Legalpedia Citation: (2023-05) Legalpedia 34204 (SC)

In the Supreme Court of Nigeria

Fri May 26, 2023

Suit Number: SC.CV/501/2023

CORAM

JOHN INYANG OKORO JUSTICE OF THE SUPREME COURT OF NIGERIA

AMINA ADAMU AUGIE JUSTICE OF THE SUPREME COURT OF NIGERIA

HELEN MORONKEJI OGUNWUMIJU JUSTICE OF THE SUPREME COURT OF NIGERIA

ADAMU JAURO JUSTICE OF THE SUPREME COURT OF NIGERIA

EMMANUEL AKOMAYE AGIM JUSTICE OF THE SUPREME COURT OF NIGERIA

PARTIES

PEOPLES DEMOCRATIC PARTY (PDP) APPELANT(S)

APPELLANTS

1. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
2. ALL PROGRESSIVES CONGRESS (APC)
3. BOLA TINUBU
4. SHETTIMA KASHIM RESPONDENT(S)

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, ELECTION, EVIDENCE, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The Appellant was challenging the qualification of the 4th Respondent on the ground that he allowed himself to be nominated in more than one constituency ahead of the 2023 Presidential election. The 4th Respondent was alleged to still be 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 of the Federal Republic of Nigeria. He was alleged to have withdrawn his nomination as candidate of the 2nd Respondent for Borno Central Senatorial District on 15th July, 2022, after he had already accepted his nomination for the position of Vice President. This claim was denied by the 2nd – 4th Respondents who stated that the 4th Respondent withdrew his candidacy as the 2nd Respondent’s Senatorial candidate by his letter addressed to the party on 6th July, 2022.

All the Respondents challenged the trial Court’s jurisdiction on the grounds that the suit was statute barred, the Appellant lacked locus standi, the suit did not disclose a reasonable cause of action and that it constituted an abuse of Court process as a similar suit was pending before another Judge of the same Court, D.U. Okorowo, J, when it was filed.

In the judgment, the learned trial Judge upheld the objections of the Respondents on abuse of Court process, estoppel, lack of locus standi and lack of reasonable cause of action. The suit was consequently struck out.

The lower Court decided the appeal on the issue of locus standi only. The decision of the lower Court was in line with the trial Court’s decision. The Court also held that since the 4th Respondent was never an aspirant for the position of Vice President, the case of NWOSU V. APP (supra) is inapplicable as the Appellant therein was an aspirant in the primary elections of more than one political party. The Court awarded costs of N5 million against the Appellant’s counsel in favour of the 1st Respondent.

The Appellant was displeased by the lower Court’s decision and has instituted the instant appeal.

HELD

Appeal dismissed

ISSUES

Ø Whether upon a proper appraisal of the provisions of Section 285(14)(c) of the 1999 Constitution of the Federal Republic of Nigeria 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 2022, 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 Electoral Act 2022 following its breach by the 4th Respondent?

RATIONES DECIDENDI

LOCUS STANDI – MEANING OF LOCUS STANDI – LOCUS STANDI AND JURISDICTION OF COURTS

The term locus standi is a Latin term which translates to “place to stand”. It refers to the legal right of a person, natural or artificial, to file a suit. It is sometimes used interchangeably with terms like “standing”, “standing to sue” and “title to sue”. Unquestionably, the issue of locus standi is a threshold issue, and in order for a Court to have jurisdiction, the Plaintiff must have locus standi to commence or file the action. Put differently, if a Plaintiff lacks the legal right to institute an action, no Court will in turn have the power or competence or jurisdiction to entertain the suit. A Plaintiff’s locus standi is inextricably linked with the jurisdiction of the Court as once a Plaintiff lacks locus, the Court is also bereft of jurisdiction. See AKANDE V. JEGEDE (2022) 14 NWLR (PT. 1849) 125, AJAYI V. ADEBIYI (2012) 11 NWLR (PT. 1310) 137, B.M.LTD. V. WOERMANN-LINE (2009) 13 NWLR (PT. 1157) 149.

A Court is said to be competent to exercise jurisdiction over a suit when the following are present:

1. It is properly constituted as regards members and qualification of the members of the bench and no member is disqualified for one reason or another.

2. The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and

3. The case comes before the Court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction.

See MADUKOLU V. NKEMDILIM (1962) 2 SCNLR 341, O’BAU ENGINEERING LTD V. ALMASOL (NIG.) LTD (2022) LPELR – 57985 (SC), PETROLEUM (SPECIAL) TRUST FUND V. FIDELITY BANK & ORS (2021) LPELR – 56625 (SC), ENEH V. NDIC & ORS (2018) LPELR – 44902 (SC), JAMES V. INEC & ORS (2015) LPELR – 24494 (SC).

Lack of locus standi on the part of the Plaintiff in a suit is a feature that robs any Court of jurisdiction to entertain the suit before it.

In order to have locus standi to sue in an action, a Plaintiff must show, 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.

It has been held that the tests for determining whether a person has locus to institute an action are that:

(a) The action must be justiciable; and

(b) There must be a dispute between the parties.

See ANOZIA V. A.-G., LAGOS STATE (2023) 2 NWLR (PT. 1869) 545, BARBUS AND CO. (NIG.) LTD. V. OKAFOR- UDEJI (2018) 11 NWLR (PT. 1630) 298, B.B. APUGO & SONS LTD VS. O.H.M.B. (2016) 13 NWLR (PT. 1529) 206.

The pertinent questions to consider here are: has the Appellant who was the Plaintiff been able to show sufficient nexus between itself and the purported actions of the Respondents? Has the Appellant been able to demonstrate that its civil rights and obligations have been or are in danger of being infringed? Has the Appellant been able to show that the purported actions of the Respondents have harmed it or stand to potentially harm it? Is the Appellant’s suit justiciable? Is there a dispute between the Appellant and the Respondents? – Per Adamu Jauro, JSC

PRE-ELECTION MATTER – MEANING OF PRE-ELECTION MATTER – THE RIGHT OF POLITICAL PARTIES TO CHALLENGE THE ACTIONS OF INEC IN ELECTION AND PRE-ELECTION MATTERS

Section 285(14) of the Constitution defines pre- election matter. It provides thus:

“For the purpose of this section, “pre-election matter” means any suit by –

(a) an aspirant who complains that any of the provisions of the Electoral Act or any Act of the National Assembly regulating the conduct of primaries of political parties and the provisions of the guidelines of a political party for conduct of party primaries has not been complied with by a political party in respect of the selection or nomination of candidates for an election;

(b) an aspirant challenging the actions, decisions or activities of the Independent National Electoral Commission in respect of his participation in an election or who complains that the provisions of the Electoral Act or any Act of the National Assembly regulating elections in Nigeria has not been complied with by the Independent National Electoral Commission in respect of the selection or nomination of candidates and participation in an election; and

(c) a political party challenging the actions, decisions or activities of the Independent National Electoral Commission disqualifying its candidate from participating in an election or a complaint that the provisions of the Electoral Act or any other applicable law has not been complied with by the Independent National Electoral Commission in respect of the nomination of candidates of political parties for an election, timetable for an election, registration of voters and other activities of the Commission in respect of preparation for an election.”

It is obvious from the provisions reproduced above that, similar to Section 84(4) of the Electoral Act, paragraphs (a) and (b) of the subsection only empowers an aspirant to institute a pre-election matter. Paragraph (c) of Section 285(4) of the Constitution is however the only provision that empowers a political party to institute a pre-election matter. The Appellant has latched on to the provision and argued strenuously that it vests it with locus standi to institute its case before the trial Court.

It should be noted that by the use of the words “…decisions or activities of the Independent National Electoral Commission paragraph… ” and “…or any other applicable law has not been complied with by the Independent National Electoral Commission…”, paragraph (c) only empowers a political party to challenge the actions of INEC. Anything outside this is beyond the scope of the provision of the paragraph. Notwithstanding the foregoing, the applicability of Section 285(14)(c) is not at large. The provision does not make the filing of pre-election matters by political parties an all-comers affair. It is not the purpose of the provision that a floodgate of pre-election litigation be open 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) of the Constitution does not extend to a political party poking into the affairs of another.

The position of the law has always been that no political party can challenge the nomination of the candidate of another political party. The position did not change with Section 285(14)(c) of the Constitution. No matter how pained or disgruntled a political party is with the way and manner another political is conducting or has conducted its affairs concerning its nomination of its candidates for any position, it must keep num and remain an onlooker, for it lacks the locus standi to challenge such nomination in Court. 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 decisions and activities 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 own candidates, timetable for an election, registration of voters and other activities of INEC in respect of preparation for an election. A political party is only vested with locus to file a pre-election matter when the aforesaid situations affects it or its own candidates. When the actions of INEC relate to the activities of a political party, no Court has the jurisdiction to entertain a suit brought by another political party in that regard.

The decision of this Court in the case of PDP V. NGBOR & ORS (2023) LPELR – 59930 (SC), delivered on 7th February, 2023 is instructive…

In dismissing the appeal and affirming the judgment of the Court of Appeal, it was held that Section 285(14)(c) of the Constitution does not permit a political party to interfere in the internal affairs of another. My Lord Ogunwumiju, JSC elucidated on the extent of Section 285(14)(c) of the Constitution thus:

“While Section 285(14)(c) talks about how the political party can challenge the decision of INEC, it relates to any decision of INEC directly against the interest of that political party. It cannot be stretched to include the inactions/actions of INEC in respect of nomination for an election by another political party. So, pre-election and election matters are governed by laws made specially to regulate proceedings. See NWAOGU v. INEC (2008) LPELR 4644, SA’AD v. MAIFATA (2008) LPELR – 4915. In this case, the 2nd Appellant has absolutely no cause of action since the party purportedly in violation of the Electoral Act is not his party. In the case of the political party, no other interpretation can be given to the provision than that the political party has a right of action against INEC where it rejects the nomination of its candidates, where it proposes unsuitable timetable or its registration of voters or register of voters or other activities of INEC are against the interest of that political* party. Section 285(14) (c) cannot extend to challenge INEC’s conduct in relation to another political party irrespective of whether such conduct by the other party is wrongful or unlawful. Section 285(14)(c) cannot clothe a party with the locus to dabble into INEC’s treatment or conduct in respect of another political party. No matter how manifestly unlawful an action is, it is the person with the locus standi to sue who can challenge it in a Court of law. See Suit SC/CV/1628/2022 – APC & ANOR v. INEC & ORS delivered on 3/2/23.”

It is therefore abundantly clear that a political party that files a suit to challenge the nomination of the candidate of another party will be a nosy busybody, a meddlesome interloper, peeping into the affairs of his neighbour without any backing in law. No Court of law can entertain such a suit. – Per Adamu Jauro, JSC

PRE-ELECTION MATTER – MEANING OF PRE-ELECTION MATTER – THE RIGHT OF POLITICAL PARTIES TO CHALLENGE THE ACTIONS OF INEC IN ELECTION AND PRE-ELECTION MATTERS

“Section 285(14) of the Constitution defines pre-election matter. It provides thus: “For the purpose of this section, “pre-election matter” means any suit by –

(a) an aspirant who complains that any of the provisions of the Electoral Act or any Act of the National Assembly regulating the conduct of primaries of political parties and the provisions of the guidelines of a political party for conduct of party primaries has not been complied with by a political party in respect of the selection or nomination of candidates for an election;

(b) an aspirant challenging the actions, decisions or activities of the Independent National Electoral Commission in respect of his participation in an election or who complains that the provisions of the Electoral Act or any Act of the National Assembly regulating elections in Nigeria has not been complied with by the Independent National Electoral Commission in respect of the selection or nomination of candidates and participation in an election; and

(c) a political party challenging the actions, decisions or activities of the Independent National Electoral Commission disqualifying its candidate from participating in an election or a complaint that the provisions of the Electoral Act or any other applicable law has not been complied with by the Independent National Electoral Commission in respect of the nomination of candidates of political parties for an election, timetable for an election, registration of voters and other activities of the Commission in respect of preparation for an election.”

It is obvious from the provisions reproduced above that, similar to Section 84(4) of the ElectoralAct, paragraphs (a) and (b) of the subsection only empowers an aspirant to institute a pre-election matter. Paragraph (c) of Section 285(4) of the Constitution is however the only provision that empowers a political party to institute a pre-election matter. The Appellant has latched on to the provision and argued strenuously that it vests it with locus standi to institute its case before the trial Court.

It should be noted that by the use of the words “…decisions or activities of the Independent National Electoral Commission paragraph… ” and “…or any other applicable law has not been complied with by the Independent National Electoral Commission…”, paragraph (c) only empowers a political party to challenge the actions of INEC. Anything outside this is beyond the scope of the provision of the paragraph. Notwithstanding the foregoing, the applicability of Section 285(14)(c) is not at large. The provision does not make the filing of pre-election matters by political parties an all-comers affair. It is not the purpose of the provision that a floodgate of pre-election litigation be open 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) of the Constitution does not extend to a political party poking into the affairs of another.

The position of the law has always been that no political party can challenge the nomination of the candidate of another political party. The position did not change with Section 285(14)(c) of the Constitution. No matter how pained or disgruntled a political party is with the way and manner another political is conducting or has conducted its affairs concerning its nomination of its candidates for any position, it must keep num and remain an onlooker, for it lacks the locus standi to challenge such nomination in Court. 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 decisions and activities 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 own candidates, timetable for an election, registration of voters and other activities of INEC in respect of preparation for an election. A political party is only vested with locus to file a pre-election matter when the aforesaid situations affects it or its own candidates. When the actions of INEC relate to the activities of a political party, no Court has the jurisdiction to entertain a suit brought by another political party in that regard.

The decision of this Court in the case of PDP V. NGBOR & ORS (2023) LPELR – 59930 (SC), delivered on 7th February, 2023 is instructive…

In dismissing the appeal and affirming the judgment of the Court of Appeal, it was held that Section 285(14)(c) of the Constitution does not permit a political party to interfere in the internal affairs of another. My Lord Ogunwumiju, JSC elucidated on the extent of Section 285(14)(c) of the Constitution thus:

“While Section 285(14)(c) talks about how the political party can challenge the decision of INEC, it relates to any decision of INEC directly against the interest of that political party. It cannot be stretched to include the inactions/actions of INEC in respect of nomination for an election by another political party. So, pre-election and election matters are governed by laws made specially to regulate proceedings. See NWAOGU v. INEC (2008) LPELR 4644, SA’AD v. MAIFATA

(2008) LPELR – 4915. In this case, the 2nd Appellant has absolutely no cause of action since the party purportedly in violation of the Electoral Act is not his party. In the case of the political party, no other interpretation can be given to the provision than that the political party has a right of action against INEC where it rejects the nomination of its candidates, where it proposes unsuitable timetable or its registration of voters or register of voters or other activities of INEC are against the interest of that political* party. Section 285(14) (c) cannot extend to challenge INEC’s conduct in relation to another political party irrespective of whether such conduct by the other party is wrongful or unlawful. Section 285(14)(c) cannot clothe a party with the locus to dabble into INEC’s treatment or conduct in respect of another political party. No matter how manifestly unlawful an action is, it is the person with the locus standi to sue who can challenge it in a Court of law. See Suit SC/CV/1628/2022 – APC & ANOR v. INEC & ORS delivered on 3/2/23.”

It is therefore abundantly clear that a political party that files a suit to challenge the nomination of the candidate of another party will be a nosy busybody, a meddlesome interloper, peeping into the affairs of his neighbour without any backing in law. No Court of law can entertain such a suit. – Per Adamu Jauro, JSC”

PRE-ELECTION MATTERS – TIME LIMIT FOR DETERMINATION OF PRE-ELECTION MATTERS AND ITS EFFECT ON JURISDICTION OF APPELLATE COURTS

Section 285(10) and (12) of the Constitution respectively provide for the time limit for determination of a pre-election matter and an appeal emanating therefrom. They are reproduced hereunder:

“(10) A Court in every pre-election matter shall deliver its judgment in writing within 180 days from the date of filing of the suit.

(12) An appeal from a decision of a Court in a pre-election matter shall be heard and disposed of within 60 days from the date of filing of the appeal.” Now, if this Court is to consider the merit of the suit, it will only be able to do so by invoking its power to step into the shoes of the trial Court under Section 22 of the Supreme Court Act. For this Court to invoke and exercise its powers under Section 22 of the Supreme Court Act, 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 power or jurisdiction to adjudicate over the matter. In other words, under Section 22 of the Supreme Court Act, this Court cannot make an order or exercise the power that the trial Court or the lower Court cannot make or exercise. See DANLADI V. UDI (2022) 9 NWLR (PT. 1834) 185, EBEBI V. OZOBO (2022) 1 NWLR (PT. 1810) 165, IDIAGBON V. A.P.C.

(2019) 18 NWLR (PT. 1703) 102, ARDO V. INEC (2017) 13 NWLR (PT. 1583) 450, ADAMU V. STATE (2017) 10 NWLR (PT. 1574) 463. While this Court is conferred with wide powers by Section 22 of the Supreme Court Act, the powers can only be exercised within the confines of the competence of the trial Court or the lower Court. Once the power of the Court has ceased, the power of this Court under Section 22 of the Supreme Court Act also automatically ceases. Hence, this Court has no power to delve into the merits of the appeal. A similar issue came up for determination in two recent decisions of this Court, and it was held that this Court cannot exercise its jurisdiction under Section 22 of the Supreme Court Act once the trial Court or the lower Court as the case may be has lost its own jurisdiction. See SAMUEL V. APC & ORS (2023) LPELR – 59831 (SC), EZENWANKWO v. APGA & ORS (2022) LPELR – 57884 (SC). – Per Adamu Jauro, JSC

COURTS – DUTY OF THE SUPREME COURT TO STOP INCOMPETENT ACTIONS AND APPEALS

This Court is a policy Court and it has a responsibility of ensuring that vexatious or manifestly incompetent appeals and actions are not brought before it or before any Court at all. The Supreme Court as an institution must strongly stand against and discourage the filing of suits that ridicule the judiciary as a whole. – Per Adamu Jauro, JSC

COURTS – DUTY OF THE COURTS IN DECIDING CASES

Let me emphasize here, and it is important to always bear in mind that the decision of a Court must always be considered in the light of its own peculiar facts and circumstances. No one case is identical to another though they may be similar. Thus, each case is only an authority for what it decides. It cannot be applied across the board. The case of Nwosu (supra) is different in all respects from the instant appeal and cannot be applied without more. See Skye Bank Plc & Anor Vs. Chief Moses Bolanle Akinpelu(2010) 9 NWLR (Pt. 1198), Okafor vs. Nnaife (1987)4 NWLR (Pt.64)129, Peoples Democratic Party vs. INEC ​ (2018) LPELR-44373 (SC). – Per J. I. Okoro, JSC

JUDICIAL AUTHORITIES – FACTS AND CIRCUMSTANCES DETERMINE JUDICIAL AUTHORITIES TO BE CITED BY COUNSEL

This principle is time-tested to the extent that it has assumed a sacred and inviolable status. In Siry v. Pilot (1625) Popham 166, a 398 years old case, Crewe, CJ, enthused that – “in our law every case hath its stand or fall from a particular reason or circumstance”. 342 years ago, Sir F. Pemberton reiterated the principle in L. C.J, Fitzharris’ case (1681) 8 How. Tr. 280 that – “every case stands upon its own bottom”, and in Fisher v. Prince (1763) 3 Burr. 1364, Lord Mansfield, who spoke 260 years ago, very aptly held in that case that “the reason and spirit of cases make law; not the letter of particular precedents”.

It is an age-old principle that it is the facts and circumstances of each case that determine judicial authorities that Counsel ought to cite in support of their argument – Adegoke Motors v. Adesanya (1989) 3 NWLR (109) 250, S.A.P. Ltd v. Min., Petroleum Resources (2018) 6 NWLR (Pt. 1616) 391.

In Nigeria, Oputa, JSC embossed the following evergreen restatement of the law when he stated in Okafor V. Nnaife (1987) 4 NWLR (Pt.64) 129 that: “Justice and fairness – – demand that the ratio of any case should not be pulled in by the hair of the head and made willy nilly to apply to cases where the surrounding circumstances are different.” – Per A. A. Augie, JSC

COURTS – DUTY OF THE SUPREME COURT IN DETERMINING ISSUES OR MAKING POLICIES

As I said, the principle of law that a case stands on its own bottom and that the raison d’être of a decision turns on its own peculiar facts, have been ventilated through the prism of several decisions since the days of yore, and this Court, whether acting in its capacity as a policy Court, or in keeping faith with its duty to fiat justitia ruat caelum (let justice be done though the heavens fall) will not interrupt this principle. – Per A. A. Augie, JSC

STATUTES – INTERPRETATION OF STATUTES

It is the law that statutes should be given their natural meaning, except to do so will lead to absurdity – Toriola V. Williams (1982) 7 SC 27/46, Nonye V. Anyichie (2005) 2 NWLR (Pt. 910) 623, (2005) 1 SCNJ 306 at 316. – Per A. A. Augie, JSC

INTERPRETATION – INTERPRETATION OF STATUTES AND WHEN COURTS MAY RESORT TO PURPOSIVE INTERPRETATION

The natural words of the Constitution at the time only allowed for the assumption of office by a Deputy in the event of the Governor’s death and at page 249 in PDP V. INEC (supra), Wali, JSC, very aptly observed as follows:

“Where literal interpretation of a word or words used in an enactment will result in an absurdity or injustice, it will be the duty of the Court to consider the enactment as a whole with a view to ascertain whether the language of the enactment is capable of any other fair interpretation, or whether it may not be desirable to put a secondary meaning on such language, or even to adopt a construction which is not quite strictly grammatical – – Alhaji Atiku Abubakar and Mr. Bonnie Haruna were simultaneously elected as Governor and Deputy Governor of Adamawa State by the electorate of that State. Each must have his own supporters that had voted for him. Each has, therefore, acquired a right by being elected. If the narrow and literal interpretation applied to Section 37(1) of the Decree by the Court of Appeal is adopted, the end result will be that Mr. Bonnie Haruna, through no process of a successful election petition lodged against his election, is being deprived of the mandate given to him by the people of Adamawa State. It is manifest from the fact in this case that principles of justice require that where something is not expressly provided for in an enactment, the Court, in interpreting such enactment, will take into consideration the spirit and meaning of the enactment as a whole and construe it accordingly – – – To arrive at a just and fair decision, we must bear in mind the provision of Section 45(1) of the Decree, which though not in force at the time this action was instituted, but has adequately provided for a situation as the one at hand, such as resignation, permanent incapacity or removal for any other reason. The act of Alhaji Atiku Abubakar can be likened to permanent incapacity or even death in the given situation. The word “dies” in Section 37(1) of the Decree, in my view, expresses only a more permanent form of incapacity. If comparison of one clause with the rest of the enactment makes a certain preposition clear and undoubted, it must be construed accordingly so as to make it a constant and harmonious whole – – – To adhere to the literal construction put on Section 37(1) of the Decree as done by the Court of Appeal, will lead to manifest injustice being visited on the 2nd Appellant. The word “dies” used in that Section, and having regard to Section 45(1) of the said Decree, needs to be modified to include and cover the situation created by the departure of Alhaji Atiku Abubakar, in order to avoid any inconvenience and manifest injustice to the 2nd Appellant. Courts may resort to purposive interpretation if they can find in the Statute read as a whole, or in material to which they are permitted by law to refer as aids to interpretation, an expression of legislature’s purpose and policy.”

Uwais, CJN, also stated in that case -PDP V. INEC (supra) that “for this Court to perform its functions under the Constitution effectively and satisfactorily, it must be purposive in its construction of the provisions of the Constitution” and it is clear that the Appellant benefited from a purposive interpretation of the law in question in PDP V. INEC (supra), wherein a similar situation reared its head, and its gubernatorial candidate assumed a higher office as the Vice-President…” – Per A. A. Augie, JSC

PRE-ELECTION MATTER – MEANIING OF PRE-ELECTION MATTER

Section 285(14)(a) defines a pre-election matter as a suit brought by an aspirant complaining that the Electoral Act or any of the guidelines of his party has been violated.

Section 285(14)(b) talks about an aspirant challenging the actions of INEC in respect of his participation at the primary election.

The law is settled that in respect of the two subsections above, an aspirant must belong to the political party he complained about and he must have participated at the primary election or at worst being an aspirant who fulfilled all conditions to participate. See UBA v. MOGHALU (2022) 15 NWLR Pt. 1853 Pg. 271 at 306, UFOMBA v. INEC (2017) 13 NWLR Pt. 1582 Pg. 175 at 207, AGI v. PDP (2017) 17 NWLR Pt. 1595 Pg. 836, APC & ANOR v. INEC & 2 ORS – Appeal No: SC/CV/1628/2023 delivered on 3/02/2022, APC v. BASHIR SHERIFF & 2 ORS – Appeal No: SC/CV/1689/2023 delivered on 6/02/2022, PDP v. HON. LEDUM NELSON NGBOR – Appeal No: SC/CV/1620/2022 delivered on 7/02/2023. – Per H. M. Ogunwumiju, JSC

PRE-ELECTION MATTERS – MEANING OF PRE-ELECTION MATTERS – WHO CAN FILE PRE- ELECTION SUITS

Section 285(14)(c) provides as follows:

“(14) For the purpose of this Section, “pre-election matter” means any suit by

(c) A political party challenging the actions, decisions or activities of the Independent National Electoral Commission disqualifying its candidate from participating in an election or a complaint that the provisions of the Electoral Act or any other applicable law has not been complied with by the Independent National Electoral Commission in respect of the nomination of candidates of the political parties for an election, timetable for an election, registration of voters and other activities of the Commission in respect of preparation for an election.”

It is the second portion of that section of the law that calls for interpretation and that has been interpreted in this Court in SC/CV/1628/2022- APC & ANOR v. INEC & 2 ORS delivered on 3/2/23. That was a case in which APC was the Appellant and the PDP a Respondent in circumstances in which the legal issue of locus is on all fours with this case. In that case, on the point whether the trial Court can entertain the challenge by a political party against INEC for closing its eyes to a breach of the Electoral Act or the CFRN by another party in the pre-election process, this Court held thus:

“While Section 285(14)(c) talks about how the political party can challenge the decision of INEC, it relates to any decision of INEC directly against the interest of that political party. It cannot be stretched to include the inactions/actions of INEC in respect of nomination for an election by another political party. By the golden rule of interpretation, the whole section of the law must be considered in the circumstances. Obviously, the intention of the legislature as gleaned from Section 84(14) is to circumscribe the litigants who can file pre-election suits and the Courts have consistently maintained that it must be an aspirant challenging his own party’s violation of the Electoral Act or party’s Constitution and guidelines. In this case, the 2nd Appellant has absolutely no cause of action since the party purportedly in violation of the Electoral Act is not his party. In the case of the political party, no other interpretation can be given to the provision than that the political party has a right of action against INEC where it rejects the nomination of its candidates, where it proposes unsuitable timetable or its registration of voters or register of voters or other activities of INEC are against the interest of that political party.

Section 285(14) cannot extend to challenge INEC’s conduct in relation to another political party irrespective of whether or not such conduct by the other party is wrongful or unlawful. Section 285(14)(c) cannot cloth a party with the locus to dabble into INEC’s treatment or conduct in respect of another political party. No matter how manifestly unlawful an action is, it is the person with the locus standi to sue who can challenge in a Court of law.”

In the same vein, this Court in SC/CV/1620/2022 – PDP v. HON. LEDUM NGBOR delivered on 7/2/23 held as follows after stating the position earlier elucidated here that:

“My Lords, a lot of fuss has been made about the fact that this Court in several cases had nullified primaries conducted in violation of the Electoral Act. However, these cases arose as a result of a challenge by an aspirant within the same political party who felt aggrieved about the illegal venue where the primaries were conducted or about the illegality and irregularity perpetrated by his party which adversely affected his interest.

Section 285(14)(c) cannot be a license for another political party to challenge not to talk of successfully challenge such a wrong doing by INEC.”

These two judgments were delivered before the general election by this Court. We are bound by our precedents. This Court has maintained the policy that there cannot be an open jaw policy in relation to the interpretation of Section 285(14)(c) of the Constitution to make it an all comers affair. – Per H. M. Ogunwumiju, JSC

DOUBLE NOMINATION – MEANING OF DOUBLE NOMINATION – ESTABLISHING INTENTION AS A MAJOR KEY IN DETERMINING DOUBLE NOMINATION

Section 35 of the Electoral Act is set out below:

“Where a candidate knowingly allows himself to be nominated by more than one political party or in more than one constituency, his nomination shall be void.” (emphasis mine) It contains certain key words which include: “nomination”, “candidate” and “knowingly”. The fact of being a candidate and being nominated is clear enough. However, the word “knowingly” speaks to the “animus” or intention of the candidate to put himself up for unlawful double nomination as a candidate for two positions in the same party or as a candidate in two different parties. The word “knowingly” simply means in full awareness or consciousness or deliberately. – Per H. M. Ogunwumiju, JSC

SUBSTITUTION – THE CONDUCT OF THE COURT IN RELATION TO SUBSTITUTION OF CANDIDATES

It is important to note at this point that there is also nothing showing an intention by the 2nd Respondent to present one candidate as the person nominated to represent the party in two constituencies. My Lords, in APC v SHERIFF (Supra), this Court categorically emphasized that:

“The party (Appellant in that case) cannot sponsor the same candidate for more than one elective position at the general election.”

Where a candidate has already been nominated by a party for an elective position and the party desires to substitute that candidate for another, neither the Electoral Act nor the Constitution forbids such an act. In fact, the withdrawal of a candidate and substitution with another is permissible by the Electoral Act as already stated above. – Per H. M. Ogunwumiju, JSC

WITHDRAWAL – WITHDRAWAL OF A NOMINATED CANDIDATE

It is glaring from the provision of S.31 of the Electoral Act 2022 that the withdrawal takes effect from when the nominated candidate submitted the notice of his or her withdrawal to the political party that nominated him or her. S. 31 prescribes how the withdrawal is done by the nominated candidate. It states thusly – “by notice in writing signed by him and delivered personally by him to the political party that nominated him or her”. S. 31 prescribes what the political party should do upon receipt of its nominated candidate’s withdrawal. It states that it may convey the withdrawal to INEC not later than 90 days to the election.

It is glaring from the express wordings of S.31 of the Electoral Act 2022 that the legislative intention is that the withdrawal should take effect upon the nominated candidate personally delivering a written notice of his withdrawal to the political party and not when the political party conveys it to INEC. S. 31 states that what the party conveys to INEC is the withdrawal. The provision gives the party not later than 90 days to the election to convey the withdrawal of its candidate to INEC. – Per E. A. Agim, JSC

WITHDRAWAL – EFFECT OF PROMPT AND IMMEDIATE WITHDRAWAL BY A CANDIDATE

He withdrew the nomination as a Senatorial candidate and was thereafter nominated as Vice-Presidential candidate. Upon his withdrawal as Senatorial candidate, the party nominated another person to replace him. His prompt and immediate withdrawal as Senatorial candidate demonstrates clearly that he had no intention, design, purpose, or plan to hold two nominations and be the party’s candidate in elections in two constituencies. Whether he withdrew before or after being nominated as Vice-Presidential candidate is of no moment. Multiple nominations within the terms of S.35 of the Electoral Act do not occur simply because he accepted a second nomination.

The manifest intention to relinquish the earlier nomination to pave the way for the nomination of another person to replace him as the party’s Senatorial candidate cannot be overlooked or disregarded.

To simply isolate the assumed or purported short-lived co-existence of the two nominations for treatment as multiple nominations without regard to the obvious intention of the 4th respondent not to be the party’s Candidate in elections in two constituencies is against the legislative intention of S.35 of the Electoral Act 2022.

The sequence of the occurrence of the events is not what determines the existence of multiple nominations. It is the intention, design, or purpose to hold two more nominations as candidates for election that shows that the person so nominated knowingly did so. – Per E. A. Agim, JSC

KNOWINGLY – INTERPRETATION OF ‘KNOWINGLY’ IN S.35 OF THE ELECTORAL ACT

The word ‘knowingly’ in S.35 of the Electoral Act must be interpreted broadly to include all its literal meanings. In Burtons Legal Thesarious 4th Edition by William C. Burton at P. 356 it is defined to include’ advisedly, deliberately, designedly, intentionally, learnedly, pointedly, purposefully with knowledge, wittingly." – Per E. A. Agim, JSC

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Electoral Act, 2022
3. Supreme Court Act
4. Electoral Act, 2010

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