In
election petition and pre-election litigation, it is common to see lawyers and
litigants go off on a tangent on the issue of qualification of a person for
election to various offices, by introducing into their processes, internal party
issues and non-constitutional criteria. And this is notwithstanding the express
provisions of the Constitution on the qualification for political positions. It is either the Petitioner is alleging that
the Respondent was not properly nominated by his/her political party and as
such is not qualified to contest the election in the first place, or the
Respondent in his Reply to the Petition, is setting up a defence of lack of
locus standi of the Petitioner on the ground that the nomination of the Petitioner
is invalid.
election petition and pre-election litigation, it is common to see lawyers and
litigants go off on a tangent on the issue of qualification of a person for
election to various offices, by introducing into their processes, internal party
issues and non-constitutional criteria. And this is notwithstanding the express
provisions of the Constitution on the qualification for political positions. It is either the Petitioner is alleging that
the Respondent was not properly nominated by his/her political party and as
such is not qualified to contest the election in the first place, or the
Respondent in his Reply to the Petition, is setting up a defence of lack of
locus standi of the Petitioner on the ground that the nomination of the Petitioner
is invalid.
In both scenarios, arguments have been made to the effect that it
is wrong to raise the issue of political party primaries at the Election
Tribunal or to challenge the qualification of a party candidate outside the
precinct of the Constitutional provisions. Pursuant to the principle of
internal party affairs, neither the Petitioner nor the Respondent is in a
position to challenge the outcome of the Primary Election of the opposing Party
at the Election Petition Tribunal under whatever guise. Several reasons have
been adduced to support the arguments. First, the Petitioner and the Respondent
are not members of the same political party and as such, neither of them has
the locus to challenge the process that led to the nomination of the opposing
party. Even amongst members of the same political parties, the Courts, as part
of the judicial policy on non-interference with domestic affairs of political
parties, have consistently endeavored to narrow the ground upon which party primaries
may be challenged in pre-election disputes, not to talk of a non-member who is
often considered as a stranger and a meddlesome interloper in internal party
affairs. To drive home this point, in
the case of Frank Okon Daniel v. INEC & ORS (2015) LPELR-24566(SC), the
Supreme Court speaking through His Lordship Rhodes-Vivour JSC posed the
question thus: “Who can question the conduct of primaries?”. The Law Lord
went ahead to answer the question as follows:
is wrong to raise the issue of political party primaries at the Election
Tribunal or to challenge the qualification of a party candidate outside the
precinct of the Constitutional provisions. Pursuant to the principle of
internal party affairs, neither the Petitioner nor the Respondent is in a
position to challenge the outcome of the Primary Election of the opposing Party
at the Election Petition Tribunal under whatever guise. Several reasons have
been adduced to support the arguments. First, the Petitioner and the Respondent
are not members of the same political party and as such, neither of them has
the locus to challenge the process that led to the nomination of the opposing
party. Even amongst members of the same political parties, the Courts, as part
of the judicial policy on non-interference with domestic affairs of political
parties, have consistently endeavored to narrow the ground upon which party primaries
may be challenged in pre-election disputes, not to talk of a non-member who is
often considered as a stranger and a meddlesome interloper in internal party
affairs. To drive home this point, in
the case of Frank Okon Daniel v. INEC & ORS (2015) LPELR-24566(SC), the
Supreme Court speaking through His Lordship Rhodes-Vivour JSC posed the
question thus: “Who can question the conduct of primaries?”. The Law Lord
went ahead to answer the question as follows:
“Section 87(9) of the Electoral Act
answer the question. It reads: “87(9) 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 has 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 or the High Court of a
State or FCT, for redress. This court has interpreted the above section in
recent decisions. In Sylva & 2 Ors v. PDP (2012) 13 NWLR (Pt. 1316) p.85 I
said that: “….. Section 87(9) of the Electoral Act confers jurisdiction
on the court to hear complaints from a candidate who participated at his
party’s primaries and complains about the conduct of the primaries….” In
Lado v. CPC (2011) 18 NWLR (Pt. 1279) p.689 Onnoghen, JSC said that:
“…… section 87 of the Electoral Act, 2010, as amended deals with the
procedure needed for the nomination of candidate by a Political Party for any
election and specifically provided a remedy for an aggrieved aspirant who
participated at the party primaries which produced the winner by the highest
number of votes.” Also in Emenike v. PDP & 3 Ors. (2012) 12 NWLR (Pt.
1315) p. 556, Fabiyi, JSC said: “…… that for a complaint to come
within the narrow compass of sections 87(4) (6) and 87(9) of the Electoral Act
and be cognizable by a court the aspirant must show clearly and without any
equivocation that the National Executive Committee of the Political Party
conducted a primary election in which he was an aspirant and that the primary
election was conducted in breach of specified provisions of the Electoral
Act/Electoral Guidelines. Can the appellant benefit from section 87(9) or did
the appellant participate in the re-run of the PDP held on 15/1/11. In his
affidavit filed in support of his amended originating summons the appellant
deposed in paragraphs 26 and 30 as follows: “26. That in response, I informed
Mr. Akpabio Udo Ukpa that I was not aware and did not participate in the re-run
election. 30. That because of their refusal to inform me, I could not attend
the re-run neither did any of my supporters, as we became aware after it had
been done.” An admission, clearly and unequivocally made is the best
evidence against the person making it. Paragraphs 26 and 30 are conclusive
evidence that the appellant did not participate in the re-run primaries
conducted by PDP on 15th January, 2011. They are clear admissions by the
appellant. Since the appellant did not participate in the re-run primaries
there was no way he could complain about the conduct of the primaries, and so
had no locus standi to institute an action as provided by section 87(9) of the
Electoral Act. Put in another way, before a candidate for the primaries can
have the locus standi to sue on the conduct of the primaries he must be
screened, cleared by his political party and participate at the said primaries.
Anything short of that the candidate who did not participate in the primaries
could conveniently be classified as a meddlesome interloper with no real
interest in the primaries. The Court of Appeal to my mind was wrong. The
appellant has no locus standi to institute this suit because he did not
participate in the re-run primaries.”
answer the question. It reads: “87(9) 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 has 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 or the High Court of a
State or FCT, for redress. This court has interpreted the above section in
recent decisions. In Sylva & 2 Ors v. PDP (2012) 13 NWLR (Pt. 1316) p.85 I
said that: “….. Section 87(9) of the Electoral Act confers jurisdiction
on the court to hear complaints from a candidate who participated at his
party’s primaries and complains about the conduct of the primaries….” In
Lado v. CPC (2011) 18 NWLR (Pt. 1279) p.689 Onnoghen, JSC said that:
“…… section 87 of the Electoral Act, 2010, as amended deals with the
procedure needed for the nomination of candidate by a Political Party for any
election and specifically provided a remedy for an aggrieved aspirant who
participated at the party primaries which produced the winner by the highest
number of votes.” Also in Emenike v. PDP & 3 Ors. (2012) 12 NWLR (Pt.
1315) p. 556, Fabiyi, JSC said: “…… that for a complaint to come
within the narrow compass of sections 87(4) (6) and 87(9) of the Electoral Act
and be cognizable by a court the aspirant must show clearly and without any
equivocation that the National Executive Committee of the Political Party
conducted a primary election in which he was an aspirant and that the primary
election was conducted in breach of specified provisions of the Electoral
Act/Electoral Guidelines. Can the appellant benefit from section 87(9) or did
the appellant participate in the re-run of the PDP held on 15/1/11. In his
affidavit filed in support of his amended originating summons the appellant
deposed in paragraphs 26 and 30 as follows: “26. That in response, I informed
Mr. Akpabio Udo Ukpa that I was not aware and did not participate in the re-run
election. 30. That because of their refusal to inform me, I could not attend
the re-run neither did any of my supporters, as we became aware after it had
been done.” An admission, clearly and unequivocally made is the best
evidence against the person making it. Paragraphs 26 and 30 are conclusive
evidence that the appellant did not participate in the re-run primaries
conducted by PDP on 15th January, 2011. They are clear admissions by the
appellant. Since the appellant did not participate in the re-run primaries
there was no way he could complain about the conduct of the primaries, and so
had no locus standi to institute an action as provided by section 87(9) of the
Electoral Act. Put in another way, before a candidate for the primaries can
have the locus standi to sue on the conduct of the primaries he must be
screened, cleared by his political party and participate at the said primaries.
Anything short of that the candidate who did not participate in the primaries
could conveniently be classified as a meddlesome interloper with no real
interest in the primaries. The Court of Appeal to my mind was wrong. The
appellant has no locus standi to institute this suit because he did not
participate in the re-run primaries.”
The
above excerpt summarizes the principle that only an aspirant who participated in
a party Primary can challenge the outcome of the primaries. If a member of a
political Party who did not participate in the Primaries cannot challenge the
outcome of same, how much more a non-party member? This again, underscores the
need to compartmentalize the ground of non-qualification in election petition
litigation.
above excerpt summarizes the principle that only an aspirant who participated in
a party Primary can challenge the outcome of the primaries. If a member of a
political Party who did not participate in the Primaries cannot challenge the
outcome of same, how much more a non-party member? This again, underscores the
need to compartmentalize the ground of non-qualification in election petition
litigation.
Second
and as a corollary to the first point above, the election petition Tribunal is
not a proper venue to challenge the nomination of a party candidate as it forms
part of pre-election matters which incidentally are now time-bound. Even where
qualification of a party candidate is to be challenged either in pre or
post-election dispute, a bit of circumspection and adroitness is required to
avoid veering off the Constitutional path. In my previous write-up “Election Petition Litigation: Key Legal
Issues to note” (https://www.linkedin.com/pulse/election-petition-litigation-key-legal-issues-note-prince-nwafuru/),
I had discussed the nature of challenge to qualification that could support a ground
of election petition. However, in that op-ed I did not mention the provision of
section 138(1)(e) of the Electoral Act. Not that it would have changed my
conclusion in that write-up, but at least to show that the new sub-section has
not changed the position of the law on the vexed issue of qualification of a party
candidate. This follow up is therefore, necessary to demonstrate that the
ground of non-qualification is often misunderstood and misapplied at the
election petition tribunals and in pre-election disputes as well.
and as a corollary to the first point above, the election petition Tribunal is
not a proper venue to challenge the nomination of a party candidate as it forms
part of pre-election matters which incidentally are now time-bound. Even where
qualification of a party candidate is to be challenged either in pre or
post-election dispute, a bit of circumspection and adroitness is required to
avoid veering off the Constitutional path. In my previous write-up “Election Petition Litigation: Key Legal
Issues to note” (https://www.linkedin.com/pulse/election-petition-litigation-key-legal-issues-note-prince-nwafuru/),
I had discussed the nature of challenge to qualification that could support a ground
of election petition. However, in that op-ed I did not mention the provision of
section 138(1)(e) of the Electoral Act. Not that it would have changed my
conclusion in that write-up, but at least to show that the new sub-section has
not changed the position of the law on the vexed issue of qualification of a party
candidate. This follow up is therefore, necessary to demonstrate that the
ground of non-qualification is often misunderstood and misapplied at the
election petition tribunals and in pre-election disputes as well.
Sub-section
(e) of Section 138(1) of the Electoral Act was introduced following the 2015
amendment that was signed into law by the former President, Goodluck Ebele
Jonathan on 26 March 2015. The sub-section provides that an election may be
challenged on the ground that person whose election is questioned had submitted
to the Commission affidavit containing false information of a fundamental
nature in aid of his qualification for the election. Thus, in addition to the
four traditional grounds upon which an election may be challenged under section
138(1)(a)-(d) of the Electoral Act, 2010 (as amended), this new sub-section
seeks to expand the ground on non-qualification by providing that an election
may also be question on the ground that respondent submitted to INEC affidavit
containing false information of a fundamental nature in aid of his
qualification for the election. The flip side argument would mean that, the
Respondent in an election petition for instance, may rely on this subsection to
challenge the locus standi of the Petitioner to present the Petition on the
ground that the Petitioner submitted affidavit containing false information to
INEC. What this sub-section (e) seeks to achieve is not yet clear considering that
subsection (a) of Section 138(1) of the Electoral Act, 2010 (as amended)
already provides that an election may be questioned on the ground that “a
person whose election is questioned was, at the time of the election, not
qualified to contest the election.” Does
section 138(1)(e) of the Electoral Act, give a litigant at the Election
Petition Tribunal a carte blanche to introduce all sorts of grounds under the
pretext of challenging the qualification of a party candidate? I do not think
so. Again, it is not clear what constitutes “false information of a fundamental
nature in aid of his qualification” as provided in the sub-section. The Courts in
many decided cases have already said that reference should be made to the
Constitution only, in determining the issue of qualification of a person to
elective position. Hence, the constant allegations of forgery of age
declaration certificate, tax clearance documents or academic qualification in a
bid to challenge the qualification of the party candidate thereto need to be
examined vis-à-vis the constitutional provisions on qualification for elective
offices. Whether such issues would fall within the qualification criteria set
out in the Constitution would depend on the facts of each case. For instance in
the case of academic qualification, the Constitution has set the minimum
academic requirement to be that the person must have been been educated up to
at least School Certificate level or its equivalent. The same Constitution
defines “School Certificate or its
equivalent” to mean (a) a Secondary School Certificate or its
equivalent, or Grade II Teacher’s Certificate, the City and Guilds Certificate;
or (b) education up to Secondary School Certificate level; or (c) Primary Six
School Leaving Certificate or its equivalent and – (i) service in the public or
private sector in the Federation in any capacity acceptable to the Independent
National Electoral Commission for a minimum of ten years, and (ii) attendance
at courses and training in such institutions as may be acceptable to the Independent
National Electoral Commission for periods totaling up to a minimum of one year,
and (iii) the ability to read, write, understand and communicate in the English
language to the satisfaction of the Independent National Electoral Commission,
and (d) any other qualification acceptable by the Independent National
Electoral Commission;
(e) of Section 138(1) of the Electoral Act was introduced following the 2015
amendment that was signed into law by the former President, Goodluck Ebele
Jonathan on 26 March 2015. The sub-section provides that an election may be
challenged on the ground that person whose election is questioned had submitted
to the Commission affidavit containing false information of a fundamental
nature in aid of his qualification for the election. Thus, in addition to the
four traditional grounds upon which an election may be challenged under section
138(1)(a)-(d) of the Electoral Act, 2010 (as amended), this new sub-section
seeks to expand the ground on non-qualification by providing that an election
may also be question on the ground that respondent submitted to INEC affidavit
containing false information of a fundamental nature in aid of his
qualification for the election. The flip side argument would mean that, the
Respondent in an election petition for instance, may rely on this subsection to
challenge the locus standi of the Petitioner to present the Petition on the
ground that the Petitioner submitted affidavit containing false information to
INEC. What this sub-section (e) seeks to achieve is not yet clear considering that
subsection (a) of Section 138(1) of the Electoral Act, 2010 (as amended)
already provides that an election may be questioned on the ground that “a
person whose election is questioned was, at the time of the election, not
qualified to contest the election.” Does
section 138(1)(e) of the Electoral Act, give a litigant at the Election
Petition Tribunal a carte blanche to introduce all sorts of grounds under the
pretext of challenging the qualification of a party candidate? I do not think
so. Again, it is not clear what constitutes “false information of a fundamental
nature in aid of his qualification” as provided in the sub-section. The Courts in
many decided cases have already said that reference should be made to the
Constitution only, in determining the issue of qualification of a person to
elective position. Hence, the constant allegations of forgery of age
declaration certificate, tax clearance documents or academic qualification in a
bid to challenge the qualification of the party candidate thereto need to be
examined vis-à-vis the constitutional provisions on qualification for elective
offices. Whether such issues would fall within the qualification criteria set
out in the Constitution would depend on the facts of each case. For instance in
the case of academic qualification, the Constitution has set the minimum
academic requirement to be that the person must have been been educated up to
at least School Certificate level or its equivalent. The same Constitution
defines “School Certificate or its
equivalent” to mean (a) a Secondary School Certificate or its
equivalent, or Grade II Teacher’s Certificate, the City and Guilds Certificate;
or (b) education up to Secondary School Certificate level; or (c) Primary Six
School Leaving Certificate or its equivalent and – (i) service in the public or
private sector in the Federation in any capacity acceptable to the Independent
National Electoral Commission for a minimum of ten years, and (ii) attendance
at courses and training in such institutions as may be acceptable to the Independent
National Electoral Commission for periods totaling up to a minimum of one year,
and (iii) the ability to read, write, understand and communicate in the English
language to the satisfaction of the Independent National Electoral Commission,
and (d) any other qualification acceptable by the Independent National
Electoral Commission;
In PDP v. OGAH & Ors (2016) LPELR-40850(CA), the
1st Respondent Dr. Sampson Uchechukwu Ogah sought the
disqualification of Dr Okezie Ikpeazu, the current Governor of Abia State on
the ground that the Governor was not qualified to be the Candidate of the
Appellant (PDP) in the Governorship Election relying on and alleging that the
Form CF001 as sworn to by Dr Ikpeazu in the affidavit accompanying other
documents submitted to Independent National Electoral Commission by him
pursuant to Section 31 (2) of Electoral Act was false. The Court of
Appeal in setting aside the decision of the Federal High Court disqualifying Dr
Ikpeazu, reiterated the principle to the effect that based on the doctrine of
“covering the field” as enunciated in AG. Abia v. AG. Federation
(2001) 6 NWLR Pt. 763 at Pg. 264 at 391 – 392 also in Abia v. AG. Federation
supra, by the Supreme Court, the National Assembly CANNOT make laws with
respect to the qualifications and non-qualifications of candidates for election
into political office.
1st Respondent Dr. Sampson Uchechukwu Ogah sought the
disqualification of Dr Okezie Ikpeazu, the current Governor of Abia State on
the ground that the Governor was not qualified to be the Candidate of the
Appellant (PDP) in the Governorship Election relying on and alleging that the
Form CF001 as sworn to by Dr Ikpeazu in the affidavit accompanying other
documents submitted to Independent National Electoral Commission by him
pursuant to Section 31 (2) of Electoral Act was false. The Court of
Appeal in setting aside the decision of the Federal High Court disqualifying Dr
Ikpeazu, reiterated the principle to the effect that based on the doctrine of
“covering the field” as enunciated in AG. Abia v. AG. Federation
(2001) 6 NWLR Pt. 763 at Pg. 264 at 391 – 392 also in Abia v. AG. Federation
supra, by the Supreme Court, the National Assembly CANNOT make laws with
respect to the qualifications and non-qualifications of candidates for election
into political office.
What is clear from the foregoing decision is that the
issue of qualification of a candidate to stand for an election can only be
decided by making reference to the Constitution. Section 138(1)(a) and (e) of the Electoral Act, 2010 (as
amended) is therefore not a blank cheque to introduce internal party affairs or
any qualification issue not anchored on the provisions of the Constitution in
pre or post-election disputes. Putting it differently, in challenging the
qualification of party candidate at the Election Petition Tribunal or regular Courts,
it is important that the ground of the petition or objection is premised on
those qualifications provided under the Constitution. The Constitution has made
copious provisions for the qualification of persons vying for various elective
positions such as President, Governor, Senator, Member of House of
Representative or Member of a State House of Assembly. For instance, the
Constitution provides that “A person shall be qualified for election to the
office of the President if –(a) he is a citizen of Nigeria by birth; (b) he has
attained the age of forty years; (c) he is a member of a political party and is
sponsored by that political party; and (d)he has been educated up to at least
School Certificate level or its equivalent.
issue of qualification of a candidate to stand for an election can only be
decided by making reference to the Constitution. Section 138(1)(a) and (e) of the Electoral Act, 2010 (as
amended) is therefore not a blank cheque to introduce internal party affairs or
any qualification issue not anchored on the provisions of the Constitution in
pre or post-election disputes. Putting it differently, in challenging the
qualification of party candidate at the Election Petition Tribunal or regular Courts,
it is important that the ground of the petition or objection is premised on
those qualifications provided under the Constitution. The Constitution has made
copious provisions for the qualification of persons vying for various elective
positions such as President, Governor, Senator, Member of House of
Representative or Member of a State House of Assembly. For instance, the
Constitution provides that “A person shall be qualified for election to the
office of the President if –(a) he is a citizen of Nigeria by birth; (b) he has
attained the age of forty years; (c) he is a member of a political party and is
sponsored by that political party; and (d)he has been educated up to at least
School Certificate level or its equivalent.
Any
other provision of the Electoral Act or any other law setting different qualifications
for candidate in respect of any elective post in Nigeria is subservient to the
above Constitutional provision and cannot be countenanced. Putting it
differently, any requirements provided by INEC or any other body stipulating
the qualification to contest an elective position in Nigeria must be within the
narrow margin of “all constitutional requirements for election to that
office.” In effect, any extraneous requirements that are squarely outside
the requirements of the Constitution on qualification of a person to an office
cannot ground a reason for disqualification either in election petition
litigation or pre-election matters.
other provision of the Electoral Act or any other law setting different qualifications
for candidate in respect of any elective post in Nigeria is subservient to the
above Constitutional provision and cannot be countenanced. Putting it
differently, any requirements provided by INEC or any other body stipulating
the qualification to contest an elective position in Nigeria must be within the
narrow margin of “all constitutional requirements for election to that
office.” In effect, any extraneous requirements that are squarely outside
the requirements of the Constitution on qualification of a person to an office
cannot ground a reason for disqualification either in election petition
litigation or pre-election matters.
Prince Ikechukwu Nwafuru
Counsel
Paul Usoro & Co.
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