Last Wednesday, Chief Justice of Nigeria (CJN) Justice Olukayode Ariwoola expressed worry over the increasing number of pre- and post-election cases which, according to him, are consuming the largest chunk of the time available to courts.
Ariwoola said the development ranked Nigeria amongst the world’s most-litigious nations and exposed the Judiciary to constant scrutiny.
Ariwoola spoke while administering the oath of office on nine new justices of the Court of Appeal in Abuja. The new appointees brought the number of justices at the appellate court to 71.
Calling for “less litigation”, the CJN urged Nigerians to embrace more of alternative dispute resolution mechanisms to lessen the pressure on justices.
He said political cases were taking a monumental toll on court dockets.
“Indeed, the times we are in are not pleasant, to say the least. No court in the land is spared of this. We are constantly on our toes and the dockets are ever-rising in response to the challenges of the time.
“I strongly believe it is high time we began to imbibe the culture of less litigation and more of alternative dispute resolution mechanisms so that our courts can be freed of unnecessary burden and depletion of both human and material resources.”
Heavy schedule duty of judges
It is common knowledge that judges of the high court benches have a heavy schedule of duty going by the high number of case files in their dockets. Yet, when election time comes, they are drafted to serve as judges on election petition tribunals, thereby postponing adjudication of cases in their dockets.
A judge of the Lagos State Judiciary, Justice Olutoyin Ipaye, while speaking at a reception for new Senior Advocates of Nigeria (SANs) and professors of the Faculty of Law, University of Lagos, held at Ikeja in May this year, stated, for instance, that an average judge in Lagos gets between 11,000 to 12,000 case files every year, despite that some go on special assignment like election petition tribunals.
“That already tells you that the figure is high and then every year, more will be added to it even if you have not finished the previous ones. You have to deal with it because by the following year, another set of cases will add to your backlog.”
346 judges drafted to election petition tribunals
Election petitions have become a common practice in Nigeria as evident in every election cycle. Candidates and political parties who participate in an election and are dissatisfied, challenge the results of the outcome at election tribunals, as well as the integrity/credibility of the process.
The national and state elections which held in the first quarter of the year dealt a blow on justice delivery in the country as 346 justices were drafted from federal and state high courts across the country.
Under the law, justices who sit on the various election petition panels are mandated to hand down their judgments within 180 days, after the filing of petitions by aggrieved candidates.
The implication is that while they serve on the tribunals, they cannot attend to regular cases. Meanwhile, their dockets in their various jurisdictions continue to pile up. As a result, litigants whose cases are already partly-heard and are adjourned are made to wait for as much as five to six months until the election tribunal assignment is concluded.
Presidential Election Petition Tribunal (PEPT)
Like other levels of the court, the Court of Appeal is also overburdened with cases. Until last Wednesday, the court was understaffed with 62 justices spread across its six divisions. It was out of its limited justices that a five-man PEPT was constituted to look into the petitions that arose from the February 25 election.
Supreme Court
At the commencement of the presidential election petition proceedings in March, the Supreme Court comprised 13 justices. But, following the retirement of Justice Amina Augie on September 3, and the death, two months earlier, of Justice Chima Nweze, the justices of the apex court bench dropped to 11, compared to constitutional celling of 21.
It is from these 11 that the CJN is expected to select seven justices that will hear appeals emanating from the presidential and governorship election petition tribunals.
Generally, by virtue of Section 285(7) of the 1999 Constitution of the Federal Republic of Nigeria, an appeal from the decision of the election tribunal or Court of Appeal shall be heard and determined within 60 days from the date of the delivery of judgment at the tribunal or court of appeal.
Section 6 of the Election Judicial Proceedings Practice Directions, 2022 (the practice direction issued by the Court of Appeal) provides that a notice of appeal shall be filed at the registry of the tribunal or Court of Appeal within 21 days in respect of a final decision and 14 days in respect of interlocutory rulings. In respect of the final judgments to be handled by the apex court, the appellants, by virtue of this practice direction, have 21 days from the date of judgment to file their notices of appeal.
Section 2 of the Supreme Court Election Appeals Practice Directions, 2023 stipulates that an appellant shall file in the registry of the court of appeal, notice and grounds of appeal, within 14 days from the date of delivery of judgment appealed against.
Failure to file a notice of appeal within the prescribed days from the date of judgment renders the appeal incompetent and shall be struck out by the court. Similarly, a judgment delivered outside the 60 days stipulated by the constitution shall be a nullity.
Within 14 days after the filing of a petition under clause (1), the Supreme Court shall hear and determine the petition and its decision shall be final.
Section 285 (6) of the 1999 Constitution of Nigeria (as amended) states that “an election tribunal shall deliver its judgement in writing within 180 days from the date of the filing of the petition”.
The law further provides that “an appeal from the decision of an election tribunal or Court of Appeal in an election matter shall be heard and disposed off within 60 days from the date of delivery of judgement of the tribunal or Court of Appeal”.
It starts with the filing of an election petition. Section 285(6) of the 1999 Constitution of Nigeria states that “an election petition shall be filed within 21 days after the date of the declaration of the result of elections”.
Review constitution to update election matters, implement Uwais report
Some legal pundits are of the opinion that there is a need for a review of the constitutional provisions to ensure justice can be delivered timely and election matters are decided before the inauguration of newly elected officers as it is being done in other climes, particularly in the neighbouring African countries.
There have also been several calls for the implementation of the Justice Muhammmed Uwais report of 2010 which legal experts believed provided solutions to some of the challenges bedeviling the judiciary and electoral process in the country.
In other parts of the world, election petitions need not go through series of stages as in Nigeria. In some countries, what is done is a rerun exercise while in some others, it is a one-step approach.
Citing Ghana and Kenya, lawyers said Nigeria may just be ripe for a constitutional amendment and reduce the time spent for election petitions.
Election petition in Kenya, Ghana
For instance, in Kenya, election petitions are determined within 14 days after the filing of the petition.
Article 140 (2) of the 2010 Constitution of Kenya states that “within fourteen days after the filing of a petition, the Supreme Court shall hear and determine the petition and its decision shall be final”.
Section 140 (1) of the Kenyan Constitution also provides that “a person may file a petition in the Supreme Court to challenge the election of the president-elect within seven days after the date of the declaration of the results of the presidential election”.
Kenya held its general elections on August 9, 2022. The election results were announced on August 15, 2022 and William Ruto was declared winner which lends credence to the fact that petitions can be resolved before swearing in.
Ghana’s experience
As a result of the reform on the duration of election petitions in Ghana, election petition proceedings took only three months in 2020.
Experts argue that there is an urgent need for judicial reforms in Nigeria to aid the speedy resolution of tribunal cases before elected officials take oath of office.
Senior lawyers’ proposals
Lawyers offered a way out of the problem. Those who spoke included a former President of the Nigerian Bar Association (NBA) Dr. Olisa Agbakoba (SAN), Babatunde Fashanu (SAN), Louis Alozie (SAN), and Prof. Damilola Olawuyi (SAN).
Agbakoba: Reform judicial system
Dr. Agbakoba described the judiciary’s plight as judicial failure.
“We have judicial failure in the sense that the speed of justice grinds ever so slowly with consequences for political and economic development,” he said
He welcomed the CJN’s comments on alternative dispute resolution systems but noted that it also is “entirely up to him to understand that Judicial reform is at the core of his responsibility as CJN and chair of the NJC.
“Now that the CJN has flagged the issue, I hope that he will take a radical transformational review of the entire judicial system and reform it”.
Fashanu: Draft in retired Justices
Fashanu noted that it would be difficult to use ADR to resolve some political cases, “especially where election in a constituency is involved because the candidate is not expected to negotiate away the interest of the voters who voted for him. However, an intending candidate and in non-election cases can have ADR resolution, in my opinion.
He proposed recalling emeritus judges for election petition cases.
Fashanu said: “With respect to sapping the workforce of Nigerian Judges for election matters, I believe retired Judges and Justices of impeccable character who are still active enough to serve and high calibre SANs can be drafted in to help; that will relieve the judiciary of having to take already too busy Judges off their beat and lessen the adverse effects on regular cases”.
Alozie: Retired justices is way out
Alozie contended that litigation goes hand in hand with elections, thus neglect of non-political cases are an almost natural consequence of this.
“The only procedure provided by the constitution for resolution of post-election disputes is by filing petitions to Election Petitions Tribunal. Incidentally, the tribunals are manned by serving judges and justices,” he said.
According to him, “the Electoral Act provides that election petitions, which have time lines for determination must be given priority over other cases.
“So, the neglect of other pending cases are unavoidable, in the circumstances.
“The only option is to engage retired judges/justices to preside over election matters. This will require some amendments of the constitution and the Electoral Act to achieve.
Olawuyi: Resolve election disputes before swearing in ceremony
Prof. Olawuyi who is also the Vice Chancellor, Afe Babalola University, Ado Ekiti said for citizens to have faith in the electoral system, all election disputes should be conclusively resolved before a winner is sworn in, noting that this is in line with the practice in many other presidential systems such as the United States, Kenya, and South Africa.
Why ADR is the way to go
Olawuyi praised the proposal for the use of ADR mechanisms such as mediation, conciliation, and arbitration for pre-election disputes, saying it can lead to “such timely, efficient and transparent resolution of election disputes, especially for pre-election matters.
“Also, unlike litigation where there is always a winner and a loser, ADR is about win-win outcomes for both sides, which could significantly reduce tensions associated with the winner-takes-all mindset in our political landscape.
“For example, section 134 of the Electoral Act 2022 lays down three key grounds for challenging an election, namely: non-qualification; corrupt practice and non-compliance with the provisions of the Electoral Act, 2022; and failure of the person declared winner to score a majority of lawful votes.”
He argued that disputes arising from these three grounds, especially non-qualification, could be efficiently resolved by a panel of arbitrators.
The don noted that an important advantage of arbitration is that it provides an opportunity for disputes to be resolved by highly qualified experts in a specialised area.
Olawuyi said: “For example, forensics experts, senior academics, senior constitutional and election lawyers, and retired judges can all determine whether the credentials presented by an aspirant meets the requirements of the law.
“Yet, we wait for several months for judges to determine such mundane issues. If we can appoint professors to monitor elections, we can also appoint academics and retired judges with stellar and unblemished records to play key roles in ADR.
“An essential next step will be for the Chief Justice of Nigeria to set up a Committee of independent ADR experts, to develop in conjunction with INEC, political parties and other key stakeholders, clear and comprehensive guidelines and strategy for effectively maximising the full value of ADR mechanisms for resolving electoral disputes.
“As we have seen in countries such as the US and India, such judiciary-led effort could inspire aspirants to agree well ahead of the elections to the use of ADR for the final and conclusive resolution of all disputes.
