Extent to which Political Party Can Challenge INEC Under Section 285(14)(c) of the Constitution 

In the Supreme Court of Nigeria Holden at Abuja On Friday, the 26th day of May, 2023

Before Their Lordships

John Inyang Okoro Amina Adamu Augie Helen Moronkeji Ogunwumiju

Adamu Jauro Emmanuel Akomaye Agim Justices, Supreme Court

SC/CV/501/2023

Between

Peoples Democratic Party (PDP) … …   Appellant

                                 And

1. Independent National Electrical Commission (INEC)

2. All Progressive Congress (APC)

3. Bola Tinubu

4. Shettima Kashim … … … …    Respondents

(Lead Judgement delivered by Honourable Adamu Jauro, JSC)

Facts

The 4th Respondent, who had earlier been nominated by the 2nd Respondent to contest as Senator representing the Borno Central Senatorial District for the 2023 general elections, was subsequently nominated by the 2nd Respondent to contest as Vice President of the Federal Republic of Nigeria. Hence, the Appellant, on 28th July, 2022, took out an Originating Summons before the Federal High Court, challenging the qualification of the 4th Respondent for the Presidential election of 25th February, 2023. The Appellant raised various questions for determination by the court, and sought inter alia, the following reliefs – (i) a declaration that by virtue of Section 35 of the Electoral Act 2022, the nomination of the 4th Respondent is void, having been nominated in more than one constituency and for positions of Vice President and Senator of the Federal Republic of Nigeria in the 2023 general elections; (ii) A declaration that by the combined provisions of Section 84(1) and (2) of the Electoral Act, a political party seeking to nominate a candidate for all elective positions, including the Vice President, shall conduct primary election and by virtue of Section 33 thereof, a political party shall not be allowed to produce and submit fresh candidate to replace a withdrawn candidate for an election, without conducting a primary election to elect the candidate. The Appellant also sought various mandatory and injunctive orders against the Respondents.

While the Appellant posited that the 4th Respondent was still the 2nd Respondent’s candidate for Borno Central Senatorial District as at 14th July, 2022 when he accepted his nomination as the party’s candidate for the position of Vice President, and only withdrew his nomination for the senatorial position on 15th July, 2022 after accepting the nomination as Vice President, the 2nd to 4th Respondent denied the assertion. They claimed that the 4th Respondent withdrew his candidacy for the senatorial seat, by his letter addressed to the party on 6th July, 2022.

At the trial, the Respondents raised various Preliminary Objections challenging the jurisdiction of the trial court on grounds that – the suit was statute barred; the Appellant lacked the locus standi; the suit did not disclose a reasonable cause of action; abuse of court process, in view of the similar action pending before another Judge of the same court when the suit was filed; the suit was caught by estoppel per rem judicatam, as the earlier suit had been struck out for being incompetent. The Appellant responded to the objection, stating that the nomination of the 4th Respondent is a nullity, hence, time cannot run against the Appellant, and that anyone can file an action to challenge the null and void act. The objection was taken. but the ruling thereon was suspended till delivery of judgement in line with the provisions of Section 285(8) of the Constitution.

In its judgement, the trial court upheld the grounds of the objection. On appeal to the Court of Appeal, the appellate court decided the appeal solely on the issue of locus standi, and dismissed the appeal with costs of N5million  against counsel for the Appellant, and in favour of the 1st Respondent.

Further displeased with the decision, the Appellant appealed to the Supreme Court.

Issue for Determination

The Supreme Court considered the issue of locus standi of the Appellant to institute the action, as germane for the determination of the appeal. All the parties couched their issue on this point differently, with the Appellant’s issue formulated thus:

Whether upon a proper appraisal of the provisions of Section 285(14)(c) of the 1999 Constitution and Section 149 of the Electoral Act 2022, the lower courts were right to hold that by virtue of Section 84(14) of the Electoral Act, the Appellant has no locus standi to challenge the failure of the 1st Respondent (INEC) to apply the mandatory provisions of Section 35 of the Act, following its breach by the 4th Respondent.

Arguments

Counsel for the Appellant submitted that the decision of the lower courts were perverse, and invited the Supreme Court to interfere with the decisions on the authority of – ILA ENTERPRISES LTD v UMAR ALI & CO. LTD (2022) LPELR-59076 (SC), among others. He argued that the Appellant demonstrated its locus standi by the questions submitted for determination in the Originating Summons, and averments in the affidavit in its support. He emphasised that the provisions of the Electoral Act were not complied with, in respect of the nomination of the 4th Respondent as Vice Presidential candidate of the 2nd Respondent. Counsel submitted that Section 285(14)(c) of the Constitution vests the Appellant with the locus standi to challenge non-compliance with the provisions of the Electoral Act by INEC in the nomination of political parties as the clause – “nomination of candidates of political parties for an election” used in the referenced Section of the Constitution, is wide enough to accommodate the suit filed by the Appellant. Counsel also distinguished the present case from the case of PDP v NGBOR & ORS (2023) LPELR-59930 (SC), decided earlier by the Apex Court, stating that the case dealt with the internal affairs of political parties or the conduct of primaries, and are therefore, not applicable to the instant appeal. Counsel argued that to hold that the Appellant lacks locus standi, would amount to permitting the 4th Respondent to benefit from his illegality.

Countering the submission, counsel for the 1st Respondent argued that its role is that of an unbiased umpire who cannot dictate to the 2nd Respondent how to conduct its internal affairs, and that the Appellant lacks locus standi to meddle in the internal affairs of the 2nd Respondent. Responding to the submissions, the Appellant argued that while the 1st Respondent is expected to be neutral, it cannot fold its hands and do nothing where the provisions of the law have been breached, as in this instance.

For the 2nd,  3rd and 4th Respondent, it was argued that contrary to the submission of the Appellant, the suit is not against the 1st Respondent, but against the nomination of the candidate of the 2nd Respondent, which the Appellant lacked the locus standi to challenge, as the suit constituted an interference with the internal affairs of the 2nd Respondent, which the Appellant cannot hide under Section 285(14)(c) of the Constitution to meddle in. This is a preserve for an aspirant. who participated in the primaries of a political party – PDP v LAWAL (2022) LPELR – 59728 (SC).

Court’s Judgement and Rationale

The Apex Court emphasised the importance of the issue of locus standi, describing it as a threshold issue. A Plaintiff’s locus standi is inextricably linked with the jurisdiction of the court; once a Plaintiff lacks locus, the court is also bereft of jurisdiction – AKANDE v JEGEDE (2022) 14 NWLR (Pt. 1849) 125. A Plaintiff in an action must demonstrate, to the satisfaction of the court, that his civil rights and obligations have been or are in danger of being infringed. He must show that there is a nexus between his suit, and the conduct of the Defendant(s). A Plaintiff must show sufficient connection to, and harm or potential harm or damage from the action complained of. 

The Supreme Court referred to various decisions of the court, where the provisions of Section 84(14) of the Electoral Act, 2022 and its predecessor, Section 87(9) of the Electoral Act 2010 (as amended) have been interpreted by the Apex Court, and its consistency in holding that only an aspirant who participated in the primary election of a political party can institute an action pursuant to Section 84(14) of the Act. It follows that, for a Plaintiff to have locus standi to challenge the nomination of a candidate of a political party, he must be a member of the party in question, and he must be an aspirant who actually participated in the primary election leading to the nomination of the party’s candidate – WAZIRI v PDP (2023) 7 NWLR (Pt. 1882) 57. The Appellant, not being a member of the 2nd Respondent or a person who participated in the nomination process leading to the emergence of the 4th Respondent, lacks locus under Section 84(14) of the Electoral Act.

Regarding the provisions of Section 285(14)(c) of the 1999 Constitution which empowers a political party to institute pre-election matter, the court held that Section 285(14(c) of the Constitution only empowers a political party to challenge the actions of INEC; anything outside this is beyond the scope of the provision. This notwithstanding, the applicability of the said provision is circumscribed. It is not the purpose of the provision that a floodgate of pre-election litigation be opened to political parties, who will hide under it to challenge the actions or inactions of rival political parties under the guise of challenging the decisions or activities of INEC. The application of Section 285(14)(c), does not extend to a political party poking into the affairs of another. The settled position of law remains that a political party cannot challenge the nomination of the candidate of another political party, and this did not change with the provisions of Section 285(14)(c) of the Constitution. A political party equally lacks the locus standi to challenge the actions of INEC, in relation to another political party. Section 285(14)(c) only allows a political party to challenge the actions of INEC disqualifying its own candidate from participating in an election, or to complain that the provisions of the Electoral Act or any other law have not been complied with, in respect of the nomination of the party’s candidates, timetable for an election, registration of voters and other activities of INEC. in respect of preparation for an election. The Appellant failed to disclose any nexus between the actions of the Respondents and its suit, as well as the harm it has suffered, or that it potentially stands to suffer from the actions complained of, to have locus standi to institute the suit.

On the issue of whether the lower courts decided the case on its merits, the court held that the lower courts did not decide the case on its merits; hence, the Supreme Court can only decide the suit on its merits by invoking its powers under Section 22 of the Supreme Court Act. However, for the Supreme Court to invoke and exercise its powers thereunder, one of the conditions that must be fulfilled is that the court below or the trial court, as the case may be, must have the jurisdiction to adjudicate over the matter – DANLADI v UDI (2022) 9 NWLR (Pt. 1834) 185.

By Section 285(10) and (12) of the Constitution, a pre-election matter and an appeal emanating therefrom, must be concluded within 180 days and 60 days respectively. The Appellant’s suit was filed on 28th July, 2022 while the appeal was filed on 26th January, 2023. Given the clear provisions of the law, both the 180 days for conclusion at the trial court, and the 60 days for determination of the appeal have lapsed. Thus, the jurisdictional competence of both the trial court and the Court of Appeal have ceased, and the Supreme Court no longer has the power to delve into the merits of the appeal.

Regarding the issue of costs awarded against counsel for the Appellant at the Court of Appeal, the court found that the Appellant did not place before the court any tenable reason for interference with the order of court.

Appeal Dismissed with Costs.

Representation

Mr. Joe Agi, SAN; Prof Mike Ozekhome, SAN; with Omokayode A. Dada, Esq.; J.O. Olotu, Esq. and Douglas Ondor, Esq. for the Appellant.

Adebiyi Adetosoye, Esq. with Isaac Idota, Esq. for the 1st Respondent.

Mr. Babatunde Ogala, SAN with Gbenga Benson, Esq. and Julius Ishola, Esq. for the 2nd Respondent.

Omosanya Popoola, Esq. for the 3rd Respondent

Oluronke Adeyemi, Esq. with Thomas Ojo, Esq. for the 4th Respondent.

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR)An Affiliate of Babalakin & Co.