Electoral Law Law and Politics The Electoral Cave

PRE-ELECTION DISPUTE IN NIGERIA: APPRAISAL OF THE FOURTH (4TH) ALTERATION NO 21 ACT, 2017 OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA (PART II)

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JURISDICTION OF COURT TO DETERMINE COMPLAINTS UNDER SECTION 87(9) OF THE ELECTORAL ACT.

A close perusal of provisions of section 87(9) of the Electoral Act 2010 would disclose that there are three courts clothed with the jurisdiction to entertain suits under section 87(9) of the Electoral Act, to wit: The Federal High Court, the High Court of the state and the High Court of Federal Capital Territory. Hitherto, an aggrieved aspirant in a primary election can apply to any of these courts to ventilate his grievances and while he does that, no notice of preliminary objection can succeed on the ground that any of these three courts lacks jurisdiction to entertain the suit. Simply speaking, if a primary election was held in Sokoto state, an aggrieved person, also an aspirant in the primary, can choose to challenge the outcome of the primary by applying either to the High Court of Sokoto state or any Federal High Court in Nigeria or The High Court of the Federal Capital Territory.

It was not until 2017, in the case of Mailantarki v. Tongo [2018] 6 NWLR (Pt. 1614) 69, where the Supreme Court took a sharp departure from the extant law as explained above.

In that case, the Appellant & Respondent herein contested the primary election for the nomination of candidate to be sponsored by the 2nd Respondent, the All Progressives Congress (APC), to contest the House of Representatives seat for Gombe-Kwami-Funakaye South Federal Constituency of Gombe state. The 1st Respondent won the primary of which the Appellant appealed to the National Assembly appeal committee of the party. His grouse was that the 1st Respondent (winner) was still a card-carrying member of the PDP and so, he was not qualified to contest under the APC. The Appeal Committee found for him and made a recommendation to the National Working Committee of the party to allow the Appellant to re-contest the seat. However, the APC NWC still sent the name of the 1st Respondent to the 3rd Respondent (INEC) as its candidate for that seat.

The Appellant initiated a suit vide an originating summons at the High Court of the Federal Capital Territory for the enforcement of the decision of the appeal committee, that the 2nd Respondent (APC) could not submit the name of the 1st Respondent to the 3rd Respondent (INEC) and that he was the rightful candidate of the 2nd Respondent (APC) for the election. The 1st Respondent filed a Notice of preliminary objection as well as his counter-affidavit and written address in which he also contended that he won the primary election, having fulfilled the pre-requisites of contesting an election. Not only that, he was a bonafide member of the 2nd Respondent and the court cannot enforce the resolutions reached by the appeal committee of the 2nd Respondent (APC).

At the conclusion of hearing, the court dismissed the Notice of preliminary objection. On the substance of the substantive suit, the court gave judgment in favour of the Appellant and granted all the reliefs sought by the Appellant.
Aggrieved, the 1st Respondent appealed to the Court of Appeal, contending that the High Court of Federal Capital Territory does not have jurisdiction to hear and determine a subject matter which occurred in another state where the court in that state has jurisdiction. The court of appeal, on that basis, struck out the suit.

The Appellant, dissatisfied, then appealed to the Supreme Court and argued that the suit filed at the F.C.T High Court touched on the Primaries held by the 2nd Respondent (APC) in Gombe state; that the suit was filed to enforce the decision of already taken by the National Assembly Appeal committee of the 2nd Respondent (APC), and which decision had been forwarded to the APC Headquarters for implementation.

In resolving the legal impasse, the Supreme Court agreed with the 1st Respondent counsel that the High court of FCT lacks jurisdiction to entertain the suit. In the lead judgment read by Eko JSC, they had this to say:

“The decision to file this suit in the FCT High Court far away from Gombe State where the cause of action arose cannot be anything but a sheer decision to abuse the judicial process. It was a decision to actuate forum shopping. It is a specie of abuse of judicial process. Forum shopping denotes a rather reprehensible practice of choosing the most favourable territorial jurisdiction or court in which a matter or cause may be entertained and adjudicated upon”.

The Supreme Court had to distinguish between subject matter jurisdiction and territorial jurisdiction vis-à-vis section 87(9) of the Electoral Act of 2010. The question is can an aggrieved aspirant institute his action before any of the courts referred to in section 87(9) irrespective of the territorial jurisdiction of such court? The jurisdiction of a court to entertain a cause or matter is prescribed by the Constitution of the Federal Republic of Nigeria 1999 or by statute. Section 257(1) of the 1999 Constitution provides for the subject matter jurisdiction of the High Court of the FCT. The jurisdiction conferred by section 87(9) of the Electoral Act, 2010 is in addition to the jurisdiction conferred by the Constitution. Section 255(1) of the 1999 constitution provides for the establishment of the High Court of the Federal Capital Territory, Abuja, just as section 270(1) of the Constitution provides for the establishment of a High Court for each state of the Federation. There cannot be any doubt that the territorial jurisdiction of the High Court of the FCT is restricted and confined to causes and matters that arise within the Federal Capital Territory.

Having explained how the validity of a candidacy can be challenged in relation to acts of a political party, another nature of pre-election suit is the qualification of an Aspirant to contest the main election in the first place. It is pertinent to note that for every elective post in our Political system, there are certain requirements that every candidate for every elective post must fulfill before he can be qualified to contest an election.

Qualification to contest an election is a condition precedent to participate in the election, as a candidate has to be qualified as required by the relevant laws before he can contest an election of which votes would be cast for him. Once a candidate is found not to be legally and lawfully qualified to have contested an already conducted election, the election is that, in law, that candidate did not participate in or contest in the election.
In the same vein, there are certain impediments that can disqualify a candidate to contest an election. For clarity, the qualifications and disqualifications of Candidates to contest any elective position in Nigeria as laid down in the constitution are produced hereunder, albeit, our focus would be on the National Assembly and Governorship election.

NATIONAL ASSEMBLY
QUALIFICATIONS

65(1):- Subject to the provisions of section 66 of this constitution a person shall be qualified for election as a member of
(a) the Senate, if he is a Citizen of Nigeria and has attained the age of 35 years; and
(b) the House of Representatives, if he is a Citizen of Nigeria and has attained the age of 30 years;
(2):- A person shall be qualified for election under subsection (1) of this section if:
(a) he has been educated up to at least Secondary School Certificate level or its equivalent; and
(b) he is a member of a political party and is sponsored by that party.

DISQUALIFICATIONS

66(1):- No Person shall be qualified for election to the Senate or the House of Representatives if:
(a) Subject to the provisions of section 28 of this constitution, he has voluntarily acquired the citizenship of another country other than Nigeria or except, in such cases as may be prescribed by the National Assembly, has made a declaration of allegiance to such a country;
(b) under any law in force in any part of Nigeria, he is adjudged to be a lunatic or otherwise declared to be of unsound mind;
(c) he is under a sentence of death imposed on him by any competent court of law or tribunal in Nigeria or a sentence of imprisonment or fine for an offence involving dishonesty or fraud (by whatever name called) or any other sentence imposed on him by such a court or tribunal or substituted by a competent authority for any other sentence imposed on him by such a court;
(d) within a period of less than 10 years before the date of an election to a legislative house, he has been convicted and sentenced for an offence involving dishonesty or he has been found guilty of a contravention of the Code of Conduct;
(e) he is an undischarged bankrupt, having been adjudged or otherwise declared bankrupt under any law in force in any part of Nigeria;
(f) he is a person employed in the public service of the Federation or of any State and has not resigned, withdrawn or retired from such employment thirty days before the date of election;
(g) he is a member of secret society;
(h) he has presented a forged certificate to the Independent National Electoral Commission.

GOVERNORSHIP
QUALIFICATIONS

177. A person shall be qualified for election to the Office of the Governor of a State if-
(a) he is a citizen of Nigeria by birth;
(b) he has attained the age of thirty-five 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.

DISQUALIFICATION

182(1) No person shall be qualified for election to the office of Governor of a state if-
(a) Subject to the provisions of section 28 of this constitution, he has voluntarily acquired the citizenship of another country other than Nigeria or except, in such cases as may be prescribed by the National Assembly, has made a declaration of allegiance to such a country; or
(b) he has been elected to such office at any two previous elections; or
(c) under any law in force in any part of Nigeria, he is adjudged to be a lunatic or otherwise declared to be of unsound mind; or
(d) he is under a sentence of death imposed on him by any competent court of law or tribunal in Nigeria or a sentence of imprisonment or fine for an offence involving dishonesty or fraud (by whatever name called) or any other sentence imposed on him by such a court or tribunal or substituted by a competent authority for any other sentence imposed on him by such a court; or
(e) within a period of less than 10 years before the date of an election to a legislative house, he has been convicted and sentenced for an offence involving dishonesty or he has been found guilty of a contravention of the Code of Conduct; or
(f) he is an undischarged bankrupt, having been adjudged or otherwise declared bankrupt under any law in force in any part of Nigeria; or
(g) being a person employed in the public service of the Federation or of any State and has not resigned, withdrawn or retired from such employment thirty days before the date of election;
(h) he is a member of any secret society; or
(i) he has presented a forged certificate to the Independent National Electoral Commission.

Going by the above explanations of how only an Aspirant in a primary election possesses the locus standi to challenge the nomination of a candidate, it undisputedly means that it is only the Aspirants who physically participated in the primary election that are allowed by law. Interestingly, it is also possible for someone who did not participate in a primary election to challenge the nomination of a candidate. All required by the law is for a prospective litigant to come under section 31(5) of the Electoral Act, 2010 (as amended). Section 31(5) provides:

“Any person who has reasonable grounds to believe that any information given by a candidate in the affidavit or any documents submitted by that candidate is false may file a suit at the High Court of a State or Federal High court against such person seeking a declaration that the information contained in the affidavit is false”.

There is no doubt that this aspect of challenge to the qualification of a candidate is not in any way related to the conduct of primary election. Strictly, to come under section 31(5) of the Electoral Act is to challenge the information supplied by a candidate in his Form CF001, submitted to INEC. The Form CF001 generally, is for candidates to answer questions bothering on whether or not they meet the requirements set out by the constitution, as subscribed above.

ARTICLE AUTHOR:

Mohammed A. Oyelade Esq.

Editor, Law Axis 360°

Mohammed A. Oyelade Esq is a Legal Associate in Afe Babalola SAN & co, Abuja. His core area of interests spans through Constitutional Law & Election Petition. He is very current on National isues and always ready to learn.

Contact: akinyemioyelademm@yahoo.com
07032571601; 08132504902

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