In the last couple of years, many election petitions had been terminated at pre-hearing stage on the account that the petitioners who approached the courts failed to file pre-hearing applications within seven days stipulated by Paragraph 18(1) of the Electoral Act 2010. But the Fourth Alteration to the 1999 Constitution appears to have altered the provision of the Electoral Act 2010 which celebrates technicality over substantive justice. In this piece, Ekemini Udim, examines the implication of the constitutional amendment on the provision of the Electoral Act 2010 which empowers tribunals to extinguish election petitions without considering its merits.
Introduction:
By the provision of Paragraph 18 (1) of the First Schedule to the Electoral Act, 2010 (as amended), a petitioner in an election petition is required to make a formal application to the Secretary of the Tribunal within seven days upon the filing of his reply to the respondent’s reply to the petition. By Paragraph 18 (4) of the same Schedule, the Tribunal shall treat the petition as abandoned and shall dismiss same if the application for pre-hearing was not made within the stipulated seven days. This provision is so strict to the extent that the Electoral Act clearly provides that the Tribunal shall not entertain any application for extension of time to apply for pre-hearing.
In the last couple of years since the inclusion of the above provision in the Electoral Act, so many petitions have been sent to early graves by election petition tribunals and their funerals affirmed by the appellate courts. As a matter of fact, once a petitioner is caught in this web, there is hardly a way out for him. This has been the position for so many years.
However, there is a recent development in Nigeria’s electoral jurisprudence, namely, the Fourth Alteration of the 1999 Constitution. This latest alteration has made some far-reaching provisions touching on pre-election and post-election matters.
In this article, the intention is to interrogate the legal mind so as to ascertain whether the powers of the election petition tribunals to dismiss petitions at the pre-hearing stage for failure to apply for the pre-hearing session within the prescribed seven days has not been taken away by the Fourth Alteration of the 1999 Constitution.
What the Fourth Alteration says
The Fourth Alteration has touched on salient issues concerning elections in Nigeria but what is of concern to this discourse is the provision of Section 285 (8) of the 1999 Constitution; one of the sub-sections added by the Fourth Alteration. For ease of reference, we take the liberty to reproduce the said section herein below:
285(8) – Where a preliminary objection or any other interlocutory issue touching on the jurisdiction of the Tribunal or court in any pre-election matter or on the competence of the petition itself is raised by a party, the Tribunal or Court shall suspend its ruling and deliver it at the stage of final judgment.
Worthy of note are some words and phrases deliberately employed by the lawmaker in the above section of the Constitution namely: ‘’preliminary objection’’, ‘’any other interlocutory issue’’, ‘’touching on jurisdiction of the Court or Tribunal’’, ‘’or on the competence of the petition itself’’, etc.
With this provision, can the Tribunal still dismiss a petition at the pre-hearing stage?
I am of the opinion that by the above provision of the Constitution (Fourth Alteration), the power of an election petition tribunal to dismiss a petition at the pre-hearing stage has been taken away by the Constitution.
An application by the respondent for the dismissal of a petition at the pre-hearing stage for failure to file the pre-hearing application within seven days is an interlocutory application challenging both the jurisdiction of the court to proceed with the petition and the competence of the petition itself. By the above provision of the Constitution, every such application shall be determined at the final judgment stage. The final judgment stage in this context can only mean the final judgment delivered by the Tribunal after full hearing of the petition.
The language of the Constitution in the above provision is all-encompassing and has not in any way excluded the pre-hearing session from the newest requirement which provides that all interlocutory applications or preliminary objections challenging the jurisdiction of the Tribunal or the competence of the petition itself must be determined at the final judgment stage.
Indeed, if the Constitution intended to exclude the pre-hearing session from the provision of section 285 sub 8, the Constitution would have clearly stated so. Having not excluded the applications usually made at the pre-hearing session from the above provision, it simply means that the pre-hearing session is included in the said provision.
Thus, going by this most recent provision of the Constitution as contained in the Fourth Alteration, every application made at the pre-hearing session which challenges the jurisdiction of the Tribunal to proceed with the hearing of the petition (be it as a result of failure to apply for the pre-hearing session within seven days or for some other reason), can only be determined by the Tribunal at the final judgment stage. The same goes for any challenge to the competence of the petition which could also be as a result of failure to apply for the pre-hearing session within the stipulated seven days.
Between the Electoral Act and the 1999 Constitution:
The reality today is that there are two different provisions of law on how the election petition tribunal should treat applications made in the course of hearing challenging the jurisdiction of the tribunal to proceed with the petition or challenging the competence of the petition itself.
By Paragraph 18 (4) of the First Schedule to the Electoral Act, the Tribunal should dismiss a petition if the formal application to the secretary of the tribunal for issuance of the pre-hearing notice was not made within seven days. Such dismissal is obviously in the middle of the journey and before the final judgment stage. On the other hand, the Constitution by the Fourth Alteration has provided that, every application challenging the jurisdiction of the Tribunal to continue with an election petition or touching on the competence of the petition itself must be suspended till the final judgment stage.
When the principle of supremacy of the Constitution is applied to this situation, the provision of the Constitution will certainly supersede the provision of the Electoral Act.
In essence, it can rightly be argued that the current position of the law on how the election petition Tribunals should treat applications seeking the dismissal of election petition is as contained in Section 285 (8) of the Constitution, namely, that the verdict on the applications should be suspended till the final judgment stage. Doing otherwise would mean going against the Constitution.
The Intendment:
It appears from this most recent amendment of the Constitution that the law intends that all petitions should be heard and determined on their merits. A petition that is too weak to stand will certainly not win the crown for the petitioner but the new approach or tenor of the law is that even the petition perceived as weak should be fully heard and determined in one piece at the final judgment stage, hence the provision that every interlocutory application or any other application challenging the jurisdiction of the court to proceed with the petition or competence of the petition itself must be determined at the final determination of the petition.
Conclusion:
Provisions of Acts of Parliament are subservient to the provisions of the Constitution. A section of the Constitution which provides that an election petition tribunal should only determine a challenge to its jurisdiction to entertain a petition or a challenge to the competence of the petition itself at the stage of final judgment is superior to the provision of the Paragraph 18 (4) of the First Schedule to the Electoral Act which allows an election petition tribunal to dismiss a petition in the middle of the hearing of the petition, namely at the pre-hearing stage. The provision of section 285 (8) of the Constitution (Fourth Alteration), which came into operation less than a year ago represents the current position of the law on how election petition tribunals should treat applications praying for dismissal of petitions.
If the concept of supremacy of the constitution still holds sway in our jurisprudence, election petition Tribunals no longer have the power to dismiss petitions at pre-hearing stage in view of the recent amendment of the Constitution in the Fourth Alteration as contained in section 285 (8).
Ekemini Udim is a private legal practitioner
