Abstract

Conflicting rulings or decisions on electoral matters by courts with coordinate jurisdiction in Nigeria had emerged as a persistent problem in the pursuit of justice. Against this development, this paper examined the judicial practices with professional observance in election litigations and the successive electoral laws in Nigeria. This was with a view to evaluating its nature and scope as well as containing its impacts on the litigants in election dispute, and on the integrity of the Nigerian courts. The paper employed doctrinal approach in its methodology and relied on both primary and secondary sources of information. The primary source included successive constitutions in Nigeria, various electoral laws, judgment of courts and judicial precedents while secondary source comprised scholarly texts, journal articles, newspapers, magazine, and the internet. Data collected were subjected to content analysis. The paper found that, though adequate provisions in extant laws were emplaced for the realisation of the noble objectives of electoral process in Nigeria, conflicting decisions continued to taunt its legitimacy. It further found that the consequences of these unwholesome practices were not restricted to dampened public image of the judiciary in Nigeria, it violated the universal sacredness and the fundamentals of the concept of judicial precedent. The paper, therefore, contended that, unless regular training with retraining of judicial officers in this direction was made a priority, electoral process in Nigeria would continue to lose its legitimacy.

Keywords

Electoral Process, Judgment, Judicial Precedent, Conflicting Decisions, Legitimacy, Election Disputes

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1. Introduction

Elections were posed as nothing but “power politics” and, within the contest for exercising the power, disputes often emerge (Albert, 2023). This largely results from the adversarial framework of its process, combining winning with losses. Given the foregoing foundation, even in the developed world where democratic practices are said to have been consolidated, disputes often derive from every election. Whoever loses, though fairly, could understandably stage a legal challenge against the declared winner. Occasionally, winners of the elections attempt springing a challenge against the process that produced them as winners to strengthen the legitimacy of the electoral process by demonstrating that they won incontrovertibly just as they had prepared to win (Albert, 2023).

Conflicting rulings or decisions by courts of coordinate jurisdictions, in electoral matters, have remained the bane of consistent justice in Nigeria. Given their negative impacts that transcend the mere hurting of the judiciary image on the plane of public perception which incidentally affects the legitimacy of judicial process as final hope in Nigeria, this paper, in discharging its burden, is divided into five distinctive sections, aside from its section one which is the introduction. Section two examines the definition of terms and the nature of conflicting decisions. The third section of the paper appraises contradictory appellate court decisions on election-related issues while the fourth section assesses the factors responsible for conflicting judgment in election disputes in Nigeria. At the fifth section, the paper draws its conclusion and proffers essential recommendations as a reform towards the realisation of the noble objectives of electoral laws in Nigeria.

2. Definition of Terms and Nature of Conflicting Decisions

Due to the necessity for a thorough understanding of this discourse, various terms used in the context of this paper, considered against the nature and effects of conflicting decisions on the electoral process, demand a thorough discussion as presented hereunder.

2.1. Definition of Terms

Misuse of words is a common source of misunderstanding. To avert such nuances, major keywords in this work are considered with a view to limiting the applicable context appropriately. To this end, words or phrases such as judgment, election, judicial precedent, electoral and election disputes are hereunder considered.

2.1.1. Judgment

According to Black’s Law Dictionary, judgment is a court’s final determination of the rights and obligations of the parties in a case (Garner, 2014: p. 970). It includes an equitable decree and any order from which an appeal lies (Albert, 2023). The same word is construed by Oxford Advanced Learner’s Dictionary as the decision of a court or a judge (Hornby, 2020: p. 855). Advancing a judicial definition, the Supreme Court, in the case of Saraki v Kotoye,¹ presented it as a judgment [which] is a binding, authentic, official, judicial determination of the court in respect of the claims in an action or suit before it.² Also, in Attorney-General, Oyo State v Fairlakes Hotel Ltd,³ the Supreme Court, per Agbaje, JSC, placing reliance on the English decision in Ex P. Chinery,⁴ defined it as the sentence of the law pronounced by the court upon the matter contained in the record. On the same point, it is said that, in a proper use of terms, the only judgment given by a court is the order it makes. The reasons for judgment are not themselves judgments though they may furnish the court’s reason for judgment and thus form a precedent.

Sometimes, the judgment of a court or tribunal may be referred to as its decision. The definition of decision, as stated in the constitution about court, means any determination of that court and includes judgment, decree, order, conviction, sentence or recommendation.⁵

2.1.2. Electoral

According to Webster’s Dictionary online, electoral means relating to election while election is defined as the right, power, or privilege of making a choice.⁶ In the Nigerian Electoral Act,⁷ an election is also defined as any election held under the Act which includes a referendum.⁸ In this context, therefore, electoral is used in respect of elections held under the Electoral Act that was in force during the period of election under reference.

2.1.3. Judicial Precedent

The expression “judicial precedent” means the process whereby judges follow previously-decided cases where the facts are of sufficient similarity (The Nalt, 2021). In its determination of electoral disputes between aggrieved parties by the courts in Nigeria, principles of law have evolved over the years. Some of these electoral principles giving rise to conflict shall be reviewed hereafter. Generally speaking, a precedent is strictly a former event, choice, etc. that is used as a guide or standard for subsequent actions.

2.1.4. Electoral Disputes

The word, “dispute” is defined in Black’s Law Dictionary as a conflict or controversy, especially one that has given rise to a particular lawsuit (Garner, 2014: p. 572). Webster’s Universal Dictionary and Thesaurus⁹ also defines the same word to mean “to make the subject of an argument or debate; to query the validity of”.

Judicial construction of the word was articulated in AG Bendel State v AG Federation & Ors¹⁰ where, placing reliance on the lexical definition, the Supreme Court construed it, as “the act of arguing against, controversy, debate, contention as to rights, claims and the like or on a matter of opinion”.¹¹ The court went further to define electoral disputes as complaints and issues arising from ballot qualification, voter registration, political party registration and vote tabulation among others.¹²

2.2. Nature and Effects of Conflicting Decisions

The word “conflicting” according to Webster’s Universal Dictionary and Thesaurus, is a synonym of the word “contradictory”. In Ikemson v The State,¹³ the Supreme Court construed “contradictory” to mean what it says—contra dictum—to say the opposite. Contradiction should be on a material issue to amount to material contradiction.¹⁴ A decision is contradictory to another when it contradicts the established principle of law earlier made on the same issue. Courts are estopped from making conflicting decisions on issues already settled at law. This is fondly expressed in the concept of judicial precedent which enjoined court to follow established principle in earlier decision. Statutorily, the concept of judicial precedent is firmly established in the Evidence Act, 2011. The Act provides that:

The existence of any judgment, order or decree which by law prevents any court from taking cognisance of a suit or holding a trial, is a relevant fact, evidence of which is admissible when the question is whether such court ought to [take] cognisance of such suit or to hold such trial.¹⁵

It would be an inexcusable affront and disrespect for the tribunal after becoming aware of the existence of the Supreme Court decision to ignore or shut its eyes to their existence and, refusal to apply same, would be daring and cannot be explained. If the tribunal did, it would be challenging the powers, the decisions of the Apex Court of our land, which cannot be justified, had the tribunal done so.¹⁶ The later decision will, therefore, become a conflicting decision.

Explaining the binding nature of the term, “judicial precedent”, otherwise referred to as stare decisis and effect of its neglect, the Court of Appeal, in Donald & Anor v Saleh & Ors.,¹⁷ placed reliance on Ngwo v Monye,¹⁸ and held that:

By the doctrine of stare decisis and binding judicial precedents subordinate courts are duty bound to apply the decisions of superior courts. Prior to the decision of this court of 3/2/12 there was not in existence a superior authority on the issue for this Court to have followed and likewise the Tribunal. There is no gainsaying that a judgment of a higher court is binding on a lower Court amongst a plethora of authorities.¹⁹

Similarly, in Ogunshola v NICON,²⁰ this court held that:

Our common law system consists in applying to new combination of circumstances those rules of law which we den(sic) from legal principles and judicial precedents; and for the sake of attaining uniformity, consistencies and certainty, we must apply those rules where they are not plainly unreasonable and inconvenient to all cases which arise and we are not at liberty to reject them, ... It appears to me to be of great importance to keep this principle of decision steadily in view, not only for the determination of the particular case, but for the interest of law as a science.²¹

A judge who gives a judgement in affront to the decision of a higher court stands the risk of judicial rebuke. Thus, in Dalhatu v Turaki,²² the court condemned in strong terms a trial judge who departed from the decision of the Supreme Court in the following words:

The conduct of the learned trial Judge I.U. Bello is to say the least most unfortunate. This Court is the highest and final Court of appeal in Nigeria. Its decisions bind every Court, authority or person in Nigeria. By the doctrine of stare decisis, the Courts below are bound to follow the decision of the Supreme Court. The doctrine is sine qua non for certainty to the practice and application of law. A refusal, therefore, by a Judge of the Court below to be bound by this Court's decision, is gross insubordination (and I dare say such a judicial officer is a misfit in the judiciary).²³

The effect of the mandatory duty on courts to apply the doctrine of stare decisis and follow judicial precedents established by the apex court which are applicable to the facts and circumstances of cases, is that it takes away any imaginary idea of perceived discretion. No such discretion is permitted to be exercised. The court in Donald & Anor v Saleh & Ors²⁴ went further to divest the tribunal of the exercise of any discretion. Accordingly, the court held that:

In the present case, with a superior judicial precedent the Tribunal has no discretion or jurisdiction to determine a petition that is time barred, if from the date of filing, 180 days have lapsed. Irrespective of any order for re-trial, the computation is uninterrupted, it is continuous. From the moment the Tribunal takes notice of the decisions, its proceedings ought to be automatically terminated.²⁵

Obligations are imposed, not only on the court, but on litigants to prevent unwholesome exercise of discretionary power that produce conflicting decisions by judges. In fact, whether the tribunal becomes aware of such decisions or not, counsel, as ministers in the temple of justice, ought to boldly bring the existence of such decisions to the attention of the court or tribunal, even the parties cannot shut their eyes to these decisions and continue pursuing their petitions or cases whatever the case may be, based on what entailed before these judicial precedents or latest decisions on the issues at hand.²⁶ In the words of their Lordships in Donald & Anor v Saleh & Ors:²⁷

Put mildly, it is neither decent, nor honourable. The law grows and develops daily and we must develop along with it, otherwise the lower Court would continue to wallow in ignorance of current judicial precedents and remain stagnant. This Court would not encourage such. Further, by shutting our eyes to the effects of these decisions or the doctrine of stare decisis and/or judicial precedent the Tribunal and this Court would end up recycling and recycling the same cases that would continue to go forward and backward between this Court and the Tribunal, in some cases only end on getting to the Apex Court.²⁸

Judicial activism involved in this practice replicates a waste of precious judicial time, resources and of course, congesting the courts for no just cause. Counsel and litigants must learn to operate above board and end litigation when and where it should. There must be an end to litigation, especially where there is in existence binding superior authorities to assist in doing so.²⁹

Conflicting court rulings, especially when handed down by courts of coordinate jurisdiction, make it difficult to determine which legal precedent to follow. This will undoubtedly cause litigants to face great hardships in their pursuit of justice.

3. Contradictory Appellate Courts’ Decisions on Specific Election-Related Issues in Nigeria

The judiciary is perceived as the symbol and pantheon of constitutional democracy and the people’s hope against repressive governments and abuse of rights. There is no doubt that when matters in society become knotty and inexplicable, it is the judiciary that is approached, for the interpretation of laws and conflict resolution (Albert, 2023). The court must, therefore, be transparent, consistent and certain in judgments or decisions to be able to interpret the law and resolve conflicts (Obono-Obia, 2019). The court shall refrain from giving conflicting decisions or rulings in cases brought before it by parties which, at any given time, interpret the law as a nightmare or confusion (Oko, 2005).

In recent times, consistency and certainty, which are the cornerstones of the legal system, hinged on judicial precedent, seemed to have deteriorated rapidly in the country’s electoral litigation, so much that it seemed that the judiciary, rather than performing its traditional constitutional duty as an interpreter of the law and an instrument of conflict resolution, was seen as the harbinger of confusion (Oko, 2005). In other words, the courts are now entangled and embroiled in uncertainty and controversy rather than providing solutions to disputes, arising from the conflicting decisions of the appellate court especially the Court of Appeal, where it is now a notorious reality that there has been an explosion of conflicting judgments on election matters by the various divisions (Oko, 2005).

The interpretation of the Electoral Act and other enactments on election litigation, by the Court of Appeal, which has several divisions, has led to conflicting judgments and decisions (Albert, 2023; Okpeyi, 2012). An example of this conflicting interpretation of Paragraph 18 (1) of the First Schedule to the Electoral Act regarding the procedure for initiating a pre-hearing session. These panels or divisions of the Court of Appeal in Port Harcourt, Calabar, Kaduna, Makurdi and Ibadan have all issued contradictory and conflicting judgments or decisions causing uncertainty and confusion. The Supreme Court has clarified the positions in the Akwa Ibom and Benue states governorship petitions. Contradictory decisions of the Court of Appeal in Lagos, Osun, Ogun and Ekiti states regarding election cases have been observed on matters similar in fact and circumstances, causing embarrassment to the Bench and Bar. There are several contradictory decisions on election matters by the election tribunals and the courts. To emphasise this assertion, reliance will be placed on a horde of cases which are illustratively instructive.

3.1. Requirement of Substantial Compliance

In Agbaje v Fashola³⁰ the Appellant was nominated as the governorship candidate under the Democratic People Alliance (DPA) while the 1^st Respondent ran in the election on the Action Congress (AC) platform. There were also about 20 other candidates for the same office, endorsed or nominated by various other political parties, who contested the election. Following the 1^st Respondent’s declaration as the winner of the election, the Appellant, as one of the defeated candidates, being aggrieved by the outcome of the election, filed a petition contending that the election held in Lagos State on 14 April 2007 was invalid on ground of non-compliance with the provision of the Electoral Act 2006, the Constitution of the Federal Republic of Nigeria and the Common Law. The main ground for his complaint in the petition was that, after the sending of four (4) copies of his photographs as approved by the 4^th Respondent (INEC) to be embossed on the ballot papers, they were not embossed by the 4^th Respondent; instead, the 4^th Respondent only printed the photographs of the 1^st Respondent and other candidates on the ballot papers, discriminating against the Appellant, who was then denied a level playing field and the opportunity given to the 1^st Respondent and other candidates whose photographs were printed on the ballot papers at or during the election.

The Appellant also complained against the 4^th Respondent’s inflation or deflation of votes or figures which rendered the election poorly conducted, or not by the principles of the Electoral Law. Consequently, the Appellant urged the tribunal to declare invalid and void the Governorship Elections held in Lagos State on 14^th April 2007 and to set it aside, or nullify it, and order a new governorship election to be held in accordance with the law and principle of the Electoral Act.

In its earlier decision, in Amokeodo v IGP,³¹ the Court of Appeal held that, once the prescribed action is performed substantially as in the instant case, the mandate has been complied with or achieved.³² In the words of their Lordships, in Agbaje v Fashola:³³

It will also not lead to any absurdity or mischief. It is trite that the words “shall or may” when used in a statutory provision are capable of bearing many or different meanings depending on the intention of the legislators and the context in which they are used or employed in the particular provision. Thus, even though “shall” is used, it may be interpreted as either in a mandatory sense or a merely directory in a permissive sense. Where it is used in a directory sense, the action(s) to be taken is or are expected to be carried out substantially. Once the action(s) prescribed is or are substantially carried out as in the present case, the mandate has been complied with or achieved.³⁴

Furthermore, it is trite that, to render the election invalid or contrary to the principle of the Electoral Act, the non-observance or non-compliance with the electoral rules must be significant and substantial, convincing the court or tribunal that it has influenced, or may have affected, the majority of the voters or the election result.³⁵

Although, the Court of Appeal had, in Agbaje v Fashola,³⁶ affirmed the decision of the Lagos Governorship Election Petition which dismissed as inconsequential the use of a particular colour of ink to accredit voters other than that prescribed in the manual for the conduct of elections, however, in Fayemi v Oni,³⁷ in its judgment of 18^th February 2010, the Court of Appeal nullified the Ekiti State governorship elections in 63 out of the 177 wards in Ekiti State simply because accreditation was performed with red ink instead of blue as stipulated in the manual for the conduct of the election having shifted the burden of proof for non-accreditation from the Petitioner to the Respondent.³⁸ The law supports that, where the complaint is successfully raised by the Claimant, the burden of proving the otherwise is on the Respondent.

The above cases illustrated the variation in judicial precedent on the extent of proof in electoral matter.

3.2. Expert in the Examination and Analysis of Electoral Materials

The Court of Appeal in Amosun v Daniel,³⁹ Ogun State Governorship Election Petition, held that one Tunde Yadeke was not an expert in the examination and analysis of electoral materials. Yet, in the same Court of Appeal in Aregbesola v Oyinlola,⁴⁰ Osun State Governorship Election Petition, ruled that Tunde Yadeke was an expert. These are two cases which have identical facts but on which different decision, were made. The irony is that in the two cases, some members featured in the court’s two panels.

3.3. Witness Statement on Oath

The issue for determination in Obumneke v Sylvester⁴¹ was whether the petition was incompetent because the Petitioner neglected to use the exact words used by the legislature in the First Schedule to the Oaths Act, 2004 in concluding his statement on oath. The Court of Appeal held that failure to use the exact words or format specified by the legislature in the 1^st Schedule to the Oath Act when concluding the statements on oath was catastrophic and rendered the Statements not admissible.⁴²

The Court of Appeal on the same subject, however, in Ibrahim v INEC,⁴³ held that section 13 of the Oaths Act, 2004 provides for four various oaths or declarations which may be subscribed by different persons, depending on the nature of their duties.⁴⁴

3.4. Computation of Time

There are significant contradictory decisions of the Court of Appeal on when time begins to run to determine the period within which to file an election petition. In Alataha v Asin,⁴⁵ the Court of Appeal accepted the ratio in Fadare v Attorney General of Oyo State,⁴⁶ where the Supreme Court held that time began to run when there was a person who could sue and another who could be sued, and all the facts had happened which were materials to proof entitling the plaintiff to success. Having found concurrently with the trial tribunal that the election result under review was declared on 7 December 1998, the Court of Appeal held that time began to run from 7 December 1998, according to section 82 of the Local Government (Basic Constitutional and Traditional Provisions) Decree No. 36 of 1998 under which the instant petition was filed which provide that an election petition according to this Decree shall be presented within 14 days from the date the election result is announced. Salami JCA put the issue in the following words:

The time thus began to run in this case on 7 December 1998 when Exhibit 1 or R1 was issued… Since the appellants had only 14 days from the return date to present their petition according to Section 82 of Decree 36 of 1998, the petition must be presented on any day between 7 December 1998 and 21 December 1998. Otherwise, the petition is out. The petition presented on 22^nd December, 1998 is time or statute barred.⁴⁷

Likewise, in Ogbebor v Danjuma,⁴⁸ a question arose as to whether the petition was statute barred, having not been filed within 30 days from the date the election result was announced according to section 132 of the Electoral Act, 2002. Their Lordships held that:

I have considered and found the provision of Section 132 of the Electoral Act to be unambiguous. I am bound therefore to give the words used their ordinary meanings… Applying the above principle of interpretation, I find no difficulty in stating that the 30 days allowed for the presentation of a petition started to run from the date the result was declared…⁴⁹

3.5. Smart Card Readers

The Independence National Electoral Commission (INEC) introduced and used Smart Card Readers (SCR) for accreditation during the 2015 general elections. The aim was to aid in voters’ accreditation, particularly to prevent multiple voting. However, a gale of confusion ensued due to conflicting interpretations of the legality and usefulness of SCR in proving the petitioner’s claims or respondents’ counter-arguments. In the case of APC v Agbaje,⁵⁰ the Court of Appeal rejected the contention that the non-use or improper use of the SCR is a basis for challenging an election. The court held as follows:

The evolution of the Smart Card Reader is well known. It came to be during the last general election held in March and April 2015 in Nigeria… The concept owing to its recent invention by INEC, a non-legislative body, traces its paternity to the Manual for Election Officials, 2015… Because it is not the progeny of the Election Act, a ground in a petition fronting it to challenge any election does not have the blessing of the Act according to section 138(1) of the Act… “a petitioner cannot project the non-presence or improper use of Smart Card Reader as a ground for questioning an election…⁵¹

The court, in Akeo & Anor v Stanley-Uwom & Ors,⁵² did not hold that the inappropriate use of SCR for accreditation could not warrant overturning the election in another petition. The Rivers State National and State Houses of Assembly Election Petition Tribunal dismissed the contention of the Respondent’s counsel. In the case of Elder Lulu v Dagogo Farah,⁵³ it was the ruling of the tribunal that:

With due respect to the Respondents’ learned counsel, the above case decision (APC v Agbaje) is quoted out of context about the case at hand. In this petition, the petitioner did not make the non-use or improper use of the Card Reader machine a ground for the election to be annulled. About the use of cards, it is absolutely clear that the infringement will affect the conduct of any election where it is not complied with.⁵⁴

Although, the court, in Akeo & Anor v Stanley-Uwom & Ors,⁵⁵ did not hold that the inappropriate use of SCR for accreditation could not warrant overturning the election in another petition but the Rivers State National and State Houses of Assembly Election Petition Tribunal dismissed the contention of the Respondent’s counsel, in the case of Elder Lulu v Dagogo Farah,⁵⁶ and ruled that:

With due respect to the Respondents’ learned counsel, the above case decision (APC v Agbaje) is quoted out of context about the case at hand. In this petition, the petitioner did not make the non-use or improper use of the Card Reader machine a ground for the election to be annulled. About the use of cards, it is absolutely clear that the infringement will affect the conduct of any election where it is not complied with.⁵⁷

In the case of Mahmud Aliyu Shinkafi & Anor v Abdulazeez Abubakar Yari & Ors,⁵⁸ the Supreme Court made the first pronouncement on the issue of Card Readers. It held that the Card Reader device did not replace the statement of result in the appropriate forms.⁵⁹ The Supreme Court held to the effect that:

I am of the view and I do hold that the Tribunal and the Lower Court were truly swayed by the INEC directives on the use of card readers. As read by this court, the INEC directive, Guideline and Manual cannot be elevated above the provisions of the Electoral Act so as to eliminate manual accreditation of voters. This will remain so until INEC takes steps to have the necessary amendment made to bring the usage of card readers within the ambit of the substantive Electoral Act.⁶⁰

Suffice it to be stated that the use of the Card Reader in our electoral process has been statutorily solidified in the Electoral Act.⁶¹

3.6. Party Primaries

There are conflicting decisions on party primaries. Some decisions had the effect that party primaries constitute pre-election matters, and as such, a non-participant cannot question it. Other decisions were to the effect that party primaries were both pre-election and election matters. As such, the nomination process may be challenged by non-party members and participants, and the same can be entertained by election tribunals.

In the case of Chinda v INEC & Ors.,⁶² the National and State Houses of Assembly Election Tribunal, sitting in Rivers State, held that the issue of political party’s nomination and sponsorship of candidates was a pre-election issue. As such, it could not be entertained by the tribunal. The tribunal, therefore, rejected the interlocutory application contesting the Petitioner’s locus standi on the ground of non-compliance with the provisions of the Electoral Act, 2010 (as amended) (Nigerian Civil Society Situation Room, 2015).⁶³ Surprisingly, in its final judgment, when the Respondent raised the issue again, the tribunal held that the petitioners were not competent at the time the petition was filed and dismissed it on the grounds of improper nomination (Nigerian Civil Society Situation Room, 2015). Suffice it to be added that the Kano State National and State Houses of Assembly Election Tribunal in Aisha Alahassan & Anor v Ishaku & Ors⁶⁴ followed the position that the issue of a candidate’s qualification to contest an election was both a pre-election and an election matter.⁶⁵ This view was also followed in Akuso Yusuf Danjuma v Jagaba Adams Jagababy⁶⁶ where reliance was placed on the National and State Houses of Assembly Election Tribunal’s decision which also relied on the Supreme Court decision in Dangana & Anor v Usman & Ors.,⁶⁷ and Wambai v Donatus & Ors.⁶⁸

Some divisions of the Court of Appeal had held that only a member of a political party who participated as a candidate in the primaries of the party or INEC has the right to raise the question of non-compliance with the applicable provisions of the Electoral Act, 2010 (as amended). Furthermore, the question of sponsorship or nomination of candidates is an intra-party affair, which the tribunal cannot entertain.⁶⁹

The above decisions of the Court of Appeal in Mohammed v Kwankwaso & Ors.,⁷⁰ and Aisha Alahassan & Anor v Ishaku & Ors.,⁷¹ were affirmed by the Supreme Court, in the case of Tarzoor v Ortom⁷² where the Supreme Court held that:

Primary elections are in-house matters of a political party. A non-member of the party has no locus to raise the issue and no member of the party who was not an aspirant can raise the issue.

The Supreme Court further reinforced the position in Aisha Alahassan & Anor v Ishaku & Ors.,⁷³ where it held that either the Federal High Court, State High Court or the High Court of Federal Capital Territory was the proper place to contest the conduct of party primaries and not in an Election Tribunal.

In the case of Mahmud Aliyu Shinkafi & Anor v Abdulazeez Abubakar Yari & Ors.,⁷⁴ the Supreme Court distinguished between contesting the qualification of a candidate (over which the Election Tribunal has jurisdiction) under Section 177 and 182⁷⁵ and challenging his/her nomination under Sections 85 and 87⁷⁶ (over which only the Federal High Court, State High Courts or High Courts of the Federal Capital Tertiary has jurisdiction).⁷⁷

3.7. Filing of Written Statement of Oath for Witnesses Subpoena

The Election Petition Tribunals and the Court of Appeal handed down two conflicting views from their decisions. The first decision was that failure to file a written statement of the oath of subpoenaed witnesses with other court processes within time would render such inadmissible in evidence.⁷⁸ The contrasting view was that such a written statement on oath was admissible and expressed in the case of PDP v Engr. Mohammed Rabiu Kwankwaso.⁷⁹

The above two different respective positions of the Enugu and Kaduna Divisions of the Court of Appeal relied on the Supreme Court decisions in the cases of Abubakar v Yar’Adua⁸⁰ and Oke v Mimiko⁸¹ respectively. In the earlier case, the Supreme Court ruled that, where exceptional circumstances have been established, the deposition of subpoena witnesses not filed within time would be admissible in evidence in the interest of substantial justice.⁸² However, in the latter case, the Supreme Court held to the effect that, failure to file a statement on oath of subpoena witnesses along with the petition within the stipulated period of 21 days by the 1999 Constitution (as amended), would render such statement inadmissible in evidence.⁸³

It is observable that the tribunals relied on earlier decisions as a precedent in the cases examined above. Be that as it may, in our own opinion, the circumstances of each case should guide the decisions of adjudicatory bodies. Moreso, Paragraph 41 Rule 8 of the Rules of Procedure in the Election Tribunal empowers the tribunal to receive in evidence documents not filed along with the petition where exceptional circumstances are shown.⁸⁴

By plethora cases including those raised above on contentious aspects in electoral matters, successive shift of opinions on same issues and similar facts by appellate courts most of which hang in the limbo at different divisions of the Court of Appeal, leaving the subordinate courts and tribunals with a wide range of confusions on which of the contentious precedents should be followed. Until definitive pronouncement is made on such divergent opinions by the Supreme Court, the fate of litigants may continue to be dependent on the individual judgment of the trial courts’ judges.

4. Factors Responsible for Conflicting Judgment

Electoral malpractice is the major cause of controversy in the Nigerian electoral system. The range of what constitutes electoral malpractice includes the compilation of fictitious names in the register of voters, the unlawful compilation of separate lists of voters, misuse of voter registration/revision exercise, unlawful printing of voters’ cards, unlawful possession of ballot boxes, stuffing of ballot boxes with ballot papers, falsification of election results; illegal thumb-printing of ballot papers; underage voting; printing of Forms EC 8 and EC 8A for the compilation and announcement of election results; deliberate refusal to supply election materials to certain areas, unauthorised announcement of election results, harassment of candidates, agents and voters, a change in the list of election officials, box-switching and figures inflation and many other inexhaustible causes. Innumerable factors are responsible for conflicting judgment in Nigeria; these, among others, include corruption and incompetence, wilful breach of the rule in stare decisis, legal technicalities, forum shopping by counsel, and proliferation of courts.

4.1. Corruption and Incompetence

It has been said that corruption, partisanship and incompetence are mostly at the root of the variations in the decisions of courts of equal jurisdiction on similar cases (Gambo, 2024). The court must jealously guard its independence and, if the hallowed chambers of justice will not be polluted, judicial officers must protect their integrity from harmful manipulation of the politicians. However, some judicial officers are willing instruments in the hands of politicians. No judicial officer should readily compromise his or her integrity and independence for any reason as an arm of government. Though this is hard to practise for some, who often get entangled by reason of financial gratification. There have been allegations of corruption and other forms of compromise against members of the Bar and the Bench (Adegbamigbe, 2011). An objective evaluation of facts in cases becomes impossible by judges whose thoughts have been compromised. Some judicial officers are incompetent. Arguably, staying independent might be very difficult for judicial officers who had made it to the bench with the help and influence of high-ranking politicians.

4.2. Breach of the Principle of Stare Decisis

Expressed in its simplest form, the doctrine of judicial precedent, also known as stare decisis, is that a decision of a judge, once given on a question of law, binds both the judge who made the pronouncement and subsequent judges of courts, lower in status who become obligated to decide the same question of law in the same way (Okon, 2006). This doctrine assists the court to streamline decisions such as to avoid conflicting decisions on the same matter.⁸⁵

However, it seems as if this doctrine is being observed in the breach to some extent. This is usually occasioned by a high scale of conflicting judgments delivered on similar issues by courts of co-ordinate jurisdiction, especially in election-related matters. Consistency and certainty, which are the hallmarks of the Nigerian legal system hinged on judicial precedent, are facing serious challenges.

4.3. Legal Technicalities

Insistence on strict compliance with laws on technical ground, at the risk of substantial justice, is the common cause of conflicting judgments or rulings in election matters. Election matters are sui generis and should be heard without any unnecessary adherence to technicalities. The courts have consistently emphasised a shift from technicality and would always tilt to substantial justice which is arrived at by substantial compliance.⁸⁶ The fact that the doctrine of substantial justice should govern Election Tribunals in the interpretation of their Rules of Procedure was re-emphasised by the Supreme Court in Abubakar v Yar’Adua⁸⁷ where Niki Tobi, JSC, stated that:

Rules of Court are meant to be obeyed. Of course, that is why they are made. There should be no argument about that. But there is an important qualification or caveat and it is that their disobedience cannot or should not be slavish to [the] point that the justice in the case is destroyed or thrown overboard. The greatest barometer, as far as the public is concerned, is whether at the end of the litigation process, justice has been done to the parties. Therefore, if in the course of doing justice some harm is done to some procedural rule which hurts the rule, such as Paragraph 7 of the Practice Direction, the Court should be happy that it took that line of action in pursuance of justice.⁸⁸

The courts do not any longer myopically or blindly follow the practice directions and fall into a mirage to the extent of getting physically and mentally absurd or lost. Days have gone by when those practices were condoned. Full opportunity should be accorded the parties in the interest of justice without due regard to technicalities. Gone are the days when courts of law were only concerned with doing technical and abstract justice based on arid legalism. We are now in days when courts of law do substantial justice in the light of the prevailing circumstances of the case, and it is my hope that the days of the Courts doing technical justice will not surface again.⁸⁹ What is more, election petitions are sui generis and should be treated as such in that domain or realm. To maintain otherwise would amount to decapitating the concept of justice on the altar of legal technicalities.⁹⁰

4.4. Forum Shopping by Counsel

In practice, lawyers often engage in forum shopping in order to gain illicit advantage against their adversary. It is, therefore, necessary for counsel to have recourse to courts located within the judicial division where the cause of action arose. Where courts of coordinate jurisdiction have jurisdiction over a subject matter, and an action has been instituted in one court, it should be brought to the notice of the latter court, urging it to decline jurisdiction on the ground of abuse of court process. However, the reverse is the case particularly where both the Federal High Court and State High Court have jurisdiction over the subject matter. Unless decisive actions are taken against this unwholesome practice, conflicting judgements from courts of concurrent jurisdiction will continue to constitute a major problem in the electoral system.

4.5. Proliferation of Court of Appeal

The Court of Appeal was established by the Federal Court of Appeal Act⁹¹ and it came into existence in 1976 with the name ‘the Federal Court of Appeal’. It had only 3 judicial divisions, but the divisions of the court have increased to 72 across the six geographical zones of Nigeria.⁹² It is the second highest court in the land positioned next to the Supreme Court of Nigeria (Egbewole, 2008). Given the spate at which cases are delivered from the coordinate divisions of Court of Appeal, possibilities are that judges might not take cognisance of the existence of the established principles from other courts as a result of recency of such decisions. Most conflicting judgments are given per incuriam as a result of being unaware of the existence of the established principles traversed in the judgment. Courts are bound by their own decisions whether made by themselves or by judges of other divisions of the court where they sit.

Although the reforms introduced in the Electoral Act, 2022 towards containing these unwholesome issues have been substantially addressed in the Supreme Court’s holdings in Peter Obi & Ors. v Bola Tinubu & Ors.⁹³ and Atiku Abubakar & Ors. v Bola Tinubu & Ors.,⁹⁴ there however, exists a gulf in the gap between the making of the law and its just enforcement. The application of the imports derivable from those reforms has become essential at the moment.

In the final analysis, cases referred above indicate the threshold of rifts generative from divergent opinions of courts of coordinate or superior jurisdiction thereby leaving electoral dispute with less clarity until the Supreme Courts makes definitive pronouncement on each aspect.

5. Conclusion and Recommendation

Election is a periodical process for selection of candidates into elective offices. The process has been well adopted in Nigeria under the democratic regime as enshrined in the Nigerian constitution. After the elections, both winning and losing candidates are entitled to approaching the courts to advance their claims at the elections for which rulings and decisions are made on established principle of law. Conflicting judgments, quite often, on principles of law at election tribunal and appeal courts are becoming a major constraint on the electoral process and consequent litigation in Nigeria, leading to uncertainty and possible miscarriage of justice. The unpredictability of consequences of electoral litigations, resulting from conflicting judgments and decisions, does not only prick on the integrity of judges, it is also a source of disdain for the bench and the entire legal profession. It also speaks to the legitimacy of the electoral process in Nigeria. Although, in exceptional circumstances, it could be difficult or impossible to avoid contradictory court rulings due to the nation’s infrastructural deficiency with its antecedent communication problems, however, trajectory of a recurring pattern of contradictory rulings from courts of coordinate jurisdiction, particularly on election matter, demands an urgent intervention to retain public trust in the judiciary’s ability to administer justice as a panacea to restoring public order in Nigeria.

This, therefore, calls for a decisive reform in the electoral system in Nigeria. It is against the foregoing that the under-listed suggestions have become necessary:

i. There is a need for formulation of rules against multiple filing of cases by counsel in different courts of coordinate jurisdiction. Counsel involved in forum shopping, in electoral litigation should be made to face disciplinary actions from the Legal Practitioners’ Disciplinary Committee.

ii. To address the infrastructural deficiencies arising from the foregoing discourse, training or retraining of judges and registrars of courts in tracking of cases and precedents has become a necessary tool for resolving incidence of conflicting judgments.

iii. The need for capacity building in the electoral system also demands the emplacement of internet information communication technology (ICT) for functional coordination and speedy communication of decisions within the various decisions of the courts. This is with a view to aid tracking of cases and precedents as well fostering uniformity and consistency in the decisions of courts.

iv. Institution of actions on election dispute should be limited to the territorial jurisdiction where the cause of action arose. Judges should, therefore, be wary of granting ex-parte orders especially if the cause of action spans multiple jurisdictions; for example, where both state and federal high courts share concurrent jurisdiction over the case.

v. The training or retraining of judges and registrars of courts is a necessary tool for resolving incidence of conflicting judgments.

vi. Mechanisms should be put in place to defeat corrupt practices and incompetence.

It is hoped that the above suggestions, if ensured, will enhance the realisation of the noble objectives of our electoral process in Nigeria.

NOTES

¹Saraki v Kotoye (1992) 2 NWLR (Part 264) 156.

²Ibid at 186, per Karibi-whyte, JSC.

³Attorney-General, Oyo State v Fairlakes Hotel Ltd (1988) LPELR-42926 (SC) at p. 22.

⁴Ex P. Chinery 12 Q.B.D. 342.

⁵See the Constitution of the Federal Republic of Nigeria 1999 (as altered) s 3 18(1); see also Chief Sergeant Chidi Awuse v Dr. Peter Odili & Ors 16 NSCQR 218 at 245 and 247 per Uwaifo, JSC.

⁶Webster’s Dictionary Online.

7Electoral Act, 2022.

⁸Ibid at s 152.

⁹Webster’s Universal Dictionary and Thesaurus (Geddes and Grosset 2010) at p. 156.

¹⁰AG Bendel State v. AG Federation & Ors (1981) LPELR-605 (SC) (p. 48 para A).

¹¹Ibid at para A, per Bello, JSC.

¹²Ibid.

¹³Ikemson v The State NSCQR (1989) 153; also reported in (1989) NWLR (Pt. 110) 455.

¹⁴Ibid, pp. 170-171.

¹⁵See the Evidence Act, 2011 s 59.

¹⁶Osakwe v Federal College of Education (TECH) Asaba (2010) 10 NWLR (Pt. 1201) 1.

¹⁷Donald & Anor v Saleh & Ors. (2012) LPELR-8609(CA) pp. 30-34 para D.

¹⁸Ngwo v Monye (1970) NSCC 70.

¹⁹Ibid at 76.

²⁰Ogunshola v NICON (1996) CLR 1(1) 1.

²¹Ibid at 69.

²²Dalhatu v Turaki (2003) 15 NWLR (Pt 310) at 336.

²³Ibid.

²⁴Donald & Anor v Saleh & Ors. (n 17) LPELR-8609(CA) pp. 30-34 para D.

²⁵Ibid at 34.

²⁶See the Evidence Act, s 59.

²⁷Donald & Anor v Saleh & Ors. (n 17) at p. 33 per Uwa, JSC.

²⁸Ibid.

²⁹Ibid at 34.

³⁰Agbaje v Fashola (2008) LPELR 3648 (CA) pp. 28-43 paras F-F.

³¹See Amokeodo v IGP (1999) 6 NWLR (Pt. 607) 467; Amadi v NNPC (2000) 10 NWLR (Pt 674) 76, Oju L.G. v INEC (2007) 14 NWLR (Pt. 1054) 242 at 270-271; and Rimi v INEC (2005) 6 NWLR (pt. 920) 56 at 80-81.

³²Ibid.

³³Agbaje v Fashola (n 30) 28.

³⁴Ibid at p. 37.

³⁵See Sorunke v Odebunmi (1960) SCNLR 414.

³⁶Agbaje v Fashola (n 30) at p. 39; see also Amadi v NNPC (n 31) at 79.

³⁷Fayemi v Oni (2010) LPELR 4145.

³⁸Ibid.

³⁹Amosun v Daniel (2010) LPELR 2446.

⁴⁰Aregbesola v Oyinlola (2010) LPELR 3805.

⁴¹Obumneke v Sylvester (2010) All FWLR (Pt. 506) 1945.

⁴²Ibid at 1961.

⁴³Ibrahim v INEC (2007) 3 EPR 50. See also Onwuka Nkeiruka v Dimobi Joseph (2009) 5 NWLR (Pt 1135) 505.

⁴⁴Ibid at 66.

⁴⁵Alataha v Asin (1999) 5 NWLR (pt. 601) 32.

⁴⁶Fadare v Attorney General of Oyo State (1982) 4 SC 1, 1982 NSCC 52.

⁴⁷Ibid at p. 44.

⁴⁸Ogbebor v Danjuma (2003) 15 NWLR (pt. 843) 403.

⁴⁹Ibid at p. 426 per Muntaka—Coomassie, JCA stated of the report.

⁵⁰APC v Agbaje (2015) quoted with approval in Akeo & Anor v Stanley-Uwom & Ors (2015) LPELR-41585(CA) pp. 14-17 para A.

⁵¹Ibid per Ogbunya, JCA; see also Akeo & Anor v Stanley-Uwom & Ors. (n 50)) at p. 135 or David Allen Akeo v Marshall Stanley—Uwom (2015) LPELR-41585(CA) pp. 14-17 para A.

⁵²Akeo & Anor v Stanley-Uwom & Ors. (n 50) at p. 35 para A.

⁵³Elder Lulu v Dagogo Farah (unreported), Petition No. EPT/RV/SA/26/2015.

⁵⁴Ibid.

⁵⁵Akeo & Anor v Stanley-Uwom & Ors. (n 50) at p. 35 para A.

⁵⁶Elder Lulu v Dagogo Farah (n 53).

⁵⁷Ibid.

⁵⁸Mahmud Aliyu Shinkafi & Anor v Abdulazeez Abubakar Yari & Ors. (2016) 7 NWLR (Pt. 1511) 30.

⁵⁹See also Udom Emmanuel v Umana (2016) 12 NWLR (pt. 1526) 179 at 237-238.

⁶⁰Ibid; see also Wike Ezenwo Nyesom v Hon. (Dr.) Dakuku Adol Peterside & 3 Ors, (2016) Vol. 65 NSCQR 1325, or ELR (2016) 2131 SC p. 1.

⁶¹See section 47. The smart card machine has now replaced and supplanted the voters register.

⁶²Chinda v INEC & Ors (2019) LPELR-47902 (CA) pp. 17-18 paras A-A.

⁶³Ibid.

⁶⁴Aisha Alahassan & Anor v Ishaku & Ors (2016) LPELR-40083(SC) pp. 49-52 paras B-B, where the Kano State National and State Houses of Assembly Tribunal, relying on the Supreme Court decision in Dangana & Anor v Usman & Ors (2012) LPELR-25012(SC) (pp. 46-47 para A), held that the issue of qualification of a candidate to contest an election was both a pre-election and election dispute.

⁶⁵Ibid at p. 51.

⁶⁶Akuso Yusuf Danjuma v Jagaba Adams Jagababy (Unreported), Petition No. KD/EPT/NA/01/2015.

⁶⁷Dangana & Anor v Usman & Ors. (n 64).

⁶⁸Wambai v Donatus & Ors. (2014) LPELR-23303(SC) p. 39 para A.

⁶⁹Mohammed v Kwankwaso & Ors. (2015) LPELR-40868(CA) (pp. 50-54 para F); see also Aisha Alahassan & Anor v Ishaku & Ors. (n 78) p. 52; Daniel v INEC (2015) 9 NWLR (Pt.1463) page 113 at 155-157.

⁷⁰Ibid.

⁷¹Aisha Alahassan & Anor v Ishaku & Ors. (n 64) p. 52.

⁷²Tarzoor v Ortom (2016) 13 NWLR (Pt. 1500) 463, 498.

⁷³Aisha Alahassan & Anor v Ishaku & Ors. (n 64) p. 52.

⁷⁴Mahmud Aliyu Shinkafi & Anor v Abdulazeez Abubakar Yari & Ors. (n 58) at 30.

⁷⁵Constitution of the Federal Republic of Nigeria, 1999 (as amended).

⁷⁶Electoral Act, 2010 (as amended).

⁷⁷It should be noted that the Electoral Act, 2022 now confers Jurisdiction over such complaints on the Federal High Court. See section 84(14) of the Electoral Act, 2022.

⁷⁸Okwuru v Ogbee & Ors. (2015) LPELR-40682 (CA) pp. 25-29 para B.

⁷⁹see also PDP v Engr. Mohammed Rabiu Kwankwaso (2015) LPELR-40859(CA) pp. 20-23 para A, per Abiru, JCA.

⁸⁰Abubakar v Yar’Adua (2008) 4 NWLR (Pt. 1078) 465.

⁸¹Oke v Mimiko (No. 1) (2014) 1 NWLR (Pt. 1388) 225.

⁸²Abubakar v Yar’Adua (n 80).

⁸³Oke v Mimiko (n 81).

⁸⁴Independent National Electoral Commission v Iniama (2008) 8 NWLR (Pt 1088) 782; see also PDP v Engr. Mohammed Rabiu Kwankwaso (n 79).

⁸⁵‘The Cost of Conflicting Judgements to INEC, Candidates (Part 1)’ <https://leadership.ng/the-cost-of-conflicting-judgements-to-inec-candidates-part-1/?msc/ked=ccdc09a4a990011ec91baf669a939c> accessed on 23^rd March 2024.

⁸⁶See Adekunle Ajibode & Ors. v Dauda Gbadamosi & Ors. ELC (2021) 3476 (SC); see also Alhaji Momoh Bajehson. V Captain Hakeem Oladapo Niyiotico ELC (2018) 3404 (SC); Isa Kassim v The State (2017) 71 NSCQR357 or ELC (2017) 2385 SC p. 1.

⁸⁷Abubakar v Yar’Adua (n 80) at 465.

⁸⁸Ibid at pp. 511 to 512.

⁸⁹PDP v Engr. Mohammed Rabiu Kwankwaso (n 79).

⁹⁰Olaniyan v Oyewole (2008) 5 NWLR (Pt 1079) 114; see also Lasun v Awoyemi (2009) 16 NWLR (Pt 1163) 513, Omidiran v Patricia (2010) LPELR-CA/I/EPT/NA/95/08, Ibrahim v Ogunleye (2010) LPELR-CA/I/EPT/HA/93/2008.

⁹¹Federal Court of Appeal Act (No. 43 of 1976).

⁹²<https://www.courtofappeal.gov.ng> accessed on 23^rd February 2024.

⁹³Obi & Anor v INEC & 3 Ors. (2023) 19 NWLR (Pt. 1917) 711.

⁹⁴Abubarkar Atiku & Anor v INEC & 2 Ors. (2023) (Pt. 1917) NWLR 1.

Conflicts of Interest

The authors declare no conflicts of interest regarding the publication of this paper.

References