Exceptions To The Non-Justiciability Of Pre-Election Matters

In the Supreme Court of Nigeria

Holden at Abuja

On Monday, the 21st day of November, 2022

Before His Lordships

Kudirat Motonmori Olatokunbo Kekere-Ekun

Helen Moronkeji Ogunwumiju

Ibrahim Mohammed Musa Saulawa

Adamu Jauro

Emmanuel Akomaye Agim

Justices, Supreme Court

SC/CV/1347/2022

Between

1. Peoples Democratic Party (PDP)

2. Mr Oladipupo Adebutu … … … … Appellants

And

1. Mr Jimi Adebisi Lawal

2. Independent National Electoral Commission (INEC) Respondents

(Lead Judgement delivered by Honourable Ibrahim Mohammed Musa Saulawa, JSC)

Facts

Further to the provisions of Section 84(5) of the Electoral Act 2022, the 1st Appellant issued Guidelines and Directives for the selection of its candidates for the upcoming 2023 General Election vide the conduct of indirect primary elections. On 30th April, 2022, the 1st Appellant conducted ward congresses in Ogun State whereby ad-hoc delegates were elected, with a view to participating in the indirect elections of the 1st Appellant’s gubernatorial candidates in Ogun State. For the purpose of the gubernatorial exercise, the 2nd Appellant and 1st Respondent were cleared and screened by the 1st Appellant to contest the indirect primary election in Ogun State, in a bid to consequently emerge as the 1st Appellant’s candidate for the 2023 general elections.

At the conclusion of the said indirect primary election, the 2nd Appellant emerged with 714 votes. The other aspirants had zero vote, which meant on paper, that the 2nd Appellant would be presented by the 1st Appellant to the 2nd Respondent, as the 1st Appellant’s gubernatorial candidate in Ogun State for the 2023 Governorship election.

It is the 1st Respondent’s contention that the 1st Appellant did not use the Register/List of democratically elected delegates, rather the 1st Appellant used a different Register/List. This grievance led to the 1st Respondent commencing an action via Originating Summons against the 1st and 2nd Appellant at the Federal High Court, where the 1st Respondent prayed the court for a determination of three fundamental questions, inter alia: Whether upon the construction of Section 84(1), (2), (5)(b) & (8) of the EA, Article 25(1)(L) & (2)(c) of the Constitution of the Peoples Democratic Party 2012 (as amended), and its Directive of 20th May, 2022, the Peoples Democratic Party was not bound to nominate its Ogun State gubernatorial candidate for the 2023 general elections by conducting its indirect primary election on the basis of voting by ad-hoc delegates who were democratically elected at the ward congress of the party, for the purpose of the Governorship primaries. The 1st Respondent also questioned the use of statutory delegates in lieu of the ad-hoc delegates democratically elected at the ward congress of the party, and whether the party can validly nominate and/or forward the name of the 2nd Appellant to the 2nd Respondent herein, for the 2023 general elections. Several declaratory reliefs and orders were sought in this regard, among which is an order setting aside the indirect primary election of the 1st Appellant conducted on 25th May, 2022, and the nomination of the 2nd Appellant as the Ogun State Governorship candidate of the 1st Appellant.

Reacting to the Originating Summons, the Appellants, by way of Notice of Preliminary Objection, urged the trial court to dismiss the Originating Summons on several legal grounds, among which are that the issue is a pre-election matter which is an internal affair of the political party, and therefore, not justiciable; and that the action was statute barred.

The trial court upheld the Preliminary Objection, and accordingly, dismissed the suit for lack of jurisdiction. The merit of the suit was not considered by the trial court. The 1st Respondent’s appeal to the Court of Appeal was adjudged meritorious. The appellate court allowed the appeal, and remitted the suit to the trial court for trial on the merits. The decision informed the appeal to the Supreme Court by the Appellants, who seek to upturn the decision of the Court of Appeal on nine grounds.

Issue for Determination

The Supreme Court adopted the sole issue of the Appellants in its determination of the appeal, thus:

Whether the court of Appeal was right when they held that the Federal High Court has the jurisdictional competence to determine the suit of the 1st Respondent under Section 84(14) of the Electoral Act 2022 and Section 285(14) of the Constitution of the Federal republic of Nigeria 1999 (as amended), when the substance of the 1st Respondent’s suit was actually which list of ad-hoc delegates should have been sent (sic) to conduct the 1st Appellant’s Ogun State Governorship Primary/election of 25th May, 2022 which was not justiciable being an internal affair of the 1st Appellant? (Ground 1,2,3,4,5,6,7 and 8 of the Notice of Appeal).

Arguments

Arguing the appeal, counsel for the Appellants contended that the claims of the 1st Respondent were outright allegations of a pre-election matter, and regarding the internal affairs of the political party; hence, not justiciable.

The 1st Respondent placed heavy reliance on the provisions of Section 285(14) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Section 84(14) of the Electoral Act. The closure offered in the above-mentioned provisions, were exceptions to the principle that the courts cannot hear and determine domestic or internal affairs of a political party, especially with regard to complaints by an aspirant challenging a political party’s alleged compliance with the principles, processes and procedures prescribed in the Constitution and the election guidelines of a political party.

Court’s Judgement and Rationale

In determining the appeal, the Apex Court resolved to hear and determine the canvassed issue of lack of jurisdiction of the trial court. Their Lordships relied on several case laws, among which is DARIYE v FRN (2015) LPELR-24398 (SC), where the court decided on the issue of jurisdiction and explained that the term “inherent jurisdiction” denotes the legal authority or power vested in a court or tribunal to entertain, bear and determine any matter or issue before it, unless a statute or rule limits that authority or power.

The Supreme Court held that political parties being voluntary associations, disputes regarding the internal affairs thereof, especially between the political party and any of its members thereof, are not justiciable, thereby not within the jurisdiction of the courts. However, there is an exception to that general rule. The exception comes into play where the National Constitution or Statute expressly confers upon a court such jurisdiction, or the dispute is about commission of a crime, or involves the violation of a contractual right, or the commission of a tort – ONUOHA v OKAFOR (1983) 2 SCNLR 244 at 254. The exceptions are provided for under Section 285(14) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Section 84(14) of the Electoral Act, 2022.

Further, relying on Section 84(14) of the Electoral Act which provides that: Notwithstanding, the provisions of this Act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party have not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court for redress, the Supreme Court held that compliance with all the principles, processes and procedures prescribed in the Constitution and electoral guidelines of a political party for the selection or nomination of its candidate for an election, becomes part of the internal affairs of a political party that a court has jurisdiction to consider in a pending suit by an aspirant complaining against such selection or nomination to determine if it is in accordance with its constitution and guidelines – 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.

The Apex Court, in its regret on how the trial court went about the determination of the Preliminary Objection, faulted the discretion exercised by the trial court. The Apex Court held that by virtue of the unambiguous provision of Section 258(8) of the Electoral Act, the trial court had a duty to suspend the delivery of its ruling on the Preliminary Objection until at the final stage of the judgement. Thus, the whole essence of Section 258(8) is to avoid any unnecessary waste of time, bearing in the mind the timeline in the Constitution for hearing and conclusion of an election matter. As a matter of law and practice, the Apex Court was inclined to hold that a combined reading of Section 285(8) and (II) of the Electoral Act, shows that an appeal against an interlocutory decision in a pre-election matter could only be instituted at the appellate courts AFTER the delivery of the final judgement in the case EMEKA IHEDIOHA v PEOPLES DEMOCRATIC PARTY & 2 ORS, APPEAL NO. CA/OW/556/2018, delivered on 29/12/2018, per AGIM, JCA (as the learned Lord then was) at page 15.

Further to the above, the Supreme Court unanimously upheld the finding of the Court of Appeal, that the Appellants’ appeal is unmeritorious and deserves a dismissal. The consequential order remitting the case to the Chief Judge for re-assignment to another Judge other than the trial Judge, to be heard expeditiously within the remaining part of the 180 days as prescribed by the law for the hearing and determination of pre-election matters, was also affirmed.

Appeal Dismissed.

Representation

Chief Chris Uche, SAN, FCArb; Gordy Uche, SAN, FCArb; with James Odiba, Esq.; Olumuyiwa Obanewa, Esq; Ehi Uwaifor, Esq. and James Odiba, Esq. for the Appellants.

Kanu G. Agabi, CON, SAN; Olaolanipekun, SAN; with Uchenna Ede, Esq.; Olajide Salami, Esq.; Maryfrances Orji, Esq.; A.U.S. Oguajamma, Esq.; Emmanuel Afo Agabi, Esq.; Aniebiet-Abasi O.Akpan, Esq. and Ossai C. Solomon, Esq. for the 1st Respondent.

S.M. Dambaba, Esq. for the 2nd Respondent.