Random Reflections on Pre- Election Jurisprudence in Nigeria

*Supreme Court of Nigeria

(Nigeria) With less than two weeks to the commencement of the general elections in the country, CHRIS CHIJIOKE,  examines the role of the courts and the issue of locus standi in pre- election matters in this piece which he describes as “Random Reflections on Pre-election Jurisprudence in Nigeria” He concluded that: “ It is safe to say that the law is settled in the areas under consideration that not only must a matter be instituted within the stipulated time, the party complaining must have locus standi to do so, in the absence of which no court in Nigeria can exercise jurisdiction to entertain the matter.

The overall judicial attitude to pre-election cases is to try as much as possible to shield or remove the judiciary from the fray of partisan politics and to ensure that the hallowed bowels of the courts are not converted to an arena of inter parties electoral contests - Per Kolawole JCA,IN PDP V INEC & 11 ORS.;CA/PH/480/2022.

Elections serve as the vehicle through which democratic governance is achieved in representative democracies. The people are presented with choice of candidates by political parties, from which they select and elect those to whom governance is to be entrusted.

The process is sometimes tedious, complicated and often times expensive. Usually, the contesting parties are organized in line with stated ideologies. They sponsor candidates to stand elections with the hope that when and if they receive acceptability from majority of the citizenry, they constitute the government, either at the local, state or national level as the case may be.

Presenting candidates for elective offices, and achieving electoral success begins usually with the party primaries. The primaries can be direct or indirect. In both, only registered members of the political party can participate, except where the rules permit all residents of a particular locality to participate.

The Electoral Act as well as Party constitutions define the rules, the processes and the procedures for selection of party candidates at the primaries. Once these rules are adhered to, the party in question will be represented by the candidate who emerged from the primaries; he/she will then contest the election with the candidates of other political parties at the general elections.

All issues which precede the general election are considered pre-election matters; these include, but are not limited to, qualification to vie, disqualification, nomination, sponsorship, conduct of the primaries. Once a candidate emerges from the party primaries, he/she becomes the flag-bearer of the political party involved.

Anyone who considers that his or her rights as a party member had been denied or infringed, usually has room to seek redress through the party dispute resolution mechanisms. But where this fails, such a person will have recourse to the courts of law.

Initially, the courts were reluctant to inquire into the internal affairs of the political parties, but with time and out of necessity, the courts began to look into the processes  and procedures in other to ensure and give support to internal democracy of the parties; after all, a democratic party must live by the ethos of democracy.

And in doing so, the Constitution of the Federal Republic of Nigeria, 1999 as amended, the Electoral Act 2022 and the Practice Directions of various courts contain provisions which act as compass for the courts when they are called upon to sit on pre- election matters.

Over the years, an emerging jurisprudence from these courts have become discernible. In this random reflection, it is the writer’s interest to focus on two important aspects: Timing for filing a case and the locus standi to file a pre-election matter.1.  Time to file a case:

From a plethora of cases, one fact emerges: Election and pre-election matters have a strict time line within which affected parties must file their complaints, and responses. This is equally applicable on appeal from any rulings and/or judgements.

The courts are strict about the time allocated to the filling of pre-election matters. If the time is not adhered to, the courts will rule against the defaulting party. This strictness is to ensure a speedy dispensation of pre- election matters before the elections are held.

In APC v Chief Michael Adebayo Adeleke & 2 Ords. CA/IB/429/2022 the Respondent’s brief was filed outside the stipulated time contrary to the provisions of the Election Judicial Proceedings Practice Direction 2022. In upholding the submission of Appellants, the Court of Appeal held that the practice directions are applicable to both election and pre-election matters, as well as any appeals arising therefrom; that under those rules, the Respondent had five days within which to file arguments which he failed to observe, that having filed his appeal out of time, his appeal was incompetent.

Because of the special nature of election and pre-election matters, the law does not allow the court to extend time for filing of argument or the doing of any act in election or pre- election matters Case of OKECHUKWU V INEC & 25 Ords.( 2014) 17 NWLR (Pt.1436) at 352

An incompetent brief is struck out for being incompetent.

Entertaining a suit filed outside of the stipulated time, is an act done without jurisdiction.

The Court of Appeal in APC V Michael Adebayo Adeleke & 25 Ords, held that the Federal High Court which was the trial Court, lacked the jurisdiction to entertain the matter which was filed outside the 14 days stipulated by and under the provisions of section 285(9) of the Nigerian Constitution 1999 as ammended.

In Akeredolu v Abraham &Ords. Suit Number CA/A/1177/2018

Ruling on a Preliminary Objection can be suspended and made same time as the judgement on the substantive issue; this allows the court to save time, which is of the essence in pre-election matters.

An Appeal from a decision in a pre-election matter shall be filed within 14 days of the date of delivery of the judgement appealed against ;Chief Emeka Ihedioha v PDP AND 2 ORDS,CA/OW556/2018 judgement of December 29 2018,per Agim,JCA (as he then was) stated at page 15.

Where the original jurisdiction in the lower court was extinct or had lapsed, the powers of the appellate court to exercise jurisdiction  becomes afortiori, extinct or non existent.The Supreme court, in such circumstance, cannot invoke its powers under section 22 of the Supreme Court Act.

Case of Hon George Igbo v Hon Ikenga Ugochinyere &Ords  SC/CV/1439/2022

2.Locus standi

At the High Courts where such matters are commenced by way of Originating summons, a party seeking any form of redress must clearly show that he or she has the locus. Simply put,locus standi is the right or capacity to bring an action or to appear in a court. This is a condition to be satisfied to enable the trial court assume jurisdiction to entertain a matter brought before it by a plaintiff.

A person has locus standi to sue in an action if he is able to show to the satisfaction of the court that his civil rights and obligations have been or are in danger of being infringed.

In pre-election matters, Sections 284 & 285(14) of the constitution provides that: It is aspirants who participated in the Party primaries that can challenge the outcome of the exercise. A candidate from a different political party cannot sue because he/she  cannot jump the party and sue.

From the High courts to the Supreme court, there is a consensus which makes it settled law that only those whose rights have been affected adversely by the failure to observe pre -election rules, can bring actions before the court.

The question on Who can challenge primary election of  a political party  was answered in the case of TARZOOR V IORAER,where the court declared that  Primary elections are in-house matters of a political party. By section 87(9)(a) of the Electoral Act, 2010 (as amended), a non-member of the party has no locus to raise the issue and no member of the party who was not an aspirant can raise the issue.

Only an aspirant at the primary election is permitted by section 87(9) of the Electoral Act, 2010 (as amended) to challenge the selection or nomination of a person for an elective office. Apart from an aspirant who took part in the primary election, no other person is authorised to file an action to challenge the selection or nomination of a candidate by a political party for an election.

In Wambai v Donatus 2016 3NWLR [pt.1500],463 the Supreme Court, inter-alia, answered the question On Grounds for questioning an election primary.

The Supreme Court decision has put it beyond dispute that a challenge in intra party dispute arising from a primary election can only be maintained by a member of that political party who is an aspirant in that primary election and not a non- member of that political party.

Also HON. MONDAY IYORE OSAGIE & 5 ORS v VICTOR ENOGHAMA CHARLES EGBON & 9 ORS APPEAL NO. SC/CV/980/2022, judgement delivered on 30th September, 2022, per AGIM, JSC at 15, lines 8-19.

To take advantage of the provisions above, a Plaintiff must show that he is an aspirant who participated in the primary election sought to be challenged, and he must establish that his grievance falls within the narrow provisions of Section 285(14) of the Constitution and Section 84(14) of the Electoral Act. The twin conditions must be satisfied, for the action to be justiciable.

In PDP v INEC &11 Ors. CA/PH/480/2022,delivered on the 29th of December 2022, the Court of Appeal upheld the submission of the Respondents that the Appellants lacked locus to institute the case against the respondents.

Citing cases such as AISHA JUMMAI ALHASSAN &ANOR V DARIUS ISHAKU &ORDS (2016) (SC),the court reiterated that it is now well settled in a plethora of authorities that  the issue of sponsorship and nomination of candidates is in the domestic affairs of political parties[ ONUOHA V OKAFOR;DALHATU V TURAKI],IT IS ALSO SETTLED that Courts have no jurisdiction to entertain issues relating to nomination and sponsorship of candidates by political parties except as provided in section 87(9) of the Electoral Act 2010 as amended

The Court went on to restate that only a candidate who took part in the primary election of a party who has the locus standi to challenge the outcome of the primary in line with provisions of the Electoral Act. No other person, whether within the political party or outside of it, can ventilate his grievance arising from party nomination as there is no law backing him up.

The Appellant is a member of the PDP and not APC and even if he is a member of the APC, he would have no locus to challenge the nomination of the Ist Respondent,as he is not one of the aspirants who participated in the primary election.

Describing the Appellants as “a meddlesome interloper who, having assumed the role of a hired mourner, is crying more than the bereaved” the Court of Appeal on the issue of the conduct of the party primaries, maintained that only a member of a political party can challenge its primary election and even such challenger must be an aspirant.

Anybody who is not a member of such political party cannot challenge its primary election because he is not an aspirant, but a mere interloper or a busy body.

That no political party can assume the role and status of an Aspirant in order to litigate under section 285(9) and (14) (a),(b) and (c ) of the 1999 Constitution as amended, concerning any alleged or perceived irregularities or noncompliance of another party in the conduct of its primary election.

 In FHC/ABJ/CS/1960/2022: The court declined to issue an order of mandamus against INEC on a suit seeking to disqualify the APC presidential candidate for failure of his party to comply with the mandatory section 90(3) of the Electoral Act of 2022.

The suit was challenged on the ground that it was both statute barred since it was not filed within 14 days, and for lack of locus standi.

On both grounds, the court declined jurisdiction and refused to even consider the substantive case.

In conclusion, therefore, it is safe to say that the law is settled in the areas under consideration that not only must a matter be instituted within the stipulated time, the party complaining must have locus standi to do so, in the absence of which no court in Nigeria can exercise jurisdiction to entertain the matter.