AN ANALYSIS OF THE DISCRETIONARY POWERS OF THE

COURT: A CASE STUDY OF ELECTION PETITION TRIBUNAL

DECISIONS.

BY

Valentine Ogbonna AYIKA

PG/NLS/1900016

A DISSERTATION SUBMITTED
TO THE NATIONAL INSTITUTE FOR LEGISLATIVE AND
DEMOCRATIC STUDIES UNIVERSITY OF BENIN (NILDS/UNIBEN)
IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE
AWARD OF THE DEGREE OF MASTER OF LAWS IN LEGISLATIVE
DRAFTING (LLM)

JUNE, 2022

i
 CERTIFICATION

This is to certify that this Dissertation is the original work of Valentine Ogbonna Ayika (with

registration number PG/NLS/1900016) carried out under the guidance and supervision of

Mrs. J.O Adesina (SAN). This work has not been presented either in part or whole in this

institution before or any other faculty in any university for the award of any degree.

_______________________ __________________
Ayika Valentine Ogbonna Date

ii
 APPROVAL

This Dissertation titled “the Legal Effects of Judicial Discretion on the Mandate of the People

Consequent upon the Lacunae and other deficiencies in the Electoral Acts particularly the

Electoral 2010: A Case Study of Election Petition Tribunal Decisions” has been read and

approved for the Institute for Legislative and Democratic Studies (NILDS), Abuja.

_______________________ _____________________
Mrs. J.O Adesina (SAN) Date

_______________________ _____________________
(External Examiner) Date

iii
 DEDICATION

I dedicate this dissertation to God Almighty my creator, my strong pillar, my source of

inspiration, wisdom, knowledge and understanding. He has been the source of my strength

throughout this work and on His wings only have I soared. I also dedicate this dissertation

work to my dear wife, Mrs Cecilia Ayika JP, who has been a constant source of support and

encouragement during this work, my wonderful children and only beloved brother, Chief

Clement Ayika and his family. I am truly thankful for having you all in my life. A special

feeling of gratitude to all my former lecturers especially my supervisor, Mrs. J.O Adesina

(SAN) for her guidance in a unique way. I also dedicate this dissertation to my many friends

and political allies and followers who have supported me throughout the process.

iv
 ACKNOWLEDGMENT

This research would not have been possible without the exceptional support of my supervisor,

Mrs. J.O Adesina (SAN). Her enthusiasm, knowledge and exacting attention to details have

been an inspiration and kept my work on track from the outset to the final draft of this work.

The unfettered access to the library of Mr. Alex Ejesieme, SAN Chambers granted to me by

the learned Senior Advocate contributed in no small measure to timely completion of this

work.

Finally, it is with true pleasure that I acknowledge the contributions of my amazing partner,

Mrs Cecilia Ayika JP who assisted immensely in typesetting of this work.

v
 ABSTRACT

Available literatures showed that election related litigations are on the increase and the
resultant judgements, in some cases, controversial and conflicting. Some of the reasons for
this, it was observed are that the relevant laws and regulations governing elections in Nigeria
are replete with deficiencies, which, among others, necessitated the resort to discretionary
powers by the courts to fill up the gaps. The deficiencies and the consequent exercise of
judicial discretion, to a larger extent, had negative impact on the sustenance and deepening of
Nigeria’s democracy. A situation that demanded for research and necessary actions. The
research identified and examined the defects, ambiguities and lacunae in the relevant
electoral laws and regulations particularly the Electoral Act 2010 (as amended) and the
resultant effects of the exercise of judicial discretion by the courts on the mandate of the
people. The overwhelming importance of democracy and the need for its sustenance
demanded for research on how the mandate of the people was affected by the exercise of
judicial discretionary powers. The methodology adopted in the work is doctrinal with the aid
of statutes, case laws, textbooks, articles and journals, opinion of scholars and internet
materials. The study discovered that the resultant effects of the deficiencies in the Electoral
laws prompted judicialization of elections in Nigeria which in turn necessitated resort to
discretionary powers by the courts. The study found that the courts in some cases abused or
misapplied its discretionary powers for some reasons such as personal, political, religious or
economic interest. The periodical amendments of the relevant laws and regulations were a
consequence of the prevalence of pre and post election disputes and the corresponding
judicial decisions coupled with societal dynamics and overwhelming desire by Nigerians for
credible and acceptable elections. The election petition cases analyzed in the work showed
that the resort to discretion by the courts is rampant and often led to conflicting judgments
which in some cases were against the electoral wishes of the voters. The study recommended
that the electoral laws and regulations should be periodically amended to cure the
deficiencies and the gaps. The research recommended that controversial election related
decisions should be reviewed by the National Judicial Council, NJC, or a judicial Committee
set up for that purpose. The work having discovered that exercise of judicial discretion by the
courts particularly in post-election matters is inevitable further recommended that
amendments of the electoral laws and regulations should be geared towards ensuring that
such exercise must be judicially and judiciously done. The study particularly recommended
for an introduction of electronic voting and transmission systems into the Electoral Acts.

vi
 TABLE OF CONTENTS

Title Page - - - - - - - - - - i

Certification - - - - - - - - - - ii

Approval - - - - - - - - - - iii

Dedication - - - - - - - - - - iv

Acknowledgment - - - - - - - - - v

Abstract - - - - - - - - - - vi

Table of Contents - - - - - - - - - vii

Table of Cases - - - - - - - - - xi

Table of Statute - - - - - - - - - xiv

List of Abbreviations - - - - - - - - - xvi

CHAPTER ONE: INTRODUCTION

1.1 Background to the Study - - - - - - - - 1

1.2 Statement of the Problem - - - - - - - - 3

1.3 Aims and Objectives of the Study - - - - - - 4

1.4 Research Questions - - - - - - - - 4

1.5 Scope and Limitation of the Study - - - - - 5

1.6 Significance of the Study - - - -- - - - - 6

1.7 Summary of Related Literatures Reviewed - - - - - 7

1.8 Theories of Judicial Discretion and Interpretation - - - - 16

1.9 Historical background of Electoral Reform in Nigeria with Particular Reference to the

Electoral Act 2010 - - - - - - - - 24

vii
1.9.1 The 2001 Electoral Bill - - - - - - - - 26

1.9.2 Post 2007 Elections - - - - - - - - 29

1.9.3 Post 2007 Elections: Constitution Amendment Bill (2009 & 2010) - - 30

1.9.4 Post 2007 Elections: Electoral Act Amendment Bill 2010 - - - 30

1.10 Methodology - - - - - - - - - 31

1.11 Synopsis of Chapter - - - - - - - - 31

CHAPTER TWO: CONCEPTUAL FRAMEWORK AND LITERATURE REVIEW

2.1 Introduction- - - - - - - - - - 33

2.2 Election - - - - - - - - - - 33

2.3 Electoral Reform - - - - - - - - - 36

2.4 Electoral Process - - - - - - - - - 36

2.5 Electoral Mandate - - - - - - - - - 37

2.6 Legal Effects - - - - - - - - - 37

2.7 Judicial Discretion - - - - - - - - 38

2.8 Mandate of the People - - - - - - - - 43

2.9 Election Petition - - - - -- - - - - 44

CHAPTER THREE: LEGAL AND INSTITUTIONAL FRAMEWORK FOR

ELECTIONS IN NIGERIA

3.1 Legal Framework - - - - - - - - 45

3.1.1. The Constitution of the Federal Republic of Nigeria 1999 (as altered) - 45

3.1.2. The Electoral Act 2010 - - - - - - - 48

3.1.3. Electoral Regulatory Framework - - - - - - 53

3.1.4. Selected Case Laws on Electoral Dispute - - - - - 53

3.1.5. Case Law/Judicial Authorities - - - - - - 61

viii
3.1.6. Electoral Guideline - - - - - - - - 62

3.1.7. Some International Legal Framework - - - - - 63

3.1.8. Convention on the Elimination of all Forms of Discrimination against Women

(CEDAW) - - - - - - - - - 63

3.1.9. The Universal Declaration of Human Rights (UDHR) - - - 64

3.1.10. Convention on the Political Rights of Women - - - - 65

3.1.11. African Commission on Human and Peoples’ Rights - - - 65

3.2. Institutional Framework - - - - - - - 66

3.2.1. The Independent Electoral Commission (INEC) - - - - 67

3.2.2. Electoral Tribunals and Courts - - - - - - 69

3.2.3. The Police - - - - - - - - - 71

3.2.4 Political Parties - - - - - - - - 73

CHAPTER FOUR: IDENTIFICATION AND EXAMINATION OF THE

DEFICIENCIES IN THE ELECTORAL ACTS AND THE EFFECTS OF
DISCRETIONARY POWERS OF COURTS ON ELECTION PETITION DISPUTES.

4.1 Rationale for Judicial Discretion of Court- - - - - - 75

4.2 Review of the Lacunae in the Electoral Act, 2010 and notable cases

Judicial Exploit of them - - - - - - - 77

4.3 The need for Drafters to take Cognizance of Judicial Decisions in

Enacting Electoral Laws - - - - - - - 82

ix
CHAPTER FIVE: CONCLUSION AND RECOMMENDATIONS

5.1 Summary of Findings - - - - - - - - 83

5.2 Recommendations - - - - - - - - 84

5.3 Contributions to Knowledge - - - - - - - 84

5.4 Conclusion - - - - - - - - - 85

Bibliography - - - - - - - - - 86

x
 TABLE OF CASES

Abubakar v Yar'Adua (2008) 19 NWLR (Pt. 1120) 1 at 7- - - - - 9

Akinyemi v. Odu‟a Investment Coy Ltd (2012) 17 NWLR pt. 1329, p.609 - - 13, 14

Ali v COP (2002) JELR P44479 CA - - - - - - - 16

Aliu Bello v. A.G Oyo State (1986) 12 S.C.1 - - - - - - 17

Amaechi v INEC (2007) 7-10 S.C. 172 - - - - - 2, 47, 48, 71

Anyah v African Newspapers of Nigeria Ltd (1992) 6 NWLR (pt. 247) p. 317- - 14

ANPP &Anor v. Osiyi & Ors (2008) LPELR-3781(CA) - - - - 9

ANPP v INEC(2004 7 N.W.L.R. Part 871 Page 16 at 55-57 - - - - 36

Buhari v. Obasanjo (2005) 2 NWLR (Pt. 910) p. 241 - - - - 9

Dalhatu v. Twiaki & Ors (2003) LPELR 917 - - - - - - 57

Donoghe v Stevenson (1932) UKH - - - - - - - 17

Egbunike v Muonweokwu (1962) 1 SCNLR 97 - - - - - 14

Ekwuno v Ifejika (1960) SCNR 320 - - - - - - - 14

Emeka v. Okadigbo (2012) 7 SC (Pt. 1) 1, (2012) 18 NWLR (Pt. 1331) 55 - - 71

Garba v APC (2020) 2 NWLR (Pt 1708) 345 at 360 - - - - 39

General University of Lagos v. Olaniyan (1985) 1 NWLR (pt 1) 134 - - 14

Hope Uzodimma & Anor v Hon Emeka Ihedioha & Ors (2020) LPELR-50260 (SC) 2, 76

IGP v ANPP (2007) 18 NWLR (Pt 1066) 457 at 496 - - - - - 38, 39

Kehinde v Commissioner of Police (1973) NWLR 182 - - - - 14

Lemachi & Anor v INEC & Ors (2019) LPELR-48928(CA) - - - 9

NAB Ltd v Barri Eng. (Nig) Ltd (1995) 8 NWLR (pt 413) 257 pp. 289 -290 - 57

NDP v INEC (2012) LPELR-19722(SC) - - - - - - 11

Nwali v Ebsiec & Ors (2014) LPELR-23682(CA) - - - - - 11

Odusote v Odusote(1971) 1 All NLR (pt. 1) p. 219 - - - - - 14

xi
Offor v State (1998) NWLR (pt. 1333) p421 - - - - - - 14

Ojukwu v Obasanjo (2004) 12 NWLR (Pt 886) P. 169 at 227 per Edozie JSC - 36

Ojukwuv Obasanjo & Ors (2004) LPELR-2400(SC) - - - - 2

Oke v Mimiko (2013) LPELR-21368(SC) - - - - - - 9

Okechukwuvs INEC (2014) 17 NWLR (Pt. 1436) 259 at 309 - - - 66

Okechukwu v Onyegbu(2010) All FWLR (pt. 524) p. 117 at 136-137 - - 58

Okereke v Yar'adua & Or s( 2008) LPELR-2446(SC) (Pp 19 - 19 Paras A – A - 18

Oluwarotimi Odunayo Akeredolu (2021) LPELR-55481 SC - - 46

Onuorah v Okafor(1983) 2 SCNLR 244 - - - - - - 14

UBN Plc. v Astra Builders WA Ltd (2010) 5 NWLR (pt. 1186) p 1 - - - 14

University of Lagos v Aigoro (1985) 1 NWLR 1 p143 - - - - 14

xii
 TABLE OF STATUTE

African Commission on Human and Peoples’ Rights (ACHPR)

Constitution of the Federal Republic of Nigeria 1999 (as amended)

Convention on the Elimination of all Forms of Discrimination against Women (CEDAW)

Convention on the Political Rights of Women

Electoral Act 2001

Electoral Act 2006

Electoral Act 2010

Electoral Act 2022

International Covenant on Civil and Political Rights

National Assembly Act

The Universal Declaration of Human Rights (UDHR)

xiii
 LIST OF ABBREVIATIONS

AG Attorney General

All NLR All Nigerian Law Reports

APC All Progressive Congress

APGA All Progressive Grand Alliance

CA Court of Appeal

CFRN Constitution of the Federal Republic of Nigeria

FRN Federal Republic of Nigeria

LPELR Law Pavilion Electronic Law Report

NILDS National Institute for Legislative and Democratic Studies

NWLR Nigeria Weekly Law Report

PDP People’s Democratic Party

SC Supreme Court

US United States

USA United States of America

WRN Weekly Reports of Nigeria

xiv
 CHAPTER ONE

INTRODUCTION

1.1 Background to the Study

Democracy is synonymous with periodic elections which are governed by laws and

regulations particularly, in Nigeria for instance, a number of laws and regulations govern the

electoral process such as the 1999 Constitution as altered, the Electoral Act, the political

party Constitutions and Guidelines as well as Independent National Electoral Commission

(INEC) Guidelines. These laws and rules, with particular emphasis on the Electoral Act, had

undergone several amendments with aim of ensuring comprehensibility, unambiguity,

consistency and certainty in their provisions. Despite the efforts mentioned above, there still

subsists lacunae in the Electoral Act which election tribunals have relied upon in exercise of

their discretion to impact on the mandate of the people. The mandate of the people is

expressed when the larger population of voters in a free and fair democratic election select

their leaders by majority of votes cast. The ultimate power in an election resides in the people

who by majority of votes select their preferred candidate over another. As regards electoral

issues, justice can only be seen to be done when the mandate of the people is respected and

protected by election tribunals. However, due to the lacunae that still exist in the Electoral

Act, interested or disgruntled parties may approach the court to exploit it in one way or the

other.

The duty of the judiciary as an arm of government is to interpret laws enacted by the

legislature. This constitutional duty it must discharge even when no clear guidelines,

parameters or laid down procedure are handed down by the legislature. In such a situation,

the courts are enjoined to exercise some discretionary powers in order to meet the justice of

the case before it. However, these discretionary powers of the judiciary are sometimes

abused, or misapplied for some reasons such as personal, religious, economic or political
1
interests. Dingyadi v. INEC 1. The resultant effects of abuse or misapplication of exercise of

judicial discretionary powers are conflicting judgments of courts of coordinate jurisdiction

and the issue of judicial forum-shopping by litigants.

One of the many controversial decisions of courts in election petitions is the recent decision

of the Supreme Court in the case of Hope Uzodimma & Anor v Hon. Emeka Ihedioha & Ors2.

The decision of the apex court in that case has been a subject of debate among scholars

especially on the wrong signal or the general impact that it has on the society with regards to

the sanity and sanctity of the judiciary as an unbiased umpire. Another case of that kind is the

case of Amaechi v INEC 3 where the apex court declared Rotimi Chibuike Amaechi the

winner of an election which he substantially did not participate in. In that case, Celestine

Omehia campaigned on the platform of PDP and on the day of the election he was the one on

the ballot meaning that the voters cast their votes for him. Yet the court declared Rotimi

Chibuike Amaechi the winner of that election. This singular questionable decision brought

about the introduction of section 285(13) in the Fourth Alteration of the 1999 Constitution.

According to the section, for a person to be declared a winner in an election that person must

have participated in all the stages of the elections.

In view of the foregoing, there is overwhelming need to examine how effective is the

Electoral Act in regulating elections in Nigeria, how the discretionary powers of the court

enhance effective justice delivery, if and how ambiguities in the Electoral Act influenced

judicial and judicious exercise judicial discretionary powers and how a comprehensive

Electoral Act will ensure effective justice delivery in electoral matters?

1
(2011) 18 NWLR (pt.1224) pg.154." PER ADEKEYE, J.S.C (P. 40, Paras. A-C)
2
(2020) LPELR-50260 (SC)
3
(2007) 7-10 S.C. 172
2
1.2 Statement of Research Problem

A sustainable democracy requires a credible and acceptable elections which in turn depends

on the laws and regulations governing elections in Nigeria. The outcome of Nigerian

electoral processes remains a far cry from the expectations of Nigerians and falls far below

what is obtainable in the developed countries. Nigeria’s capability to conduct free, fair,

credible, and peaceful elections has always been questioned. This is because successive

elections have been marred by violence and myriad irregularities and deficiencies in the

electoral laws. All elections held since 1999 to date have largely fallen below acceptable

international standards, degenerating, as they had, from mere thuggery and hooliganism to

large-scale irregularities and violence which have characterized the country’s ‘tortuous’

journey to democratization.4

From available literatures and judicial decisions it is clear thatthere are issues with the

existing legal framework which leads to lacunae and other deficiencies in the laws and

regulations that gives rise to discretionary powers of courts. The way and manner the courts

have exercised its discretionary powers particularly in election related matters leaves so

much to be desired in that the decisions are not always judicial and judicious UBA v.

UKACHUKWU & ANOR5. Judicial and judicious resolution of political disputes has always

been a herculean task6. This is as a result of undue influence of politicians and overbearing

meddlesomeness of the executive over the judiciary especially in Nigeria were the judiciary

is not totally independent and the scope of corruption is endemic.

4(https://www.researchgate.net/publication/256428576_Consolidating_Nigeria's_Democracy_through_Effective
_Management_and_Settlement_of_Electoral_Violence)
5
(2013) LPELR-22045(CA)
6
S O Abdulfatai, ‘Legal Implications of Judicial Review on Political Disputes’ (2019) Nnamdi Azikiwe
University Journal of International Law and Jurisprudence, Vol. 10 (2), p. 85
3
The task of sustainable democratic system requires careful judicial decisions in matters that

are highly political. 7 Election tribunal judges are expected to be wary, independent and

courageous in applying the rule of law in order to give effect to the wishes of the people in a

democratic election.

1.3 Aims and objectives of the Study

The aims of this research work are to identify and examine the legal effects of the exercise of

judicial discretionary powers on the mandate of the people pursuant to deficiencies in the

electoral laws and regulations with particular reference to the 2010 Act vis-à-vis the study of

election petition tribunal decisions.

To this end, the work has the following objectives:

1. To identify and examine the effects and implications of judicial discretion on the

mandate of the people

2. To identify and critically analyze the deficiencies in the Electoral Acts with special

emphasis on the provisions of the 2010 Act.

3. To examine cases of misuse of judicial discretionary powers in Nigeria especially in

electoral matters.

4. To articulate the amendments or reforms needed in the Electoral Act for effective

justice delivery in electoral matters in Nigeria.

1.4 Research Questions

This research work attempts to answer the following research questions:

(a) How effective is the Electoral Act in regulating elections in Nigeria?

(b) To what extent does the discretionary powers of the court enhance effective justice

delivery?

7
A Left-wich, ‘Two Cheers for Democracy’ (1996) The Political Quarterly, vol. 67 No.4 .334
4
 (c) To what extent has ambiguities in the Electoral Act influenced judicial and judicious

exercise judicial discretionary powers?

(d) How will a comprehensive Electoral Act ensure effective justice delivery in electoral

in electoral matters?

1.5 Scope and Limitations of the Study

The scope of this research work is on the examination of the legal effects of exercise of

judicial discretion on the electoral mandate of the electorates in Nigeria based on the lacunae,

ambiguities and other deficiencies in the Electoral Acts prior to and with particular reference

to the Electoral 2010. The study examined the historical background and jurisprudence

behind the setting up of election petition tribunals in Nigeria and reviewed some notable

decisions of courts/tribunals in election matters.

On the limitations of the study, factually, research is done with the aim of gathering more

information on a particular subject/topic. However, in the process of conducting the research,

researchers, as in the instant case encountered some challenges. In academia, research is

placed on the highest pedestal which demands that specific ethical guidelines must be

observed with good sense when carrying out research of any kind. This researcher

encountered problem with the usage of basic ethical guidelines particularly in the area of

conflict of interest. On this point the researcher having lost his mandate at an Election

Petition Tribunal struggled to remain objective and unbiased in the research work.

The adoption of doctrinal research methodology, though best suited for this research work,

was uniquely challenging as it is more abstract and quite different from the other common

research methodologies. The non-deployment of empirical research methodology led to

many subjective conclusions.

5
Following the broken educational system and lack of proper record keeping of Nigerians, it is

only normal to expect a library system that is not functioning well.8

Most of the libraries in universities in Nigeria including my current school provide minimal

research materials (books, journals, newspapers etc.). In most cases they are old materials.

Most of the libraries that are well equipped in Nigeria are private-owned libraries. All these

compelled the researcher to spend more time visiting both public and private libraries for

optimal access to relevant research materials.

Another important sources of data for this research is the Internet which, though there are

numerous information therein, retrieving the volume of information needed for meaningful

doctrinal research methodology as in the instant case expensive and time consuming.

Additionally, the lack of a database of a comprehensive list of election petition cases and a

compendium of previous Electoral Acts in Nigeria posed a serious barrier to this study.

Before the conclusion of this work, the Electoral Act 2010 was amended which brought

about the extant Electoral Act 2022. The coming into effect of the current Electoral Act

midway into this work will take a lot of shine off this study as future works on election

related matters will mostly center on the 2022 Act. Unfortunately some of the findings and

recommendations in this study was not considered during the debate for the recent Electoral

Act Amendment Bill 2022 hence was not reflected in the amended Electoral Act 2022.

1.6 Significance of the Study

This research is significant in beaming its searchlight into the roles, institutional and

systematic reforms needed for election tribunals to meet the ends of justice in the discharge

of their duties. The work also identified and examined some of the lacunae in the Electoral

8
https://www.ajol.info/index.php/cjlis/article/view/68233
6
Acts in Nigeria generally and the 2010 Act particularly which have been the subject of

exploitation by courts and litigants contrary to the general mandate of the people.

In the final analysis, this work is intended to guide future researchers, academics, jurists,

policy-makers and the general public as regards electoral issues.

1.7 Summary of Related Literatures Reviewed

Premised on the overwhelming importance of credible and acceptable dispute resolution

generally and election related ones in particular, several scholars, law teachers’ political

scientists etc., have researched on related topics. Some of such works considered in this study

made their arguments and submissions in accordance with their orientation, discipline,

background and personal biases etc. Dr. C E Aduaka worked on judicial discretion and its

application under the Nigerian legal system on a general note. The work looked at exercise of

discretion as an act or deed on the personal judgment of the person exercising it and in

accordance with his conscience and should be free from and unfettered by external influence

or suggestions. It defined judicial discretion as the exercise of judgment by a judge or court

based on what is fair under the circumstance and guided by the rules and principles of law.

To Dr. C E Aduaka, every discretion be it judicial or judicious must be based on prudence,

rationality, sagacity, astuteness, considerateness and reasonableness. These principles were

enumerated in the following cases Akinyemi v Odu’a Investment Co Ltd 9, University of

Lagos v Aigoro 10 , Onuorah v Okafor 11 ,Ekwuno v Ifejika 12 and Egbunike v

Muonweokwu13

Dr. C E Aduaka views discretion as being akin to judicial-law making and queries the

constitutionality or otherwise of it. Bearing in mind the provision of Section 4 of the 1999
9
(2012) 17 NWLR pt. 1329, p.609
10
(1985) 1 NWLR 1 p143
11
(1983) 2 SCNLR 244
12
(1960) SCNLR 320
13
(1962) 1 SCNLR 97

7
Constitution of Federal Republic of Nigeria (as amended) which assigned law-making

functions to the legislature and dolls out the principle of separation of powers in practice. He

is of the opinion that it may be an encroachment for the judiciary to purport to exercise law

making powers. He further advised on the need to maintain a balance between judicial

creativity and judicial tepidity (a consequence of rigid adherence to precedent, or literal

interpretation, that may result in injustice to those who seek refuge in the alter of justice) as a

way of avoiding judicial recklessness which can arise if judges were given unfettered power

to exercise their discretion in cases before them.

On what constitutes judicial and judicious discretion the study relied on the decision in the

case of African Continental Bank Ltd v Nnamani 14, where it was held that the exercise of

the court’s discretion is said to be judicial if the judge invokes the power in his capacity as

judge qua law. In other words, an exercise of a discretionary power will be said to be

judicial, if the power is exercised in accordance with the enabling statutes. On the other hand,

an exercise of a discretionary power is said to be judicious if it carries or conveys the

intellectual wisdom or prudent intellectual capacity of the judge as judex. In this second

situation, the exercise of the discretion must be replete with such wisdom and tenacity of

mind and purpose. The exercise must be based on a sound and sensible judgment with a view

of doing justice to the parties. Here, the judge’s disposition about life is brought to play and

his mindset and view about life as he has to use his discretion prudently in the absence of any

guiding principle where the law is silent: Offor v State15

In criminal cases, Aduaka pointed out that judges exercise enormous discretion; from the

commencement of the trial to the end, prominent of which is in the grant of bail and

14
(1980) JELR 33940 (SC)
15
(2012)18 NWLR pt. 1333 p421
8
sentencing. He relied on the decision in the case of Ali v COP 16. Where Anyebe, J held that:

“Granting of bail pending the determination of an appeal before this court is, under Section

34(2) of the Criminal Procedure Code upon which this application is founded, a matter of

unfettered discretion of the court bearing in mind that where a judicial discretion if to be

exercised, it is to be done according to the rules of reason and justice, not arbitrary, vague

and fanciful, but legal and regular‟. He admitted that the exercise of discretion upon known

facts involves the balancing of a number of relevant considerations upon which opinions of

individual judges may differ as to their relative weight in a particular case. But that will not

necessarily affect the justness of the exercise of the discretion, so long as the facts are

available and reasonably appreciated.

The work by Dr. C E Aduaka focused on judicial discretion generally concentrating on its

meaning, what constitutes it and types with few references to certain issues of criminal

matters without making any reference to its effects on electoral matters in relation to the

deficiencies in the electoral laws and regulations. The omission has created the need for this

work. This research agrees with his submission that whichever of the two approaches in

exercise of discretion, be it judicial or judicious, the exercise must be based on a sound and

sensible judgment with a view to doing justice to the parties. His description of judicial

discretion as the exercise of judgment by a judge or court based on what is fair under the

circumstance and guided by the rules and principles of law is not all encompassing bearing in

mind that not all exercises of discretion are guided by rules and principles. This work also

preferred the use of a conjunctive word ‘and’ between judicious and judicial approaches as it

relates to discretion. Having agreed with part of his submission on judicial discretion, this

work however further probes the exercise of judicial discretion in relation to election petition

tribunals with a view to ascertaining its effect on the mandate of the voters.

16
(2002) JELR P44479 CA
9
Professor Wendy Lacey17, Worked on the use of international human rights law by judges

in the exercise of their discretionary powers. She opined that while resort to international law

as an aid to the development of the common law, the interpretation of statutes, and the

exercise of administrative discretion has been widely considered, the relevance of

international standards to judicial discretion has not. In reflecting upon the development in

Australian jurisprudence, she considered the decisions of three judges. These are: Justice

Kirby18, Justice Perry19and Justice Miles.20 She discovered that Australian case laws points to

the emergence of a new development in the use of international human rights law by judges

in the exercise of their discretionary powers. This is a positive application of discretionary

powers which this research aligns with.

Professor Wendy Lacey21noted that Judicial discretion is exercised when a judge is granted

a power under either statute (‘statutory discretion’) or common law that requires the judge to

choose between several different, but equally valid, courses of action. This is a very narrow

view of the meaning and purport of judicial discretion. The leading authority in this regard is

House v The King 22 This case also established that appealable errors committed in the

exercise of a discretion include: acting upon a wrong principle; allowing extraneous or

irrelevant matters to guide the discretion; mistaking the facts and failing to take account of a

material consideration. However, it will not be enough that the appellate court would have

exercised the discretion differently.

17
Lacey, Wendy "Judicial Discretion and Human Rights: Expanding the Role of International
Law in the Domestic Sphere" [2004] MelbJlIntLaw 4; (2004) 5(1) Melbourne Journal of
International Law 108)
18
Justice of the High Court of Australia and former President of the New South Wales
Court of Appeal),
19
Justice of the Supreme Court of South Australia
20
Former Chief Justice of the Supreme Courts of the Australian Capital Territory and
Justice of the New South Wales Supreme Court
specifically on construing the words in statutes according to accepted principles regarding the use
21
ibid
22
(1936) HCA40-55CLR499
10
Instead, the discretion must involve an error of law which has led to ‘an unreasonable or

plainly unjust’ result, or has involved a ‘substantial wrong’, before the discretion will be

taken to have been improperly exercised by the lower court.

One of the Justices of the Supreme Court of South Australia, Justice Perry, since 1996 has

made several references to the role of international human rights law in the exercise of

various judicial discretion. His approach has, however, focused of international law.

The principal case of relevance is the decision in Walsh v Department of Social Security 23.

In that case, both parents of three children had been convicted of social security fraud and

sentenced to terms of imprisonment. Each of the three children suffered from chronic asthma

for which they were regularly hospitalized and whose medication had always been

administered by their mother. An appeal was made against the harshness of the custodial

terms, and the manner in which the sentencing discretion was exercised. The particular

ground of relevance was whether the sentencing Magistrate had erred in not considering or

inadequately considering whether a conditional release order should be made pursuant to

Crimes Act24. Justice Perry held that each sentence was well within the sentencing discretion.

However, his Honour then continued:

the case has one unusual feature not present in any of the various cases to which counsel

made reference during the course of their submissions. That is, that the sentences, both of

which were to be served forthwith, would result in three young children, the youngest

only just two years of age, being separated from both of their parents during the period of

their imprisonment.

23
(1996) 67 SASR 143
24
Section 20 of the Crimes Act 1914 (Cth)
11
After considering the fact that all three children were asthmatic, regularly hospitalized and

dependent on their mother for receiving their medication, Justice Perry further held: In this

case, it was particularly important that the learned sentencing Magistrate have regard to the

combined effect of the sentences imposed upon both appellants upon the welfare of their

dependent children. Common law principles of sentencing would compel consideration of

that consequence. The need to have regard to that factor is referred to expressly in the Crimes

Act,25 which lists the various matters which the court must take into account in determining

the sentence to be passed. One of them is the probable effect that any sentence or order under

consideration would have on any of the person’s family or dependents’. Various

international instruments which have been entered into by Australia emphasize the protection

by the society and the State of the family as the natural and fundamental group unit of

society, and preservation of the rights of the children. Although such international

instruments do not form part of Australian law, they serve to underscore the importance of

provisions such as the Crimes Act26, which where possible, should be construed and applied

consistently with them. Justice Perry considered that, in the Walsh v Department of Social

Security,27 the provision was clear and unambiguous in its terms, and on the words of the

section alone, the sentencing magistrate had clearly erred in exercising the discretion. Thus,

resort to international instruments was unnecessary, and the mother’s sentence was changed

to a conditional release order On the assertion by Professor Wendy Lacey on the

justifications for appellate courts to review discretionary decisions of trial courts, this study

considers the lack of exercise of discretion judicially and judiciously as some of the reasons

to warrant review of discretionary decisions of trial court De Smith 28 .in his own work

25
Section 16A(2) of the Crimes Act,
26
Section 16A(2)(p) the Crimes Act
27
(1996) 67 SASR 143))
28
De Smith (De Smith’s Judicial Review of Administrative Action (Stevens & Sons, London, 1959))
12
defined discretion and differentiated it from duty. De Smith defined the legal concept of

discretion as an implied power to make a choice between alternative courses of action, and if

only one course can be adopted, it is not the exercise of discretion but the performance of a

duty”. Discretionary decisions are those where the judge has an area of autonomy, free from

strict legal rules, in which the judge can exercise his or her judgment in relation to the

particular circumstances of the case29. Keith Hawkins in his work observed that, “Discretion

is ‘the space … between legal rules in which legal actors may exercise choice”. He further

observed that in speaking of autonomy and choice, The tendency for judges to develop

guidelines regulating the exercise of discretion was rationalized by Brennan J in Norbis v

Norbis30However, it must be acknowledged that the exercise of discretion is usually limited

by guidelines or principles, or by reference to a list of relevant factors to be considered.

While discretion permeates both the common law and many, if not most, statutory

instruments, discretionary powers are never absolute and must also be exercised within a

broader legal and social context31.

Carl Schneider32, researched on the tension between rules and discretion in family law. He

observed that there is an unremitting struggle between rules and discretion. That the tension

between these two approaches to legal problems continues to pervade and perplex the law

today. Perhaps nowhere is that tension more pronounced and more troubling than in family

law. It is probably impossible to practice family law without wrestling with the imponderable

29
https://www.pljlawsite.com/2009art15.htm
30
1986) 161 CLR 513, 536 (‘Norbis’): ‘[While an unfettered discretion is] a versatile means of doing justice in
particular cases … unevenness in its exercise diminishes confidence in the legal process’
31
For an analysis of the professional and institutional (eg, non-legal) restraints upon the exercise of
discretionary powers by judges, see Hawkins, ‘The Use of Legal Discretion’, above n 10, 38; Torstein
Eckhoff, ‘Impartiality, Separation of Powers, and Judicial Independence’ (1965) 9 Scandinavian Studies in
Law 9, 33; Lord Hodson, ‘Judicial Discretion and Its Exercise’ (Presidential Address at the The Holdsworthy
Club of the Faculty of Law, The University of Birmingham, Birmingham, UK, 1962), 14–15; Lord McCluskey,
Law, Justice and Democracy (1987) 9; Carl Schneider, ‘Discretion and Rules: A Lawyer’s View’ in Hawkins,
‘The Uses of Discretion’, above n 10, 47, 80–1
32
(Schneider, Carl E. "The Tension between Rules and Discretion in Family Law: A Report and Reflection."
Fam. L. Q. 27 (1993): 229-45.)
13
choice between rules and discretion. He remarked, “Limitations on discretion are as

inevitable and abundant as the sources of discretion … discretionary decisions are rarely as

unfettered as they look”33. This study differs in opinion from the assertion of this literature

in that the study opined that not in all cases that exercise of discretion are within legal or

procedural framework. After all the primary purpose of discretion is to bridge legislative and

procedural gaps. Dr Alfred Abhulimhen-Iyoh 34 In his work defined judicial discretion as

the power or right to make official decisions using reason and judgment to choose from

acceptable alternatives.

Davis, Kenneth C35. He alerted that judges as human beings are prone to human weaknesses.

Hence, whenever the courts are exercising their judicial discretion on matters before them,

the outcome of such actions cannot be totally free from the personal prejudices, whims and

caprices of the “judge”. To him the law is ultimately a product of what a judge deems right

under different situations. He submitted that the exercise of law is completely a product of

the judicial discretion of a judge. Under the criminal justice system, he opined that judges are

often able to exercise a degree of discretion in deciding who will be subject to criminal

penalties and how they will be punished.

He concluded that “in spite of several challenges, judicial discretion remains one of the

viable options available to “judges” in exercising the law in Nigerian courts in relation to

criminal matters. The law regulates society and conflicts therein. Courts are created by the

law as the last hope of the common man to obtain redress, when his rights are trampled upon

33
ibid
34
A Abhulimhen-Iyoh, ‘Judicial Discretion of Judges in Criminal Cases in Nigeria: Prospects and
Challenges’
(2015) available at https://vdocuments.net/judicial-discretion-of-judges-in-criminal-cases-in-nigeria-
lawandprocedurenigeria.html <accessed on 1st February, 2022>
35
Davis, Kenneth C (1971). Discretionary Justice: A preliminary inquiry Champaign, Illinois University of
Illinois P5
14
in reality, the law is what a judge says the law is, partly or entirely connected with his social

environment, economic condition, personality thought, emotion, interest, and psychology.

The reasons for giving “judges” judicial discretions are to cater for unforeseen situations in

the course of adjudication and to prevent unnecessary outcomes procedurally. From the

above, it is clear that judicial discretion, which the courts exercises, no matter how logically

designed and its procedures are, may be abused, and completely utilized to prevent justice”36.

The work focused on an evaluation of the prospects and instances of judicial discretion by

judges in criminal matters. Thus, his research is narrow and restricted. However, this study

intervenes with a broad based research on judicial discretion especially in relation to the

Election Petition Tribunal in Nigeria mindful of the fact that until we get our electoral

processes right other aspects of our system will remain defective. . On his own study, A. A

Kana 37 studied Perspectives and Limits of Judicial Discretion in Nigerian Courts. His work

although wider than the study of Dr. Alfred and Aduaka, focused on the exercise of judicial

discretion in issues of bail, sentencing and injunctions without any reference to the Electoral

Acts which the present study beams its search light on. The point of note here is that unless

and until our electoral system and the consequent electoral dispute resolution mechanisms

are right other spheres of our lives will remain defective.

Generally, in this intervention, this research fills the gap in knowledge with respect to a

holistic review or evaluation of the legal effects of judicial discretion on the mandate of the

electorates in a democratic Nigeria the lacunae in the Electoral Acts particularly the 2010

Act.

36
Paquette, J. and D. Allison (1997) a Decision-Making and Discretion: the Agony and Ecstasy of law and
administration” Education and law journal 8 (September): P 161.
37
A A Kana, ‘Perspectives and Limits of Judicial Discretion in Nigerian Courts’(2014) Journal of Law, Policy
and Globalization, ISSN 2224-3259 (Online) Vol.29, 2014
15
1.8 Theories of Judicial Discretion and interpretation.

The judiciary is the branch of the government that is assigned the duty of interpreting laws

made by the legislature and settling disputes. The primary interpretive role of the judiciary is

to discover the intentions or purposes of laws as enacted by the legislature. In the discharge

of its functions, the court uses different interpretation approaches such as literal, golden,

mischief and purposive. Equally, it may call in aid some canons or instruments of

interpretation. This forms the basis for the inherent and discretionary powers of courts.

Scholars are divided as regard the best approach which courts are to adopt in other to give

effect to legislative intentions. There are justifications for these disparities. First, statutes are

usually written in general terms required to be applied to a particular case. Secondly, the

meaning of words used in legislation depends on the context, time and place and might

change over time38. For these reasons and many more, the legislature may enact a statute in

general terms, enough to cover unforeseen situations.39 Also, vague or equivocal words used

in a statute might be the result of a compromise from the legislature to the courts to give it

the interpretation that will best execute the policy priority.40 H. L. A. Hart illustrated the

challenges of legislative provisions and the need for statutory interpretation.

There are many theories of statutory interpretation such as textualism, purposivism and

intentionalism. The major ones are textualism and purposivism. Both theories agreed that the

primary function of the judiciary is to faithfully interpret statutes enacted by the legislature in

an effort to discover the legislative intentions in them41. By so doing, they recognized the

legislative supremacy of the legislature as the organ of government that is assigned the

38
VC Brannon, Statutory Interpretation: Theories, Tools and Trends, (Congressional Research Service,
2018) 1.
39
30 ibid, p. 1 & 2
40
ibid.
41
Ibid, p.10 34

16
primary duty of making laws. However, they disagree with each other on the best approach

to discovering the actual or objective legislative intent 42

The proponents of purposivism argue “that legislation is a purposive act, and judges should

construe statutes to execute that legislative purpose”43. They focus on legislative process,

having regards to the problem that the legislature was trying to solve by enacting the

contested legislation and inquiring how the statute achieved that goal 44 . Henry Hart and

Albert Sack advocated for the “benevolent presumption… that the legislature is made up of

reasonable men pursuing reasonable purpose reasonably45”. However, they noted a caveat

to the effect that the presumption should not hold if the contrary is proved to appear in the

text of the statute46

The purposive theorists believe that judges can best observe legislative supremacy by paying

attention to the legislative process. They argued that to preserve the integrity of statutes,

courts should pay attention to how the legislature makes its purposes known through text and

other materials that consist of legislative history.47They believe that when courts interpret

legislations in ways that respect what the legislatures consider their work product, the court

not only is more likely to reach the correct result, but also promote comity with the first

branch of government41. They also rely on policy context and other evidence which a

reasonable person who is conversant with the circumstances informing the statute as

suppressing the mischief and advancing the remedy. However, purposivism has been

criticized on the ground that it is likely impossible to find one shared intention behind any

legislation and it will be improper for judges to endeavor to find legislative purpose since

42
Ibid, pp.10 & 11
43
RA Katznann, Judging Statutes 31 (2014) cited in VC Brannon, ibid, p. 11.
44
Henry Hart & Albert Sacks, The Legal Process: Basic Problems in the Making and Application of Law
1182 (William N Eskridge, Jr & Philip P Frickey eds, 1994)
45
ibid
46
VC Branon, op cit, p.11
47
Ibid p 13
17
they are not well- equipped to understand how complex legislative processes bear on the

final law enacted by the legislature.

On the other hand, the textualists focus on the words of a statute with an emphasis on text

over any unspecified purpose48. They argue that courts should focus on reading the words of

the statute as any ordinary member of the legislature would have read them. They seek for

the meaning that a reasonable person would gather from the text of the legislation when

placed alongside the remaining body of the legislation 49

The textualists look at the structure of a legislature and hear the words as they would sound

in the mind of a skilled and objectively reasonable user of words 50 They believe that court

best respect legislative supremacy when they follow rules that prioritize the statutory text48.

They focus on the words of statute because it is that text that survived political processes.51

However, textualism is criticized on the ground that it is overly formalistic in approach to

determining the meaning of a legislative text which ignores the fact that courts have been

delegated interpretive powers by the Constitution52.

There is also the hybrid (convergence) theory of statutory interpretation. The hybrid theorists

do not necessarily identify themselves as belonging to either purposivism or textualism.

Instead, they consider both theories and decide which of them will best achieve the intention

of the legislature. They believe that the starting point of any legislation is the text53.

There is another theory regarding the mandate of the people which is called classical elitism.

The classical elite theory articulates that every society has a ruling minority that controls

48
John F. Manning Columbia Law Review Vol. 106, No. 1 (Jan., 2006), pp. 70-111 (42 pages) Published By: Columbia Law
Review Association, Inc. https://www.jstor.org/stable/4099461<accessed on 5th January, 2022
49
https://www.everycrsreport.com/reports/R45153.html<accessed on 5th January, 2022
50
ibid
51
Ibid.48
52
ibid
53
ibid

18
power.54While modern elites subscribe to this assumption, their concern is its sustainability

which is only achievable through new elite recruitment.55 The theory originates from works

of sociologists such as Weber56, Michels57, Pareto58 and Mosca59. Thus, the elite have been

defined as a distinct group with access to resources.60 Although small in number they are the

most powerful and influential people in a system.61

However, opinions are divided on elitism. There are two major views on elitism. The liberal

pluralists emphasize exclusive preservation of power for the elite. They also posited that

changes are likely to happen over time. On the other hand, the Critical Elite Perspective

focuses on elite power concentration and cohesiveness, leading to resistance to change and

limited openness and inclusiveness.62

Elitism is very much concerned with structures, especially authority structure.63 Arguably,

despite all the criticisms against the elite theory, it remains relevant in explaining not just

power relations and control in a polity but also helps to understand a country‘s leadership

formation. Democracy is elite-driven where majority are ruled by a minority in an endless

circle. Thus, modern democracies are tantamount to elite domination. G. Mosca posited that

54
R Lopez-Pintor, ‘Mass and Elite Perspectives in the Process of Transition to Democracy’ (1987) in Enrique
A. Baloyra (ed.) Comparing New Democracies. Boulder, CO: Westview Press, p.16
55
E O Oni, ‘The Politicisation Of Election Litigation in Nigeria’s Fourth Republic’ (2020), being a thesis
submitted in fulfillment of the requirements for the Award of Degree of Doctor of Philosophy in Political
Science, School of
Social Sciences, College of Humanities, University of KwaZulu-Natal, Pietermaritzburg, South Africa, p 33
56
M Weber, Economia y Sociedad. Mexico DF: Fondo de Cultura Económica (2005)
57
R Michels, Political Parties: A Sociological Study of the Oligarchical Tendencies of Democracy. New
Brunswick, NJ: Transaction Publishers. (2009)
58
V Pareto, The Mind and Society. London: Jonathan Cape Limited. (1935)
59
G Mosca, The Ruling Class. New York: McGraw-Hill. (1939)
60
ibid
61
Hossain, N. and Moore, M, Arguing for the Poor: Elites and Poverty in Developing Countries', (2002). IDS
Working Paper, Brighton: Institute of Development Studies, No. 148.
62
E M Olsen, Sociopolitical Pluralism, Westview Press. (1993)
63
Lopez-Pintor, R. "Mass and Elite Perspectives in the Process of Transition to Democracy." in Enrique A.
Baloyra (ed.) Comparing New Democracies. Boulder, CO: Westview Press. (1987).
19
democracy could be government of the people, and for the people, but it could never be

government by the people.64

In elite theory, small groups of individuals in the state are both powerful and influential, and

they rule the state. Scholars have acknowledged the impact of elitism in explaining political

behaviour and the outcome in the polity. For some scholars, the existence of elites are

required to make democracy work as elites are more committed to democratic values than the

rest of the society.65

It is argued that the choices of the elite determine democratic stability in transiting political

systems. 66 Rovira 67 examined how a group of elites upstages another while attempting to

replace an existing system. According to him, the elites conceive democracy to be a two-

edged sword that supports as well as is guilty of its success in practice. He submitted that,

irrespective of the different approaches, the political setback in a region (country) is traceable

to the activities of the elite68.

Furthermore, Higley 69 argued that democratic transitions and breakdowns can best be

understood by studying basic continuities and changes in the internal relations of national

elites.

In the African setting, the study of elites within institutional settings can aid understanding

the day to-day realities of African politics. The views of scholars on elite in democracy and

their hold on political institutions have proved to have influential role in African state

politics. An important area of elite power on the African continent has been their

64
G Mosca,, The Ruling Class. New York: McGraw-Hill, (1939) p. 13
65
R Dahl, On Democracy. New Haven: Yale University Press (2000), p. 23
66
G O'Donnell & C Schmitter, Transitions from Authoritarian Rule: Tentative Conclusions about Uncertain
Democracies. Baltimore: Johns Hopkins University Press. (eds.) (1986), p. 46
67
Róvira, K. C., ‘Towards a Historical Analysis of Elites in Latin America’. In 21st
WorldCongress of Political Science, Santiago, Chile, (2009). pp 12–16.
68
ibid
69
Higley, J and Burton, M, Elite Foundations of Liberal Democracy. Lanham: Rowman and Littlefield (2006)
20
unquestioned and unrivalled role in the policy process. In the discussion on development

strategies, among the three main perspectives on the role of elites in the policy process are

donor dominance, political dominance over technocracy, and the emergence of non-state

(economic and civil society) actors as players in the policy process. On the role of elites in

policy processes, by using the prevalence in the Nigeria context, early research of the 1960s

on the nature of the elite in Nigeria adopted a Weberian legal-rational approach to political

elite change. J I Ibietan70 opined that successive governing elites in Nigeria assimilated the

predatory and exploitative attributes of the colonial administrators and, therefore, fall short of

providing democratic dividends through good governance. Despite the fact that it is

inconceivable to have democracy without elections, the nation‘s general elections after six

attempts have not yielded needed result. In the Nigerians’ Fourth Republic, it is discerned

that the inability of the nation‘s electoral umpire to conduct free, fair and credible elections

made it very easy for the political elites to forcefully impose incompetent candidates who

now occupy the nation‘s leadership position. It is appropriate to conclude that this

development has marred the country‘s democracy as well as caused incessant government

legitimacy crises.49 Furthermore, legitimacy crisis has been attributed to the nation‘s

elections which are prone to violence that are easily orchestrated by elite in consolidation of

their position in power. That is, instituting and cementing their existence in the nation‘s

electoral system and polity at large in any electoral exercise. This is perhaps why Osaghae

argued thus:

In civilian dispensation, most business personalities join the party in power to gain

access to contract and other forms of accumulation… All these explain the

desperation and opportunism with which political power is sought and used…

70
J I Ibietan, & O O Ajayi, ‘The Governing Elite and Democratic Consolidation in Nigeria: An
Appraisal of the Fourth Republic’(2015) Journal of Human and Social Science, Vol.
6:1Research, 14-21. 49 E O Oni, Op cit., p 46
21
 reliance on patronage networks for retention of political power and legitimacy means

that any segment of the elite… which loses control of political power at the federal,

state or local level, loses the wherewithal to compete for power. This is the major

explanation for the warlike approach to election.71

The observations of Osaghae are in order with some of the definitions of politics. David

Easton defined politics as the authoritative distribution of resources72.

Harold Lasswell defined it as who get what, how and when73. Similarly, Prof. Okwudiba

Nnoli,74 defined it as the allocation, consolidation and use of state power.

In the study of the electoral violence and the challenge of democratic consolidation in

Nigeria, Ashindorbe 75 found out that the division of the elite along ethno-religious and

regional lines has led to questionable elections trailed by violence and fatalities, which have

frequently threatened democratic consolidation in Nigeria. The implications of this assertion

are that the nascent democracy in Nigeria is plagued with myriad of intrigues, discordant

opinions and selfish interests of the political class. The reason is not farfetched. Every

divide of the political class sees its manifesto and plans of action as the best for the citizenry.

They elbow each other in the process of garnering political recognition and vibrancy. Their

unhealthy rivalry only heat up the polity and derail the country‘s democratic consolidation.

Some school of thought argue that dissenting voices amongst the political class are necessary

71
E Osaghae & Suberu, ‘A History of Identities, Violence and Stability in Nigeria’ (2005), Centre for Research
on
Inequality, Human Security and Ethnicity, CRISE Working Paper, (No. 6)
72
https://www.google.com/search?q=David+Easton+definition+of+politics&oq=David+Easton+definition+of+politics&a
qs=chrome..69i57j0i512j0i8i30j69i60j69i61.14778j0j4&client=ms-android-samsung-gs-rev1&sourceid=chrome-
mobile&ie=UTF-8#sbfbu=1&pi=David%20Easton%20definition%20of%20politics
73
www.britannica.com/biography/Harold-Lasswell
74
Professor Nnoli is a former president of AAPS, and Executive Director of PACREP,
Enugu,NigeriaDOI: 10.4314/ajps.v8i2.27352)
75
Ashindorbe, K., Electoral Violence and the Challenge of Democratic Consolidation in Nigeria. (2018) 74(1):.
India Quarterly: A Journal of International Affairs, 92-105.
22
since a democratic process would never be devoid of antagonism and democracy would
76
never thrive on rational consensus.

In a similar vein, it was found out that the politics of godfather-godson of the elites have

negatively affected the political development of the state.77 The study concluded that such

role has led to inter-party and intra-party carpet-crossing, decamping and conflicts among the

party members. 78 In line with this, an assumption of elite theory that power can only be

shared among the elites at the expense of the masses, whether they like it or not, resonates

with the Nigerian experience. In fact, the configuration of political power in Nigeria has been

distorted as the exclusive preserve of the elite, and not the people.79 This generally leads to

mass apathy. For instance, in Nigeria with a population of over 200 million people with

about 45 to 50 percent of eligible voters or more, the general turn out of eligible voters

during elections are not up to 50 percent of the eligible voters. There are reasons for this

political apathy which G Mosca rightly described in his definition of democracy as the

government of the people, and for the people, but it never be government by the people.80 A

good example can be seen in the case of Amaechi v INEC81where the court declared Amechi

the winner of the election that he did not participate in from the campaign to the final

declaration of the election result. In that case, Celestine Omehia held the flag of PDP from

the primaries till the election result was declared. The court held that the votes where casted

for the party and not the candidate. This decision raises a serious question of the utter neglect

of the personality of the candidates. By so declaring the political party as the winner, the

76
Democracy: Its Meaning and Dissenting Opinions of the Political Class in Nigeria: A Philosophical Approach.
77
A M Ali, et al, ‘A. Determinant and Impacts of Politics of Godfatherism and Regionalism in the Yobe State’
(2019) Journal of Liberty and International Affairs, Vol. 5(1), pp 59-74.
78
ibid
79
K.O.O. Emecheta, ‘Power to the People: An Inverse Role in Nigeria‘s Politics and Governance’ (2016)
International Journal of Area Studies, Vol. 11(2), 83-102.
80
G Mosca,, The Ruling Class. New York: McGraw-Hill, (1939) p. 13
81
(2008) LPELR-446(SC)
23
court made a very hasty generalization that the personality of the candidates is immaterial.

This researcher observed that generalization from an inductive reasoning is erroneous. For

instance, a loyalist of a particular political party may prefer the candidacy of a rival political

party in some certain political position and be poised to cast votes for that person. Similarly,

it is the political party that chooses the flag bearer which they present to the general public

for election. Most often, political party candidacy revolves around the circle of the elites who

had no room for the change of status quo. The current trend in Nigeria where politicians

rotate political positions to themselves is a good illustration. We saw the same people who

were once governors, senator and so on, alternating the positions after another in that circle.

This left the general public with a passive or choiceless (empty) choice since they must

choose between the options that are presented by the political parties which are also

dominated by the elites.

1.9 Historical background of Electoral Reform in Nigeria with particular reference to

the Electoral Act 2010.

Nigeria history of electoral reforms pre-dates her independence. As a matter of fact it is a

continuous exercise. It is arguable that electoral reforms, particularly the Electoral Acts, are

synonymous with election cycles/transition in Nigeria. Until 1998 when Independent

National Electoral Commission (INEC) was established as part of the transition process that

ushered in the 4th Republic in 1999 each transition programme was accompanied by electoral

reforms. Since 1999, three electoral reform processes have taken place.

Worthy of note is that the transition elections in 1998 that ended with the 1999 state and

national elections were conducted within the framework of the transitional decrees issued by

the military regime. The power for legislating for the peace, order or good government of the

country became vested on the National Assembly. Hence all subsequent Electoral Acts were

24
enacted by the National Assembly. There was no electoral legislation in place at the time.

The 2001 Electoral Act was the first Electoral Act after the commencement of the fourth

republic. For obvious reasons the bill was largely driven by the National Assembly and the

process became subject of political and legal controversies. The Act was contested in court

by Abia State Attorney General on the basis that it had bearing on local government elections

which were within the powers of the State Independent Electoral Commissions. The court

ruling on the matter led to a repeal of the Act, leading to the drafting of another bill that had

inputs from Independent National Electoral Commission, INEC, as opposed to the first

process that was driven by the National Assembly. The bill was passed into Law as the 2002

Electoral Act. Once more the new law became subject of legal challenges as INEC contested

the powers of the National Assembly to determine the order of elections. Political parties also

challenged the Act on the basis that the criteria for registration of political parties as provided

in the Act violated the rights and freedoms enshrined in the Constitution82.

These court cases led to an amendment of the 2002 Electoral Act that was thereafter passed

as the 2003 Electoral Act.

After the 2003 elections, INEC undertook a post-election review exercise and conducted

stakeholder consultations at the regional and national levels. International organizations were

also part of the process83.It played a key role in the processes that led to the passage of the

2006 Electoral Act.

82
<http://www.chr.up.ac.za/index.php/browse-by-subject/413-nigeria-independent-national-
electoralcommissionandanother-v-musa-and-others-2003-ahrlr-192-ngsc-2003.html>accessed on 21st January,
2022
83
<http://aceproject.org/ero-en/regions/africa/NG/ertreport/ that culminated in the drafting and submission of the
2005 Electoral Reform Bill to address the gaps in the previous legislation and the challenges experienced during
the 2003 elections> accessed on 21st January, 2022
25
In the aftermath of the 2007 elections which were regarded as non-compliant with

international standards by international observers, Eueom84and admitted by President Yar

Adua in his inaugural speech,85. Electoral Reform Committee (ERC) was established by the

President to make proposals for electoral reforms. The Committee was headed by Justice

Uwais, a former Chief Justice of the Federation and comprised of 22 members including

amongst others retired electoral commissioners, civil society actors, retired senior police

officers. Critical stakeholders including INEC made a submission to the ERC and contributed

to its work by providing relevant documentation and clarifications as required. The report of

the ERC was submitted to the Executive in December 2008. Furthermore, INEC submitted

proposals for amendment of the electoral legislation ahead of the 2011 elections to the

National Assembly to harmonise the electoral legislation with the amended constitution and

provide more time for voter registration.

After the 2011 elections, INEC conducted post-election review activities including an

independent post-election audit that culminated in its submission of proposals for amendment

of the electoral Act86

1.9.1 The 2001 Electoral Bill

The process of enacting the Electoral Acts usually signals the start of the electioneering

process in Nigeria. Public debates over the content of the Act usually take center stage in

public discourse as parties and candidates mobilize to ensure that their interests are catered

84
Eueom, Nigerian Final Report General Elections April 2012
<http://eeas.europa.eu/eueom/pdf/missions/finalreportnigeria2011_en.pdf> accessed on 21st January, 2022
85
B Oyekami (2013) ‘The Politics of Electoral Reform in Nigeria’ Covenant University Journal of Politics and
International Affairs (CUJPIA) vol. 1. No.2. pp 258- 259. Also
available at
http://journals.covenantuniversity.edu.ng/cjpia/published/Babatunde.pdf> accessed on 21st
January, 2022
86
(https://tribuneonlineng.com/inec-proliferation-political-parties-case-many-cooks/)
26
for. The first Electoral Act after the return to democratic rule in 1999 was the 2001 Act.

Notably some sections of the Act were mired in controversy because they were perceived to

have been smuggled into the document after the Bill had been passed by both chambers of

the National Assembly. One of the contentious section of the Electoral Act.87 which required

new political associations seeking registration to secure at least 15 per cent of local council

seats in two-thirds of the 36 states of the federation and the FCT before they could be

registered as political parties. This action was challenged in many newspaper editorials and

by the general public and was interpreted as an attempt by the ruling Peoples Democratic

Party to muzzle opposition and to prevent a schism within the party. The 2001 Act also

banned governors from standing for a third term of office. It was aimed at governors

belonging to the opposition All Nigerian Peoples Party (ANPP) and the Alliance for

Democracy88

This effort to shrink the political space through legal provisions failed when Gani

Fawehinmi, human rights lawyer and presidential candidate of the National Conscience Party

(NCP), joined other aspirants of some political parties in seeking a judicial interpretation of

Section 222 89 relating to the registration of political parties. 2001. The Act was repealed

before it came into operation and replaced with the 2002 Electoral Act. It was the first legal

framework governing the conduct of national, state level and local elections. It was therefore

necessary for electoral laws to be passed. The 2001 Electoral Act was passed by the National

Assembly.

The 2001 Act was repealed by the 2002 Act. The major changes in the new Act bordered on

repeal of sections that referred to the conduct of local government elections by INEC as this

87
section 80(1)(c) Electoral Act 2001
88
(AD). (Human Rights Watch, Testing Democracy: Political Violence in Nigeria, 10 April
2003, A1509, available at: https://www.refworld.org/docid/45d2f6992.html)
89
1999 Constitution of the Federal Republic of Nigeria
27
was constitutionally the mandate of the State Independent Electoral Commissions (SIECs).

Essentially, their main duty remains that of organizing and conducting elections90. Stipulates

the powers of INEC follows: to 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 House of Assembly of each

State of the Federation. The power excludes organizing elections into local government

councils in the country. The power is separately granted to (SIECs) by the Constitution91the

above provisions reveal that SIEC has a sole role of organizing and conducting elections into

local government councils. This is unlike INEC that has the responsibility to organize and

conduct elections at both federal and state levels.

Predicated, among others, on the controversy that surrounded the number of days required for

publication of notice of elections, to reduce number of days required for parties to submit list

of nominated candidates 92 . There was the urgent need to guarantee INEC’s powers to

determine the date and order of elections. Eventually a Bill to amend the 2002 Electoral Act

was introduced at the National Assembly.

Electoral Act Amendment Act 2003 was passed93.As stated earlier in this study the act of

electoral reform cum Electoral Act amendment is a continuous one. Pursuant to the lapses

observed in the 2003 general elections, the 2005 Electoral Reform Bill followed soon after

the said general elections. Prominent among the changes introduced are powers to the

Commission to appoint its Secretary, establishment of an

90
Section 15 of the Third Schedule, (1999 Constitution of the Federal Republic of Nigeria)
91
(Section 3 Part II of the Third Schedule of the 1999 Constitution of the Federal Republic of Nigeria) makes provision for
the establishment of SIEC.
92
(Act to regulate the conduct of Federal, State and Local Government Elections and to repeal the Electoral Act 2001
and for connected purposes.
93
<http://resourcedat.com/wp-content/uploads/2013/03/Electoral-Act-Ammendement-Act-2003.pdf> accessed
on 21st January, 2022

28
INEC fund to contribute to the Commission’s fiscal independence, provide higher ceilings on

campaign expenses, provide stiffer penalties for electoral offences, provide for continuous

voter registration, restrained serving government officials from voting as delegates in party

primaries, provide time limits to make changes to party nominees, some changes were also

introduced to election petition processes. Subsequently, the 2006 Electoral Act was passed

into law with some provisions of the 2005 reforms not taken into account94.

1.9.2 Post 2007 elections

Once more and in keeping with the tradition of electoral reforms consequent upon the

observed flaws in the preceding general elections Electoral Reform Committee was set up

again after the 2007 general elections. The Report of the 2008 Committee included95 :

1. Establishment of four different institutions to share the responsibilities of managing

elections.

2. Abolish State Independent Electoral Commissions.

3. Judicial Council should be responsible for the appointment of the INEC Chairperson.

4. Appointment of an INEC Deputy Chairperson who should be of a different gender

from the Chairperson.

5. Independent candidates should be allowed to run in elections.

6. Prohibit carpet crossing in the National Assembly.

7. New ceilings on individual donations to candidates.

The Committee’s report formed the basis for the white paper that included proposals for

constitutional reforms.

94
AN ACT TO REGULATE THE CONDUCT OF ELECTIONS IN THE FEDERAL, STATE, AND LOCAL
GOVERNMENTS,
AND THE REGISTRATION OF VOTERS AND MATTERS CONNECTED THEREWITH, 2006 (HARMONISED).
95
<https://groups.google.com/forum/#!topic/usaafricadialogue/X8bnWjpNShg>accessed on 21st January, 2022

29
1.9.3 Post 2007 elections
Constitution Amendment Bills (2009 & 2010)

The outrage and public outcry coupled with condemnation by the international and domestic

observers necessitated, in addition to Electoral Act reforms, the alteration of the Constitution.

Centrally, the below reforms were suggested:

1. Financial independence of INEC through the national consolidated fund.

2. Members of INEC not to be partisan.

3. INEC not subject to control in its administration and operations.

4. Change in timelines for elections.

5. Powers of National Assembly to make laws that enforce intra-party democracy and

INEC to oversee party primaries.

6. New quorum for election tribunals.

7. Avoidance of tenure elongation as a result of re-run elections.

Eventually the 1999 constitution was altered twice before the 2011 elections.

1.9.4 Post 2007 elections

Electoral Act Amendment Bill 2010

The functional complimentary relationship that exists between the Constitution and the

Electoral Act suggests that an amendment of one calls for an alteration of the other. True to

this proposition the Constitution was altered twice after the 2007 and before the 2011

elections. The areas that received attention are as follows:

1. Provisions to speed up appeal processes by providing time limits for determination of

appeals.

2. INEC empowered to de-register dormant political parties.

3. INEC empowered to monitor party primaries which are mandatory.

30
 4. Outcome of party primaries can be appealed before the courts.

5. Proposal to bar political appointees from voting as delegates in party conventions.

1.9.5 Methodology

This research work employs the doctrinal methodology of study in the presentation and

analysis of information gathered from primary and secondary source materials such as

textbooks, articles and journals, opinion of scholars and internet materials. The choice of this

methodology was because it focuses on legal concepts, principles and existing legal texts

such as statutes, case laws and other legal sources. It also analyzes legal doctrines, their

developments and applications. Also, historical and critical modes of research were

employed in the examination of the research topic.

1.9.6 Synopsis of Chapters

This work is divided into five chapters. Chapter one is introductory in nature and comprises

the background to the study, the statement of problem and research questions, the aims and

objectives of this research work, the scope of the study, the significance of the study, the

research methodology employed, the synopsis of chapter and definition of some key terms

that are employed in the research and the, review of existing literature and gap in knowledge.

Chapter two undertakes an inquisition into the conceptual framework, historical background

of Electoral Act amendments in Nigeria and theoretical framework.

Chapter three deals with the structure, institutions and instruments of election petition in

Nigeria. It also looked at the statutory framework for election petition in Nigeria, courts and

tribunals with jurisdiction in election petitions in Nigeria, grounds for election petition, filing

and determination of election petition in Nigeria.

31
Chapter four discusses the exercise of judicial discretion powers in election petition cases in

Nigeria, reviewed some of the lacunae in the Electoral Acts over the years and particularly

the 2010 Act. It reviewed some notable judicial pronouncements which affected the mandate

of the people, the chapter also considered how judicial and judicious are the exercise of

discretionary powers by election tribunals.

The research work ended in chapter five with summary of findings, conclusions,

recommendations and contributions to knowledge.

32
 CHAPTER TWO

CONCEPTUAL FRAMEWORK

2.1. Introduction

Free and fair elections are the cornerstone of every democracy and primary mechanism for

exercising the principles of sovereignty of the people.1 Elections in Nigeria are regulated by

regulations and laws especially the Electoral Act which available literature has shown to be

replete with Lacunae and Ambiguities. A combination of the overwhelming importance of

credible and acceptable elections in a democratic system of government and the fact that

courts/tribunals must resolve disputes brought before it one way or another necessitates that

they resort to their inherent discretionary powers in the face of lacuna or deficiency in the

Electoral laws. For a better appreciation of the relationship between the legal effects of the

exercise of judicial discretionary powers in adjudication of electoral disputes and sustenance

of the Mandate of the People there is need to conceptualize the clarifications of key elements

of the study by scholars, political scientists, law teachers and members of the bar and the

bench. Thus, for ease of understanding, this chapter sieves out, clarifies and explains the

keywords, terms and phrases that are predominantly used in the work. These include:

Elections, Electoral Reform, Electoral Process, Mandate of the People, Legal Effects,

Electoral Act 2010, Lacunae and Ambiguities, Discretionary Powers, Election Tribunals.

2.2 Election

Elections in Nigeria are governed principally by the 1999 Constitution of the Federal

Republic of Nigeria (as altered), the Electoral Acts, and Independent National Electoral

Commission (INEC)

Guidelines. Section 156 of the Electoral Act 2010 defined election thus: “Election means any

1
Vanguard, February 13, 2009

33
Election held under this Act and includes a referendum. This circuitous definition of election

leaves so much to be desired. Prior to the enactment of the Electoral Act 2010 the Court

Nigerian Courts had in several cases pronounced upon the meaning of election. In Ojukwu v

Obasanjo2.the Supreme Court defined ‘election’ as “...the process of choosing by popular

votes, a candidate for political office in a democratic system of government3”. The Court of

Appeal in ANPP & Anor V. Osiyi & Ors held that the word "election" as used in Section 137 (1)

(b) of the 1999 Constitution thus: "...the word "election" in Section 137(1)(b) means exercise

of adult suffrage, which involves voters, materials for voting and supervision and counting of

votes by electoral personnel.4".Similarly, in Buhari v. Obasanjo5 the court held that, “the

word ‘Election’ in the context in which it is used in Section 137(1) (b) of the 1999

Constitution means, the process of choosing by popular votes a candidate for political office

in a democratic system of government.”5 The word "Election" is not restricted to the activities

at the polling station on the day of an election. The process in an election starts from the

voting by political party members to choose candidates to represent the political party at the

ward level and the primaries up to the polling day when these political party candidates are

presented by the political party to the electorate. In stressing that an election is not an event

rather a process, the Court further held “An election covers all the activities in Part IV of the

Electoral Act, 2006 from Sections 26 to 776”.

2
Ojukwu V. Obasanjo & Ors (2004) LPELR-2400(SC)
3
supra
4
ANPP &Anor V. Osiyi & Ors (2008) LPELR-3781(CA)Per Niki Tobi, JSC (Pp 53 - 53 Paras D -
E 5 (2005)2 NWLR (Pt. 910) p. 241
5
supra
6
Lemachi & Anor v INEC & Ors (2019) LPELR-48928(CA) Per Oyebisi Folayemi Omoleye, JCA (Pp 34 - 35
Paras E - A)

34
In Amaechi & Anor v INEC7, the court stated as follows: "The Appellants, in my considered

view, would however appear to be unaware that the meaning to be ascribed to the word

"Election", is invariably circumscribed by the facts in dispute in any given case”. Also in the

case of Oke v Mimiko8 wherein the Supreme Court dwelling on what "election" is, stated

thus:

"On this vexed issue, I would want to hang for support on the case of Abubakar v Yar'Adua9

in which "election" was defined thus: "Election is a process spanning a period of time and

comprises a series of actions from registration of voters to polling."

Election is further defined as a formal group decision-making process by which a population

chooses an individual or multiple individuals to hold public office10.

It has been the usual mechanism by which modern representative democracy has operated

since the 17th century. Elections may be used to fill offices in the Legislature, Executive,

Judiciary Regional and Local Governments. This process is also used in many other private

and business organizations, from clubs to voluntary associations and corporations.

The universal use of elections as a tool for selecting representatives in modern representative

democracies is in contrast with the practice in the democratic archetype, ancient Athens,

where the Elections were considered an oligarchic institution and most political offices were

filled using sortition, also known as allotment, by which office holders were chosen by lot.

Election facilitates and shapes democracy. Democracy is regarded as the best form of

government because its ideology promotes peoples’ will. The people have political right to

decide who should govern them in a free and fair conduct called ‘election’. Therefore,

7
supra
8
(2013) LPELR-21368(SC)
9
(2008) 19 NWLR (Pt. 1120) 1 at 70 Per Ayobode Olujimi Lokulo-Sodipe, JCA (Pp 20 - 21 Paras D - B
10
<https://en.m.wikipedia.org/wiki/Election> accessed on 21st January,
2022 12ibid

35
elections constitute an essential principle in liberal democracy. Election in a democracy is

very important as it is the means through which the expression of the will of the people are

shown via legitimacy and leadership succession. Accordingly, election has been defined as a

post mortem that investigates the record of office holders whose actual performance may

have little to do with promises made when they were previously elected. This is a way of

censuring, reposing function in a ruler that is popularly accepted and ejecting an unpopular

leader. This method shuns mutiny and chaos in a system hence it reflects peaceful hand-over

from one administration to the other so long as the process is devoid of election rigging11

Sadly, since the return of Nigeria to democracy in 1999, how many times have Nigerians had

the opportunity to truly ‘choose by popular vote’ their candidates for political offices, with all

the election manipulation, rigging and malpractice that occur? Out of six elections so far,

Nigeria can possibly only boast of two credible Presidential elections, 1999 and 2015 – two

of out six – 33.3%. This is not a good score or report. 12

2.3 Electoral Reform

Electoral Reform describes the process of introducing fair electoral systems where they are

not in place, or improving the fairness, effectiveness, credibility or sanctity of existing

systems13.

2.4 Electoral Process

Electoral Process was judicially defined in the case of NDP v INEC14 as "the method by

which a person is elected to public office in a democratic society."

11
<Journal of Education and Practice www.iiste.orgISSN 2222-1735 (Paper) ISSN 2222-288X Vol.6, No.4,
2015 131> accessed on 21st January, 2022
12
https://www.thisdaylive.com/index.php/2022/02/08/election-petition-case-for-substantive-justice-in-2023/
13
<https://en.m.wikipedia.org/wiki/Election > accessed on 21st January, 2022
14
(2012) LPELR-19722(SC) Per Olukayode Ariwoola, JSC (Pp 24 - 24 Paras E -
F) (2014) LPELR-23682(CA)

36
2.5 Electoral Mandate

The Court of Appeal in the case of Nwali v Ebsiec & Ors16 adopted the meaning given to

electoral mandate by ''Black's Law Dictionary as, “the electorates overwhelming show of

approval for a given political candidate or platform".

2.6 Legal Effects

The term 'Legal' is defined as 'of or relating to law; deriving authority from or founded on

law- de jure; established by law especially statutory; conforming to or permitted by law or

established by rules15. Black's Law Dictionary used the term as an adjective meaning falling

within the ambit of the law; established, required, or permitted by law16. Legal is an adjective

which connotes something connected with the law17 on its own part, “effect” is synonymous

with result and it means the result of a particular Influence.18 According to Oxford Online

Dictionary, 'It means a change that somebody/something causes in somebody/something; a

result.’19

From the foregoing and contextually, it suffices that the legal effect means a legal influence,

result or change brought about in this context in exercise of judicial discretion election

tribunals on the mandate of the people. This study is of the opinion that the judicial

intervention in the Nigerian electoral processes is overbearing and has its negative impacts on

the mandate of the people.

15
https://www.meriam-webster.com/dictonary/legal <accessed on 7/4/ 2019>
16
BA Garner, Blacks' Law Dictionary, (9th Edn, USA, West Publishing Co. 2004) p.975
17
AS Hornby, Oxford Advanced Learner's Dictionary, (6 Edn, United Kingdom, Oxford University Press,
2000) p.
740.
18
https://www.dictionary.cambridge.org/dictionary/english/effect<accessed on 26 January, 2022>
19
https://www.oxfordlearnersdictionaries.com/definition/english/effect_1 <accessed on 26 January, 2022>

37
2.7 Judicial Discretion

There is no precise definition of the word ‘discretion.’ It has been employed to mean so many

things in different situations. Black’s Law Dictionary20 defines Judicial and legal discretion

as follows:

These terms are applied to the discretionary action of a Judge or court, and mean discretion

bounded by the rules and principles of law, and not arbitrary, capricious, or unrestrained. It is

not the indulgence of a judicial whim, but the exercise of judicial judgment, based on facts

and guided by law, or the equitable decision of what is just and proper under the

circumstances. It is a legal discretion to be exercised in discerning the course prescribed by

law and is not to give effect to the will of the judge, but to that of the law. A liberty or

privilege to decide and act in accordance with what is fair and equitable under the peculiar

circumstances of the particular case, guided by the spirit and principles of the law.

The word “discretion” when applied to judicial officers, is defined in Black Law Dictionary21,

as meaning:

A power or right conferred upon them by law of acting in certain

circumstances, according to the dictates of their own judgment and conscience,

uncontrolled by the judgment or conscience of others. It connotes action taken

in light or reason as applied to all facts and with view to rights of all parties to

action while having regard for what is right and equitable under all

circumstances and law.

The courts have held discretion to mean “freedom or power to decide what should be done in

a particular situation”. The general meaning of the word “discretion” includes analysis,

20
B A Garner, Black’s Law Dictionary (9th edn, West Publishing Company 2009)
21
Ibid

38
appraisal, assessment, choice, consideration, contemplation, designation, determination,

discrimination, distinction, election, evaluation, examination, free decision, free will, freedom

of choice, liberty of choosing, liberty of judgment, license, option, optionality, permission,

pick, power of choosing, review, right of choice, sanction, self-determination suffrage.22

Judicial discretion is the power or right to make official decisions using reason and judgment

to choose from acceptable alternatives. Judges are charged with exercising judicial discretion

in the discharge of judicial functions. All decisions made are subject to some kind of review

and are also subject to reversal or modification if there has been an abuse of judicial

discretion.23Judges as human beings are prone to human weaknesses. Hence, whenever the

courts are exercising their judicial discretion on matters before them, the outcome of such

actions cannot be totally free from the personal prejudices, whims and caprices of the

“judge”. No wonder, the law is ultimately a product of what a judge deems right under

different situations.24

Judicial discretion then is the exercise of judgment by a judge or court based on what is fair

under the circumstance and guided by the rules and principles of law. It is a courts power to

act or not to act when a litigant is not entitled to demand the act as a matter of right25. Every

discretion be it judicial and judicious must be based on prudence, rationality, sagacity,

astuteness, considerateness and reasonableness and these principles were enumerated in our

courts in the following cases Akinyemi v Odu’a Investment Co Ltd2 supra, University of
26 27 28
Lagos v Aigoro , Onuorah v Okafor , Ekwuno v Ifejika and Egbunike v

22
Akinyemi v. Odu‟a Investment Coy Ltd (2012) 17 NWLR pt. 1329, p.609
23
D C Kenneth, Discretionary Justice: A preliminary inquiry Champaign, Illinois University of Illinois (1971)
p. 5.
24
C E Aduaka,’ Judicial Discretion and Its Application under the Nigerian Legal System’ (2018)
International Journal Innovative Legal & Political Studies 6(4):38-49. (1985) 1 NWLR 1 p143
25
. C E Aduaka,’ Judicial Discretion and Its Application under the Nigerian Legal System’ (2018) International
Journal Innovative Legal & Political Studies 6(4):38-49
26
(1985) 1 NWLR 1 p143 29 (1983) 2 SCNLR 244.

39
Muonweokwu.29An exercise of discretion is an act or deed on the personal judgment of the

person exercising it and in accordance with his conscience and should be free and unfettered

from an external influence or suggestions. Judicial discretion means the power exercised by

judicial umpires acting in official capacity and in the manner which appears to be just and

proper under a given situation. It must not flow from or be bound by a previous decision of

another court in which a decision was exercised. It is, in short, an antithesis of the doctrine of

stare decisis. There is no hard and fast rule as to the exercise of judicial discretion by a court

because if it happens then, discretion will become fettered as in the following court decisions:

UBN Plc. v Astra Builders WA Ltd30, Odusote v Odusote31, Anyah v African Newspapers of

Nigeria Ltd.32

Also, discretion is understood to be a liberty to act at pleasure; the power of making free

choices unconstraint by external agencies. By judicial discretion it presupposes that the courts

enjoy powers to act at pleasure and without external influences and constraints. 33 The

question of discretionary powers of courts is well and long settled, in fact beyond the

question of exercise of legislative interpretative powers to the suggestion that, in the last

analysis, the decision of judges do not merely expound rules that existed before, but rather

themselves create new principles of law.34 This is because the statement that rules of law as

being derived from existing legislation or previous cases is unsatisfying, reason being that

legislations will always require first time interpretation by the courts of law to be understood

and also for judicial precedent to be formed. So also the courts will have to reach a decision

27
(1992) 6 NWLR (pt. 247) p. 317
28
(1960) SCNR 320
29
(1962) 1 SCNLR 97
30
(2010) 5 NWLR (pt. 1186) p 1
31
(1971) 1 All NLR (pt. 1) p.
219
32
(1992)LPELR-511(SC)
33
ibid
34
Ibid

40
anyway when faced with an issue whether legislation properly covers it or not and whether an

earlier task of interpreting the legislation has been carried out or not. By the principle of

separation of powers, the basic responsibility of courts as enunciated in all statutes is the

interpretation of an existing law: an “unquantifiable” power lies in the judges‟ hands where

the law is silent.35

Theoretically, the source of discretion is: express and implied statutory provisions, the form

of discretionary power, and royal prerogative. Today, the scope of the concept of discretion

tends to narrow down due to the strengthening demands of the Rule of law (Principle of

Legality). However, the essential scope of the concept of discretion has always been under

the dictates of the law, so that the development of this concept need not be worried much.

Discretion is a legal concept; therefore, the law would never have let discretionary powers be

out of legal control.36

It follows, therefore, that a judicial officer saddled with the responsibility of exercising

discretion is required to arrive at the decision in every case or situation based on the facts

placed before him in the very case and apply the applicable law. His decision is therefore

likely to vary from case to case since the circumstances in each case may vary. The question

of stereotype or strict application of the rule of judicial precedent would not be of importance.

The exercise must be based on a sound and sensible judgment with a view to doing justice to

the parties. Here, the judge’s disposition about life is brought to play and his mindset and

view about life as he has to use his discretion prudently in the absence of any guiding

principle where the law is silent.37 Discretion is discretion, whether it wears any of the two

qualifying expressions mentioned above (judicious and judicial), only when it is exercised by

35
Ibid
36
A Soemarm, et al, ‘Discretion and Disparity of Judicial Decisions’(2019) ICIDS, Bandar Lampung, Indonesia
37
Offor v State (1998) NWLR (pt. 1333) p421

41
the court according to law and good judgment. Discretion is not discretion if its exercise is

based on the court’s sentiments or premeditated pet ideas on the matter, completely outside

the dictates of either the enabling law or good judgment, as the case may be.38

In matters of discretion, no one case can be authority for another; and the court cannot be

bound by a previous decision to exercise its discretion in a particular way, because that

would, in effect, be putting an end to discretion.41 Also in Ali v COP39, Anyebe, J held that:

‘Granting of bail pending the determination of an appeal before this court is, under Section

34(2) of the Criminal Procedure Code upon which this application is founded, a matter of

unfettered discretion of the court bearing in mind that where a judicial discretion is to be

exercised, as Reed CJ, put it in Kehinde v Commissioner of Police40 it is to be done according

to the rules of reason and justice, not arbitrary, vague and fanciful, but legal and regular.

The court will not fold its arms, and watch injustice happen simply because the law is silent

on a subject. Thus, the court will duly exercise its discretion to remedy the situation, the

silence of the law notwithstanding. More so, in the celebrated case of Donoghue v

Stevenson, 41 the court rightly exercised its discretion in holding the defendant liable for

negligence thereby expanding the parameters of duty of care to where they had not earlier

existed. Furthermore, the court also did justice in Aliu Bello v. A.G Oyo State42 by providing

damages where no earlier rule had provided for it on the rule of ubi jus ibi remedum- where

there is a right, there is a remedy.

38
General University of Lagos v. Olaniyan (1985) 1 NWLR Pt. 1p.
134
39
(2002) JELR P44479 CA.
40
(1973) NWLR 182
41
(1932) UKHL
42
(1986) 12 S.C.1

42
2.8 Mandate of the People

According to Cambridge Dictionary, the word “mandate” means the authority given to an

elected group or people, such as a government, to perform an action or govern the country.43

It is an authority to act in a particular way given to a government or person, especially as a

result of vote or ruling.44 Therefore, in the context of this study the mandate of the people

implies the expression of the wishes and aspirations of the electorates or voters by voting

massively for their preferred candidate in an election. It is determined mostly by majority of

votes. In a democratic setting sovereignty resides in the people who by popular votes decide

their fate.45

It is worthy of note that the Constitution46vests sovereignty on the people, prescribes the

primary purpose of government and most importantly mandates for participation of the

people in the government. It provides as follows:

It is hereby, accordingly, declared that –

(a) Sovereignty belongs to the people of Nigeria from whom government through

this Constitution derives all its powers and authority;

(b) The security and welfare of the people shall be the primary purpose of

government; and

(c) The participation by the people in their government shall be ensured in

accordance with the provisions of this Constitution47.

43
https://dictionary.cambridge.org/dictionary/english/mandateaccessed on 26 January, 2022
44
Ibid
45
The Preamble to the Constitution of Federal Republic of Nigeria 1999 (as amended) makes it clear that
sovereignty resides in the people of Federal Republic of Nigeria and the constitution and its structures of were
established and operate by the firm and solemn resolve of the people. Also, Section 14 of the Constitution is
express on the sovereignty which belongs to the people of Nigeria from whom government through this
Constitution derives all its powers and authority.
46
S. 14(2) of the Constitution of the Federal Republic of Nigeria 1999 as amended
47
S. 14 of the CFRN 1999

43
This Constitutional provision signifies the overall importance of the participation of the

people in their government. Arguably, the cardinal manifestation of the participation of the

people in the government is the free and fair exercise their franchise- unfettered right to vote

and be voted for.

2.9 Election Petition

The term Election Petition was defined by the Supreme Court in the case of Okereke v

Yar'adua & Ors48 as “any election petition under the Act including petition which challenges

the validity of election of persons into the office of the President and Vice President of the

Federal Republic of Nigeria." An election petition refers to the procedure for challenging the

result of a Parliamentary election 49 . An election petition is the only means provided by

Section 133(1) of the Electoral Act, by which an election can be questioned or challenged at a

Tribunal or Court of Law. In A.N.P.P. v INEC50, the Court of Appeal held inter alia that:

“What constitutes an election petition therefore, is a complaint by the Petitioner against an

undue election or return of a successful candidate at the election….it is only an election or

return of a candidate that can be questioned by an election petition, in which the person

elected or returned is joined as a party” – per Mohammed JCA (AHTW).

48
(2008) LPELR-2446(SC) Per Ibrahim Tanko Muhammad, JSC (Pp 19 - 19 Paras A - A)
49
<https://en.m.wikipedia.org/wiki/sElection_petition>accessed on 26 January, 2022
50
(2004) 7 N.W.L.R. Part 871 Page 16 at 55-57,

44
 CHAPTER THREE

LEGAL AND INSTITUTIONAL FRAMEWORK FOR ELECTIONS IN NIGERIA

INTRODUCTION

Election as the sustaining feature of democracy which in turn is considered the best form of

governance is regulated by different laws. In Nigeria, principally, it is governed by the

Constitution (as amended) and the Electoral Act. In the instant case the 1999 Constitution

and the Electoral Act 2010.

3.1. Legal Framework

The legal frameworks are those laws that govern electoral matters in Nigeria. They are:

3.1.1. The Constitution of the Federal Republic of Nigeria 1999 (as altered)

Issues relating to the establishment, powers and functions of the electoral body, Independent

National Electoral Commission, INEC, Electoral Processes, Courts, Tribunals and Political

Parties have their foundations in the nation’s Constitution1. It is an expression of the will or

desires of the people who make up the state or country; and it is a social contract between the

government as an entity and the people on the one hand. It is a contract between those who

hold public offices and the people, and it is also a social contract between and among the

various ethnic peoples who make up the state or country.

The Constitution is the supreme and most important law of the country2. The Constitution

makes it clear that if any other law is inconsistent with the provisions of the Constitution that

other law shall be void to the extent of the inconsistency3 for this reason alone, any law

dealing with elections that contradicts the provision of the Constitution will be of no effect.

1
Constitution of the Federal Republic of Nigeria 1999 (as amended)
2
Ibid, s. 1(1).

45
The Constitution also says very clearly that the Government of Nigeria or any part thereof

shall not be governed or controlled by any person or group of persons except in accordance

with the provisions of the Constitution2. In other words, no one can occupy elective offices at

the local, state or federal level unless the person has been elected in accordance with the

provision of the Constitution or any law made in accordance with the Constitution.

The Constitution prescribes certain qualifications that persons vying for electoral offices

must meet before they can participate or validly be elected into those offices. In a rather

inelegant fashion, in my opinion, the Constitution lists in separate sections what it refers to

as disqualifications and qualifications as regard the prescribed eligibility Criteria3

With respect to electoral matters, the relevant items of the Second Schedule dealing with

legislative powers are items 22 of Part 1. Item 22 of the Exclusive Legislative List is

‘election to the offices of President and Vice President or Governor and Deputy Governor

and any other office to which a person may be elected under this Constitution, excluding

election to a local government council or any office in such council’. Items 11 and 12 of the

Concurrent List are respectively as follows:

1. The National Assembly may make laws for the Federation with respect to the

registration of voters and the procedure regulating elections to a local

government council.

2. Nothing in paragraph 11 hereof shall preclude a House of Assembly from

making laws with respect to election to a local government council in addition

to but not inconsistent with any law made by the National Assembly4

3
Ibid, s. 1(3).
3
Section 65 and 66 of the 1999 constitution(as amended) 2011
4
Ibid, Items 11 and 12

46
All issues relating to election process such as the legal and administrative framework on

election petitions, and hearing of matters arising from elections have their root in the

Constitution. The Constitution is an embodiment of the code of governance of a country, the

supreme law. Emphatically, it provides that: … “the Federal Republic of Nigeria shall not be

governed, nor shall any persons or group of persons take control of the Government of

Nigeria or any part thereof, except in accordance with the provisions of the Constitution”5.

As a result, all the actions of the government are governed by the Constitution. 6 The

Constitution which is the organic law of the country declares the rights of the people, the

power and the limitation of the government, and especially the power of the judiciary.

Against this superiority backdrop, it is settled that any law that is not consistent with the

provision of the Constitution is of no effect.7

The Constitution guaranteed the right to peaceful assembly and association including the

right of persons to form a political party or association8.

With respect to elections, the Constitution empowers the National Assembly to make laws on

the registration of voters and the administration of elections. It also envisaged the need for

constant review of the laws and rules of the electoral process so as to deal with emerging

problems associated with the dynamics of the society by empowering the Nat ional

Assembly to make laws to guide the general conduct of elections, in addition to making

general provisions that govern electoral competition, electoral structures and political parties.

Pursuant to the constitutionally vested powers, the National Assembly usually revises

existing Electoral Acts prior to commencement of general elections.

The Constitution also provided for the establishment of Independent National Electoral

Commission with the responsibility for organizing, undertaking and supervising elections,
5
Ibid, s. 1(2)
6
I.G.P V A.N.P.P (2007) 18 NWLR (Pt 1066) 457 at 496
7
S.1(3) of the CFRN 1999
8
Ibid, ss. 40 & 222

47
registration of political parties, among other functions. 9 It equally provides for the

establishment of the election tribunals for each state of the Federation and the Federal Capital Territory to be

known as the National and State House of Assembly Election Tribunal as well as the Governorship Election

Tribunal with original jurisdiction to hear and determine petition as to whether a person has been validly

elected to the office of a governor or deputy-governor of a state. Time is very essential in election

petitions. The Constitution stipulates that election petitions must be filed within 21 days of

declaration of election result and judgment must be delivered within 180 days of filing the

dispute10 while an appeal from such judgment shall be heard and disposed of within 60 days.

Unfortunately, one of the shortcomings of the electoral laws in Nigeria is that there are no

adequate provisions for definition of certain words or terms. In spite of the challenges, the

provision of the Constitution regarding the limitation of time for commencement of pre-

election matters and time frame for its determination is salutary. Section 285 (9) stipulates

that: “Notwithstanding anything to the contrary in the constitution, every pre-election

matter shall be filed not less than 14 days from the date of the occurrence of the event,

decision or action complained of in the suit”11. Non-compliance with this provision has

been considered as a statutory bar which has resulted in the dismissal of several matters both

at the lower and apex court even where there is a substantial cause of action.12

3.1.2. The Electoral Act 2010

Pursuant to the power vested in the National Assembly to make laws for the peace, order, and

good government of the federation,13 the National Assembly had enacted the Electoral Acts

that regulates elections in Nigeria. The Electoral Act 2010 repealed the Electoral Act 200614.

9
Item 15 of Part 1 of the Third Schedule of the CFRN 1999.
10
S. 285(7) of the CFRN 1999
11
Ibid, s. 285 (9)
12
Garba v APC (2020) 2 NWLR (Pt 1708) 345 at 360
13
Constitution of the Federal Republic of Nigeria 1999 as amended, Item 22, Exclusive Legislative list
14
The Electoral Act No. 2 of 2006, (in this Act referred to as the Principal Act), is amended as set out below
17
ss. 226 and 227CFRN 1999

48
The Electoral Act 2010, drawing on provisions of the Constitution17, expands the functions

of INEC to include: (a) conduct of ‘voter and civic education’, (b) promotion of ‘knowledge

of sound democratic election processes’, and (c) conduct of ‘any referendum required to be

conducted pursuant to the provision of the 1999 Constitution or any other law/Act of the

National Assembly.

The electoral laws guaranteed INEC’s independence by stipulating that the president may

only remove members of the Commission if requested to do so by a two-thirds majority of

the Senate. In ‘exercising its powers to make appointments or to exercise disciplinary control

over persons’ the Commission is not subject to the direction of any person or authority. The

Electoral Act 2010 further gives INEC the power to appoint its own secretary, who is the

head of administration15. It also makes it impossible for the President to single-handedly

remove a Resident Electoral Commissioner in any state. The Act prescribes that a Resident

Electoral Commissioner can only be removed by the President if requested to do so by a two-

thirds majority of the Senate on the grounds of inability to discharge the functions of his or

her office or for misconduct. In the past the president has been able to remove or redeploy

these officers at will.

The repeal of the Electoral Act 2006 was prompted by the need for a more comprehensive

and all-encompassing legal framework to bring about free, fair and credible elections. But

within the current Electoral Act itself are inherent flaws and inadequacies16.

In an ideal democracy, the authority of government derives from the will of the people as

expressed in genuine free and fair elections. Electoral integrity guarantees the effective

participation of citizens in democratic processes and in governance, but experience has

15
section 8(1) of the Elect Act 2010
16
<https://www.google.com/amp/s/businessday.ng/amp/opinion/article/rebuilding-nigerias-electoral-
processesand-institutions-using-the-justice-uwais-report/> accessed on 15 January, 2022

49
shown that in our clime, these principles are merely illusory17. Its provisions made some

marginal improvements over and above the 2006 Act, but it was definitely not sufficient

enough to bring about an overhaul of the electoral system in the terms recommended by the

Uwais panel.

It is against this background that the Electoral Act 2010 (as amended), was passed by the

National Assembly, after much deliberation and debate. The key provisions of the Act reflect

government’s attitude towards the recommendations of the Uwais Committee. Expectedly,

the recommendations of the Uwais Committee that were not reflected by the government,

including the one on independent candidacy, were not reflected in the Act. Also, some of the

seemingly novel provisions of the Act, such as the one on continuous voters registration, the

oath of neutrality by election officials, prohibition of double nomination, among others, were

merely lifted from the 2006 Act; the provisions of which are same in many material respects

as the new Act.

There are uniquely novel provisions however in the Electoral Act 2010. Of note in this

regard is the provision which prohibits substitution of candidates by political parties except

in cases of death or self-withdrawal.

The bulk of the provisions of the Electoral Act 2010 relates to procedural issues that were

already covered by the Electoral Act 2006, which was repealed by the new Act. The current

2010 Act is arranged in nine parts, with 152 sections and three schedules. It re-establishes

INEC, an INEC Fund, and guarantees its independence. The functions, powers, revenue base

and other matters connected with INEC and its staff remain essentially the same as in the

repealed 2006 Act. The provisions of the 2010 Act in respect of the registration of voters, the

17
<https://guardian.ng/saturday-magazine/cover/uwais-report-remains-roadmap-for-credible-elections-oguche/>
accessed on 15 January, 2022

50
provisions of registration officials and the creation of offences were more or less repetitions

of the 2006 Act with some juggling of figures.

As for the procedure for election, the only major change was the prescription of the order of

the election in section 25(1) of the 2010 Act. This provision is not only self-seeking as it was

designed to serve the interests of the serving members of the National Assembly, it robs

INEC of the unfettered power which it had under section 26 of the Electoral Act 2006 to

determine the dates of elections. The other novel provision, which is commendable, is the

provision of section 33 which bars political parties from substituting candidates after

submission. This is to prevent the kind of ugly incident which Alabi 18 observes made it

possible for voters not to know the candidates up to the point of voting.

Ironically, the procedure of voter’s accreditation before the actual voting commences, for

which the INEC was commended in 2011, even though not a novelty in Nigeria’s electoral

history, is not officially provided for under the Act but was adopted, perhaps, in pursuance of

the powers of the Commission to fix the day and hours of polls.

In flagrant disregard for the recommendations of the Uwais Committee, but in line with the

provisions of the 1999 Constitution, the Electoral Act 2010 vests the power to register and

regulate the activities of political parties in the electoral commission. This was a

consequence of the inability of the government to demonstrate sufficient political will to

implement those recommendations of the ERC report which it purported to accept as far

back as 2009. The same could be said of the refusal to create an Electoral Offences

Commission, notwithstanding the creation of several offences in relation to the registration

of voters and their conduct of elections. In essence, the Uwais Committee’s

18
M O A Alabi & O T Omololu, (2012), ‘ Uwais Report, Electoral Act 2010, and the Future of Democratic Elections in
Nigeria’ in Layonu, A. I. &Adekunbi, A. A. O. (eds.) Reflections on the Nigerian Electoral System, First Law Concept,
Ibadan)

51
recommendation for unbundling INEC, which the government accepted, was not

implemented, years after the recommendation was made and accepted.

The 2010 Act like the repealed 2006 Act, stipulates a continuous voters’ registration system.

In section 10(2), an applicant for registration under the continuous registration system shall

appear in person at the registration venue with proof of identity, age and nationality. Apart

from preventing registration by proxy, the innovation helps to establish the true identity of

voters and prevent voting by non-human objects as witnessed in the 2007 elections in Ondo

State. Other adjustments to the contents of the repealed Act were designed to prevent

frustration associated with litigations arising from the conduct of elections, as well as

enforcement of internal democracy in selecting party candidates for election. Essentially,

these changes were meant to ensure more credibility and reduce acrimonious intra-party

crises often associated with the choice of party’s flag bearers. Aside from this, the Act

imposes stiffer punishments for persons engaged in the buying and selling of voters’ cards.

On the whole, while the Electoral Act 2010 contains a number of provisions that seek to

enhance the conduct of free and fair elections, these provisions were mostly cosmetic and are

not far-reaching enough to bring about the desired reform of the entire electoral system. The

Act merely seeks to make some marginal changes within the limits permissible under the

existing constitutional framework. Such changes in the texts of the Constitution that are

necessary for tackling the ills of the electoral/political system were not made by the National

Assembly. It is therefore not surprising that the maladies of the previous years, which had

robbed Nigeria of the needed credibility for democratic consolidation, were repealed in

various forms and different degree, before, during and after the April 2011 elections.

52
3.1.3. Electoral Regulatory Framework

Since 1959, when the first general elections took place, elections in Nigeria have been mired

with controversies and characterized by court cases over electoral outcomes. Not only have

such cases revealed widespread electoral malpractice and fraud which threaten democratic

consolidation, the laws governing elections have been identified as critical to the dismal

electoral practices19. The guiding principles and regulations of general elections in Nigeria

are to be found in the 1999 Constitution, Electoral Act 2010, Electoral Guidelines and

Judicial Authorities.

3.1.4. Selected Case Laws on Electoral Dispute

From the plethora of electoral disputes and conflicting judgments that emanated from

subsequent general elections of 2011, 2015 and 2019 that were premised on the extant

Electoral Act indicates that the Act is still replete with flaws and gaps. From records

available, after the 2015 general elections over 600 election cases were filed at the different

election petition tribunals across the country by losers in the Governorship, Senatorial,

House of Representatives and State Houses of Assembly elections20.

Majority of the said election cases were predicated on the flaws, ambiguities and lacuna in

the Electoral Act 2010. Consequent on the deficiencies, election petition tribunals resorted to

its discretionary powers which, to a larger extent, were responsible for both conflicting and

contradicting judgments.

After the 2015 general elections, the candidates of the People’s Democratic Party (PDP) won

the three Senatorial seats of Anambra State. The candidates of the All Progressives Grand

Alliance (APGA) Dubem Obaze, Ernest C.Ndukwe, Victor Umeh of Anambra North, South

19
Electoral Laws and the 2007 General Elections in Nigeria., Journal of African Elections.
20
Compendium of 2015 General Election In Nigeria Petitions © 2017 Nigeria Civil Society Situation Room.
All rights are reserved at Part 4 No. 38 - 41.

53
and Central respectively challenged the result of the election as declared by INEC, among

others, on the ground that the candidates of the PDP were not validly nominated by their

parties. Although the facts of the cases were similar and the appeals were heard by the same

panel, surprisingly and for suspicious reasons the decisions were different. In the case of

Anambra Central Senatorial District, the Court of Appeal allowed the appeal and held that

the Respondent was not validly nominated by her political party. In the cases of Anambra

North and South the appeals were disallowed21.

The above decision is a typical example of thwarting of the mandate of the people under the

umbrage of judicial discretion consequent upon the lack of comprehensive and all

encompassing provisions on nomination and sponsorship of candidates by political parties

for general elections. The definition section of the Electoral Act 2010 omitted the definition

of nomination and sponsorship of a candidate.

The issue of nomination was also the subject matter in Taraba Governorship election

between Aisha Jummai Al-Hassan of APC and Darius Dickson Ishaku of PDP. The Court

of Appeal, while overruling and reversing the judgment of the Tribunal, held that the

petitioner did not have the locus standi to question the nomination process of the respondent

party. The Supreme Court affirmed the decision of the Court of Appeal22. Again in Zamfara

Governorship election, the issue of nomination was part of the grounds in the election

petition between Shinkafi of PDP and Abdulazeez Abubakar Yari of APC. The Court held

that the petitioner did not have the locus standi to challenge the nomination of the

respondent26.

Section 31 of the Electoral Act 2010 provides that every political party shall not later than 60

days before the date appointed for the general election, submit to the Commission in the
21
ibid

22
Compendium of 2015 General Election in Nigeria Petitions © 2017 Nigeria Civil Society Situation Room.
26
ibid

54
prescribed forms, the list of the candidates the political party proposes to sponsor at the

elections, which shall be published within 7 days of receipt, provided the Commission does

not disqualify the candidate for any reason. The list of candidates is to be accompanied by an

affidavit at the Court, indicating that the candidate has fulfilled all the constitutional

requirements for election into that office. This important provision of the Act has

precipitated an avalanche of pre and post-election disputes wherein the exercise of judicial

discretion in the resolution of the cases had greatly affected the mandate of the people. The

phrase “submit to the Commission in the prescribed forms” is deficient or vague in meaning

in that it failed to state what constitutes prescribed form on the one hand and on the other

hand which officers of the political party will sign the forms. A comparison of the provision

of section 31(1) of the Electoral Act 2010 with section 84(3) of the Electoral Act 2010 shows

that there is a gap to wit: the appropriate official of the party that should sign the form unlike

the subsection 3 of Section 84 23which clearly provided that an application for merger shall

be signed by the National Chairman, National Secretary and Treasurer of the merging

political parties. Expectedly, where this provision is to be applied to an electoral disputes for

its resolution by the courts or election tribunal, the decisions will most likely vary

irrespective of similarities of the facts of the cases. The basis for this submission is that the

different courts or tribunals will resort to its discretionary powers to resolve the disputes

presented before it.

In the Supreme Court where Mr. Eyitayo Olayinka Jegede challenged the election of

Governor Oluwarotimi Odunayo Akeredolu24 on the ground that Akeredolu's nomination

form was signed by the acting National Chairman of APC who the Plaintiff through his

lawyer claimed was not qualified to sign such form. The Plaintiff therefore prayed the court

to disqualify the All Progressive Congress and its candidate from the governorship election.

23
Electoral Act, 2010
24
(2021) LPELR-55481 (SC)

55
The majority decision of the court was that the section did not specifically provide that the

nomination form must be signed by the National Chairman while the minority decision held

otherwise. This is another case where for lacunae in the Electoral Act 2010 the judiciary

decided the case not based on legislative provision but on its discretionary powers.

Another defective provision in the 2010 Electoral Act is Section 6925, which provides for the

declaration of result. It states that in an election to the office of the President, Governor

whether or not contested or in any contested election to any elective office, the result will be

ascertained by counting the votes cast for each candidate, the candidate who receives the

highest number of votes will be declared elected. It is submitted with respect that this

provision also is imbued with gaps to the extent that where a pre-election matter, mindful

that appeals in such matters gets to the Supreme Court, is yet to be concluded as per who the

valid candidate of the party is before the general election there is no provision in the

Electoral Act that prescribes on what the Electoral Officers should do. The problem is that

whatever action they take, if the matter goes to Tribunal, will ultimately be subjected to the

discretion of the court.

In some of such cases the Electoral umpire had gone ahead to declare the political party as

the winner of the election pending the final determination of the case. Flaws like this in the

Electoral Act 2010 had culminated into judicial decisions that overtly contradict the wishes

of the citizens at the polls.

A combined reading of the Constitution Section 221 of the 1999 Constitution of the Federal

Republic of Nigeria and the pronouncements of the Supreme Court in Faleke v. INEC26is

clear in holding that it is the political party that stands for election, that votes scored in

25
Ibid
26
(2016) 18 NWLR (Pt.1543) 61
56
election belong to the political party and that the candidate nominated to contest at an

election by his party acts only as the agent of his party.

The Faleke case has precedence in the Amaechi v INEC27 where the Supreme Court first

cleared the air on who contests elections in Nigeria between a political party and the

candidate. In the lead judgment delivered in the case in October 2007, Justice George

Oguntade JSC (as he then was) while giving reasons for Chibuike Amaechi victory, said

without a political party in Nigeria, a candidate cannot contest an election. He held that a

good or bad candidate might enhance or diminish the prospect of his party in winning an

election but that at the end of the day it is the party that wins or loses an election. The judge

noted:

“Without a political party, a candidate cannot contest. The primary method of contest for

elective offices is therefore between parties. If as provided in Section 221, it is only a party

that canvasses for votes, it follows that it is a party that wins an election. A good or bad

candidate may enhance or diminish the prospect of his party in winning but at the end of the

day, it is the party that wins or loses an election”.

Justice Pius Olayiwola Aderemi JSC (as he then was), while concurring with the verdict,

equally referred to the same28, saying:

“No association other than a political party, shall canvass for votes for any candidate at any

election or contribute to the funds of any political party or to the election expenses of any

candidate at an election. Flowing from the above provision of the constitution, it is my view

that it is the political parties that the electorates do vote for at election time.”

Flaws in the Electoral Acts which had prompted amendments in the Electoral laws, in this

case the 2006 Electoral Act, cannot be complete without reference to the case of Amaechi v

27
(2008) 5 NWLR (Pt 1080) 227
28
S. 221 of the CFRN 1999

57
INEC & Ors29. The facts of the case and the decision of the courts therein exposed some of

the deficiencies in the Act and the extent to which such judicial decisions undermine the

mandate of the people. Prior to the election it was Celestine Omehia that campaigned on the

platform of PDP and on the day of the election he was the one on the ballot meaning that the

voters cast their votes for him. The introduction of section 141 of the Act, goes to show that

the decision is totally anti-people and subversive of the people’s sovereign rights. Although

the section suffered a temporary setback as it was struck down by Honourable Justice

Kolawola in a decided case on the ground that it amounted to an ouster clause. Nonetheless,

based on its importance the section has been provided for in section 285(13) of the Fourth

Alteration of the Constitution to the extent that, for a person to be declared a winner in an

election that person must have participated in all the stages of the elections.

The issue of nomination and sponsorship of candidates by political parties which is regulated

by the Act30 is another provision of the law that has dominated the list of election related

issues that are contested in Courts and Tribunals. Primary election of political parties is one

of the most controversial activities of the party. To be nominated and sponsored by a

political party to fly its flag in a general election is the highest benefit a member can derive

from the party.

The Act provides in Sections 85 and 87 of the Electoral Act 2010 as follows:

A registered political party shall give the Commission at least 21 days’ notice of any

convention, congress, conference or meeting convened for the purpose of electing members

of its executive committees, other governing bodies or nominating candidates for any of the

elective offices specified under this Act. A political party seeking to nominate candidates for

elections under this Act shall hold primaries for aspirants to all elective positions….32

29
Supra
30
S. 85 and 87 of the Electoral Act 2010

58
The said Electoral Act in both sections did not prescribe the consequences for breach or

neglect of the referenced provisions. Election results have been challenged on the ground

that the concerned political party did not give adequate notice to INEC as mandatorily

required by law. This was one of the issues raised in the case of Wike v Dakuku Peterside31

the mandatory nature of the provision by the use of the word “shall”, the Supreme Court held

that noncompliance with the section is not fatal to the case of the Appellant. In another

stretch, in the case of APC v Marafa32, the same Supreme Court decided that pursuant to the

use of the word “shall" in the Electoral provision that any violation of it will disqualify the

candidate of the concerned political party. In the instant case the court removed all the APC

candidates for its inability to conduct valid primary election.

It is submitted that these two decisions are exercise of judicial discretion at play which in one

way or another affected the mandate of the people. The Act failed to define the meaning of

nomination and sponsorship. The void created by this compels or invites tribunals to resolve

disputes that borders on the subject matters through discretion. Consequently, courts and

tribunals of coordinate jurisdictions have given different decisions on matters that shared

similar facts. Such discordant and conflicting judgments have contributed to the already

eroded confidence of the masses in the Electoral and judicial systems. Such lack of

confidence impacts psychologically on the mind of the citizens who believe that their votes

do not really count. This belief fans the embers of voter apathy which consequently

constitutes a threat to the nation’s democracy.

An article in the Punch Newspaper 33 reviewed the relationship between voters’ apathy,

legitimacy of government and economic well-being of the country. The article rhetorically

asked, “Is voter apathy threatening Nigeria’s democracy?” “When is a government

31
(2016) 1 NWLR (PT.1492) SC 71
32
Unreported SC.377/2019
33
<https://punchng.com/is-voter-apathy-threatening-nigerias-democracy/> accessed on 25 January, 2022

59
illegitimate or a representative illegitimate? In answering the question the article made

reference to the March 27, 2021 Aba North/Aba South federal constituency by-election

conducted recently. The Constituency has 496,628 registered voters but at the end of the

election, only 16,017 persons voted out of the 16,335 accredited voters. Effectively, voter

turnout was 3.29%, and the winner was elected by only 2.21% of total registered voters in

the constituency.

Democracy as the rule of the majority is touted as superior to other forms of government.

From the point of elections, the majority decides the outcome and thereby puts a stamp of

legitimacy on the elected. But what happens when the majority is only a majority of a

minority? Does this in any way dilute the legitimacy of the elected? Does it in any way

diminish or threaten the social contract that democracy implies between the elected and the

governed? This raises some serious questions that have consistently begged for answers.

The fact of the March 27 bye-election should not shock anyone. It reinforces a pattern of

voter apathy that has crept into Nigeria’s democratic elections for long. It is the result of the

terrible elections superintended by Prof. Maurice Iwu in 2007 and the bad governance we

have had since 1999. The 2007 elections were so bad that only an admission of guilt by the

winner in that election, the late President Umaru Yar’Adua, could buy peace for the country.

Apathy and legitimacy have connections with economic wellbeing. Democracy since 1999

has left out the majority from its benefits. The majority of rural Nigerians live in darkness.

Nigeria is now adjudged as the poverty capital of the world, while inequality remains

endemic. Access to water, education, affordable health, good roads, and critical

infrastructure continues to elude the majority. And now, insecurity is the capstone. Why

won’t Nigerians stay away from elections?

60
Today, voter apathy is visible in our presidential, governorship, and legislative elections. It

rears its ugly head both in our off-cycle and regular elections. The situation is even worse off

in our local government election. In the 2019 elections, only 28.6 million out of 84 million

registered voters (representing 36.66 per cent) voted. Despite his cult popularity back then,

the President, Major General Muhammadu Buhari (rtd.), only got elected to office by a

“majority of a minority” as 53 million eligible Nigerian voters stayed away from the

exercise.

A peep into the pattern of apathy at the state is telling. Only 17.82% of eligible voters in

Abia State participated in the 2019 presidential election; a fall from 77.9% in 2011. In

Bayelsa, the turnout fell from 85.6% in 2011 to 36.38% in 2019. In Lagos, 5.4 million

eligible voters (82%) did not vote in 2019, while 3.5 million and 2.2 million eligible voters

played “siddon look” in Kano and Kaduna, respectively, in the same year34.

3.1.5. Case Law/Judicial Authorities

Case law refers to that body of principles and rules of law which, over the years, have been

formulated or pronounced upon by the courts and election tribunals as governing specific

legal situations. This assertion, prima face, seems to run contrary to the general impression

that judges do not make laws but only interpret and apply them as and when the need arises.

While the primary duty of making laws is constitutionally vested in the legislature, the

judges do make laws along the line of carrying out their statutory functions. This is more

pronounced where a judge is confronted with a legal problem that does not have established

laws in resolving the problem. It is a cardinal maxim of our law that where there is a wrong

there must be a remedy, so the Judges are, therefore, encouraged to formulate fresh rules of

law or to extend the existing ones to deal with novel cases. By so doing, they add to the
34
<https://punchng.com/is-voter-apathy-threatening-nigerias-democracy/>accessed on 25 January, 2022

61
corpus of existing laws through their judicial pronouncements. This law making function of

the courts is sustained by the operation of the doctrine of judicial precedent.

The doctrine of judicial precedent (otherwise called stare decisis) requires all subordinate

courts to follow the decisions of superior courts even where these decisions are obviously

wrong having been based upon a false premise. This is the foundation on which the

consistency of our judicial decision is based 35 . It is the principle of law upon which a

particular case is decided that is binding. Such a principle is called ratio decidendi. a

statement made in passing by a judge that is not necessary to the determination of the case in

hand is not a ratio decidendi of the case but an obiter dictum and it has no binding effect for

the purpose of the doctrine of judicial precedent36.

Constitutionally, the responsibility of the court is to interpret laws and apply them to facts of

the case before the court. Decisions reached as a result of the interpretation by superior

courts of records have the force of law and sanction like any other law made by the

legislature. For example, an interpretation on a point of law by the Supreme Court of this

country is law. Such pronouncements of courts of records as contained in our various law

reports are laws, which can be referred to and applied, in subsequent cases, if the facts and

circumstances are imparimaterial (similar). Case law is a very important source of electoral

law. Nigeria now has a fairly developed electoral jurisprudence which has been well

documented37.

3.1.6. Electoral Guidelines

Section 153 of the Electoral Act 2010 gives power to Independent National Electoral

Commission (INEC) to issue regulations, guidelines or manuals for the purpose of giving
35
See Ngwo v Monye (1970) 1 All NLR 91 at 100.
36
See Dalhatu v. Twiaki & Ors (2003) LPELR 917;NAB Ltd v Barri Eng. (Nig) Ltd (1995) 8 NWLR (pt 413)
257 pp. 289 -290.
37
AO Popoola, ‘Election Petitions and the Challenge of Speedy Dispensation of Justice in Nigeria’ being a
paper commissioned for presentation at the Induction Course for newly appointed Judges and Kadis of the
Sharia Court of Appeal by the National Judicial Institute, Abuja 4-15 June, 2007
62
effect to the provisions of the Electoral Act and for its administration thereof. Consequently,

the Commission usually issues guidelines and regulations for general elections38 Court of

Appeal39 talking about the purport of the Manual for Election Officials, 2007 made pursuant

to section 161 of the Electoral Act, 2006 (now section 153 of the Electoral Act, 2010 as

amended) stated as follows:

The Manual for Election officials, 2007 (exhibit AK in the instant case) was published by

INEC for the fundamental objective of giving effect to the provisions of the Electoral Act,

2006. The guidelines are undoubtedly meant to be strictly constructed and adhered to by the

electoral officials concerned in the process and procedure for election40.

3.1.7. Some International Legal Framework

There are established principles of political rights and freedoms relating to elections

contained in declarations, conventions, protocols and other international instruments adopted

by the United Nations, African Union, Economic Community of West African States and the

Commonwealth. Some of these instruments shall be briefly considered. These principles

bind Nigeria as a member of the United Nations and other committee of nations. They are:

3.1.8 Convention on the Elimination of all Forms of Discrimination against Women

(CEDAW)

CEDAW requires that appropriate measures be taken to ensure women on equal terms with

men without any discrimination. Such rights include:

(a) The right to vote in all elections and be eligible for election to all publicly elected

bodies;

38
An example of this is Guidelines and Regulations for the 2015 General Elections. Available online at
www.inecnigeria.org/wp-content/uploads/2015/01/FINALaccessed on 10 February 2015
39
Okechukwu v Onyegbu (2010) All FWLR (pt. 524) p. 117 at 136-137
40
ibid

63
(b) The right to vote in all public referenda;

(c) The right to hold public office and to exercise all public functions. Such rights shall

be guaranteed by legislation.

States Parties shall take all appropriate measures to eliminate discrimination against women

in the political and public life of the country and, in particular, shall ensure to women, on

equal terms with men, the right:

(a) To vote in all elections and public referenda and to be eligible for election to all

publicly elected bodies;

(b) To participate in the formulation of government policy and the implementation

thereof and to hold public office and perform all public functions at all levels of government;

(c) To participate in non-governmental organizations and associations concerned with the

public and political life of the country.

3.1.9 The Universal Declaration of Human Rights (UDHR)

The rights under UDHR include:

(1) Everyone has the right to freedom of peaceful assembly and association.

(2) No one may be compelled to belong to an association.

In addition to the above,

(1) Everyone has the right to take part in the government of his country, directly or

through freely chosen representatives.

(2) Everyone has the right of equal access of public service in his country.

64
(3) The will of the people shall be basis of the authority of government: this will, shall be

expressed in period and genuine elections which shall be by universal and equal

suffrage and shall be held by secret vote or by equivalent of free voting procedures.

3.1.10 Convention on the Political Rights of Women

Women shall be entitled to vote in all elections on equal terms with men, without any

discrimination. Women shall be eligible for election to all publicly elected bodies,

established by national law, on equal terms with men, without any discrimination. Women

shall be entitled to hold public office and to exercise all public functions, established by

national law, on equal terms with men, without any discrimination.

3.1.11 African Commission on Human and Peoples’ Rights

(ACHPR) The ACHPR provided for the following rights:

(1) Every citizen shall have the right to participate freely in the government of his

country, either directly or through freely chosen representatives in accordance with

the provisions of the law.

(2) Every citizen shall have the right of equal access to the public service of the country.

(3) Every individual shall have the right of access to public property and services in strict

equality of all persons before the law.

e. International Covenant on Civil and Political Rights

The right of peaceful assembly shall be recognized. No restrictions may be placed on the

exercise of this right other than those imposed in conformity with the law and which are

necessary in a democratic society in the interest of national security or public safety, public

order, the protection of public health or morals or the protection of the rights and freedoms

of others.
65
(1) Everyone shall have the right to freedom of association with others, including the

right to form and join trade unions for the protection of his interests.

(2) No restrictions may be placed on the exercise of this right other than those which are

prescribed by law and which are necessary in a democratic society in the interests of

national security or public safety, public order, the protection of public health or

morals or the protection of the rights and freedoms of others. This article shall not

prevent the imposition of lawful restrictions on members of the armed forces and of

the police in their exercise of this right.

(3) Nothing in this article shall authorize States Parties to the International Labour

Organisation of 1948 concerning Freedom of Association and Protection of the Right to

Organize to take legislative measures which would prejudice, or to apply the law in such a

manner as to prejudice, the guarantees provided for in that Convention.

Every citizen shall have the right and the opportunity, without any of the distinctions

mentioned in article 2 and without unreasonable restrictions:

(a) To take part in the conduct of public affairs, directly or through freely chosen

representatives;

(b) To vote and to be elected at genuine periodic elections which shall be by universal

and equal suffrage and shall be held by secret ballot, guaranteeing the free expression

of the will of the electors;

(c) To have access, on general terms of equality, to public service in his country.

3.2. Institutional Framework

The institutional frameworks are those agencies or regulatory bodies that deal on electoral

matters. They are:

66
 3.2.1. The Independent Electoral Commission (INEC)

The electoral management body, Independent National Electoral Commission (INEC) was

established by the Nigerian Constitution and empowered it to manage elections within the

general framework of the law. Section 153 of the 1999 Constitution establishes the

Independent National Electoral Commission while Section F Part I of the Third Schedule of

the Constitution defines its composition and powers. This is the most significant aspects of

the electoral laws relates to INEC. The section states that the Commission must be made up

of a chairman and 12 other members (Electoral Commissioners) appointed by the President

in consultation with the National Council of States and subject to confirmation by the

Senate. A Resident Electoral Commissioner must be appointed by the president for each

state of the federation.

The Commission is further charged with organizing, undertaking and supervising elections to

the offices of president and vice-president, governors and deputy governors of states, and

members of the Senate, the House of Representatives and the House of Assembly of each

state of the federation41. It must register political parties in accordance with the provisions of

the Constitution and an Act of the National Assembly; monitor the organization and

operation of the political parties, including their finances; and arrange for the annual

examination and auditing of the funds and accounts of political parties and publish a report

for public information. In addition, the Commission must arrange and conduct voters’

registration and prepare, maintain and revise the register of voters for the purpose of any

election under the Constitution. INEC monitors political campaigns and establishes the rules

governing political parties and ensures that all Electoral Commissioners, electoral and

returning officers take and subscribe to the oath of office prescribed by law. It may delegate

41
third schedule Part 1 section 15 a-I CFRN 1999

67
any of its powers to any Resident Electoral Commissioner and must carry out such other

functions as may be conferred upon it by an Act of the National Assembly.

Nigeria gained independence from Britain in 1960. Like most former British colonies, its

elections have been managed by a permanent Electoral Management Board (EMB).

Nigeria’s political history is characterized by years of military rule and four republics of civil

rule42.

With every transition programme, an election management authority was established.

Overall, Nigeria has had five Electoral management Boards: the Electoral Commission of the

Federation (ECF) that conducted the 1964 federal elections and 1965 regional elections; the

Federal Electoral Commission (FEDECO) that conducted the transitional elections in 1979

and the controversial 1983 elections that ended in a return to military rule; the National

Electoral Commission (NEC) that managed the three-year transition programme and ended

with the annulled 1993 elections; the National Electoral Commission of Nigeria (NECON)

that was established by General Sani Abacha to manage his transition programme, which

was aborted after his death in 1998; and the Independent National Electoral Commission

(INEC)43. It has conducted four elections: the 1999 transition election; the historic 2003

election, which was the first election successfully conducted under civil rule in Nigeria; the

critical 2007 elections, which facilitated the first civilian regime change in Nigeria; and the

2011 elections. The mode of appointment of the Commission remains an issue of concern for

its independence, as many believe it may be biased toward the appointing authority. The

amendment of the 1999 Constitution strengthened the Commission’s independence by

guaranteeing its financial autonomy. It is funded from the Consolidated Revenue Fund,

42
An Overview of Disputes Arising from the Failed Electoral Process’. IDASA Conflict Tracking Dossier 7
43
Political Instability, Conflicts and the 2003 General Elections’. In R Anifowose & T Babawale (eds). General
Elections and Democratic Consolidation in Nigeria. Lagos: Friedrich Ebert Foundation

68
which ensures that it is not hindered in its operations by the many bureaucratic processes of

budgeting and disbursement of funds44.

INEC’s Role in Electoral Reform Management

INEC has been very vocal and involved in the national discourse on constitutional and

electoral reforms. It is important to mention that the 2004 Electoral Bill was drafted by the

Commission and submitted to the National Assembly, and was later passed as the Electoral

Act of 2006. This approach was criticized because it was not submitted in line with the

prescribed procedure 45 . The Commission also conducts post-election review exercises at

which issues for reform are identified.

3.2.2. Electoral Tribunals and Courts

The Electoral Act 2010 provides the rules, regulations and guidelines for the conduct of

elections and resolution of post-election disputes46.

Part IX section 285 of the Constitution is devoted to election petitions and provides for the

establishment of electoral tribunals. Specifically, it gives the president of the Court of

Appeal, in consultation with the chief judges of states, the presidents of the Customary Court

of Appeal of states and the Khadis of the Sharia Court of Appeal the power to establish one

or more election tribunals to determine the validity of an election, the term of office of any

person, when a seat has become vacant and when a petition presented to court in respect of

an election is properly made.

One or more National Assembly electoral tribunal must be established to hear petitions

concerning the outcome of elections, the term of office of an individual, and whether the

44
Jega Attahiru, Improving Elections in Nigeria: Lessons from 2011 and Looking to 2015 (London: Chatham
House, 2012).
45
The 2004 Electoral Bill was neither a private member bill nor an executive bill.
46
S. 138(1) of Electoral Act 2010.

69
proper procedure has been observed in relation to a petition. Governorship and legislative

house election tribunals are established at state level for the same purpose.

Appeals against decisions made by election tribunals go to the Court of Appeal, whose

decision is final. However, petitions arising from presidential elections go directly to the

Court of Appeal47 and it is the Supreme Court that is the final arbiter in respect of appeals

against decisions made by the Appeal Court in these cases. Section 137 48sets out those with

locus standi to present an election petition. They are a candidate in an election or a political

party which participated in the election.

According to section 138 of the Electoral Act 2010, an election may only be questioned on

the following grounds:

• that a person whose election is questioned was, at the time of the election, not qualified

to contest the election;

• that the election was invalid by reason of corrupt practices or noncompliance with the

provisions of the Act;

• that the respondent was not duly elected by a majority of lawful votes cast at the

election; or

• that the petitioner or its candidate was validly nominated but unlawfully excluded from

the election.

Section 140 (1) of the Electoral Act 2010 empowers the tribunal to nullify an election if it

determines that an elected candidate was not validly elected. Subsection 2 empowers the

tribunal or court to declare as elected another candidate who is determined to have scored the

highest number of valid votes cast where the candidate who was returned as elected did not

win a majority of valid votes. Section 143 gives 21 days from the date of the decision of an

47
S. 246(3) of the CFRN 1999
48
Electoral Act, 2010
70
election tribunal or court for an appeal against the decision. The rules of procedures for

election petitions and appeals are set out in the first schedule of the Electoral Act.

3.2.3. The Police

Elections and security in emerging democracies and in conflict or post-conflict situations is

appropriately getting an increasing importance these days and a subject coming across our

work more and more often. Indeed, in the last decades, there have been a number of

international electoral training initiatives for police and security officers, although these

primarily take place in the context of major peacekeeping missions (UN, OSCE, etc), where

civilian police personnel to be deployed to polling stations are provided training specifically

focusing on key security-related functions they are to perform before, during and

immediately after the voting process.

Section 24 of the 2010 Electoral Act directed the Nigeria Police Force to provide

security in ensuring smooth conduct of election without any disturbance at polling

units/stations, collation centers, counting of ballots, collations and declaration of

results.

In precise terms, the police are expected to provide security and order within a

political system which is conducive enough to guarantee hitch free and threat-free to

people and the entire electoral processes.

In this study, election administration is used to describe the different activities

involved in the conduct of elections which entails activities before, during and after

the conduct of elections. It encompasses the election management bodies and extant

rules and regulations that guide the electoral process. Though the legal instruments for

election in Nigeria such as the 1999 Constitution, the 2006 Electoral Act, the

Electoral Act 2010 Amendment and the Electoral Amendment Act 2015 entrusted the

71
task of conducting elections to the INEC, provisions in some of these legal

instruments particularly the Electoral Act (Amendment), 2015 equally confer critical

role on security agencies in the electoral process. The conventional role of the

police is to maintain peace and order in the society for people to have a sense of

safety and order as earlier discussed, for people to go about their lawful businesses

and other meaningful engagements for progress in all spheres of human endeavor. It

is in line with this that Ajayi describes police as the trusted public guardians, the

custodians of the public peace, and the guarantors of public safety and order.

It could be a bit too country-specific and somehow outdated, but the paper provides an

interesting division of tasks according to the various phases of an election: a pre-election

phase, where one of the major focuses will be on fostering co-operation between all the role

players; during the election itself the main focus will be on effective policing of the electoral

polling booths; and in the post-election phase the focus will be on the provision of visible

services, the investigation of crime, provision of man-power, support of policing by means

of logistical and financial support, and the maintenance of community relations.

For the avoidance of doubt, section 214 of the 1999 Constitution of Nigeria

recognizes the Nigeria Police Force as the lead agency for internal security in the

country. It prohibits the existence of a parallel police force in any part of the

federation. Section 4 of the Police Act and Regulations reinforces the provision of

the Constitution as it specifies the general functions of the police. According to the

Act, the police are employed to prevent and detect crime, protect life and property,

preserve laws and order, apprehend and prosecute offenders, enforce all laws and

72
rules as well as performing other military duties within and outside the country as

may be directed by the Act of National Assembly or any other relevant authority49.

With particular regard to an election, the ACE Encyclopedia identify some key elements to

be addressed in a training programme for the security forces, such as:

a. human rights issues in relation to security forces' role in the election;

b. security objectives and strategy in relation to the election;

c. the standards of professional, impartial, neutral, and non-intimidating conduct to be

upheld by security forces during the election period;

d. contact mechanisms and liaison details between the electoral management body and

security forces;

e. an overview of election processes and methods, and security forces' roles in

protecting these; details of offences against electoral laws.

3.2.4. Political Parties

Political parties and elections play an important role in the analysis of politics in developing

countries, particularly in the analysis of democratization, and specifically the consolidation

of democratic political regimes. Among political scientists, the existence of free and fair

elections on a regular basis is considered the minimal condition for a democracy 50 . A

political party is defined as a political group that is officially recognized as being part of the

electoral process and who can support candidates for elections on a regular basis.

Every person shall be entitled to assemble freely and associate with other persons, and in

particular he may form or belong to any political party, trade union or any other association

for the protection of his interests:

49
Police Act 2020.
50
Democratic Regime Dahl 1971; Diamond 1999.

73
Provided that the provisions of this section shall not derogate from the powers conferred by

this Constitution on the Independent National Electoral Commission with respect to political

parties to which that Commission does not accord recognition51.

Political parties are the major player of the politics in Nigeria. The Constitution recognized

that for an individual to contest any elective post in Nigeria, the person must belong to a

particular political party and sponsored by such a political party.

Many times in the history of Nigerian politics. The political party determine who to sponsor

by conducting primary election, and exercise both quasi-judicial proceeding for any

aggrieved aspirant who was disqualified for one reason or the other.

Political parties most time take decisions which affect the mandates of the people by a

practice called god-fatherism. Most times where an aspirant approached the court to ventilate

his grievance, he will be met with the sad reality that political parties’ internal affairs are not

justiciable. This has been a clog to the development of politics and fairness in election in

Nigeria.

51
S. 40 of the CFRN 1999

74
 CHAPTER FOUR

DISCRETIONARY POWERS OF THE COURT; ITS EFFECTS ON THE MANDATE

OF THE PEOPLE BASED ON DEFICIENCIES IN THE ELECTORAL LAWS.

INTRODUCTION

The institutional Frameworks includes the courts which, constitutionally, are saddled with the

duties of dispute resolution. Of particular interest to this study are election related disputes.

The court in most cases are faced with circumstances which are not specifically covered by

any law. In such situations the court will then resort to its discretionary powers. The exercise

of the said discretionary powers may adversely affect the Mandate of the people.

4.1. Rationale for Judicial Discretion of court

The Constitution charged the court with the responsibility of interpreting laws and

adjudicating on matters arising from the rights, duties and obligations of people, body or

organization. Section 6 of the Constitution provides for the general powers of courts to

determine matters or disputes brought before it1. On the other hand section 285 of the same

Constitution as amended provides for establishment, powers and functions of Election

Petition Tribunals. There shall be established for each State of the Federation and the Federal

Capital Territory, one or more election tribunals to be known as the National and State

Houses 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:

a. any person has been validly elected as a member of the National Assembly or

1
6 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended 2011).

75
b. any person has been validly elected as member of the House of Assembly of a State.

2. There shall be established in each State of the Federation an election tribunal to be known

as the Governorship Election Tribunal 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 to the office of Governor or Deputy Governor of a State2. The section further

provides that “An election petition shall be filed within 21 days after the date of the

declaration of result of the elections”3. An election tribunal shall deliver its judgment in

writing within 180 days from the date of the filing of the petition4. 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 date of the delivery of judgment of the tribunal or Court of Appeal.5

The important take away from the Constitutional alteration above are that:

a. The powers of the tribunals are circumscribed and delimited in that they can only

adjudicate on matters that arise in the general elections and not before. That is it

clearly distinguished between the forums for pre and post-election issues,

b. An electoral tribunal must render a decision in a case involving dispute over

elections within 180 days from the day of filing of the petition,

c. The Court of Appeal must render a decision within 60 days from the date the

tribunal handed down its decision.

The basic aim of statutory interpretation is to discover the intentions of the legislature in

2
Section 285(1)(a) and (b) of the 1999 Constitution as amended.

3
Section 285(5) of the Constitution of federal Republic of Nigeria 1999 (as amended)
4
285(6) of the 1999 Constitution as amended
5
Section 285(7) of the 1999 Constitution as amended

76
order to give effect to them. However, the discernment of the intention of the legislature is

not an easy exercise. Statutes are usually written in general terms to be applied in specific

circumstances. Also, the meaning of words used in a statute may depend on the context, time

and place they are used and might change over time6. For these reasons and many more, the

legislature may ensure that legislations are enacted in general terms, enough to cover

unforeseen situations7. Vague or ambiguous words used in a statute might be regarded as a

compromise from the legislature to the courts to give it the meaning or interpretation that will

best suit the intended purpose of the policy priority8. Aside these points, public policy and

changing realities of the society require that courts be given discretion or liberty in the

interpretation of law in other to meet up with the changing or dynamic nature of the state.

This underscores the views of the sociological jurisprudence of law who see law as an

instrument of social control and social change as law does not make a society but reflects it.

Hence, judicial discretion was given to courts to adopt the best possible approach to attaining

legislative intentions and purposes by a discreet exercise of discretion, judicially and

judiciously.

4.2 Review of the Lacunae in the Electoral Act, 2010 and notable judicial exploit of

them.

According to the Supreme Court, “elections are hardly ever conducted without some

irregularities. No matter how well the regulatory authority conducts an election, there

6
VC Brannon, Statutory Interpretation: Theories, Tools and Trends (Congressional Research Service, 2018) 1.
7
ibid, p. 1 & 2.
8
ibid.

77
are complaints.”9 There is hardly any election in Nigeria that was not challenged in court.

An election petition commences all actions instituted to challenge the result of an election in

Nigeria.10

The rationale for the enactment of Electoral Act in Nigeria is to regulate elections. Free and

fair elections are the bedrock of every functional democracy by ensuring that government

authority derives from the will of the people. Hence the need for rules and regulations that

would guide the elections to ensure they are free and fair. The electoral laws of Nigeria have

gone through series of amendments or alterations. On the return to civil rule in 1999, the first

Electoral Act was passed in 2001 and revised in 2002, 2006 and 2010.

There has always been an attempt after every election to amend the Electoral Act to rectify

the deficiencies or mischief’s noticed during the previous elections. This makes the challenge

of improving the electoral process a continuous one. For instance, there have been attempts in

the past to improve the electoral process after every general election since 1999 in 2003, 2007,

2011, 2015 and 201911.

The Electoral Act 2010 was enacted by the National Assembly of the Federal Republic of

Nigeria pursuant to its constitutional powers of law making12. The repeal of the Electoral Act

2006 and the enactment of the Electoral Act 2010, among others, was a deliberate attempt to

curb the challenges militating against free, fair, credible and acceptable elections in Nigeria13.

9
Okechukwu vs INEC (2014) 17 NWLR (Pt. 1436) 259 at 309
10
Section 133(1), Electoral Act, 2010 (as amended)
11
<https://guardian.ng/politics/electoral-act-amendment-bill-2021-and-the-way-forward/)> accessed on 20th
January, 2022
12
S. 4 of the CFRN.
13
<https://www.google.com/amp/s/businessday.ng/amp/opinion/article/rebuilding-nigerias-electoral-processes-a
nd-institutions-using-the-justice-uwais-report/)> accessed on 20th January, 2022

78
However, the plethora of electoral disputes and conflicting judgments of Election Petition

Tribunals and Courts that emanated from subsequent general elections of 2011, 2015, 2019

that were governed by the Electoral Act 2010 indicates that the said Act is still replete with

flaws and gaps hence the need for further amendments. Available record indicated that, after

the 2015 general elections, over 600 election cases were filed at the different election petition

tribunals across the country by losers in the Governorship, Senatorial, House of

Representatives and State Houses of Assembly elections14.

Below are some of the lacunae in the Electoral Act2010 and judicial decisions:

Section 25 (6) of the Electoral Act 2010 provides that elections to the Office of the

Presidency shall be held on a date not earlier than 150 days, translating to about five months

and not later than 30 days before the expiration of the tenure of the holder of that office. This

section is flawed as it is inconsistent with the section 132 (2) of the Constitution which makes

reference to a time-frame within which election should be conducted. The inconsistency is

that the Constitution proposes a time-frame shorter than what is contained in the Electoral Act.

As such, the Electoral Act 2010 is null and void to the extent of the inconsistency as the

Constitution prevails15. This inconsistency can constitute a reasonable ground for a court or

tribunal to cancel an election and by extension invalidate the collective will of the people.

Similarly, section 69 of the Act16 provides for the declaration of election results. It states that

in an election to the office of the President, Governor whether or not contested or in any

contested election to any elective office, the result will be ascertained by counting the votes

14
Compendium of 2015 General Election in Nigeria Petitions (2017 Nigeria Civil Society Situation Room. All
rights are reserved.)
15
S. 1(1) & (2) of the CFRN
16
Electoral Act

79
cast for each candidate, the candidate who receives the highest number of votes will be

declared elected. The provision did not cover elections to legislative offices. It also failed to

provide for what happens where a pre-election matter is yet to be determined concerning the

validity of a candidate of the party before the general election. Available case laws show that

the electoral umpire, INEC, usually go ahead to declare the political party as the winner of

the election pending the final determination of the case. For example, in the recently

concluded Council election in the Federal Capital Territory, the electoral commission (INEC)

declared the All Progressives Congress (APC) as the winner of the chairmanship election in

Abaji Area Council of Abuja in spite of the unsettled issue of who is the valid candidate of

the party. According to the Returning Officer, “We cannot declare a candidate winner in

Abaji because the winning party does not have a candidate here, the case is still in court.”

Also, he said a winner will be announced after the Supreme Court decision in the coming

weeks17.

Another notable exploitation of the lacuna in the Electoral Act 2010 is with respect to the

election of Imo North Senatorial by-election. The Independent National Electoral

Commission (INEC), declared the All Progressives Congress (APC) winner of the Dec. 5,

2021 election. Announcing the result, the returning officer, Mr Hakeem Adikum, declared

thus: “I hereby return the All Progressive Congress as the winner of the by-election held

in Imo North.” The INEC Resident Electoral Commissioner (REC) in Imo, Prof. Francis

Ezeonu, said that the Commission was unable to return a candidate from the APC as

17
<https://www.premiumtimesng.com/regional/north-central/511391-fctdecides2022-apc-wins-abaji-but-no-can
didate-can-be-declared-winner-inec.html> accessed on 20th January, 2022

80
winner18.

Flaws like this in the Electoral Act 2010 had culminated into judicial decisions that overtly

contradict the wishes of the citizens at the polls.

There is also a lacuna in the Electoral Act 2010 with respect to section 31 of the Act. Section

31 provides that every political party shall not later than 60days before the date appointed for

the general election, submit to the Commission in the prescribed forms, the list of the

candidates the political party proposes to sponsor at the elections, which shall be published

within 7 days of receipt, provided the Commission does not disqualify the candidate for any

reason. The list of candidates is to be accompanied by an affidavit at the Court, indicating

that the candidate has fulfilled all the constitutional requirements for election into that office.

This provision of the Act has precipitated an avalanche of post election disputes wherein the

exercises of judicial discretion in the resolution of the cases have greatly affected the mandate

of the people. The phrase “submit to the Commission in the prescribed forms” is deficient as

it failed to state which officers of the political party will sign the forms. A comparison of

section 31(1) with section 84(3) shows that there is a gap to wit: the appropriate official of

the party that should sign the form unlike section 84 (3) which clearly provided that an

application for merger shall be signed by the National Chairman, National Secretary and

Treasurer of the merging political parties. In the Supreme Court where Mr. Eyitayo Olayinka

Jegede challenged the election of Governor Oluwarotimi Odunayo Akeredolu on the ground

18
<https://guardian.ng/news/inec‐declares‐apc‐winner‐of‐imo‐north‐senatorial‐by‐election‐without‐candidate
/> accessed on 20th January, 2022

81
that Akeredolu's form was signed by an unauthorized person, the majority decision of the

court was that section did not specifically provide that the nomination form must be signed

by the National Chairman while the minority decision held otherwise. This is another case

where for lacunae in the Electoral Act 2010 the judiciary decided the case not based on

legislative provision but on its discretionary powers. Curiously, the same Supreme Court has

in the case of Emeka v. Okadigbo19 held that it is only the National Chairman and National

Secretary of a political party can submit the list of candidates it intends to sponsor in an

election.

4.3 The need for drafters to take Cognizance of judicial decisions in enacting

Electoral Laws

There is the need for drafters to take cognizance of the rules of statutory interpretation

alongside the attitudes of courts in deciding election matters. This will help the Legislature to

enact legislations that will communicate its intentions in a clear and unambiguous manner.

This will also help to limit the wide exercise of judicial discretion by exploiting obvious

lacuna in the electoral system or laws which impacts negatively on the mandate of the people.

This is because a lacuna in electoral laws shields some courts who hide behind it to execute

or implement their personal, political or economic motives which they disguise as an honest

or judicious exercise of discretion.

19
2012) 7 SC (Pt. 1) 1, (2012) 18 NWLR (Pt. 1331) 55

82
 CHAPTER FIVE

SUMMARY OF FINDINGS, RECOMMENDATIONS AND CONCLUSION

Introduction

The research examined the legal effects of judicial discretion on the mandate of the people

consequent upon the lacunae and other deficiencies in the Electoral Act, 2010 with election

petition tribunal decisions as a case study.

5.1 Summary of Findings

The major findings of this work are as follows:

1. It was discovered that the unprecedented challenges of election results in Nigeria were

predominantly caused by deficiencies, ambiguities and lacunae in the Electoral Act.

These shortfall in the Electoral Act prompted the resort to discretionary powers by the

courts.

2. The research found that the different amendments of the Electoral Act were not

comprehensive and far reaching enough. To this extent certain keywords/terms were

either not defined or were vaguely defined which prompted the approach to court for

detailed interpretation and application of the said laws.

3. The work discovered that, as a matter of fact, the discretionary powers of the judiciary

cannot be dispensed with as it is impossible for legislation to cover the field. In the

same vein the research also found that because of human biases the exercise of

judicial discretion were not, in some cases, judicial and judicious which to a larger

extent, negatively affected the mandate of the people.

4. The study found that with the current state of the Electoral Act the efficient and

effective justice delivery in Nigeria cannot be achieved.

83
Introduction

This study pursuant to the analysis of the aims and objectives set out in the work made a

number of findings consequent upon which the following recommendations are hereby

proposed.

5.2 Recommendations

I. Pursuant to the substantial causes of increment in the number of pre and post election

disputes and heedful of the fact that exercise of judicial discretionary powers is

inevitable which in turn may negatively affect the mandate of the people this study

therefore recommends that both legislative and discretionary measures should be put in

place to bring the resort to discretionary powers to the barest minimum.

2. Against the deficiencies and gaps found in the Electoral Act this study recommends that

a comprehensive amendment of the Electoral Act is urgently needed with particular

emphasis on the sections that were ambiguous to close the observed lacunae.

3. Premised on the indispensability of judicial discretionary powers by the judiciary

coupled with issues of human biases this work recommends that the doctrine of stare

decisis should be strictly enforced to wit: all controversial election related decisions

should be reviewed as a matter of procedure. The National Judicial Council, NJC, shall

take up the responsibility through a committee established for that purpose.

4. Because of the dynamic nature of the society coupled with the changing meaning of

legal terms and words as well as certain locus classicus court decisions this study

recommends for frequent periodical amendments of the Electoral Act.

5.3 Contributions to knowledge

The contributions of this work to knowledge are that it helped to examine and understand the

impact of judicial discretion as a result of the lacunae and deficiencies in the Electoral Act on

84
the mandate of the people. It also made useful recommendations that will serve as basis for

further research in this field and a stimulus for further the reformation of the Electoral Act.

5.4 Conclusion

This paper having examined the discretionary powers of courts with particular reference to

Election Petition Tribunal Decisions as a consequence of deficiencies in the Electoral Acts

found that there are instances where the discretionary powers of the courts were abused.

From the analysis and findings of the study, judicial discretion is inevitable in all legal

dispute adjudication including election petitions matters. It is a matter of scope and extent and

immensely impacted on general election results. The exercise of discretionary powers by

election tribunal Justices may be affected by socioeconomic and infrastructural challenges

that they are confronted with in the performance of their duties. There may be dearth of

reference and research materials in their new area of posting coupled with inelegant and

insufficient legislation to guide and guard them. The resort to discretionary powers is not

entirely dependent on lacunae and deficiencies in the electoral legal framework rather it is

inherent and indispensable. Making recourse to judicial discretion is welcomed provided it is

exercised judicially and judiciously. The non-judicial and non-judicious exercise of

discretionary powers may lead to thwarting of the voters choice which may result in voters’

apathy. Because of the disturbing consequences of wrong exercise of judicial discretion on

election petitions cases many scholars, lawyers etc have generated debates on the best way to

ensure minimal influence of discretionary powers on post-election matters. Election as the

cornerstone of democracy and democracy as the best form of government is and will continue

to be a veritable source of material for research.

85
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