Last Monday, Justice Peter Olabisi Ige of the Court of Appeal, Ibadan Division, retired following the attainment of the mandatory 70 years. At his valedictory, he spoke to a range of legal and constitutional issues affecting Nigeria’s electoral process. YEJIDE GBENGA-OGUNDARE presenting the excerpt.
The need to amend the Constitution or the Electoral Act was a major focus of the speech of Justice Peter Olabisi Ige JCA while speaking on comments and observations on legal impediments in electoral adjudication at a valedictory court session held in his honour at the Court of Appeal, Ring Road, Ibadan to mark his retirement at the mandatory age of 70 years last week.
Justice Ige made a lot of recommendations arising from his observations of his experience on election petition tribunals and ways of ensuring justice is not only done but is manifestly seen, to be done.
Hearing and disposal of election disputes
He expressed the opinion that in order to give the justices breathing space, it is imperative for the National Assembly to amend the relevant provisions of the constitution to increase the 60 days to 80 days for hearing and determination of appeals in the interest of justice.
“In the alternative, National Assembly should amend the provision of Section 285 (7) to read; ‘An appeal from a decision of an election tribunal or Court of Appeal in all election matters shall be heard and disposed within 60 days from the date an appeal is entered in the Court of Appeal pr the Supreme Court.’
“That way, there will be enough time for the Appellate Courts to attend and decide election appeals,” he said.
He is of the opinion that the provision of Section 285 (7) of the 1999 constitution (as amended) which states that “an appeal from a decision of an Election Tribunal or Court of Appeal in an election matter shall be heard and disposed of within 60 days from the day of the delivery of judgment of the tribunal or Court of Appeal” and Section 285 (12) which states that “an appeal from s decision of a court in a Pre- Election matter shall be heard and disposed of, within 60 days from the date the Notice of Appeal was filed” limits the period available for judges to do their work thoroughly.
He added that this handicap becomes more noticeable in situations where the Appellant files notice on the last day of the 21 days mandated by the law in Section 138 (2) and Paragraph 6 (1) of the Election Proceedings Practice Direction 2023 that provides that an Appellant who is dissatisfied with the judgment of the Tribunal or Court of Appeal in an election matter, must file his notice of Appeal against the final decision of the tribunal or court within 21 days
He argued that in such cases, the 21 days out of the 60 provided by law, in addition to the 10 days provided for the tribunal to transmit record of appeal to the Appeal Court and the seven days provided for Appellant to file his brief as well as five days provided for respondent to file his brief of argument as provided by Paragraph 9 of the Practice Direction, amount to 45 days, leaving the justices 15 days to assiduously work, often till breaking point, to meet up with the timeline.
Tribunal quorum
Touching on the quorum of Election Petition Tribunal and implication of variation in composition, Justice Ige made it known that the quorum of an Election Petition Tribunal as stipulated in Section 285 (4) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) stipulates that a quorum shall be the chairman and one other member. He emphasized that this is sacrosanct and immutable from the commencement of proceedings in an election petition presented to the tribunal until after the determination of the election petition.
As such, a tribunal member including the chairman, who does not partake in the hearing of a motion or in taking of evidence of witnesses, cannot partake in the delivery of a ruling or judgment in the petition. And on the quorum, Justice Ige believes there needs to be an amendment.
“There has been no amendment to the provisions of the constitution or provisions of the Electoral Act 2022 on what happens where a chairman (God forbids) dies or he is removed at the tail end of a hearing of an election petition or for other reasons, a member or two are removed for cogent verifiable reasons. It means the trial must commence de novo and petitioners or respondents may not be able to call necessary witnesses before the 180 days timeline ends. This will lead to monumental injustice against the parties, particularly the petitioner.
“I am of the view that it is not too late for the National Assembly to amend the constitution or the Electoral Act to accommodate any unforeseen circumstance depleting the membership or the quorum of a tribunal or court, otherwise, a well-conducted election petition or trial will be rendered null and void.
Intra-party pre-election matters
Justice Ige stated that another thorny issue of electoral jurisprudence is pre-election matters involving members of the same political parties. He stated that there is a need to remove from the Constitution and Electoral Act 2022, pre-election matters involving political parties and their members.
He expressed the view that “Section 29 (4) (5) (6) and Section 84 (14) of the Electoral Act should be removed from the Act. The Apex Court has consistently decided that it is not the business of the court to select candidate for elections for political parties based on its long and enduring decision in ONUOHA v OKAFOR (1983) 2 SCNLR 244; (1983) 14 NSCC 494 at 501 per Obaseki JSC.
“However, the courts have been given limited jurisdiction under Section 84 (14) of the Electoral Act 2022 and Section 285 (14) (a) (b) (c) of the 1999 constitution (as amended) to adjudicate over party primaries as pre-election matter where an aspirant in a party primaries complains about breach of the guidelines of his political party and the Electoral Act.
“Most members of the public have misconstrued this jurisdiction of the courts as tantamount to using the court to subvert the will of party members who have nominated a candidate for the political party whenever the court finds that the primary was conducted in breach of electoral laws or where the aspirant who approaches the court is declared by the court to be the winner. This is farther from the truth. The court is only called upon to interpret the laws passed by the National Assembly.”
On the vexed question of wether election matters should be determined before winners are sworn-in, he stated that as the name implies, pre-election matters must be matters instituted and determined before the holding of elections conducted by INEC.
“It is strongly suggested and advocated that pre-election matters be determined before the holding of general elections and post election matters ought to be determined to finality before the winner of an election is sworn in into office for the mutual benefit of all the stakeholders in Electoral process and adjudication” he said.
Suggestions
“I am of the view that the earlier pre-election matter is removed from electoral laws, the better it would be for our political parties and our nascent democracy. Pre-election matters constitute unnecessary decoy and details in electoral process. The National Assembly is hereby called upon to remedy the unjust scenario or situation concerning the variation in the membership of an Election Petition Tribunal or court, could cause to the parties or one of them, due to death or removal of a member of a tribunal or court, vide necessary amendments of the constitution and the Electoral Act to curb the injustice that variation in membership of a tribunal or court in an election matter, could cause.
“The National Assembly is called upon to do the needful by making necessary amendments to the constitution pertaining to the quorum of the tribunal. To my mind, where the chairman is for any reason unable to continue, one of the members can be made the chairman and they will still form the quorum prescribed by the constitution and the matter can proceed to judgment.
“I think it is in interest of justice and to forestall a situation where the judiciary will be accused of sabotage in a matter that is entirely within the portfolio of the legislative arm of government to address and remedy by necessary amendments,” he advocated.
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