Lawyers Divided Over ‘Technicalities’ | Nairalaw

With the Presidential candidate of the People’s Democratic
Party, PDP, Alhaji Atiku Abubakar and his party, lodging their
petitions before the Presidential Election Petitions Tribunal,
challenging the outcome of the February 23, 2019 presidential
election, the attention of Nigerians is gradually shifting to the
tribunal, where the knotty issue of technicalities have not been
fully addressed.

Though the elections are not over as the governorship and state
House of Assembly election is scheduled for this Saturday, the need
for election petitions to be decided on merit and on time have been
an on-going campaign.

Until the recent amendment of the Electoral Act, there was no
time limit for the disposal of election petitions, as the
inauguration of the victorious candidates comes immediately after
election, but the campaign has been for the inauguration to only
take place after the final determination of petitions, hence the
limit in time frame for the conclusion of petitions.

Even with the time limit, victorious candidates have used all
sorts of antics to slow down the process, just to achieve an
expiration of the mandatory 180 days, following which they will
return to the tribunal to plead that time had elapsed.

These among many other technicalities, advocates have called to
be changed, to allow petitions to be decided on merit, also on time
or in the alternative, for the swearing-in of the winners, only
after the petitions have been decided.

One of the simple argument is that if the winners know that
their resumption of office is dependent on the conclusion of the
petitions, they will not resort to technicalities to slow down the
process.

In this edition of Vanguard Law and Human Right, lawyers spoke
on the relevance of technicalities in determining election
petitions.

Among those who shared their views are, former Lagos State
Solicitor-General, Mr Lawal Pedro, SAN; rights activist and lawyer,
Mr. Femi Falana, SAN; Mrs Titilayo Akinlawon, SAN; Publisher,
Supreme Court Law Reports, Mr Layi Babatunde, SAN; Senior Law
lecturer, Lagos State University, Mr Gbenga Ojo; Executive
Director, Access to Justice, Mr Joseph Otteh and Convener, Voters’
Initiative, Mr. Wale Ogunade.

Technicalities should be heard along with substantive
petition- Pedro, SAN

Pedro said: “Any technicality at the tribunal should be taken
together in the substantive petition and any party dissatisfied
with the decision of the Tribunal on either or both issues of
technicality and substantive matter can appeal to the Appeal
Tribunal. By the current position of the Constitution and Electoral
Act, technicalities which tend to delay proceedings in election
cases is ill-advised for a litigant that has a good case.

“However, due to the time frame for prosecution of election
petition, justice may be slaughtered on the altar of speed as
sometimes some relevant facts and documents necessary to give merit
to the case but not readily available may be excluded in the haste
to file and conclude the petition within time.

“There may also be circumstances beyond the control of counsel
or the Tribunal that may likely cause delay and the 180 days would
expire without judgment being delivered by the Tribunal. A grave
injustice will be done to the petitioner if his petition should be
dismissed or struck out for effluxion of time. Unfortunately, that
is the law and no extraneous matter can change that.

Technicalities create legal hurdles for
petitioners-Falana, SAN

Falana said: “The resort to technicalities in the resolution of
election disputes by Nigerian courts has created insurmountable
legal hurdles for petitioners in a presidential election petition.
The legal impossibility of proving election petition in a
presidential election was noted by the Supreme Court in the case of
Buhari v Obasanjo in 2005. It was pointed out by the apex court
that thousands of witnesses are required to impeach the validity of
a presidential election. If a petitioner is able to assemble the
many witnesses, time is not on his or her side as the court of
appeal has only 180 days to prove the petition.

“The law has imposed the onus of proving that an election was
marred by malfeasance squarely on the petitioner. Since allegations
of election malpractice are criminal in nature, they have to be
proved beyond reasonable doubt. Apart from proving that an election
was not conducted in substantial compliance with the law, the
petitioner has to show that the non-compliance with the law has
vitiated the election. On account of such technicalities, the
courts have continued to dismiss weighty allegations of electoral
malpractice.”

Technicalities should be strictly enforced- Akinlawon,
SAN

Mrs Akinlawon said: “So what do we consider as technicalities?
Could we be referring to the timelines in the 2nd Alteration to the
Constitution that stipulates that election petitions should be
filed within 21 days from the declaration of the election result?
It similarly provides that an Election Tribunal shall deliver its
judgment within 180 days from the date of filing of the petition
while an appeal therefore should be heard and disposed of within 60
days from the date of the delivery of judgment of the tribunal or
Court of Appeal.

“The relevance of technicalities in determining election
petition is as follows: For speedy dispensation of Justice; To weed
out frivolous and useless, flimsy excuses or sometimes ridiculous
reason; To dislodge incumbents by the courts due to protracted long
cases which sometimes took two to three years for example in the
OSUN & EKITI 2007 gubernatorial elections; Avoidance of
conflicting judgments.

“Until recently, there was no time limit to election petitions
and inauguration of candidates came up before disposal of the case
but politicians have used all sorts of means and tactics to
frustrate the judicial process. In advanced countries, delays in
disposing electoral disputes are not acceptable or condoned.
Accordingly, it is required to cure the mischief of protracted
litigation in election petition. In as much as they are
constitutional, I do not consider them as technicalities in the
strict sense of the word. They constitute the law, which must be
complied with. Most of the grounds by which election results can be
challenged are quite subjective, thus the technicalities are to be
checks to prevent abuse of process.

“Furthermore, if those technicalities and time lines are absent,
then it would be possible for an impostor to hold office for a
number of years before the courts would be able to remove him. I
honestly believe that the technicalities are there to curb several
mischief and those provisions (technicalities) should be strictly
enforced.”

Technicalities leave everyone wondering- Babatunde,
SAN

Babatunde said: On this issue of technicalities, I cannot do
better than what the Supreme Court said in MAERSK LINE v. ADDIDE
INVESTMENT LTD ( 2002) 4 SC (pt II ) 157 that ‘the judicial process
malfunctions and is discredited when it is bogged down by
technicalities and is manipulated to go from technicality to
technicality and thrive on technicalities. That is why, at all
times, the tendency towards technicality should be eschewed and the
determination to do substantial justice should remain the preferred
option and the hallmark of our judicial system.

Those who approach the Tribunals do so in search of truth and
justice. Both the petitioners and those dragged before the
tribunals, deserve nothing less, in accordance with the law. Also,
beyond the parties before the tribunals or court as the case may
be, those who trooped to the polls to cast their votes deserve to
know the true outcome of every poll as opposed to sheer
technicalities which leave everyone wondering. May justice roll
down like waters. May our country thrive in justice, brotherly
love, peace and progress.”

Nigerians look forward to electoral justice, not
legalistic justice- Otteh

Otteh said: “This round of election disputes adjudication comes
at a very perilous time in Nigeria’s history, given the clear and
unprecedented attempts to exert pernicious influence and strategic
control over the leadership of Nigeria’s judiciary. Nigerians are
watching these events closely, with palpable apprehensions,
disbelief and fear about how the hardly veiled efforts to
reconfigure the leadership of the third arm of government at this
momentous time will impact the adjudication of election cases.

“For a lot of people therefore, it is not just election disputes
that will go to trial; the Judiciary will itself be on trial. How
the Judiciary manages to both decide those election disputes as
well as allay the concerns of its credibility, independence and
fairness will define how Nigerians relate to it, going forward. At
this time, public confidence in our institutions of justice is not
reading positively and well.

“In spite of this, Nigerians look forward to electoral justice,
not technical or legalistic ‘justice’ in the adjudication of
election cases. Electoral tribunals have a duty to ensure that they
are truly vehicles that help to revalidate democratic choices made
by voters, and that they cannot afford to delegitimize those
authentic democratic voices of the people. There have been many
complaints of rigging, falsifications, violence and
disenfranchisement during the last elections. It is now the
responsibility of the Judiciary to decide whether we can, as a
country whose Constitution says is founded on the ideals of
Freedom, Equality and Justice, live on less than our Constitution
guarantees.”

Tribunal should extend time in special
circumstances – Ojo

Ojo said: “The main issue that is ridiculous is running of time
to take steps in election. Granted that time should be of the
essence but the way it is now, is not good at all. If the last date
to file election petition falls on Saturday, Sunday or any public
holiday, when the registry of the Tribunal does not open for
business, time runs and the election petition filed on the next
working day is statute barred. I think that, the Tribunal should be
empowered to extend time in special circumstances. Many petitions
were struck on this basis. Where is the fair hearing? Furthermore,
this point can be raised on appeal. Meaning that, a respondent that
lost a case at the Tribunal will raise the issue on appeal that the
case was statute barred. Appeal in many cases were allowed. The
effect of this is that a respondent that lost because he did not
win the election will become the “winner” by Courtney of the court.
This is an area that needs to be addressed very well otherwise, a
person that lost the election and so found by the Tribunal will
retain the victory. Justice should not be delayed. It also should
not be stampeded.

Tribunals thrive on technicalities- Ogunade

Ogunade said: “Election Tribunals thrive on technicalities. In
fact, technicalities are hallmark of Election Tribunals. We should
note that Election Tribunals are special courts and as such, have a
special way of carrying out their businesses, such as time within
which to file the response, how to commence the proceedings and the
proceedings itself. Failure in taking a step appropriately is fatal
to the Petition, that’s why Election matters are handled by Lawyers
who have that special experience. Having stated the importance of
Election Tribunals, it will be difficult to remove technicalities
from its operation because that is what the Tribunals thrive on
since it’s not a common court.

Culled from vanguardngr