Peoples Democratic Party (PDP) v. Independent National Electoral Commission (INEC) & Ors (2023)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

ADAMU JAURO, JSC (Delivering the leading judgment)

The appeal herein is against the judgment of the Court of Appeal, Abuja Judicial Division delivered on 24th March, 2023, in appeal No. CA/ABJ/CV/108/2023, wherein the court dismissed the appeal of the appellant and affirmed the judgment of the Federal High Court, Abuja Division, which had, in its judgment delivered on 13th January, 2023, upheld the respondent’s objection to the appellants’ suit and by extension, the jurisdiction of the trial court.

Brief facts of the case

On 28th July, 2022, the appellant took out an originating summons before the trial Federal High Court and submitted therein the following questions for determination by the court:

“1. Whether by virtue of section 35 of the Electoral Act, 2022, the nomination of the 4th defendant is void for allowing himself to be nominated in more than one constituency.

2. Whether by virtue of section 35 of the Electoral Act 2022, the 4th defendant stands disqualified from contesting the Presidential election scheduled to hold on the 25th of February, 2023 or thereabout having been nominated by the 2nd defendant to contest for the positions of Vice President of the Federal Republic of Nigeria and Senator of the Federal Republic of Nigeria representing Borno Central Senatorial District in the forthcoming 2023 general elections.
3. Whether by the combined provisions of section 84(1) and (2) of the Electoral Act, 2022, a political party seeking to nominate candidates for all elective positions including but not limited to the office of the Vice President shall conduct primary election.
4. Whether by virtue of the provisions of section 33 of the Electoral Act, 2022, a political party shall be allowed to produce and submit a fresh candidate to replace a withdrawn candidate for an election without a primary election conducted to elect that candidate.
5. Whether by virtue of the provisions of section 142(1) of the Constitution of the Federal Republic of Nigeria, 1999 (As Altered), a candidate for the office of the President of the Federal Republic of Nigeria shall be deemed to be validly nominated without a Vice Presidential candidate.
6. Whether upon a proper construction and interpretation of the provisions of section 84(13) of the Electoral Act, the 1st defendant is permitted by law to allow the 2nd 3rd and 4th defendants to participate in the 2023 Presidential Election scheduled to hold on 25th February, 2023.
7. Whether upon a proper interpretation of section 29 (1) of the Electoral Act, 2022, a political party seeking to sponsor candidates can submit a Vice-Presidential candidate outside the time allowed by law.”

In anticipation of a favourable resolution of the above questions, the appellant sought the following reliefs in its originating summons:

“1. A declaration that by virtue of section 35 of the Electoral Act, 2022, the nomination of the 4th defendant is void for allowing himself to be nominated in more than one constituency.

2. A declaration that by virtue of section 35 of the Electoral Act 2022, the 4th defendant stands disqualified from contesting the Presidential election scheduled to hold on the 25th of February, 2023 or thereabout having been nominated by the 2nd defendant to contest for the positions of Vice President of the Federal Republic of Nigeria and Senator of the Federal Republic of Nigeria representing Borno Central Senatorial District in the forthcoming 2023 General elections.
3. A declaration that by the combined provisions of section 84(1) and (2) of the Electoral Act, 2022, a political party seeking to nominate candidates for all elective positions including but not limited to the office of the Vice President shall conduct primary election.
4. A declaration that by virtue of the provisions of section 33 of the Electoral Act, 2022, a political party shall not be allowed to produce and submit a fresh candidate to replace a withdrawn candidate for an election without a primary election conducted to elect that candidate.
5. A declaration that by virtue of the provisions of section 142(1) of the Constitution of the Federal Republic of Nigeria, 1999 (As Altered), a candidate for the office of the President of the Federal Republic of Nigeria shall not be deemed to be validly nominated without a Vice Presidential candidate.
6. A declaration that by virtue of the provisions of section 84(13) of the Electoral Act, the 1st defendant is not permitted by law to allow the 2nd, 3rd and 4th defendants to participate in the 2023 Presidential Election scheduled to hold on 25th February, 2023.
7. A declaration that upon a proper interpretation of section 29 (1) of the Electoral Act, 2022, a political party seeking to sponsor candidates cannot submit a Vice-Presidential candidate outside the time allowed by law.
8. An order disqualifying the 2nd, 3rd and 4th defendants from contesting the presidential election scheduled to hold on the 25th of February, 2023 or thereabout.
9. An order setting aside or nullifying forthwith the purported sponsorship and/or nomination of the 3rd and 4th defendants by the 2nd defendant to the 1st defendant in respect of the 2023 Presidential election.
10. An order compelling the 1st defendant to remove from its list of nominated or sponsored candidates eligible to contest the Presidential election in the 2023 Presidential election scheduled for February 25th, 2023 or thereabout or any list, ballot paper or election records or materials, the names of the 3rd and 4th defendants as well as the logo of the 2nd defendant.
11. An order of injunction restraining the 1st defendant either by itself, agents, privies, surrogates or any other person(s) whosoever from according recognition to the 2nd defendant or in any manner whatsoever featuring or parading the 2nd Defendant as a political party entitled to sponsor candidates for the 2023 Presidential Election scheduled for February 25th, 2023 or thereabout.
12. An order of injunction restraining the 2nd defendant either by itself, agents, members, privies or surrogates from parading itself, representing itself as or permitting itself to be represented as a political party eligible to contest the 2023 Presidential Election scheduled for February 25th, 2023 or thereabout.
13. Any other or further consequential order or orders of this honourable court as the circumstances of this case may require in the interest of justice.”

The appellant was in essence challenging the qualification of the 4th respondent on the ground that he allowed himself to be nominated in more than one constituency ahead of the 2023 Presidential election.

The 4th respondent was alleged to still be the 2nd respondent’s candidate for Borno Central Senatorial District as at 14th July, 2022 when he accepted his nomination as the party’s candidate for the position of Vice President of the Federal Republic of Nigeria.

He was alleged to have withdrawn his nomination as candidate of the 2nd respondent for Borno Central Senatorial District on 15th July, 2022, after he had already accepted his nomination for the position of Vice President. This claim was denied by the 2nd – 4th respondents who stated that the 4th respondent withdrew his candidacy as the 2nd respondent’s Senatorial candidate by his letter addressed to the party on 6th July, 2022.

All the respondents challenged the trial court’s jurisdiction on the grounds that the suit was statute barred as the alleged cause of action accrued on 14th July, 2022, but the suit was filed on 28th July, 2022, 15 days from the date of the occurrence of the event, decision or action complained of in the suit; that the appellant lacked locus standi, that the suit did not disclose a reasonable cause of action; that it constituted an abuse of court process as a similar suit was pending before another Judge of the same court, D.U. Okorowo, J, when it was filed; and that the suit was caught by estoppel per rem judicatam, as the other suit earlier referred to had been struck out for being incompetent.

In response to these objections, the appellant argued that the nomination of the 4th respondent is a nullity and time therefore cannot run against the appellant. On the same premise, it was argued that anyone can bring an action against such a null and void act.

The case of Nwosu v. APP (2020) 16 NWLR (Pt. 1749) 28 was heavily relied on. It was also argued that having sponsored a candidate in the Presidential election, the appellant had locus standi as its interest would be affected if the 2nd – 4th respondents were allowed to participate in the said Presidential election. It further argued that the suit before Okorowo, J., was in respect of different parties, with different reliefs sought.

The objections were heard and, in compliance with section 285(8) of the Constitution, the rulings were suspended till the stage of final judgment.