Section 138
Person elected to remain in office pending determination of appeal(1) Where the election is nullified by the Court and notice of appeal against the decision is given within the stipulated period for appeal, the elected candidate shall, notwithstanding the contrary decision of the Court, remain in office and enjoy all the benefits that accrued to the office pending the determination of the appeal and shall not be sanctioned for the benefits derived while in office.
(2) If the Election Tribunal or the Court, as the case maybe, determines that a candidate returned as elected was not validly elected, the candidate returned as elected shall, notwithstanding the contrary decision of the Election Tribunal or the Court, remain in office pending the expiration of the period of 21 days within which an appeal may be brought.
This section seeks to protect the Constitutional right of appeal and prevent forceful taking over of an elective office by the winner of an Election Petition during the pendency or subsistence of the period of an appeal. It also addresses the contention over whether elected persons who lose their seat following an election petition should return accrued benefits by specifically providing that they should not be sanctioned for such benefits.
The Section empowers a person whose Election has been upheld by the Judgment of a trial Tribunal or Court to continue to occupy the office and enjoy all the benefit of such office until the determination of the appeal or period allowed for the filing of an appeal under the Electoral Act, 2022.
HDP V. OBI (2011) 18 NWLR (PT. 1273) 80 at 102
