Justiciability of Political Party’s Complaint on the Nomination Exercise of Another Political Party 

In the Supreme Court of Nigeria

Holden at Abuja

On Friday, the 12th day of January, 2024

Before Their Lordships

John Inyang Okoro

Uwani Musa Abba Aji

Helen Moronkeji Ogunwumiju

Adamu Jauro

Emmanuel Akomaye Agim

Justices, Supreme Court

SC/CV/1252/2023

Between

1.  HIGH CHIEF IKECHI EMENIKE

2. ALL PROGRESSIVE CONGRESS                    APPELLANTS

And

1. INDEPENDENT NATIONAL ELECTORAL COMMISSION

2. LABOUR PARTY

3. DR ALEX CHIOMA OTTI

4. PEOPLES DEMOCRATIC PARTY

5. CHIEF AMBROSE OKECHUKWU AHIWE

6. YOUNG PROGRESSIVES PARTY

7. HON. CHIMA ENYINNAYA NWAFOR                                  RESPONDENTS

(Lead Judgement delivered by Honourable Uwani Musa Abba Aji, JSC)

Facts

The 1st Appellant together with the 3rd, 5th and 7th Respondent and 15 other candidates contested the election for the office of the Governor of Abia State that held on 18th March, 2023. The 1st Appellant contested as the candidate of the 2nd Appellant. At the end of the election, the 1st Respondent declared the 3rd Respondent, who contested as the 2nd Respondent’s candidate, as the duly elected candidate having attained the majority of lawful votes cast the election, as well as not less than one quarter of the votes cast in each of at least two thirds of the Local Government Areas in Abia State.

Dissatisfied with the declaration and return of the 3rd Respondent as the winner of the said election, the 1st Appellant who came 4th at the election with 24,091 votes, initiated a petition against the 3rd Respondent, the 5th Respondent who came 2nd with 88,529 votes and the 7th Respondent who came 3rd with 28,972 votes. The grounds of the 1st Appellant’s petition were that the 3rd, 5th and 7th Respondent were at the time of the election not qualified to contest the election, and that the 3rd Respondent was not duly elected by the majority of the lawful votes cast at the election.

At the hearing of the petition, the Appellants called three witnesses. The last two witnesses of the Appellants, testified based on a subpoena issued by the Tribunal. The Respondents however, objected to the Appellants’ application for the use of the subpoenaed witnesses’ statements, on the basis that they were not frontloaded with the Appellants’ petition, but filed later on in the course of proceedings. The 2nd and 3rd Respondent also raised preliminary objections that the Election Petition Tribunal lacked the jurisdiction to inquire into the nomination and membership of the 3rd Respondent, and that the Appellants lacked the locus standi to challenge same.

The Tribunal, in its ruling on the preliminary objections, struck out certain offending paragraphs of Appellants’ petition, and their answer to the 3rd Respondent’s reply to the petition. The Tribunal held that Ground 1 of the petition challenging the qualification of the 3rd Respondent was founded on his membership of the 2nd Respondent, over which the Tribunal had no jurisdiction. The Tribunal found that, not being members of the 2nd Respondent, the Appellants had no locus to ventilate that particular grievance. 

Thereafter, in its overall decision on the merits of the Appellants’ petition, the Tribunal held that the witnesses’ statements on oath of the Appellants’ subpoenaed witnesses, not having accompanied the Appellants’ petition were incompetent. The Tribunal disregarded the said witnesses’ statements together with the exhibits referred to by them, and found that the Appellants failed to prove that the 3rd, 5th and 7th Respondent were not qualified to contest the office. The Tribunal further held that the Appellants’ equally failed to prove that the 3rd Respondent was not elected with majority of lawful votes cast at the said Governorship Election, having failed to lead evidence on the same. The Tribunal thus, dismissed the Appellants’ petition. 

Aggrieved, the Appellants filed an appeal at the Court of Appeal. The Court of Appeal however, upheld the finding of the Tribunal and dismissed the Appeal. Thereafter, the Appellants filed a further appeal at the Supreme Court.

 Issues for Determination 

The Supreme Court considered the following issues in its determination of the appeal: 

1. Whether the lower Court’s treatment of the Appellants’ appeal on the issue of competence and locus standi was correct. 

2. Whether the Court of Appeal was right to conclude that the Appellants did not establish that the 3rd, 5th and 7th  Respondent were not qualified to contest the election.

Arguments

Arguing the 1st issue, Counsel for the Appellants argued that the Court of Appeal did not determine the merits of the appeal before it, and the order of the Court of Appeal striking out the Appellants’ appeal against the ruling of the trial Tribunal on the preliminary objection against the petition was perverse as the Court of Appeal was bound by law to determine the merit of the appeal. 

All the counsel for the Respondents argued in opposition that the matters presented in Grounds 1 and 2 of the Notice of Appeal and issue 1 of the Appellants’ issue for determination are academic, and would serve no utilitarian benefit in the just determination of the appeal.

On the 2nd issue, Counsel for the Appellants contended that the pleadings and evidence showed that the Appellants proved on the balance of probability that the 3rd, 5th and 7th Respondent were not qualified to contest election as Governor of Abia State, because they were not validly sponsored by the 2nd, 4th and 6th Respondent by reason of their names not being on the register of members submitted by the 2nd, 4th and 6th Respondent to the 1st Respondent before their respective primary elections, in violation of Section 177(c) of the 1999 Constitution. 

In response, respective Counsel for all the Respondents argued that the basis of the Appellants’ case is outside the contemplation of Section 177(c) of the 1999 Constitution (as amended). They argued further that the Court of Appeal had rightly held that the issue of membership in a political party, cannot be ventilated at an Election Petition Tribunal.

Court’s Judgement and Rationale

On the 1st issue, the Supreme Court held that where the determination of an issue in favour of a party who raised it will not affect the result of the appeal, the issue is of no value and it would be an academic and useless venture. The Court referred to its decision in OKEREKE v NWANKWO (2003) 9 NWLR Pt. 826, Pg. 592. The Court held that the trite principle of law is that an issue that is not crucial in an appeal, and which even if determined in favour of a party may not end the controversy, ought not to be formulated for determination, as it may serve no purpose even if the complaint is upheld in favour of the Appellants. The Apex Court found that even though the Court of Appeal agreed with the finding of the trial Tribunal that the grounds and paragraphs in support of the petition were incompetent, it duly considered the Appellants’ complaint on the decision of the Tribunal on the merits of the petition, when it found that the Tribunal still proceeded to determine the merits of the petition giving consideration to the averments in the paragraphs that were struck out, notwithstanding its ruling that the petition was incompetent. Therefore, contrary to the Appellants’ contention, the Court of Appeal did in fact endorse the holistic consideration of the allegation in the petition by the Tribunal. Both the Tribunal and the Court of Appeal proceeded and considered the issue of locus standi and jurisdiction to entertain the facts on which the issue of qualification was hoisted and determined the same on the merit. 

Deciding the 2nd issue, the Apex Court held that although the law requires political parties to submit their register of members to the 1st Respondent thirty days before their primary elections; there is no such law in existence to the effect that a person’s membership in a party is determined by the presence of his or her name in the Register of Members submitted to the 1st Respondent before the primaries. The Apex Court endorsed the finding of the Court of Appeal that where the challenge is that the candidate was not a member of the political party and was not sponsored by the political party as its candidate in the election for Governor as required by Section 177(c) of the 1999 Constitution, it is a post-election matter; but where the qualification of a candidate for election is predicated on the validity of his nomination by his political party vis-à-vis the provisions of the Electoral Act, it is a pre-election matter which cannot be adjudicated upon by an Election Petition Tribunal.

The Apex Court upheld the findings of the Court of Appeal that it was evident, from the pleadings of the Appellants, that it was not the case of the Appellants that the 2nd Respondent did not nominate the 3rd Respondent or that the 4th and 6th Respondent did not nominate the 5th and 7th Respondent as their respective candidates at the election; their complaint was that the 2nd Respondent and the 4th and 6th Respondent could not have validly done so, because the name of the 3rd Respondent was not contained in the 2nd Respondent’s membership register submitted to the 1st Respondent thirty days before the holding of its primary election, and the names of the 5th and 7th Respondent were also not in the respective register of members submitted by the 4th and 6th Respondent. The Court held that the complaint of the Appellants was thus, a political question which is not justiciable.

Appeal Dismissed.

Representation

Abubakar Malami, SAN with others for the Appellants.

J. O. Adesina, SAN with others for the 1st Respondent.

Tobechukwu Nweke with others for the 2nd Respondent.

Omosanya Popoola with others for the 3rd Respondent.

Udochi Iheneacho with others for the 4th and 5th Respondent.

C. N. Nwigwe with another for the 6th Respondent.

Nnamdi Ahaaiwe with others for the 7th Respondent. 

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