The petitioner’s reply concludes the pleadings. The petitioner files a reply to respond to new issues of fact raised by the respondent in his reply to the petition. The main use of the petitioner’s reply is to answer allegations, not arising from the petition but the respondent’s reply. See MADUABUM V. NWOSU (2010) 13 NWLR (Pt. 1212) 623 at 645.
The respondent needs to specifically deny allegations in the Election petition, otherwise all such allegations not denied are deemed admitted by the respondent. NGWU V. MBA (1999) 3 NWLR (Pt. 595) 400 at 408.
The answer is no. Even when respondents filed their respective replies irregularly, the court cannot ignore them. A defence put in irregularly has to be taken into account in the trial. See BUHARI V. OBASANJO (2003) 15 NWLR (Pt. 843) 236 at 256 paras H-B.
The answer is no. The default to apply for the issuance of the pre-hearing notice as required and stipulated in the Act is fatal to the petition of a petitioner as no application for extension of time to comply with the provision requiring applying for pre-hearing session shall be made or entertained by an election petition tribunal. DANTIYE V. KANYA (2009) 4 NWLR (Pt. 1130) 13 at 71.
The question in deciding whether a respondent acted timeously in filing his objection to the petition is whether he took any fresh step in the proceedings after knowledge of the defect. Where an application to strike out the petition is filed on the same day that a memorandum of conditional appearance is filed, it is ostentatiously filed timeously. See TAFIDA V. BAFARAWA (1999) 4 NWLR (Pt. 597) 70 at 81.
The answer is no. A respondent by filing a reply cannot be regarded as having taken a step in the proceedings within the meaning of the Electoral Act. It is clear that whatever the respondent files in his reply without prejudice to his rights to raise objection to the competence of the petition. See BUHARI V. OBASANJO (2003) 17 NWLR (Pt. 850) 423 at 475.
The answer is no. In the case of JUSTICE PARTY V. INEC (2006) ALL FWLR (Pt. 339) 907 at 944 C-D, the court decided thus; “A petition is a declaration of the appellant’s right in which the reliefs sought are declaratory. The appellant is under duty to adduce cogent and convincing evidence in support of his assertion. He has to succeed on the strength of his own case, and not on the weakness of the respondent.” In the case of JAMES V. INEC (2013) LPELR – 20322, the court held that; “It is the law that failure to file defence will not entitle a party claiming declaratory reliefs to judgment.”
The answer is yes. The power of the President of the Court of Appeal to set up the various Election Petition Tribunals is derived from the 1999 Constitution. Section 248 of the 1999 Constitution of the Federal Republic of Nigeria. See BUHARI V. INEC (2008) 4 NWLR (PT. 1078) 546 at 601-602.
Section 285(2) of the 1999 Constitution of the Federal Republic of Nigeria provides that there shall be established in each State of the Federation one or more Election Tribunals to be known as the Governorship and Legislative Houses Election Tribunals which shall, to the exclusion of any court or tribunal, have jurisdiction to hear and determine petitions. See ANPP V. PDP (2006) 17 NWLR (Pt. 1009) 467 at 487.
Generally, the Chairman and 2 persons are appointed for all election petition Tribunals according to Section 285(3) and (4) of the Constitution of the Federal Republic of Nigeria, 1999, and as better settled under Paragraph 1(1) of the SIXTH SCHEDULE to the said S.285 of (CFRN,1999)
Section 285(4) of the Constitution provides that the question of an election tribunal established under the section shall be the chairman and two other members. DANTIYE V. KANYA (2009) 4 NWLR (Pt. 1130) 13 at 41-42.
The answer is yes. The quorum being the Chairman and two members, the judgment by less than that number can vitiate the judgment. However where there were four justices who delivered the judgment and only 3 signed the judgment, the judgment is not vitiated by quorum in such instance as the minimum number required by Section 285(4) of the Constitution of the Federal Republic of Nigeria, 1999 is met. See AYOADE V. AKALA (2009) 8 NWLR (Pt. 1143) 240.
The answer is No. The tribunal will be duly constituted if it consists of at least three members inclusive of the chairman. Such a chairman can be replaced and that will not be a bar to the conclusion of the proceedings. MARK V. ABUBAKAR (2009) 2 NWLR (PT. 1124) 79 at 136.
Once an election tribunal pronounces a party to an election petition as the winner of an election, it becomes functus officio on the issue of who won the election. BALONWU V. IKPEAZU (2005) 14 NWLR (Pt. 942) 479 at 526
The answer is Yes. Section 285(1) of the Constitution of the FRN, 1999(as amended) provides that there shall be established for each State of the Federation, one or more Election Tribunals. It is therefore constitutional to establish more than one depending on the need to dispose of election petition. See EYO V. EKPEYONG (2012) 11 NWLR (Pt. 1311) 316 at 321-322
The answer is yes. The powers to enlarge time have been given judicial interpretation to the extent that the tribunals can extend time to do anything or take any steps in election proceedings. See IKEM V. ASIOWEREN (2010) 1 NWLR (Pt. 1174) 147 at 170
The answer is no. If a petition is filed out of time, the tribunal lacks the necessary jurisdiction to deal with the petition filed outside the mandatory 21 days, it being statute barred. See IMERH V. OKON (2012) 11 NWLR (Pt. 1311) 270 at 279.
When a petition is statute barred, the petition may or may not have merit but the tribunal no longer has the jurisdiction to deal with the petition. The tribunal can only dismiss the petition it being statute barred. See IMERH V. OKON (2012) 11 NWLR (Pt. 1311) 270 at 279.
Every proceeding must be declared incompetent and a nullity where the commencement/originating process is contrary to the provision of the rules for election petition. See NWANKWO V. YAR’DUA (2010) 12 NWLR (Pt. 1209) 518 at 590.
The attitude of the Superior Courts in election has been to do substantial justice to the parties without undue regard to technicalities in their interpretation and application of the electoral laws. See OBI-ODU V. DUKE (2006) 1 All FWLR (Pt. 337) 537.
It is true that Election Petition must always be handled with elasticity. Too much technicality should be avoided but not at the expense of general law. See CHIA V. UMA (1998) 7 NWLR (Pt. 556) p. 95
The result is miscarriage of justice. Once what occurs in trial, it is not justice according to law, a miscarriage of justice has occurred. See OKONKWO V. G. UDOH (1997) 9 NWLR (Pt. 519) p. 16; AREGBESOLA V. OYINLOLA (2009) 14 NWLR (Pt. 1162) 429 at 479.
The answer is yes. In election matters a party can make two seemingly contradictory pleadings leading to two different heads of claim. A petitioner can claim that the election be annulled for reason of substantial non-compliance and in the same breath claim that he won the election by the majority of votes. Those pleadings are not ipso facto contradictory. The court can only grant one relief and the party must decide which relief is best supported by evidence. See ADIGHIJE V. NWAOGU (2012) 12 NWLR (Pt. 1209) 419 at 454 paras E-G.
The answer is no. It is clear that appearing in court as 1st or 2nd Respondents does not amount to “entering an appearance”. It is the delivery of the memorandum of appearance that amounts to entering an appearance. See BUHARI V. OBASNJO (2005) 13 NWLR (Pt. 941) 1 at 243-244 paras H-D.
The answer is no. A respondent is not bound to file a memorandum of appearance in any case, as long as a reply was filed within a reasonable time. The non-filing of a memorandum of appearance shall not bar the respondent from defending the election petition, if the Respondent filed his reply to the election petition in the Registry within a reasonable time. See OLIBIE V. OKEKE (1999) 8 NWLR (Pt. 613) 165 at 174.
The answer is no. There is a difference between non-service of originating summons and improper or irregular service of the same and the consequences in law are not necessarily the same. A party that is aggrieved with the mode of the service of an originating process on him has to apply to set aside the service timeously. Where however an originating process is not served at all, then the party not so served and against whom any order is made is entitled, ex debito justitiae to have the order set aside. See ETIM V. OBOT (2010) 12 NWLR (Pt. 1207) 108 at 149
The answer is yes. The failure to effect service is a fundamental vice and the persons so affected by the order of non-service with the process is entitled ex debito justitiae or as of right to have the order set aside as a nullity. See INEC V. NNAJI (2004) 16 NWLR (Pt. 900) 473 at 484.
Not exactly, the bailiff’s affidavit that he has served the process personally on the respondent or defendant is only prima facie proof of service of the said court process. The respondent may rebut this affidavit by a counter-affidavit deposing to non-service of the process or otherwise. See KENNEDY V. INEC (2009) 1 NWLR (Pt. 1123) 614 at 639-640.
Yes, hence an address for service is required in a petition pursuant to the schedule to the Electoral Act, a tribunal does well in allowing the infinitesimal amendment to include address for service. See NWAUKONI V. BIELOMOU (2009) 5 NWLR (Pt. 1135) 480 at 502
Once a party is entitled to a remedy provided by law it does not matter that he applied for it under a wrong law, the court will proceed to hear the application on the merits. See BUHARI V. OBASANJO (2003) 17 NWLR (Pt. 850) 432 at 477.
The law is trite: the notice of preliminary objection must be moved by the party raising it. If he failed to move it either on the hearing date or any other date for the purpose, it will be deemed abandoned and liable to be struck out. See IHIABE V. ZAKARI (2012) 12 NWLR (Pt. 1315) 517 at 534 paras D-E.
The answer is no. An application to arrest a judgment is unknown to the rules of court. Even where an application is brought at the appellate court to stay proceedings at the lower court, the aim being to arrest a judgment already reserved, it must fail as it is unknown to law. Of course, any attempt to arrest the judgment of an Election Tribunal, a court with strict limitations as to time for almost every procedure and processes, must be seen to be particularly unethical and reprehensible. UKACHUCKWU V. PDP (2014) 4 NWLR (Pt. 1396) 65 at 90-91. Paras G-B
The law appears settled on the preponderance of authorities that where there are two competing applications, one seeking to deprive a party of his right which would ordinarily have accrued to him, had he not breached any of the procedural stipulations or rule, and the other application seeking to regularize his position, the courts should give priority to the latter application seeking the regularization or rectification of the anomaly which warranted the first application. See BABALOLA V. SUNDAY (2009) 3 NWLR (Pt. 1128) 414 at 443.
The answer is no. A decision made by the trial court as to the admissibility or otherwise of evidence is a part of the main decision and not an interlocutory decision. See- UKPO V. NGAJI (2010) 1 NWLR (Pt. 1174) 175 at 199
The answer is Yes. Section 285(1) of the Constitution of the FRN, 1999(as amended) provides that there shall be established for each State of the Federation, one or more Election Tribunals. It is therefore constitutional to establish more than one depending on the need to dispose of election petition. See EYO V. EKPEYONG (2012) 11 NWLR (Pt. 1311) 316 at 321-322
The answer is no. If a petition is filed out of time, the tribunal lacks the necessary jurisdiction to deal with the petition filed outside the mandatory 21 days, it being statute barred. See IMERH V. OKON (2012) 11 NWLR (Pt. 1311) 270 at 279.
Every proceeding must be declared incompetent and a nullity where the commencement/originating process is contrary to the provision of the rules for election petition. See NWANKWO V. YAR’DUA (2010) 12 NWLR (Pt. 1209) 518 at 590.
It is true that Election Petition must always be handled with elasticity. Too much technicality should be avoided but not at the expense of general law. See CHIA V. UMA (1998) 7 NWLR (Pt. 556) p. 95
The answer is no. A respondent is not bound to file a memorandum of appearance in any case, as long as a reply was filed within a reasonable time. The non-filing of a memorandum of appearance shall not bar the respondent from defending the election petition, if the Respondent filed his reply to the election petition in the Registry within a reasonable time. See OLIBIE V. OKEKE (1999) 8 NWLR (Pt. 613) 165 at 174.
Not exactly, the bailiff’s affidavit that he has served the process personally on the respondent or defendant is only prima facie proof of service of the said court process. The respondent may rebut this affidavit by a counter-affidavit deposing to non-service of the process or otherwise. See KENNEDY V. INEC (2009) 1 NWLR (Pt. 1123) 614 at 639-640.
The answer is no. By the provision of Section 141 of the Electoral Act, 2010, the National Assembly did by legislation set aside the decision of the famous Supreme Court decision in Amaechi V. INEC case. The implication of this section became again that it is the candidate who stands for an election that wins or loses, not his political party such that an aspirant who never really contested the election takes the victory as being the victory of the party. In the case of CPC V. OGBODU (2013) 18 NWLR (Pt. 1385) 67 at 119-120, it was held thus; “In other words parties do not contest, win or lose election directly, they do so by the candidates they sponsored and before a person can be returned as elected by a tribunal or court, that person must have fully participated in all the stages of the election, starting from nomination to the actual voting” The implication of this verdict of the law, is that a party who after the election proves that he was the validly nominated candidate for the party but was wrongfully substituted will not stand the chance of being declared as winner by the tribunal. He can only be assuaged vide damages. This new position of the law is a total turn away from the position back in the case of AMAECHI V. INEC. It would appear that the legislators were not exactly satisfied with that 2010 position. The extant Electoral Act, 2022 presents another and different scenario. Under Section 136 of the Electoral Act, 2022 the position is that if the tribunal or court finds and declares that the candidate declared the winner of an election was not validly elected on any ground it shall nullify the election and direct INEC to conduct a fresh election for that position not later than 90 days - where no appeal is filed against that decision or where appealed against is unsuccessful. So, the case of Amaechi V. INEC (& Omehia) where the candidate that contested and was declared as elected was not the person validly nominated by his party to contest the election would have, under Section 136(1) of the Electoral Act, 2022 resulted in the total nullification of the election, and a fresh election organized within 90 days of the Supreme Court judgment for all the political parties that participated in that Rivers State Governorship election (and not Amaechi, who was wrongly dropped by his party and prevented from participating in the election, being declared winner on the ground that it was his party that owns the victory, and same should be returned to the party through the rightful candidate). The position will be different where the tribunal or court finds and declares that candidate who scored the highest number of votes was not qualified to contest that election, the candidate with the second highest number of votes, of whichever party, should be declared the winner of the election, in so far as that candidate still remains a member of his party (and has not defected to another party different from the one) on whose platform he contested that election. If the reason for nullifying the election of the person returned as duly elected in that election is that he did not actually validly score majority of the votes cast at that election, the tribunal shall declare the candidate that scored the highest number of valid votes at the election as the winner of that election.
The answer cannot be a straight yes or no. If the tribunal or court finds that the candidate declared as winner of the election “was not validly elected on any ground” then nobody would declared winner. But in a case where the candidate declared as winner of the election gets declared as “not qualified to contest the election” (is that not same as ‘disqualified’) by a tribunal or court upon any of the disqualifying grounds provided by the Constitution or the relevant statutes in force, according to Section 136(2) of the Electoral Act, 2022, the tribunal shall declare the candidate with the second highest number of valid votes cast at the election, and who satisfies the requirements of the Constitution and the Electoral Act, as duly elected. The only other condition is that this second best candidate must still, at the time of verdict of the tribunal or court, be a member of the party that sponsored him for that election, and not have defected to another political party. A fresh election will be conducted within 90 days of the nullification of the victory of the disqualified candidate. See Section 136(1) of the Electoral Act, 2022. Under the 2022 Electoral Act, the authority in the case of BAYO V. NJIDDA (2004) 8 NWLR (Pt. 876) 544 at 587 would appear to have been altered by the extant law as explained above.