SALIENT ISSUES ON THE AMENDED ELECTORAL LAW by: Barr. Akin Olawale Ogundayisi LL.B(Hons), B.L, ACIArb.

Principal Partner, BENAKOL CONSULTING, Abuja.

INTRODUCTION The constitution of the Federal Republic of Nigeria is the supreme document which most times serves as the basic source of other laws. Where any other law is inconsistent with the provisions of the constitution, the constitution shall prevail and that other law shall to the extent of its inconsistency be void. Thus, the constitution empowers the National Assembly to make law governing the affairs of the state. In line with this provision, the legislature (both National and State House of Assembly) deemed it fit to amend the 1999 Constitution and the Electoral Act 2006. Thus, the current review had amended some provisions relating to election process in Nigeria. The current electoral law is that of Electoral Act 2010 (as amended) as at December 29th 2010. Similarly, the 1999 Constitution of Federal Republic of Nigeria (as amended) as at 10th January 2011 has the extant provisions on electoral institutions and procedure for petition in Nigeria. Thus, the Federal Republic of Nigeria is a democratic state and can only be governed by any person or group of persons in accordance with the provisions of the constitution and current electoral law for the time being in force. The extent of this work is to understand the scope of electoral law in Nigeria, the applicable legislations and rules as well as the procedure for instituting election petitions in Nigeria under the new law. The innovations under the Electoral Act 2010 shall be made explicit as different from what obtained under the former regime. APPLICABLE LAWS a) b) c) d) e) f) g) Electoral Act 2010 (as amended) Rules of Procedure for Election Petition (First Schedule to the Act) Constitution of Federal Republic of Nigeria 1999 (as amended) Federal High Court Rules by virtue of Rules 50 Rules of Procedure. Election Tribunal and Court Practice Direction 2007 Court of Appeal Rules 2007 Supreme Court Rules

ESTABLISHMENT OF THE INEC The Independent National Electoral Commission is an establishment of the 1999 Constitution. At the same time, section 1 of the Electoral Act 2010 (as amended) provides that the Commission shall be a body corporate with perpetual succession and may sue and be sued in its corporate name. Contrary to this provision, the commission is only seen to being sued rather than sue especially where there is report of electoral malpractices and fraud. But with the new electoral law, the INEC now has power to prosecute any one accused of electoral offences. To shy away from this duty might not augur well for Nigerian democracy because it could encourage other people to believe that the law is there in theory and has no enforcement mechanism. See

Electoral Law Reforms and Constitutionalism in Nigeria: Essays in Honour of Justice James Ogebe (JSC) (rtd) edited by Akin Olawale Ogundayisi published March 2010. Section 3 further provides for the establishment of INEC Fund. There shall be paid into the fund established in pursuance to subsection (1) of this section such sums and payments, aids and grants available to the Commission for carrying out its functions and purposes under the Constitution and this Act and all other assets from time to time accruing. This provision seems to be enough to ensure the independence of the commission in terms of finance. However, a lot still depend on the Executive approval of fund made available to the commission under Sec. 3(2) (a). The office of INEC is also established in each state of the Federation and Federal Capital Territory by virtue of Section 7(1) of the Act. The functions of these state offices are those that may be assigned to it from time to time by the commission. It usual to find the Resident Electoral Commissioner being appointed by INEC to oversee the function of the body it each state of the federation. POWERS AND FUNCTIONS OF THE COMMISSION Constitutionally, the INEC shall have power to: (a) organize, undertake and supervise all elections to the offices of the president and vice-president, the Governor and Deputy Governor of a state, and to the membership of the Senate, the House of Representatives and the House of Assembly of each State of the Federation; (b) register political parties in accordance with the provisions of this constitution and an Act of the National Assembly; (c) monitor the organization and operation of the political parties including their finances; (d) arrange for the annual examination and auditing of the fund and accounts of political parties, and publish a report on such examination and audit for public information; arrange and conduct the registration of persons qualified to vote and prepare, maintain and revise the register of voters for the purpose of any election under this constitution; (e) monitor political campaigns and provide rules and regulations which shall govern the political parties; (f) ensure that all Electoral Commissioners, Electoral and Returning Officers take and subscribe the oath of office prescribed by law; (g) delegate any of its powers to any Resident Electoral Commissioner, and (h) carry out such other functions as may be conferred upon it by an Act of the National Assembly. In line with the above provision, the Electoral Act provides an additional power or functions to the commission. The Commission is empowered to conduct voter and civic education; promote knowledge of sound democratic election processes and conduct any referendum required to be conducted pursuant to the provisions of the 1999 constitution or nay other law, Act of the National Assembly.

ESTABLISHMENT OF ELECTION PANELS AND TRIBUNALS Election tribunals are judicial bodies set up to adjudicate disputes arising from the conduct of the elections. Section 133(1) of the Electoral Act 2010 (as amended) provides that: No election and return at an election under this Act shall be questioned in any manner other than by a petition complaining of an undue election or undue return (in this Act referred to as an Election Petition) presented to the competent tribunal or court in accordance with the provision of the constitution or of this Act, and in which the persons elected or returned is joined as a party.(underline mine) The peculiarity of election tribunals also attracts the special provision in the 1999 Constitution. The Constitution expressly provides that the chairman and other members shall be appointed by the president of court of appeal pursuant to paragraph 2(2) of the 6th Schedule to the 1999 Constitution (as amended). The appointed members are posted to jurisdictions which differ from their state of origin. This will surely ensure fairness and emotional detachment from the issues involved in the election. It is significant to note that the Act provides for various levels of tribunals or court vested with jurisdiction to hear and determine election petitions. Accordingly, Section 133(1) of the Electoral Act 2010 provides that tribunal or court means(a) In the case of presidential election, the court of appeal; and (b) In the case of any other elections under this Act, the Election Tribunal established by the Constitution or by this Act. Thus, a broad understanding of this provision coupled with the provision of the constitution vest the following courts with the jurisdiction to determine election petitions. The election tribunal shall be constituted not later than 14 days before the election and when constituted, open their registries for business 7 days before the election. See section 133(2) of Electoral Act 2010(as amended) (A) Court of Appeal The combined effect of the provision of Section 133(1)(a) of the Electoral Act 2010 (as amended) and Section 239 of the 1999 Constitution is to vest in the court of appeal original and appellate jurisdiction to the exclusion of any other court in Nigeria to determine any matter in relation to whether any person has been validly elected to the office of president or vicepresident under the constitution or the term of office of the president or vice-president has ceased or the office of the president or vice-president has become vacant. As it has been categorized by Joshua E. Alobo (Election Petition in Nigeria: Cases and Materials 2007 at p.9), the court of Appeal is therefore vested with three kinds of jurisdictions namely: i. Jurisdiction over election matters ii. Post election matters iii. The Appellate Jurisdiction. It must be borne in mind that no appeal lies to the Court of Appeal from decisions of Local Government Election Tribunals, being a Tribunal established by the States Houses of Assembly

and not a Federal law. This was one of issues that came up for determination in Kwara State I.E.C. v. P.D.P. The appeal to the Court of Appeal was that the case was against a ruling of the Kwara State Local Government Election Tribunal established pursuant to the Local Government Electoral Law, No. 2 of 2004 enacted by the Kwara State House of Assembly. The appellant filed a motion on notice for leave to use the bundle of documents therein compiled as the record of appeal. The respondent raised a preliminary objection on the ground that the Local Government Electoral Law, No. 2 not being a Federal enactment does not confer jurisdiction on the Court of Appeal. Having allowed the motion, the court raised the issue of jurisdiction and called on counsels address on it. The court, in rejecting the appellants argument that Local Government Election Tribunal came within the jurisdiction of the Court of Appeal made reference to sections 240 and 246 of the 1999 constitution which provides: Section 246 (1) An appeal to the Court of Appeal shall lie as of right from (a) decisions of the Code of Conduct Tribunal established in the fifth schedule to this constitution, (b) decisions of the National Assembly Election Tribunals and Governorship and Legislative Houses Election Tribunals.. Subsection 2 provides that the National Assembly may confer jurisdiction upon the Court of Appeal to hear and determine appeals from any decision of any other court of law or tribunal established by the National Assembly. The court held that the Local Government Electoral Law No. 2 which purportedly conferred jurisdiction on the Court of Appeal from the decisions of the Local Government Election Tribunal is a nullity. This is true in the light of constitutional provision which only confer jurisdiction on the Court of Appeal. Therefore, a law passed by a State House of Assembly cannot validly confer jurisdiction on the Court of Appeal. (B) The National and State House of Assembly Election Tribunals This is created by virtue of Section 285(1) of 1999 Constitution (as amended). It provides that there shall be established for the Federation one or more election tribunals to be known as the National and State House of Assembly Election Tribunals which shall, to the exclusion of any court or tribunal, have original jurisdiction to hear and determine petitions as to whether any person has been validly elected as a member of the National Assembly or State House of Assembly. The tribunal shall consist of a Chairman and two other members. The Chairman shall be a Judge of a High Court and the two other members shall be appointed from among Judges of a High Court, Kadis of a Sharia Court of Appeal, Judges of a Customary Court of Appeal or other members of the judiciary not below the rank of a Chief Magistrate. The Chairman and other members shall be appointed 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 or the President of Customary Court of Appeal of the State as the case may be. The quorum of the tribunal shall be the Chairman and one other member. (C) The Governorship Election Tribunals These tribunals exist for Governorship Election (Governor and Deputy Governor). Section 285(2) of 1999 Constitution (as amended) provides for this. It must be borne in mind that there is no overlapping of any sort between the jurisdiction of National Assembly and House of Assembly Election Tribunal and the Governorship Election Tribunal under the reviewed

constitution and Electoral Act. This was earlier established in Olatunji v. Akande where the court of appeal held that other tribunals referred to include the tribunals established by section 285 of the constitution to which section 246 thereof relates. Thus, the National Assembly Election Tribunals and the Governorship and Legislative Houses Election Tribunals; the jurisdiction of these two tribunals does not in any way overlap. The tribunal shall consist of a Chairman and two other members. The Chairman shall be a Judge of a High Court and the two other members shall be appointed from among Judges of a High Court, Kadis of a Sharia Court of Appeal, Judges of a Customary Court of Appeal or other members of the judiciary not below the rank of a Chief Magistrate. The Chairman and other members shall be appointed 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 or the President of Customary Court of Appeal of the State as the case may be. The quorum of the tribunal shall be the Chairman and one other member. (D) Local Government Election Petition Tribunals The controversy as to which tier of government has power to establish the above tribunal has been resolved by the Supreme Court in favour of state government as held in A.G. of Abia State v. A.G. Federation. Every State Government have the power to establish the Election Petition Tribunal by law of the State House of Assembly. However, the Federal Government through the Act of National Assembly has inherent power to establish Local Government Election Petition Tribunal for the Federal Capital Territory (FCT) pursuant to the decision in A.G. of Abia v. A.G. Federation. (E) Area Council Election Tribunal (ACET) This is established for the FCT to exclusively hear and determine appeals arising from the decisions of the Area Council Election Tribunal. In line with the decision of the court in A.G. of Abia State v. A.G. Federation section 135(1) of the Electoral Act 2010 expressly provides that: There shall be established for the Federal Capital Territory one or more Election Tribunal (in this Act referred to as the Area Council Election Tribunal) which shall, to the exclusion of any other court or tribunal have original jurisdiction to hear and determine any question as to whether; Any person has been validly elected to the office of chairman, vicechairman or councillor, the terms of office of any person elected to the office of chairman, vicechairman or councillors has ceased; the seat of a member of an Area Council has become vacant; and A question or petition brought before the Area Council Election Tribunal has been properly or improperly brought. An Area Council Election Tribunal shall consist of a Chairman and two other members. The Chairman shall be a Chief Magistrate and two other members shall be appointed from among Magistrates of the Judiciary of the Federal Capital Territory, Abuja and legal practitioners of at least 10 years post-call experience, non-legal practitioners of unquestionable integrity or other

members of the Judiciary of the Federal Capital Territory not below the rank of a Magistrate. See section 135(2) & (3) Electoral Act 2010 (as amended) (E) Area Council Election Appeal Tribunal (ACEAT) This tribunal is established by section 136(1) of the Electoral Act 2010(as amended) the exclusive jurisdiction to hear and determine appeals arising from the decision of the Area Council Election petition Tribunal. The Appeal Tribunal consists of chairman who shall be a Judge of the High Court and two(2) other members appointed from amongst Judges of the Federal Capital Territory judiciary not below the rank of a Chief Magistrates. Section 136(3) Electoral Act 2010 The quorum of the tribunal consist of the Chairman and one other member. PARTIES ENTITLED TO PRESENT ELECTION PETITION The electoral regime expressly provides for who can sue and be sued in election petition. Accordingly, an election petition may be presented by three persons. These persons include; a candidate in an election, a political party which participated in the election, and the person whose election is complained of which is referred to as the respondent. The law further provides for other named officials of the electoral commission as respondent where the petitioner complains of the conduct of such persons in their officials capacity. They are therefore categorized as necessary parties provided that where such officer or person is shown to have acted as an agent of the commission, his non-joinder will not on its own operate to void the petition if the Commission is made a party. The means that where the Commission, which employs the official (s) and on whose behalf the agent acts, is properly joined, it will not be compulsory to join the official. This provision is impari materia with the law of agency. See section 137 Electoral Act 2010 (as amended) What constitutes a necessary party was considered in the case of Tafida v. Bafarawa (1999) 4 N.W.L.R. (Part 597) 70 at 83. The court, per Muhammad JCA held:
A necessary party is a party who will be affected by the decision of a court. His right will be affected either positively or negatively, by the outcome of the case. It therefore follows that a necessary party is a party whose right will be affected by the orders of the court. In our present case, Alhaji Muhammadu Modi Yabo was the Peoples Democratic Partys gubernatorial candidate. From every angle one looks at the petition, one finds that he will be affected by the outcome of the petition. If prayers 1 and 3 of the petition succeed, he will be duly returned as the Governor of Sokoto State. If it is prayer 4 that succeeds, the election will be nullified and a new election ordered. It could be seen that whatever order the tribunal makes, it will affect him. In my considered opinion, Alhaji Muhammadu Modi Yabo is a necessary party to the petition.

In ANPP v. INEC, the court reaffirmed the right of a political party to present an election petition. It held that the appellant, as one of the registered political parties in Nigeria has the right to present a petition before an election tribunal where its candidate lost in an election. Such petition must challenge the election or return of the successful candidate in order to be valid under the constitution and the Electoral Act. In that case, the appellant sought by their petition to nullify the election or return of 11 candidates from the three senatorial districts and eight Houses of Representatives constituencies of Enugu State. The court, in invalidating the procedure

adopted stated that where a political party decides to challenge the election of all candidates returned in the National Assembly election in the whole state, the petition must deal with the return from each constituency and pray for a separate and distinct relief against each candidate. The person whose election is complained of (the successful candidate) is a necessary party (respondent) to en election petition. In Nonye v. Anyiechie, the petitioner failed to join the winner of the election in his petition. It was held that where the successful candidate whose election was being challenged in an election petition was not made the respondent, the election was improperly constituted and no order could be made against such candidate to invalidate the election. The position of the law is that where an allegation of misconduct is against a particular electoral officer, the petitioner is duty bound to join that officer. This is premised on the principle of fair hearing.

CONTENT OF ELECTION PETITION The content of election petition is a mandatory provision by the Electoral Act 2010 which, requires strict compliance. Rule 4 of Rules of Procedure for Election Petition (schedule to the Electoral Act) provides for what should be contained in an election petition thus: (1) An election petition under this Act shall: (a) specify the parties interested in the election; (b) specify the right of the petitioner to present the election petition; (c) state the holding of the election, the score of the candidates and the person returned as the winner of the election; and (d) state clearly the facts of the election petition and the ground or grounds on which the petition is based, the relief sought by the petitioner; (2) The election petition shall be divided into paragraph each which shall be confined to a distinct issue or major facts of the election petition, and every paragraph shall be numbered consecutively. (3) The election petition shall further: a) conclude with a prayer or prayers, as for instance, that the petitioner or one of the petitioners be declared validly elected, or returned, having polled the highest number of lawful votes cast at the election or that the election may be declared nullified, as the case may be; and b) Be signed by the petitioner or all petitioners or by the Solicitor, if any named at the foot of the election petition. 4) At the foot of the election petition there shall also be stated an address in which the documents intended for the petitioner may be left and its occupier. 5) If an address for service is not stated as specified in subparagraph (4) of this paragraph not have been filed, unless the tribunal or court otherwise orders. 6) An election petition, which does not conform with, subparagraph (1) of this paragraph is defective and may be struck out by the tribunal or court.

In Haruna v. Magaji, the court held that a petition that fails to contain the requirement provided under paragraph 5(4) of the schedule 6 to Decree No. 3 of 1999 is incompetent and liable to be struck out by virtue of paragraph 5(5) to the schedule 6 to the said Decree. Also in Effiong v. Ikpeme it was held by the Court of Appeal to the effect that where a petition fails to comply with the mandatory provisions of paragraph 5 Schedules 5 to Decree 36 of 1998, the petition became void and every proceeding which was founded on it was incurably bad. However, before such an objection is raised in a court or tribunal, the court or tribunal may allow an amendment sought on those mandatory requirements provided the application is made within the time limit allowed for amendment. In Dickson v. Balat, the petitioner/appellant challenged the return of the 1st respondent as a member of the Senate in the election of 12th April, 2003. The petitioner failed to state the scores and names of the contestants. The petition did not include the address for service and the name of the occupier. The case was struck out for non compliance. On appeal to the Court of Appeal, it was held per Adamu JCA at pages 296-7 as follows: By its second non compliance with the above rules in not stating the votes scored by the candidates, the petition in the instant case is riddled with defects and irregularities and non compliance with the mandatory provisions of the said rules which rendered it incompetent under the doctrine of non compliance such non compliance is also viewed or regarded as a fundamental failure to comply with the requirement of a statute and it is not a mere irregularity but a fundamental vice In an election petition presented by more than one petitioner, it is not a requirement of the law for all the petitioners to sign the petition. A signature by one of the petitioners would suffice. Thus, in Ibrahim v. Sheriff, one of the issues for determination was whether it was necessary for the 2nd and 3rd petitioners to sign the petition, the 1st appellant having signed the same and whether the failure to do so is a fundamental vice that affects the competence of the entire petition. Counsel for the petitioner had contended that it was sufficient for any of the three petitioners to endorse the petition. In giving its decision, the court referred to section 14 (b) Interpretation Act (CAP 192 LFN 1990) which provided that words in the singular include plural and words in the plural include the singular. It was held that the word petitioner used in Paragraph 4 (3) (b) includes the plural while the word all the petitioners include the singular. The court further held that the three petitioners need not sign the petition to be valid. The purpose of an address in all proceedings a fortiori, election petition, is to facilitate delivery of processes. In election petition, the failure to supply the address for service of process and name of the occupier transcends mere irregularity. It is a substantial and material omission. The consequence is that the petition is deemed not to have been filed. Read more from Electoral Law Reforms and Constitutionalism in Nigeria: Essays in Honour of Justice James Ogebe (JSC) (rtd) edited by Akin Olawale Ogundayisi published March 2010. FILING OF PETITION WITHIN TIME It is pertinent here to emphasis that the statutory provision for the filing of petitions is a point of law and bothers on jurisdiction which the Court ought to take note of. Where this ground is not

raised by Counsel, the Court can raise the issue of jurisdiction suo motu. The Supreme Court has held that there is a duty and power of the Court to raise the issue of jurisdiction suo motu. The new amendment to the Constitution, section 285(5) 1999 Constitution (as amended) provides that: An election petition shall be filed within twenty one(21) days after the date of declaration of the result of the election. The rule as to computation of time is that when time is to run from a particular date, it starts to run immediately from the very date it is so prescribed to run irrespective of the time of the said date. If a result is declared say by 10 p.m. on 21st of a month, time starts to run from that moment of declaration at 10 p.m. Read more from Electoral Law Reforms and Constitutionalism in Nigeria: Essays in Honour of Justice James Ogebe (JSC) (rtd) edited by Akin Olawale Ogundayisi published March 2010. DETERMINATION OF ELECTION PETITION Part VIII running through Section 133 to 155 of Electoral At 2010 (as amended) provides for the determination of election petitions arising from elections. The complain against the conduct of election petition can only made before court or tribunal with competent jurisdiction. Section 138 provides generally for grounds of petition of an election thus: Any election may be questioned on any of following grounds, that is to say: (a) that a person whose election is questioned was, at the time of the election not qualified to contest the election; (b) that the election was invalid by reason of corrupt practices or noncompliance with the provisions of this Act; (c) that the respondent was not duly elected by majority of lawful votes cast at the election; or (d) that the petitioner or its candidate was validly nominated but was unlawfully excluded from the election. However, an act or omission which may be contrary to an instruction or directive of the commission or of an officer appointed for the purpose of the election but which is not contrary to the provisions of this Act shall not of itself be a ground for questioning the election. As to whether this provision would be enough to invalidate an election where proved, Sec. 146 (1) answers in the negative. It provides than an election shall not be liable to be invalidated by reason of non-compliance with the provisions of this Act if it appears to the Election Tribunal or court that the election was conducted substantially in accordance with the principles of this Act and that the non-compliance did not affect substantially the result of the election. The resultant effect of substantial non-compliance with the provision of the Act was made explicit in Sorunke v. Odebunmi, where the Federal Supreme Court cited with approval the following observation of Lord Coleridge in Woodward v. Sarsons thus: If this proposition be closely examined, it will be found to be equivalent to this, that then non-observation of the rules or forms which is to render the election invalid, must be so great as to amount to a conducting of the election in a manner contrary to the principle of an election by ballot, and must be so great

as to satisfy the tribunal that it did affect or might have affected the majority of the voters, or in other words the result of the election. The court concluded in a similar case that the fact that election as conducted in 86 of the 138 polling booths of the constituency in question was not found wanting, prima facie, shows that there was substantial compliance with the provisions of Part II of the Electoral Act in the majority of the polling booths where the election took place in the constituency. The burden was therefore on the appellant to sow that the non-compliance which applied to the 53 polling booths as found by the learned trial judge, actually vitiated the election in the constituency as whole. With regard to the Electoral Act 2002, on when non-compliance with Electoral Act will not invalidate an election Uwais C.J.N. held as follows in Buhari v. Obasanjo: With regard to Section 135 (1) of the Electoral Act, 2002 an election will not be invalidated by reason of non-compliance with the provisions of the Act if it appears that the election was conducted substantially in accordance with the principles of the Act and that the non-compliance did not affect substantially the result of the election. Pursuant to Section 46(1) of Electoral Act 2006, the court of appeal in the case of YarAdua v. Buhari agreed with Buhari that the ballot papers used were not numbered serially as required by law but it said he failed to show that the ballot papers used did not tally with votes cast. The court therefore held that the petitioner has failed to show that non-compliance substantially affected the results of the election. However, the established rule was departed from in a dissenting judgment of Justice Wali Basir on the election petition between Governor Aloa Akala of P.D.P. and Ajimobi of A.N.P.P. at the Justice Teni Yusuf-Hassan Led Tribunal in Ibadan. In Basirs minority judgment, he said his departure from the majority judgment dealt with the substantial non-compliance with the Electoral Act in the areas of over-voting, non-accreditation, non-signing and stamping of result of Form EC& A. According to him: I am of the view, therefore that the petitioner, by the weight of evidence, has established the case of non-compliance with Ea. In all, 309 polling units were affected by the malpractice and the petitioner has discharged the onus of proof of non-compliance by the total number of votes invalidated by over-voting. It follows, therefore, in this circumstance that the burden of proof has shifted automatically to the respondent to prove that the non-compliance complained of did not substantially affect the result of the election. The provisions in Secion 141 of the Electoral Act 2006 and Paragraph 14(2) of the schedule has further been subject to judicial interpretation in the case of Yusuf v. Obasanjo where it was held by the court of appeal that from the provisions of paragraph 14 (2) of the first schedule to the Electoral Act No. 4 of 2002 read jointly with Sec. 132 of the Act, no amendment introducing substantial or material alteration can be effected on an election petition outside 30 days of declaration of the result. EFFECTS OF NON COMPLIANCE WITH THE ELECTORAL ACT Where there is substantial non-compliance with the provisions of Electoral Act, the petition is invalid and liable to be struck out. For instance, Rule 4(6) of the Rules of Rules and Procedure of

Election Petition is to the effect that an election petition which does not conform with subparagraph (1) of that rule or any of the provisions of the sub paragraph is defective and may be struck out by the Tribunal or Court. In Ojong v. Duke, it was held that the provisions of Paragraph 4 (1) (c) of the First Schedule to the Electoral Act and non compliance with it in any election petition rendered such petition void. A general allegation of non-compliance without more is not sufficient to invalidate an election. Accordingly, section 139 provides: (1) An Election shall not be liable to be invalidated by reason of non-compliance with the provisions of this Act if it appears to the Election Tribunal or Court that the election was conducted substantially in accordance with the principles of this Act and that the non-compliance did not affect substantially the result of the election. (2) An election shall not be liable to be questioned by reason of a defect in the title, or want of title of the person conducting the election or acting in the office provided such a person has the right or authority of the Commission to conduct the election. The petitioner has to prove that the non compliance substantially affected the result of the election. This was held in Alaikwu v. Yaba. The facts of the case were that the appellant petitioned the result of bye-election by reason of non compliance with the provisions of the Electoral Act and by reasons of corrupt practices. The court held that there are two requirements to be satisfied if an election is not to be invalidated by reasons of non compliance with the provisions of the Electoral Act. Firstly, the election must have been conducted substantially in accordance with the provisions of the Act and secondly, the non compliance must not have substantially affected the result of the election. The burden of satisfying the Tribunal or Court that the alleged non compliance substantially affected the result of the election is on the person who seeks to invalidate the election on grounds of non compliance. It should be noted that an act or omission may be contrary to an instruction or directive of the Commission or of an officer appointed for the purpose of the election but which is not contrary to the provisions of the Act. Such act shall not itself be a ground for questioning the election. See section 138(2) Electoral Act 2010 (as amended). JUDGMENT The judgment of the tribunals is expected to be delivered in writing not later than the days stipulated for it by the constitution in the case of election petition after the conclusion of evidence and final addressed and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seen days of the delivery thereof. Unlike the general provision of the constitution regarding the time limit within which the judgment of a court is to be delivered, the amended constitution provide a special limitation of time within which election petition is to be delivered. Thus, section 285(6) of Constitution (as amended) stated that: An Election Tribunal shall deliver its judgment in writing within 180 days from the date of the filing of the petition. In the same manner, an appeal from a decision of election tribunal or court of appeal in an election matter shall be heard and disposed of within 60 days from the date of the delivery of the judgment of the tribunal or Court of Appeal.

Certain principles could be resolved from the provisions above. The number of days is inclusive of weekends and public holidays. Again, 180 days in the case of trial tribunal and 60 days on appeal is different from 3 months and 2 months respectively and the days begins to count from the date the petition is filed or when the appeal is made. The judgment of the tribunal or appeal court should comply with the characteristic feature of a valid judgment. Beside being in writing, it should contain decisions of the court on different issues raised. The judgment must also analyze evidence adduced by both parties. The ratio decidendi (reason for the decision) must also be made out by the court. However, section 285(8) of the 1999 Constitution (as amended) gives an exception to Court of Appeal (in case of appeal from Tribunals) and the Supreme Court, when appeal is brought on Presidential Election Petition, to deliver its decision and reserve its reason to later date.

APPEALS The right of appeal from decisions of electoral tribunal is statutory. Section 246 (1) (b) of the 1999 constitution provides: An appeal to the Court of Appeal shall lie as of right from decisions of the National Assembly Election Tribunals and Governorship and Legislative Houses Election Tribunal on any question as to whetheri. any person has been validly elected as a member of the National Assembly or a House of Assembly of a state under this constitution ii. any person has been validly elected to the office of Governor or Deputy Governor iii. the term of office of any person has ceased or the seat of any such person has become vacant. In Okon v. Bob, the notice of appeal was filed following the order striking out the petition. The court held as follows: An appeal will only lie to the election tribunal to the Court of Appeal if there is any decision by the election tribunal whether any person has been validly elected as a member of the National Assembly or state House of Assembly ; the office of the Governor or Deputy Governor as the case may be. Such an appeal will only come within the provisions of section 246 (1) (b) of the 1999 constitution if there is a determination of the petition on the merit and any other decision made in the course of the election proceedings which is a decision is not covered by section 246 (1) (b) However, in Usani v. Duke, the court, in what appeared to be a contrary decision held that a decision striking out an election petition was appealable. The position is that there is right of appeal whether an appeal was allowed, dismissed or struck out. This is more so that the Electoral Act does not make any specific provision on appeal. The Supreme Court held in Ibori v. Ogboru that the definition of decision under the constitution did not distinguish between an interlocutory and a final decision in an election petition.

Where an appeal is from the tribunals as stated above, the decision of the Court of Appeal is final. In Waziri v. Ibrahim, the court held that by virtue of section 246 (3), the Court of Appeal is the final port of call in respect of appeals arising from election petitions except the presidential election. It should be clear that the Court of Appeal exercises to the exclusion of any other court in Nigeria original jurisdiction to hear and determine question as to whether: a. any person has been validly elected to the office of President or Vice President b. the term of office of the President or Vice President has ceased; or c. the office of President or Vice President has become vacant See Electoral Law Reforms and Constitutionalism in Nigeria: Essays in Honour of Justice James Ogebe (JSC) (rtd) edited by Akin Olawale Ogundayisi published March 2010. An appeal from presidential election lies to the Supreme Court. In Awuse v. Odili, the Supreme Court observed that it is in respect of Presidential and not Governorship election that an appeal lies from the Court of Appeal to the Supreme Court. A party who is dissatisfied with the decision of the Tribunal is required to file his notice of appeal within 21 days of the delivery of judgment.