Can A Political Party Challenge Sponsorship, Nomination Of Another Party’s Candidates?

In the Supreme Court of Nigeria
On Friday, May 26, 2023
Suit No: SC.CV/501/2023
Before Their Lordships:
JOHN INYANG OKORO

AMINA ADAMU AUGIE
HELEN MORONKEJI OGUNWUMIJU
ADAMU JAURO
EMMANUEL AKOMAYE AGIM

Justices of the Supreme Court
Between

Peoples Democratic Party (PDP)-Appellant(s) and
1. Independent National Electoral Commission (INEC)
2. All Progressives Congress (APC)
3. Bola Tinubu
4. Shettima Kashim

– Respondents
Leading judgment delivered by Adamu Jauro
Citation: (2023) LPELR-60457(SC)

FACTS
The Appellant’s cause of action is against the action of the 1st Respondent for receiving, accepting and recognizing the 4th Respondent as a candidate eligible to contest the 2023 General Election into the office of the Vice-President of the Federal Republic of Nigeria. The Appellant’s grouse was that the 4th Respondent had knowingly allowed himself to be nominated into more than one constituency, to wit the office of Senate representing the Borno Central Senatorial District and the office of the Vice-President of the Federal Republic of Nigeria in the same Electoral Cycle. The Appellant claimed that on 15th July, 2022, at about 05:13pm, the 4th Respondent withdrew his nomination for the Senate representing Borno Central Senatorial District only after he had confirmed his nomination for the office of the Vice-President.
On the basis of the above, the Appellant approached the Federal High Court by way of an Originating Summons seeking, amongst other reliefs, an order compelling the 1st Respondent to remove from its list of nominated candidates eligible to contest the presidential election scheduled for 25th February, 2023 or thereabout or any list, ballot paper or election record, the names of the 3rd and 4th Respondents as well as the logo of the 2nd Respondent, as their presidential ticket had been contaminated and made void by statute.

The Federal High Court considered the issue of locus standi and held that by Section 285 of the 1999 Constitution (as altered), it is only an aspirant who can complain that any of the provisions of the Electoral Act and a political party guideline has not been complied with in the selection or nomination of a candidate of a political party for an election. The trial Court held that there is nothing in the section that gives any political party like the Appellant locus standi to challenge the qualification of the candidate of another political party.

The trial Court also held that the judgment in an earlier case, Suit No: FHC/ABJ/CS/1016/2022 delivered on 30th June, 2022, constitutes a judgment estoppel in rem and applies to the case as the subject matter of the substitution and qualification of the candidate of the 2nd Respondent had already been decided and cannot be relitigated. The Court also held that the Appellant had no cause of action and that the action was an abuse of Court process. The trial Court struck out the suit.

On appeal to the Court of Appeal, the Appellant maintained that being a political party that has sponsored candidates for the 2023 general elections, it should be accorded the standing to complain and litigate the issue for the protection and vindication of its rights or interests. The Court held that Appellant failed to aver facts of participation of the 4th Respondent in any of the primaries for the office of the Vice-President of the Federal Republic of Nigeria or attach or exhibit any document to show that the 4th Respondent contested or participated in the primary election for the office of the Vice-President in order to bring their grievance under Section 35 of the Electoral Act, 2022, that he knowingly allowed himself to be nominated into more than one constituency. The Court also held that the Appellant has no locus standi and affirmed the judgment of the Federal High Court.

Dissatisfied, the Appellant further appealed to the Supreme Court.

ISSUES FOR DETERMINATION

The Court determined the appeal on a sole issue thus:

“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.”

APPELLANT’S SUBMISSION
Counsel for the Appellant submitted that the decisions of the two lower Courts were perverse and that the Supreme Court can therefore interfere with same, citing the cases of ILA ENTERPRISES LTD. V. UMAR ALI & CO LTD (2022) LPELR – 59076 (SC), STATE V. SOLOMON (2020) LPELR – 55598 (SC). Counsel submitted that the gist of the Appellant’s case was that the provisions of the Electoral Act have not been complied with in respect of the 4th Respondent’s nomination as the Vice-Presidential candidate of the 2nd Respondent. Counsel submitted that the phrase “nomination of candidates of political parties for an election” used in Section 285(14)(c) of the Constitution is wide enough to accommodate the suit filed by the Appellant. It was submitted that this case is different from being an aspirant or an internal affair of a political party, but a breach of the Electoral Act as envisaged in Section 285(14)(c) of the Constitution. Counsel submitted that since the nominations had been completed before the Appellant filed its suit, the issue was no longer an internal affair of the 2nd Respondent, but had become an issue for INEC and the Appellant was thus entitled to sue. Counsel submitted that to hold that the Appellant lacks locus standi would amount to permitting the 4th Respondent to benefit from his illegality.

RESPONDENTS’ SUBMISSION
Arguing the issue, counsel for the 1st Respondent submitted that the role of the 1st Respondent is that of an unbiased umpire and it cannot dictate to the 2nd Respondent how to conduct its internal affairs. He also submitted that the Appellant lacks locus standi as it cannot meddle in the internal affairs of the 2nd Respondent.

Counsel for the 2nd Respondent also submitted that the Appellant lacked locus standi as its suit constituted an interference in the internal affairs of the 2nd Respondent. Counsel submitted that a political party cannot hide under Section 285(14)(c) of the Constitution to interfere in the internal affairs of another political party, but only an aspirant who participated in the primaries of a political party can challenge the nomination of the party’s candidate. Reliance was placed on Section 84(14) of the Electoral Act as well as a plethora of cases, including UGWU & ORS V. PDP & ORS (2015) LPELR – 24352 (SC), EZE V. PDP & ORS (2018) LPELR – 44907 (SC), SHINKAFI & ANOR V. YARI & ORS (2016) 3 SCM 133; (2016) LPELR-26050(SC), OSAGIE V. PDP (2023) 5 NWLR (PT. 1877) 355.

The 3rd and 4th Respondents made similar arguments as the 1st and 2nd Respondents. Additionally, the 3rd Respondent submitted that a political party can only institute an action pursuant to Section 285(14)(c) of the Constitution if the action of INEC complained of is against the interest of that political party itself, not in respect of the affairs of another political party. Reliance was placed on PDP V. NGBOR & ORS (2023) LPELR – 59930 (SC).

APPELLANT’S REPLY
In reply, Appellant submitted that while INEC is supposed to be neutral, it cannot fold its hands and do nothing in a case such as this when the provisions of the law have been breached. Counsel also submitted that Section 84(14) of the Electoral Act is inapplicable since in the instant case the 4th Respondent was not nominated in a primary election, but was chosen by a single person rather than a political party and there are no rules/guidelines or provisions of the Electoral Act regulating his nomination as Vice Presidential candidate. Appellant submitted that there was therefore no aspirant to challenge any decision regarding his nomination.

RESOLUTION OF THE SOLE ISSUE
The Court begun resolving the issue by stating some trite principles of the law as regards locus standi to wit:

a. 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.

b. He must show that there is a nexus between his suit and the conduct of the Defendant(s).

c. He must show sufficient connection to, and harm or potential harm or damage from the action complained of.

The Court thereafter stated the tests for determining whether a person has locus to wit:

(a) The action must be justiciable; and

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

See the cases of ANOZIA V. A.-G., LAGOS STATE (2023) 2 NWLR (PT. 1869) 545; (2022) LPELR-58534(SC), BARBUS AND CO. (NIG.) LTD. V. OKAFOR- UDEJI (2018) 11 NWLR (PT. 1630) 298; (2018) LPELR-44501(SC), B.B. APUGO & SONS LTD VS. O.H.M.B. (2016) 13 NWLR (PT. 1529) 206; (2016) LPELR-40598(SC).

The Court then proceeded to consider whether the Appellant’s suit satisfied the above requirements in order for locus standi to vest in the Appellant. In so doing, the Court considered the provision of Section 84(14) of the Electoral Act, 2022 and held that vide the section, locus standi accrues only to an aspirant who participated in the primary election of a political party to challenge the selection or nomination of a candidate of a political party for election. See the cases of WAZIRI V. P.D.P. (2023) 7 NWLR (PT. 1882) 57, ODUAH V. OKADIGBO (2019) 3 NWLR (PT. 1660) 433, MAIHAJA V. GAIDAM (2018) 4 NWLR (PT. 1610) 454, and AL-HASSAN V. ISHAKU (2016) 10 NWLR (PT. 1520) 230. The Court concluded that 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.

The Court further considered the Appellant’s reliance on Section 285(14)(c) of the 1999 Constitution (as amended) to contend that it was clothed with locus standi to institute the action. The argument of the Appellant in the regard is that a political party is empowered to challenge the actions of INEC where the Commission fails to comply with the provisions of the Electoral Act or any other applicable law. In resolution, the Court held that although the section empowers a political party to challenge the actions of INEC, however this does not empower a political party to poke into the affairs of another party. The Court stated that the position of the law has always been that no political party can challenge the nomination of the candidate of another political party. A political party equally lacks the locus standi to challenge the actions of INEC in relation to another political party. That 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 its own candidates. See the case of PDP V. NGBOR & ORS (2023) LPELR – 59930 (SC).

HELD

The Court held that the appeal was grossly lacking in merit and consequently dismissed same.

Appearances:

MR. JOE AGI, SAN, PROF. MIKE OZEKHOME, SAN,

with, OMOKAYODE A. DADA, ESQ. J. O. OLOTU, ESQ.– For Appellant(s)

and DOUGLAS ONDOR, ESQ.

ADEBIYI ADETOSOYE, ESQ. with him, ISAAC IDOTA, ESQ. – For 1st Respondent

MR. BABATUNDE OGALA, SAN,

with him, GBENGA BENSON, ESQ.– For 2nd Respondent

and JULIUS ISHOLA, ESQ.

OMOSANYA POPOOLA, ESQ – For 3rd Respondent

OLURONKE ADEYEMI, ESQ.

with him, THOMAS OJO, ESQ. – For 4th Respondent