Tuesday, August 9, 2022

Electoral Act: Tripartite legal implications of Sections 29(5) and 84(12) on pre-election dispute, by Dr. Musa Adamu Aliyu

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President Muhammadu Buhari had signed the Electoral Act, 2022 on Friday, 25th February, 2022. The assent has ushered in a new legal regime in regulating pre-election disputes in Nigeria. Two far-reaching provisions are contained in Sections 29 (5), (6) and 84(11) and (12) of the Electoral Act, 2022. The two provisions have delisted the jurisdiction of State and Federal Capital Territory Abuja High Courts to hear and determine the pre-election dispute. In addition to that locus standi to institute pre-election cases has been restricted to aspirants within the same political party. Thus, members of the public have no right to challenge a candidate that submitted false information or document to the Independent Electoral Commission (INEC).

What is a Pre-Election Dispute?

The Supreme Court of Nigeria has defined a pre-election matter as “a cause of action which predates and does not constitute any complaint against the actual conduct of an Election. In Amaechi V. INEC & Ors (2007) 18 NWLR (Pt.1066) 42, this Court has held that issues of nomination and sponsorship of party’s candidates for an election precede the election and are therefore pre-election matters.” See Akpamgbo-Okadigbo & Ors. v. Chidi & Ors. (2015) LPELR – 24564 SC per Hon. Justice M.D. Muhammad JSC, at p. 23, paras. C-D.

Jurisdiction of Court to Determine Dispute on Submission of False Information/Document by Candidate

Section 31 (5) of the repealed Electoral Act, 2010 empowered the Federal High Court, State High Court or High Court of the Federal Capital Territory, Abuja, with the jurisdiction over suit filed by any person who has reasonable ground that a candidate has submitted false information or document to the Independent National Electoral Commission. The provisions provide that:

(5) Any person who has reasonable grounds to believe that any information given by a candidate in the affidavit or any document submitted by that candidate is false may file a suit at the Federal High Court, High Court of a State or FCT against such person seeking a declaration that the information contained in the affidavit is false.

(6) If the Court determines that any of the information contained in the affidavit or any document submitted by that candidate is false, the Court shall issue an order disqualifying the candidate from contesting the election.”

The Apex Court through Honourable Justice W.N. Onnoghen (JSC later CJN as he then was), interpreted the provision of Section 31(5) of the repealed Electoral Act, 2010, in Mohammed v. Wammako (2017) LPLER – 42667 SC, at p. 16, paras. A-B as follows:

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“It has to be pointed out that … Section 31(5) of the Electoral Act, 2010, as amended, … provides that a person who has reasonable grounds to believe that any information given by a candidate in the affidavit or any document submitted by that candidate is false, may approach the (Federal, State or FCT) High Court for redress.”

The Electoral Act, 2022 in Section 29(5) and (6) of the Electoral Act, 2022 has ousted the jurisdiction of State and Federal Capital Territory Abuja High Courts with the jurisdiction to hear a pre-election suit predicated on false declaration and submission of a false document to the Independent National Electoral Commission. In the new Electoral Act, a dispute over the submission of false information in an affidavit and any documents to the Independent National Electoral Commission by a candidate is an intra-party dispute. Only a member of the political party who took part in the primaries that has locus to challenge the nomination of the candidate suspected to have submitted false information and/or document to the Independent National Electoral Commission. Section 29 stipulate as follows:-     

“(5) Any aspirant who participated in the primaries of his political party who has reasonable grounds to believe that any information given by his political party’s candidate in the affidavit or any document submitted by that candidate in relation to his constitutional requirements to contest the election is false, may file a suit at the Federal High Court against that candidate seeking a declaration that the information contained in the affidavit is false. 

(6) Where the Court determines that any of the information contained in the affidavit is false only as it relates to constitutional requirements of eligibility, the Court shall issue an order disqualifying the candidate and the sponsoring political party and then declare the candidate with the second highest number of valid votes and who satisfies the constitutional requirement as the winner of the election.”

Jurisdiction of Court on Dispute over Conduct of Primaries by Political Parties

Section 87(9) of the repealed Electoral Act, 2010 gave concurrent jurisdiction to the Federal, State and FCT High Court to hear and determine dispute on primaries. The section provides that:

“(9) Notwithstanding the provisions of this Act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court or the High Court of a State or FCT, for redress.”

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In interpreting the above provision, the Supreme Court per Hon. Justice K.M.O Kekere-Ekun JSC in Mailantarki v Tuongo & Ors. (2017) LPELR – 42467 SC, at p. 29, paras. E-F ruled that:

“Pursuant to Section 87(9) of the Electoral Act 2010, as amended, an aspirant who complains that any of the provisions of the Act and the guidelines of a political party have not been complied with in the selection of or nomination of a candidate of a political party for election may apply to the Federal High Court or the High Court of a State or FCT for redress.” Emphasis supplied.

With the promulgation of Section 84 (11) and (12) of the Electoral Act, 2022, only Federal High Court has jurisdiction to determine dispute over party primaries. The provision of the Section is apparent that:

“(11) Where a political party fails to comply with the provisions of this Act in the conduct of its primaries, its candidate for election shall not be included in the election for the particular position in issue. 

(12) Notwithstanding the provisions of this Act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party have not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court for redress.” 

Consequences of Sections 29 (5), (6) and 84(11) and (12) of the Electoral Act, 2022 on Pre-election Litigation

The first consequence of the twin provisions in the pre-election litigation disputes in 2022 is that Federal High Court may witness so many pre-election disputes that may probably overstretch the judges of that Court in some States and the Federal Capital Territory Abuja. The reason is glaring – the State and Federal High Courts have no power to hear and determine pre-election suits. And it is advantageous to the State High Court and High Court of Federal Capital Territory, Abuja, to concentrate on other cases within their jurisdiction. 

The second legal consequence is that the allegation of submission of false information or false document to the INEC by a candidate is an internal party wrangling between aspirants. An aspirant from another political party or any other person who has reasonable ground that a candidate has submitted false information or document to INEC cannot institute suit to challenge such act.

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The third legal consequence linked to action on submission of false documents or information is that the National Assembly has ratified the subtle position of the Supreme Court in APC & Ors. v Karfi & Ors. (2017) LPELR – 47024 SC that a successful party in an action under Section 29(5) of the Electoral Act, 2022 shall not reap the benefit of his success. In other words, an aspirant who succeeded in proving that candidate submitted by their political party who subsequently won the general election, and declared by the Federal High Court to have perjured, will not be returned as a winner but rather, a candidate of the opposition party that came second in the general election will be returned as the winner. It can now be safely argued that in the pre-election matter under Section 29(5) of the Electoral Act, 2022, a successful party will have empty judgement, and he can be described as a spoiler.

Conclusion

There is no doubt Electoral Act, 2022, has brought far-reaching changes in pre-election litigation in Nigeria. The three legal innovations in the new Act have now made pre-election suits as disputes between members of the same political party. The members of the public have been divested with the previous right they had to challenge a candidate suspected to have perjured and/or submitted a forged document to the electoral umpire. The number of trial courts to entertain cases of pre-election matters have been trimmed from three to one. The pre-election matter is now a Federal High Court affair with FCT High Court and State High Court to concentrate on their normal cases. It is the suggestion of this article that there is a need for the Members of the National Assembly to if opportunity permits reconsider the issue of locus standi in cases of submitting false information or document by a candidate to allow all members of the public right to sue where they have reasonable ground that a candidate has submitted false information or document to the INEC. 

Mr Aliyu is the Commissioner of Justice and Attorney-General of Jigawa State 

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