For infractions and malpractices in the electoral process, political aspirants and their parties are often nudged to go to court for redress. Besides the strict procedural steps that are unique to the election petition from the tribunal to the final court, JOSEPH ONYEKWERE reports that this exercise equally has huge and discouraging financial implications for the applicants.

Until the Labour Party Presidential Campaign Organisation publicly disclosed the amount of money it spent to challenge the outcome of the 2023 Presidential Election, many Nigerians’ idea of election petition cost was limited to conjectures.

This is because Nigerian political parties do not have the culture of publicly disclosing their campaign expenditures.

Therefore, it was alarming for many to learn that the LP spent N744.5 million to prosecute only the presidential litigation.

The chairman of the fundraising team of the campaign organisation, Aisha Yesufu, said that the figure was used to pursue the case from start to finish. Although the other parties have not disclosed theirs, and do not seem to be interested in doing so, it is reasonable to infer that it would be far more, considering that the bigger parties – the Peoples Democratic Party (PDP), and the All Progressive Congress (APC), and their candidates are heavy spenders and have the resources too.

The Guardian learnt that the minimum amount needed by a governorship candidate to prosecute an election petition from start to finish is N500 million.

Also, for the Senate, the minimum figure is put at N50 million, while that of the House of Representatives is pegged at N30 million. State legislators spend a minimum of N15 million to retain or attempt to reclaim contested mandates. There is no maximum chargeable fee on any of the categories as such depends on the calibre of lawyers involved.

These humongous figures imply that as long as free, fair and credible elections remain a mirage in the country, moneybags would continue to dominate the political landscape either as godfathers or as aspirants.

This development also makes election seasons attractive for election petition lawyers, who not only exploit the desperation of politicians to smile to the banks, but jostle among themselves to land the big briefs, and select their teams.

According to lawyers, a lot of factors are responsible for the significant costs attached to the process. They range from procedural costs, the sui generis (class of its own) nature of election petitions, and the burden of technicalities involved.
The journey from the tribunal to the final court is not only procedurally stringent, but also carries significant financial implications.

At the outset, petitioners are required to deposit a security for costs. This is a monetary guarantee to cover potential expenses that may arise during the litigation process.

For instance, the Election Judicial Proceedings Practice Directions 2022, mandates a deposit of N500,000 by the petitioner to the Tribunal or Court of Appeal.

The election petition process begins at the Election Tribunal, where initial hearings and judgments take place. If the outcome is unsatisfactory, the petitioner can appeal to the Court of Appeal, where it terminates for some offices. In the case of the presidential election, the Appeal Court serves as the first instance, and any further appeal is directed to the Supreme Court. The entire process is time-bound, with the Tribunal level allowing up to 180 days, and the Appeal level (Supreme Court in the case of presidential elections) permitting only 60 days.

It is also important to note that election petitions are considered sui generis owing to their sensitive and time-sensitive nature. This uniqueness is reflected in the strict adherence to procedural rules and timelines. Any deviation or procedural error can be fatal to the case, potentially leading to its dismissal. Therefore, the technicality of electoral dispute litigation is fueled by the strict requirements of the Electoral Act, coupled with judicial attitudes over the years.

The complex and technical nature of election petitions is largely responsible for the failure of election tribunals and courts to address the grievances of litigants, despite efforts at resolving such election disputes.

Reacting to the issue, a Professor of Comparative Constitutional Law and Governance, Edoba Omoregie (SAN) agreed that litigation costs are not cheap because of the enormous professional rigour required to put court processes together and the demand of time and energy required to do so. Preparing court processes, he said, can take days of non-stop attention from the start till whenever the task is accomplished.

He noted that many hands are also required to do it, both professional hands of lawyers and the exertion of secretariat staff as well as many other supporting staff.

“A party seeking to institute a pre-election matter has only 14 days from the day of occurrence of the cause of action to prepare and file his case. Otherwise, the case will be constitutionally barred and cannot be litigated anymore.

“If the case is filed within the limited time, it must be concluded within a maximum period of 180 days; and thereafter 60 days at the Court of Appeal and 60 days at the Supreme Court. All these put enormous pressure on the professional time of lawyers involved in the case. Inevitably, the cost of litigation will be even higher than regular litigation costs.

“This is also true of post-election litigation by way of election petitions from tribunal to appeals. This is why some of us have advocated that we must find a way to avoid what I regard as judicialisation politics in our country.

Politicians must be advised to cultivate the spirit of sportsmanship by accepting the outcome of the electoral process, especially those within their political parties. That will substantially reduce the cost of pre-election litigation,” he advised.

As for post-election litigation, he charged the political class to make a credible commitment to free and fair elections to avoid the incessant complaints of electoral irregularities and fraud leading to election petitions.

Losing candidates, he advised, may also take their defeat in good faith instead of running to court to challenge election outcomes even when they have limited chances of success.

According to him, election results, whether resulting from pre-election or general/off-cycle elections should not be considered credible only when preferred aspirants or candidates are declared winners.

For Ibadan, Oyo State-based litigator, Chief Yomi Alliyu (SAN), things are the way they are because election petition cases are distinct and do not happen every day.

According to him, they are quadrennial, hence practitioners, who have developed expertise in that area of law, charge what will sustain them for the four-year waiting period. This, he said, is one of the reasons election petition litigations are very expensive.

His words: “Secondly, no single lawyer, no matter the size of his chambers, can handle an election petition case because of the enormity of the evidence involved and various specialisations required in prosecuting them, especially presidential and governorship elections. These are multi-chamber exercises, like cooperative societies!

“Finally, corrupt judges have infiltrated the tribunals. They fight their presiding Justices where such could not be persuaded by them to recommend them for appointments to Tribunals. Election seasons are business time for such. No matter how you persuade politicians, they will find a way to reach judges. This is why you have inconsistent and contradictory judgments from our courts on election petitions.

“No lawyer today can advise his client with certainty on what the law is in election cases. Courts almost always find ways to rubbish specific dictates of Electoral Acts. The current Electoral Act did away with Omidiran v. Ette with regards to the demonstration of exhibits and frontloading of subpoenaed witnesses. I did the Omidiran case. But courts have overruled the Act and went back to my case.”

Alliyu pointed out that the Electoral Act in reviewing the Amaechi case stated that anybody that did not contest an election should not be declared the winner of that election but regretted that the Supreme Court side-tracked this provision in the consolidated case of Yar’Adua v. Yandoma where it declared parties that never took part in the election in Katsina State as winners of the election into legislative houses.

Many other instances, he said, exist that are nightmares to practitioners, adding that there are cases of human errors on the side of judges that necessitate appeals leading to further expenses on parties.

For an associate at CLP Legal, Emmanuel Jonathan, professional fees are responsible for the bulk of this expense, while statutory and other incidental fees add up to it. Such incidental fees, he said, include facilitation fees to the INEC to reproduce and certify materials used in an election.

He said those are the principal reasons for the high cost of election petitions.

“By Section 4 of the Election Tribunal and Court Practice Directions 2011, the Petitioner has the duty of depositing cost for the service, publication of the petition and certifying the copies of the petition to the tune of N200,000. The petitioner is further mandated to deposit security for costs in the sum of N200,000.

“The professional and facilitation fees necessary to fast-track processes, both at the tribunal and the INEC office, could be on the high side. For the presidential election, since the scope is nationwide, it is easy to imagine that these fees will take on a bloated nature.

“Another responsible factor is the copies of the document in an election petition. The petitioner or his counsel (as is often the case) will present 10 copies of the election petition and the other accompanying documents (including the election materials used in the election being contested) plus such necessary copies of the filed documents according to the number of respondents,” he pointed out.

The implication of those, he stated, is mind-boggling. “For instance, the polling unit sheets for each polling unit relied upon have to be applied for, and certified according to the relevant number of respondents, in addition to the copies already required by the tribunal.

“Once more, the implication for a nationwide electoral challenge is financially heavy as the cost to procure those certified true copies of each of those relevant documents (as many as they are) is telling,” Jonathan declared.

He explained that aside from the already identified fees, there would be appearance fees, which are often used to cater for logistics and lunch.

Jonathan added that by the very nature of the election petition where senior advocates and several juniors appear in court, when the cost of logistics, hotel accommodation, and feeding is computed, the figures would rise.

For human rights lawyer, Festus Ogun, the recurring expenses of litigating election disputes can be traced to the inefficiency of the electoral system.

He wondered why candidates and their political parties would contest every election result, if the process is transparent, efficient, and credible.

“The heavy expenses associated with litigating election disputes will scare away less endowed candidates who are truly desirous of judicial interventions. The way out is for us to have an electoral system that is truly efficient and leaves little or no room for the courts in electing political leaders in Nigeria,” he declared.