Locus Standi to Challenge Nomination or Membership of a Political Party

Facts

The 1st Appellant and the 2nd Respondent contested the Governorship Election of Abia State conducted by the 1st Respondent on 18th March, 2023. At the conclusion of the election, the 2nd Respondent was declared the winner. Dissatisfied with the outcome of the election, the Appellants presented a petition challenging the return of the 2nd Respondent on three grounds, to wit: (1) Non-qualification of the 2nd Respondent, (2) Lack of majority of lawful votes cast, (3) Corrupt practices and non-compliance with the provisions of the Electoral Act, 2022. On 6th October, 2023, the Tribunal delivered a judgement dismissing the petition of the Appellants. Aggrieved, the Appellants filed an appeal before the Court of Appeal which however, dismissed the appeal.

Dissatisfied, the Appellants appealed to the Supreme Court.

Issues for Determination

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

1. Whether the lower court was right when it affirmed the Tribunal’s decision that paragraphs 30 to 40 of the Appellants’ petition were incompetent, for being pre-election issues and founded on facts over which the Tribunal had no jurisdiction.

2. Whether the Court of Appeal was correct to affirm the decision of the Tribunal that the Appellants did not prove their allegations against the 2nd and 3rd Respondents in the petition.

Arguments

On the 1st issue, the Appellants’ Counsel relied on the case of ENGR NELSON OSELOKA ONUBOGU v IFEYINWA ANAZONWU & 2

ORS (2023) LPELR 60288 (SC), to submit that complaints of non-qualification which border on breach of the Constitution of the Federal Republic of Nigeria; the Electoral Act and Party Guidelines can be accommodated outside pre-election matters. He argued that the 2nd Respondent was not a member of the 3rd Respondent when he participated in the election, since his name was not contained in the Membership Register of the 3rd Respondent, which the 3rd Respondent failed to submit to the 1st Respondent 30 days before the conduct of its primary election. Counsel submitted that the 2nd Respondent was a Governorship aspirant under the All Progressives Congress (APC) before he purported to defect to the 3rd Respondent, and unless his name was on the Membership Register submitted by the 3rd Respondent to the 1st Respondent 30 days before the holding of its primary election, the 3rd Respondent cannot validly and lawfully sponsor the 2nd Respondent as its candidate for the Abia State Governorship election.

Counsel for the Appellants argued further that the lower court erred when it classified the Appellants’ challenge to the qualification of the 2nd Respondent, the non-compliance by the 2nd and 3rd Respondent with the mandatory provisions of Sections 77(2)(3), 82(1) and 84(1)(7) of the Electoral Act, as a specie of pre-election matter within the internal affairs of the 3rd Respondent. He submitted that the lower court failed to appreciate that the question as to whether or not the 2nd Respondent who contested the election, was a duly registered member of the 3rd Respondent in compliance with Section 77(2) and (3) of the Act, is founded on the constitutional requirement of membership of political party as a qualifying factor under Section 177(c) of the Constitution and Section 134(1)(a) of the Electoral Act, and so, outside the internal affairs of the 3rd Respondent.

In response, respective counsel for the 1st, 2nd and 3rd Respondent submitted similarly that, although the 2nd Respondent participated in the APC Governorship primary election and lost, he defected to the 3rd Respondent Party few days to the 3rd Respondent’s Governorship primary election which held on 8th June, 2022. They argued in their respective turns that the Appellants’ grouse relates squarely to events which happened prior to the Governorship election of 18th March, 2023 and which are pre-election matters. Counsel placed

reliance on the decision of the Supreme Court in APP v OBASEKI (2022) 13 NWLR

(PT. 1846) 1 that an election petition in which the sole ground is based on events that occurred prior to the election day is squarely a pre-election matter by the provision of Section 285(14) (c) of the 1999 Constitution (as amended), and not an election matter to which Section 138(1)(d) of the Electoral Act 2022 is applicable.

On the 2nd issue, the Appellants’ Counsel argued that the lower court failed to avert its mind to a critical aspect of Exhibit P38 tendered by PW4, being the original counterpart copy of the result of votes in Obingwa LGA, and that it carries a higher probative value than Exhibit P188 which was a certified true copy of the same result. Counsel argued that it was wrong for the lower court to reject the said Exhibit and rely on the technical point that the witness statement on oath of PW4 did not accompany the petition at the date of filing pursuant to paragraph 4(5) of the 1st Schedule of the Electoral Act, 2022. He also argued that the lower court was wrong to refuse the Appellants’ motions dated 3rd August, 2023, thereby denying them fair hearing.

In response, respective Counsel for the 1st, 2nd and 3rd Respondent argued that PW4, PW16, PW17 and PW22 were subpoenaed witnesses, whose statements on oath were not filed with the petition within 21 days after the declaration of the election result, thereby making their evidence incompetent. They submitted that the Appellants failed to establish the allegations made in their petition that the 1st Appellant scored the majority of lawful votes, since they did not show the existence of 2 sets of results emanating from same election. They contended that the issue on the evidence of PW4, who tendered Exhibit P38, which was to be the duplicate result and meant to contradict Exhibit P188, the official CTC of the result was abandoned on appeal, and the Appellants did not raise any issues therefrom. On the Appellants’ allegation of denial of fair hearing, counsel argued that the Appellants did not state which applications of the Appellants were dismissed, hence, abandoned them.

Court’s Ruling and Rationale

Resolving the first issue, the Apex Court

held that there is no requirement in the 1999 Constitution of the Federal Republic of Nigeria (as amended) that a candidate may only qualify as such, if his name was in the Register of Members of the political party which sponsored him or her. The Court held that there is no doubt with respect to Section 77(2) and (3 ) that all that was required was for a political party to “maintain a register of its members and both hard and soft copy”, and although subsection 3 further required the political party to make such register available to INEC not later than 30 days before the date fixed for the party primaries; the section did not debar new members who joined after the submission of the Register of Members from participating in the party primaries conducted thereafter.

Neither a party nor the court, is allowed to import into a statutory provision that is not contained therein.

The Apex Court went further to hold that it is only a member of a political party who was an aspirant that participated in the primary election, that can challenge the sponsorship and nomination of the candidate who emerged from the primary election. The Court referred to

its decision in PDP v INEC & ORS. (2023) LPELR – 60457 (SC) and held that the Appellants who were not aspirants in the 3rd Respondent’s primaries were not in the position to complain about the nomination of the 2nd Respondent by the 3rd Respondent, particularly as issues of membership and nomination are internal affairs of the political party and preelection matters, which the Election Tribunal does not have the jurisdiction to entertain.

On the 2nd issue, the Apex Court held that

no matter how vital and potent a document or Exhibit may be, it must lose its power when rejected or rendered inadmissible. The Court held that an election petition, being sui generis and time bound, does not permit piecemeal filing and presentation of petition and all witnesses, whether subpoenaed or not, should have their statements and evidences ready to accompany the petition before the petition is filed, since there will not be time again to allow for such substantial amendments. The Court found that even though Exhibit P38 may have been said to be a vital document, however, it did not have any foundation to stand or be admitted by the court, as the evidence of PW4 who tendered the said Exhibit was discarded, being a subpoenaed witness whose witness statement on oath was not filed alongside the petition as statutorily required. The Court

held that it is possible for an original document tendered before the court to be infected with the virus of inadmissibility, and such is the case with Exhibit P38.

On the allegation by the Appellants that their right to fair hearing was breached because certain motions they filed were not considered, the Court held that although all applications or motions ought to be considered by the court, however, Lawyers or parties must bring them to the attention of the court no matter how frivolous they may be, otherwise they are considered abandoned if not moved. The Court held that it was on record that, the motions complained about by the Appellants were never dated or brought to the attention of the Court of Appeal by the Appellants. Appeal Dismissed.

Representation

Alade Agbabiaka, SAN with Dr Joseph Nwobike, SAN; Prof Paul Ananaba, SAN; Uche Iheduwa, SAN and Chief Theo Nkure for the Appellants.

J. T. U. Nnodum, SAN with K. C. Nwufo, SAN and K. A John Nwosu, SAN For the 1st Respondent.

A. J. Owonikoko, SAN with Prof J. O. Olatake, SAN; Chief Hakeem Afolabi, SAN; Ken Ahia, SAN and Olusola A. Dare for the 2nd Respondent.

Dr Onyechi Ikpeazu, SAN with Chief Umeh Kalu, SAN; Dr Sonny Ajala, SAN; Echezona Etiaba, SAN and Valentine Offia for the 3rd Respondent.

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR)(An

“…. it is only a member of a political party who was an aspirant that participated in the primary election, that can challenge the sponsorship and nomination of the candidate who emerged from the primary election”