’ disputes do occur. They do occur before elections are held and are resolved by going to regular courts. All parties must, therefore, be thoroughly groomed about party congresses, election of candidates to contest political offices as stipulated in section 87 of the Electoral Act supra to avoid pre election disputes from arising.
The call to have Tribunals to handle pre election matters to be set up is most welcome. How do we avoid repeat performance of a situation whereby an elected officer whose election is affirmed by court have his electoral victory, up turned because of pre-election dispute? Any pre election tribunal to be set up must be given powers to abridge time for filing documents, given a time frame within which to conclude all cases pending even on appeal before elections are held.
Filing of written addresses should be limited to few pages to avoid bogus written addresses which may be time consuming to the Tribunal members. Election of candidates into political offices must be held after conclusion of all pre election cases.
The issue with tribunals is, it is, a hangover from the many years of military rule. Should we continue with it or not under democracy? During the First Republic election petition cases were filed before regular courts as there were no election petition tribunals. The regular courts heard all those elections cases without rancour. The other school of thought is of the view that some judges be set aside by each Chief Judge of a state to hear all pre election disputes within a certain time frame in such a way and manner that all pre lection matters will be conclusively dispose even on appeal before elections are held.
Where any of the above is accepted then the Electoral Act supra shall be amended by deleting the phrase “not qualified to contest election” in section 13 8(i) (a) thereof. All pre election matters particularly nomination of candidates as stipulated in section 87 of the Electoral Act, must be meticulously followed in order to have a valid election. The validity of election of members into any political office depends on pre election issues faithfully followed in accordance to the law. Where pre election issues are not properly followed any election based on the faulted pre election issue cannot stand it will crumble.
There is therefore no conflict of jurisdictions between the two, but when it comes to pre election matters and Election Petition Tribunals, wisdom dictates that all pre election matters be resolved before heading to the polls. The regular courts and Election Petition Tribunals are setup under different laws and operate under different laws also.
Any elected officer whose election is affirmed by Tribunals but have pre election issue in court challenging his election should have half celebration as the foundation of any electoral victory are the pre election matters. One cannot build sometime over nothing or faulty something.
Justice Bwala, a public affairs commentator, wrote from Abuja