The Concept of Pre-Election Matters Under Nigerian Law Simplified
This article by learned Senior Advocate of Nigeria, Tunde Babalola, discusses the issue of pre-election matters, that is, matters that occur before the actual election; how they originate, their classification, and their importance
Meaning of Pre-election matters
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 the various parties at the general election. Disputes often arise from issues of qualification, disqualification, nomination, substitution, conduct of primaries and sponsorship of candidates for the general election. These are pre-election matters.
Thus, pre-election matters occur from preparations towards the general election. In other words, pre-election matters are, as the name implies, matters that occurred before the general election itself. “They are live issues that must be heard and a judgment delivered. Litigations arising from party primaries, e.g., substitution of candidates. Complaints about the conduct of primaries are pre-election matters.” Per Rhodes-Vivour J.S.C. in A.P.C. v LERE (2020) 1 NWLR (PT. 1705) 254 at 279.
Therefore, a number of matters arising from disputes which arise before the General Election are referred to as pre-election matters.
The following matters have been classified by the courts as pre-election matters: (1) nomination of candidates, (2) double nomination of a candidate, (3) disqualification of a candidate, (4) wrongful substitution of a successful candidate’s name by the Electoral Body, (5) wrongful omission of a successful candidate’s name on the register, (6) complaints about the conduct of primaries, (7) false declaration on oath about particulars of a candidate.
See A.P.C. v LERE (SUPRA), MODIBO v USMAN (2020) 3 NWLR (PT 1712) 470 at 500 – 515, GBILEVE v ADDINGI (2014) 16 NWLR (PT 1433) 394.
Importance of Pre-Election Matters
The importance of pre-election matters cannot be overemphasised, as they are live issues which must be determined by the court and judgement delivered, even after the general election has been conducted and a candidate has been sworn in to occupy an exalted position such as a Senator, member of the Federal House of Representatives or Governor. This is corroborated by what transpired recently, after the 2019 General Elections, when a Governor was ousted just before the swearing-in ceremony, some Senators and Members of House of Representatives were ousted by the Supreme Court on account of pre-election matters after swearing- in and inauguration ceremony. See P.D.P. v DEGI-EREYMIENYO & ORS (2020) 1 -2 SC (PT. 1), A.P.C V. LERE (supra) and MODIBO v USMAN (supra).
Constitutional Provisions for Pre-election matters
The 1999 Constitution of the Federal Republic of Nigeria, (as amended) makes provisions for pre-election matters and gives its definition. See Section 285 (14) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
The said provisions of section 285(14) of the 1999 Constitution of the Federal Republic of Nigeria have been judicially considered by the Supreme Court in the cases of APC v UMAR (2019) 8 NWLR (PT. 1675) 564, KUSAMOTU v APC (2019) 7NWLR (PT.1670) 51.
See also, the recent, unreported Supreme Court decision of APC v Dele Moses & Ors, SC/CV/29/2021, delivered on 5th March 2021 at page 22 of the lead judgment, per Augie J.S.C., where my noble Lord, summarised the meaning of pre-election matters under Section 285(14)(a) -(c) of the 1999 Constitution (as amended).
Analysis of the Constitutional Provisions of Section 285(14) of the 1999 Constitution (as amended)
By the said provisions of Section 285 (14) of the 1999 Constitution (as amended), the sub-section recognises three (3) different types of pre-election matters under paragraphs (a) – (c).
(1): Paragraph (a): deals with the complaint by an aspirant (targeted at his political party), that there has been 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.
This simply deals with a suit under Section 87(9) of the Electoral Act, 2010 (as amended) which can be commenced at the Federal High Court, State High Court and High Court of the Federal Capital Territory (FCT).
Please see Section 87(9) of the Electoral Act, 2010 (as amended).
Thus, where a political party conducts its primaries and an aggrieved aspirant at the primaries complains about the conduct of the primaries, in respect of selection and nomination of candidates for the election, the Courts by virtue of Sections 285(14) (a) and 87(9) of the Electoral Act 2010 (as amended) has the requisite jurisdiction to determine whether the party complied with its’ own constitution and party guidelines during the said primaries.
The Court has held that in the conduct of its primaries, it will never allow a political party to act arbitrarily or as it likes. A party must obey its own constitution. See UZODINMA v IZUNASO (NO.2) (2011) 17 NWLR (PT. 1275) 30, A.P.C v LERE (supra).
(2): Paragraph (b): deals with the complaint by an aspirant, [targeted at 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 the provisions of the 1999 Constitution (as amended) and the Electoral Act pertaining to selection or nomination of candidates and participation in an election.
It deals with aspirants who challenge actions, decisions or activities of INEC in respect of their participation in an election. Please see APC v Dele Moses & Ors (supra).
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.
(3): Paragraph (c): deals with cases by a political party (targeted 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 time table, registration of voters and other activities of INEC regarding preparation for an election. It includes for instance, cases of undue election. See GWEDE v INEC (2014) 18 NWRL (PT.1438) 56.
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, timetable for an election, registration of voters and other activities in respect of preparation for an election. Please see APC v Dele Moses & Ors (supra).
Definition of Pre-election matter by the provisions of Section 285(14) of the 1999 Constitution is not exhaustive.
The provisions of Section 285 (14) of the 1999 Constitution (as amended) in defining a pre-election matter is not exhaustive. Thus, it preceded the definition of pre-election matter with this phrase – “for the purpose of this” – See OKOLI V. DURU & ORS (2006) LPELR 12601 (CA) 21-22.
Thus, it is humbly submitted that pre-election matters can emanate from other sources in law. This is contained in section 31(5) of the Electoral Act, 2010 (as amended) which provides thus:
“Any person who has reasonable grounds to believe that any information given by a candidate in the affidavit or any document submitted given 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.”
It is posited that the above provision creates another specie of a pre-election matter which clothes any person with the requisite locus standi (capacity to sue) to challenge the information supplied by a candidate of a political party before the general election.
Thus, where any person (not an aspirant or a political party) believes that a candidate has furnished false information in his affidavit on oath or any document, inclusive of his nomination form to INEC, may commence an action against him in the High Court, FCT High Court or Federal High Court.
This has been judicially construed in plethora of cases. Please see: ABUBAKAR V INEC (2020) 12 NWLR (PT. 1737) 37, EKAGBARA v IKPEAZU (2016) 4 NWLR (PT.1503) 411.
Constitutional Provision on limitation of time for commencement of Pre-election matters in court
It is pertinent to note that the 1999 Constitution of the Federal Republic of Nigeria, (as amended) provides for limitation of time for the commencement of pre-election matters under section 285 (9) thereof. It provides thus:
“9) 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.”
This provision has come up for consideration before the Supreme Court in a plethora of cases. See GARBA v A.P.C (2020) 2 NWLR (PT.1708) 345 at 360.
Alas! Application of the above Constitutional provision has resulted in the dismissal or striking out of some 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.
Constitutional Provision on limitation of time for hearing and determination of Pre-election matters
There is a Constitutional provision for the time 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. Thus, section 285 (10) of the Constitution of the Federal Republic of Nigeria 1999, (as amended) stipulates thus:
“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 overemphasised 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. See USMAN ABUBAKAR TUGGAR v ADAMU MUHAMMAD BULICA CHUWA & ORS (2019) LPELR 47883
Constitutional Provisions on 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 1999 Constitution of the Federal Republic of Nigeria, (as amended) 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.”
Also, the provision of Section 285 (12) of the 1999 Constitution of the Federal Republic of Nigeria, (as amended) provides:
“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 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. See TOYIN v MUSA (2019) 9 NWLR (PT 1676) 22.
In view of the foregoing, it is crystal clear that pre-election matters occupy a 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.
Tunde Babalola, SAN, Partner, Afe Babalola & Co., Emmanuel Chambers, Abuja