Electoral Act 2022: 20 Key Things to Note in Filing Pre-Election Matters in Court [Part 1]

By Moruff O. Balogun, Esq.
Vice Chairman, NBA Ijebu Ode branch.

1: That the candidate was duly nominated by his/her political party.
Once a candidate has been duly nominated and his/her name was forwarded by political party to the INEC as the candidate for a particular election, the said candidate remains a candidate and cannot be changed or substituted unless, the said candidate dies or voluntarily withdraws.

Kindly see the provision of SECTION 33 of the Electoral Act, 2022.
SECTION 33 provides:
“A political party shall not be allowed to change or substitute its candidate whose name has been submitted under Section 29 of this Act, except in the case of death or withdrawal by the candidate.

Provided that in the case of such withdrawal or death of a candidate, the political party affected shall within 14 days of the occurrence of the event, hold a fresh primary election to produce and submit a fresh candidate for the commission for the election concerned.”

Kubor V. Dickson [2013] 4 NWLR [PT. 1345] where the Supreme Court held that the submission of the said nomination forms of a candidate to INEC automatically makes him a candidate nominated for the election.

2: That the candidate was qualified to be nominated.
Where a candidate to an election does not possess necessary qualifications in line with the Constitutional provisions, he cannot be said to have been validly nominated for an election. One cannot put something on nothing and expect it to stand. It will fall. In other words, invalid qualification cannot birth valid nomination.

The constitutional requirements such as age, education, nationality e.t.c are key issues here.
Section 19 of the Electoral Act, 2022.

The Court of Appeal, per Ogbuinya, JCA, who read the lead judgment held that:
“It goes without saying that valid nomination and unlawful exclusion share symbiotic relationship. That is, unlawful exclusion is parasitic on valid nomination, the former is lifeless in the absence of the latter. Having found that the candidates of the first respondent were not validly nominated, the unlawful exclusion from the election, which the first respondent brandished about, was an orphan without any legal parentage to perch and command any legitimacy.

The tribunal with due respect, fractured the Electoral law when it held that the first respondent’s candidates were validly nominated but unlawfully excluded from the election. The finding is, with due respect, very contemptuous of the law”.

3: An aspirant who did not participate in the primaries lacks standing to challenge the primary election.

In a pre-election suit, only the plaintiff who shows that he participated in the primary election can validly challenge the outcome of such primary election.
Section 29 [5] Electoral Act 2022 provides:
“Any aspirant who participated in the primaries of his political party who has reasonable grounds to believe that any information given by his political party’s candidate in the affidavit or any document submitted by that candidate in relation to his constitutional requirements to contest the election is false, may file a suit at the Federal High Court against the candidate seeking a declaration that the information contained in the affidavit is false”.

Section 29 [6]:
“Where the Court determines that any of the information contained in the affidavit is false only as it relates to constitutional requirements of eligibility the court shall issue an order disqualifying the candidate and the sponsoring political party and then declare the candidate with the second highest number of valid votes and who satisfies the constitutional requirement as the winner of election”.

In, Emeka V Okadigbo [2012] 18 NWLR [PT. 1331] 55, the Supreme Court, Rhodes- Vivour, JSC, held thus:
“A person who was not a candidate/aspirant at the primaries conducted by political party cannot approach the court to complain about the conduct of the primaries. Thus, the emergence of the 1st respondent as the PDP candidate for the senatorial elections could not be questioned by the appellant,since he never contested the primaries from which the 1st respondent emerged”.

 

4: The law recognizes only the primaries conducted by the National Executive Committee of the Political Party.
Where a plaintiff fails to show that he took part in the primaries conducted by the National Executive Committee or National Working Committee of a political party, he lacks locus standi to challenge the outcome of primary election conducted by the National Committee of the said party.

Primaries conducted by the State Executive Committee of the Political Party are null and void.
It is only the National Executive Committee or National Working Committee of a party that has the power to conduct primary election.

Section 84 (1) of the Electoral Act, 2022 provides:
“A political party seeking to nominate candidates for election under this Act shall hold primaries for aspirants to all elective positions which shall be monitored by the Commission”.

Section 84 (14) of the Electoral Act, 2022 provides:
“ Notwithstanding the provisions of the 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”.

Section 84(15) of the Electoral Act, 2022 provides:
“Nothing in this section shall empower the courts to stop the holding of primaries or general elections, under the Act pending the determination of a suit”.

Also in EMENIKE V. PDP [2012] 12 NWLR [PT. 1325] 556 , where the Supreme Court per Chukwuma- Emeh, JSC stated as follows:
“All the same according to exhibit 7, the Abia State Executive Committee is incapable under the party’s guideline of conducting valid party primaries for the governorship position for the said election. It is not vested with the power to carry out such exercises”.

The appellant therefore cannot be clothed with the necessary standing to sue as an aspirant in this matter. Meaning that his action therefore has no leg or which to stand”.

In a dispute arising out of primary election, the authentic result is the one declared by the National Executive Committee or National Working Committee of a political party. And where there are parallel primaries, the valid one is that conducted by the National Executive Committee of a political party.

5: Where a non-national officer duly appointed by the National Executive Committee signs a candidate’s nomination form- It is legally valid.
The law is settled that where a Political party’s National Working Committee ratifies the decision of the Electoral Committee duly appointed by the political party to conduct a pre-election nomination and accordingly proceeds to field and or submit the name of a candidate, the decision is final and binding on all parties, and not even the Court can interfere in this domestic affair of the party.

In Jegede V. INEC [Unreported case with appeal no: SC/CV/448/2021 delivered on 28th July, 2020],where the appellant sought for the disqualification of the 3rd and 4th Respondents on the ground that the form submitting or forwarding their names as the political party’s candidates for an election to the Independent National Electoral Commission [INEC] was signed by a non-national officer or members with no competence to sign.
The Supreme Court, Per Agim, JSC, held as follows:

“The pleading that exhibit P21 and form EC98 by which the 2nd Respondent submitted the 3rd and 4th Respondents was signed by a non-national officer or members with no competence to sign it contrary to paragraph 17 (a) of the first supplementary to regulations and guidelines for the conduct of elections of 9-6-2020 is irrelevant as there is no pleading that is contrary to any provision of the Electoral Act.

Failure to obey the directive or instruction of the 1st Respondent in the said Regulation or Guidelines cannot be relied on as a ground for an election petition to invalidate the election of the 3rd and 4th respondents, because such failure is not contrary to any provisions of the Electoral Act 2010 [as amended]. This is so because section 138(2) of the Act provides that:
“(2) An act or omission which may be contrary to an instruction or directive of the constitution or of an officer appointed for the purpose of the election but which is not contrary to the provision of this Act shall not of itself be a general for questioning the election.”

The relevant provisions of the Electoral Act did not state letter and prescribed form submitting or forwarding the names of the members of a political party that the party has decided to sponsor as its candidate for an election to the Independent National Electoral Commission [INEC] must be signed by the National Chairman and National Secretary of the political party submitting the names……… let me clarify here exhibit 2, the letter from the 2nd respondent and form EC98 submitting the names of its candidate for the election is a notice or communication to the 2nd respondent of its decision to sponsor those candidates for the election.

It is wrong to describe or regard such letter as the act of sponsorship or the decision to sponsor. The decision to sponsor a person as the candidate of a political party for a general election is taken by the relevant congress or convention of the political party at a primary election of the political party held to nominate or select its candidate for the election.

In the case of sponsorship of a person as a candidate of a political party for election of Governor of a State, the decision is taken by the members of the political party in that state at a state congress held in that state to nominate or select the party’s governorship candidate for the election.

This is expressly stated in S.87(4) (B) of the Electoral Act already reproduced here.
The decision is not taken by national officer of the political party.

NOTE that the provision of Section 138(2) of the Electoral Act, 2010 is in pari materia with the provision of Section 134(2) of the Electoral Act, 2022.

Author: Moruff O. Balogun, Esq.
Vice Chairman, Nigerian Bar Association, Ijebu Ode branch,
08052871414/09121207712
[email protected].

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