Election litigation is bound to occur in an electoral process. This is because, before every general election is conducted in Nigeria, the political parties are required by law to conduct internal primary elections to nominate candidates that would represent them at the general elections and disputes typically arise during this process.
The following matters have been classified by the courts as pre-election matters: nomination of a candidate; double nomination of a candidate; disqualification of a candidate; wrongful substitution of a successful candidate’s name by the electoral body; wrongful omission of a successful candidate’s name by the electoral body; complaints about the conduct of primaries, and false declaration on oath about particulars of a candidate.
The importance of pre-election matters cannot be over-emphasized as they are live issues which must be determined by the court even after the general election has been conducted and a candidate has been sworn in and the seat occupied.
This is corroborated by what transpired after the 2019 general elections when a governor was ousted before the swearing-in ceremony, some senators and members of the House of Representatives were ousted by the Supreme Court on account of pre-election matters after taking the oath of allegiance and after the inauguration ceremony.
the Electoral Act 2022 creates another species of a pre-election matter
Provisions relating to pre-election matters
i) Constititional provisions
The Constitution of the Federal Republic of Nigeria, 1999 (as amended) makes provisions for pre-election matters and gives its definition. Section 285 (14) recognizes three different types of pre-election matters under paragraphs (a) – (c).
Paragraph (a) deals with the complaint by an aspirant, directed at his political party, that there has been a failure to comply with the Electoral Act, party constitution or party guidelines in the conduct of the party’s primary election in respect of selection and nomination of candidates for the said primary election.
The Court has held that in the conduct of its primaries, it will never allow a political party to act arbitrarily. A party must obey its own constitution.
Paragraph (b) deals with the complaint by an aspirant, directed at the Independent National Electoral Commission, (INEC)], that actions, decisions or activities of INEC did not comply with the Electoral Act or complaint that the provisions of the Electoral Act or any Act of the National Assembly, pertaining to selection or nomination of candidates and participation in an election have not been complied with by INEC.
In other words, this covers complaints about INEC not complying with constitutional provisions and the Electoral Act pertaining to the selection or nomination of candidates and participation in an election. Thus, an aspirant can rightfully seek redress in court for any of the above infractions by INEC. Typical examples are registration of voters, delineation of constituencies, formation of political parties, updating of voters’ register, regulation of the conduct of political parties etc.
Paragraph (c) deals with cases by a political party, directed at INEC, for its administrative decisions or actions regarding a party’s candidate’s nomination or disqualification. It includes suits by a political party in connection with an election timetable, registration of voters and other activities of INEC regarding preparation for an election. In other words, paragraph (c), deals with political parties that challenge actions, decisions or activities of INEC in respect of nominations of candidates for an election, the timetable for an election, registration of voters and other activities in respect of preparation for an election.
ii) Provisions in the Electoral Act 2022
The provisions of section 285 (14) in defining pre-election matters are not exhaustive. Section 29(5) of the Electoral Act 2022 provides that “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 given 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.”
Further to the above, section 29 (6) of the Electoral Act, 2022 provides that, “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 votes and who satisfies the constitutional requirements as the winner of the election.’
Similarly, section 84 (14) of the Electoral Act, 2022 provides thus: “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.”
Accordingly, the above provisions create another species of a pre-election matter which now only clothes any aspirant who participated in the primaries of his political party with the requisite locus standi to challenge the information supplied by a candidate of his political party and to challenge the conduct of the primary election of his political party before the General Election.
By the current position of the law, only aspirants are conferred with the requisite locus standi to institute pre-election matters in court under sections 29 (5) and 84(14) of the new Electoral Act, 2022.
In other words, it should be noted that the new Electoral Act 2022 has now limited this pre-election suit to: an aspirant who participated in the primaries of his political party; the aspirant can only sue his political party’s candidate; the aspirant can only sue his political party’s candidate regarding his constitutional requirements in connection to the subject matter of this suit, and this suit can only be instituted at the Federal High Court.
Thus, any aspirant who participated in the primaries of his political party and believes that his political party’s candidate has furnished false information in his affidavit on oath or any document, inclusive of his nomination form to INEC, may institute an action against him only in the Federal High Court, only.
Limitation of time for Pre-election matters in court
i) Limitation of time for commencement of Pre-election matters: It is pertinent to note that the Constitution provides for the limitation of time for the commencement of pre-election matters under section 285 (9) thereof. It provides that “Notwithstanding anything to the contrary in this Constitution, any pre-election matter shall be filed not later than 14 days from the date of the occurrence of the event, decision or action complained in the suit.”
The application of the above Constitutional provision has resulted in the dismissal or striking out of many cases in court for being statute barred, (even though there is a reasonable, genuine and compassionate cause of action), where the matters are filed outside the prescribed time limit of 14 days. Hence, it is very critical for pre-election matters to be filed within 14 days of the accrual of the cause of action, otherwise, no matter how compelling or compassionate the case of the litigant is, the matter will be statute barred and struck out or dismissed by the Court.
ii) Limitation of time for hearing and determination of Pre-election matters: There is a Constitutional provision for the time limit within which to hear and determine a pre-election matter. That is the time within which the case must be heard and judgment delivered. This is because, in election related matters, time is of the essence. Section 285 (10) of the CFRN stipulates that, “A court in every pre-election matter shall deliver its judgment in writing within 180 days from the date of filing of the suit”.
The importance of this provision cannot be over-emphasized as cases (even though compelling) have also been struck out or dismissed by the appellate courts as the case was heard and determined outside the prescribed time limit of 180 days.
iii) Limitation of time for filing, hearing and determination of appeals in Pre-election matters: Finally, there are also Constitutional provisions on limitation of time for filing, hearing and determination of appeals in Pre-election matters. Hence, section 285(11) of the CFRN provides: “An appeal from a decision in a pre-election matter shall be filed within 14 days from the date of delivery of the judgment appealed against.” Section 285 (12) of the CFRN further provides that, “An appeal from a decision of a court in a pre-election matter shall be heard and disposed of within 60 days from the date of filing of the appeal”
Hence, the above two constitutional provisions govern the limitation of time regarding filing, hearing and determination of appeals in pre-election matters. Accordingly, pre-election matters have been struck out by the appellate courts on the ground that the appeal was not filed within the stipulated period of 14 days or was not heard and determined within 60 days.
In view of the foregoing, it is pertinent to note that there are two categories of pre-election matters, namely, pre-election matters as provided for by the Constitution and pre-election matters as provided for in the Electoral Act, 2022.
One fundamental observation and difference is the locus standi to institute the actions for the two categories. As for the provision of section 285 (14) (c) of the CFRN, it appears that locus standi to file a pre-election matter thereunder is not for aspirants but for political parties that are aggrieved by INEC’s actions etc. It gives room to political parties to challenge actions, decisions or activities of INEC in respect of nominations of candidates for an election, the timetable for an election, registration of voters and other activities in respect of preparation for an election. It is posited that this can be explored by a political party to challenge the nomination of candidates of another political party.
Whereas, the second category as enshrined under sections 29 (5) and 84 (14) of the Electoral Act, 2022 confers locus standi on aspirants only.
Therefore, it is crystal clear that pre-election matters occupy a very sensitive and significant position in the Nigerian electoral law. Therefore, the political parties, candidates and the electoral umpire INEC must ensure that they follow the rules and regulations under the laws. Their watchword must be fairness, justice and adherence to the provisions of the electoral laws.
George Olatunde Babalola S.A.N., FCARB is a Partner at Afe Babalola & Co., Emmanuel Chambers.