Section 136
Nullification of election by Tribunal or Court(1) Subject to subsections (2) and (3), if the Tribunal or the Court as the case may be, determines that a candidate who was returned as elected was not validly elected on any ground, the Tribunal or Court shall nullify the election and order the Commission to conduct a fresh election not later than 90 days after the—
(a) decision if an appeal is not filed against the decision; or
(b) nullification of the election by the court having final appellate jurisdiction in respect of the said election.
(2) Where an election tribunal or court nullifies an election on the ground that the person who obtained the highest votes at the election was not qualified to contest the election, the election tribunal or court shall declare the person with the second highest number of valid votes cast at the election who satisfies the requirements of the Constitution and this Act as duly elected:
Provided that the person with the second highest number of valid votes cast at the election remains a member of the political party on which platform he contested the election otherwise, the candidate with the next highest number of votes in the election and who satisfies the same conditions shall be declared the winner of the election.
Cap. C23 LFN, 2004.(3) If the tribunal or the court determines that a candidate who was returned as elected was not validly elected on the ground that he did not score the majority of valid votes cast at the election, the election tribunal or the Court, as the case may be, shall declare as elected the candidate who scored the highest number of valid votes cast at the election and satisfied the requirements of the Constitution and this Act.
Cap. C23 LFN, 2004.(4) All objections filed in an election petition shall be determined at the time of final judgment.
The Section regulates and specifies the nature of the final order an Election Tribunal or Court should make in its Judgment at the conclusion of hearing of a Petition depending on the ground (s) upon which an Election Petition is brought under Section 134 of the Electoral Act and the finding of the Court/Tribunal.
By outlining the orders the courts can make, this Section seeks to prevent an abuse of exercise of discretionary powers by an Election Tribunal or Court after hearing an Election Petition.
It also puts an onus on political parties to ensure that their candidates meet the required qualification threshold, otherwise it can cost them their election victory in the courts.
where the winner was not validly elected on any ground - subsection (1):
Election Tribunal or Court to nullify an election if it finds that a candidate returned as elected was not validly elected on any ground. It shall also order INEC to conduct a fresh election not later than ninety (90) days after the decision except an appeal is filed against the decision.
non-qualification of the declared winner – subsection (2):
where a Tribunal/Court nullifies an election on the ground that the person who obtained the highest votes at the election was not qualified to contest the election, it shall declare the person with the second highest number of valid votes the winner, but on the condition that this person has (1) satisfied relevant legal requirements and (2) has not decamped to another party.
If he/she has decamped, then the winner will be the person with the next highest votes wo satisfies (1) and (2) aforesaid.
(Note: the repealed 2010 Act specifically prohibited a runner up from being declared winner and asked for fresh election instead.)
where a declared winner did not receive majority of the valid votes cast - subsection (3):
where a party who petitions an election on the ground that the person that has been declared the winner did not win by majority
of lawful votes cast is able to prove that he/she won the election by majority of the lawful votes cast,
the Tribunal or Court is empowered to declare such person the winner of the election. If none of the candidates satisfies the
requirements to be returned elected, the court or tribunal shall order INEC to conduct fresh election. See EJIOGU V. IRONA (2009) 4 NWLR (PT. 1132) 513.
Note: New provision in subsection (4) which provides that all objections filed in an election petition shall be determined at the time of final judgment aims to promote speedy dispensation of justice.
On nullification of Election by a tribunal
LP V. ONWUEGBU BEFFORD ANAYO & 3 ORS. (CA/E/EP/HR/07/2023) (Unreported)
The Court of Appeal held that the Tribunal correctly applied section 136 (2) of the Electoral Act which says that where an election is nullified on the
ground that the winner was not qualified to contest, the person who scored the second highest votes shall be declared winner
ENGR. JOHNCROSS ENYIVIGBO & LP V. HON. EZEANI EZENTA UGOCHUKWU & ORS. (CA/E/EP/SHA/EN/25/2023)(Unreported) Per Mustapha, JCA @ pg 16-17.
In this case, the Court of Appeal endorsed the Judgement of the Tribunal which nullified the election of the Appellant in line with its powers
set out in Section 136 of the Electoral Act.
OYETOLA V. ADELEKE & ORS (2019) LPELR-47529(CA)
UDEAGA & ANOR V. OMEGARA & ORS (2010) LPELR-3856(CA)
