Michael Chinedu Oli Vs Independent National Electoral Commission (INEC) & Ors (2023)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

HELEN MORONKEJI OGUNWUMIJU, JSC (Delivering the leading judgment)

This is an appeal against the judgment of the Court of Appeal, Awka Division, delivered on 24th March, 2023, which set aside the judgment and orders of the Federal High Court, Awka Division in suit No. FHC/AWK/CS/146/2022 delivered on 20th January, 2023.

The judgment of the trial court had nullified the primary election of the 2nd respondent (Labour Party) conducted on the 5th of June, 2022 in which the 3rd respondent emerged as the 2nd respondent’s candidate for the Anaocha II Constituency of Anambra State.

Dissatisfied with the decision of the court below, the appellant herein filed a notice of appeal on the 4th of April, 2023 wherein he has asked this court to allow the appeal, set aside the judgment of the court below and restore the judgment of the trial court.

The appellant herein approached the Federal High Court, Awka Division vide an originating summons seeking the nullification of the primary election of the 2nd respondent (Labour Party) conducted on the 5th of June, 2022 in which the 3rd respondent emerged as the candidate for the Anaocha II Constituency of Anambra State, as well as a declaration that appellant was the rightful candidate of the 2nd respondent having been elected unopposed at an earlier primary election held on the 26th of May, 2022.

The appellant filed a summons on 4/8/2022 which raised the following questions and asked for the following reliefs:

1. In view of the fact that the plaintiff had emerged unopposed at the primary election conducted on the 26th May, 2022 in accordance with sections 77(2) & (3) and 84(1) & (11) of the Electoral Act 2022 as the State House of Assembly candidate of Labour Party (LP) for Anaocha II Constituency of Anambra State in the 2023 General Election, whether the 2nd defendant was not bound under section 65(2) (b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) section 29 of the Electoral Act, 2022 to forward the name of plaintiff to the Independent National Electoral Commission (INEC) for publication in the Final List of candidates nominated and sponsored for the 2023 General Election.
2. Whether the primary election of the Labour Party (LP) on the 26th May, 2022 where the 3rd defendant was purportedly nominated as its State House of Assembly candidate for Anaocha II Constituency of Anambra State for the 2023 General Election is not invalid for failure of 2nd defendant to give a mandatory notice of twenty one (21) days to the Independent National Electoral Commission (INEC) before the date of the said primaries as required under section 82(1) & (5) of the Electoral Act, 2022.
3. In view of the fact that name of the 3rd defendant was not contained in the register of members of the 2nd defendant made available to the Independent National Electoral Commission (INEC) thirty (30) days before the date of the primary election of 26th May, 2022 where he was purportedly nominated as the State House of Assembly candidate of Labour Party (LP) for Anaocha II Constituency of Anambra State, whether the 3rd defendant is not bound to be disqualified and his name excluded from the Final List of candidates contesting election in the 2023 General Elections for non-compliance with section 65(b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and sections 77(2) & (3) and 84(13) of the Electoral Act, 2022.
4. Upon a proper interpretation of section 65(2)(b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and sections 29(1), 77(2) & (3), 82(1) & (5) and 84(13) of the Electoral Act, 2022, whether the failure of 2nd defendant to give a mandatory notice of twenty one (21) days to the Independent National Electoral Commission (INEC) before the date of the primary election whereat 3rd defendant was purportedly nominated as the State House of Assembly candidate of Labour Party (LP) for Anaocha II Constituency of Anambra State in the 2023 General Election will not disqualify the 3rd defendant from being sponsored or published in the Final List of candidates to contest in the 2023 General Elections.
5. Given that the 2nd defendant violated the provisions of section 65 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and sections 82(1) & (5), 77(2) & (3), and 84(1) & (13) of the Electoral Act, 2022, whether the 1st defendant should be restrained from accepting the 3rd defendant as a candidate in the final list of candidates; or including and placing the same of 2nd defendant in the ballot paper for the 2023 General Election for the State House of Assembly for Anaocha II Constituency of Anambra State.
6. In view of the fact that the plaintiff had emerged unopposed and his nomination ratified in accordance with sections 77(2) & (3) and 84(11) of the Electoral Act, 2022 at the first primaries conducted on the 26th May, 2022 for the nomination of the State House of Assembly candidate of Labour Party (LP) for Anaocha II Constituency of Anambra State in the 2023 General Election, whether the 2nd defendant is not bound to accept, sponsor, and forward the name of plaintiff as its validly nominated candidate for Anaocha II Constituency of Anambra State in the 2023 General Election under section 65(2) (b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and sections 29 of the Electoral Act.

Upon the determination of the above questions seeks for the following reliefs:

1. A declaration that by virtue of section 77(2) of the Electoral Act, 2022 the only persons eligible to vote or be voted for in a congress or primary election of any Political Party in Nigeria for nomination of valid candidates are registered members whose names are contained in the Register of members of the Political Party made available to the 1st defendant not later than thirty (30) days to its primaries and based on a primary conducted after notice of twenty-one (21) days to the Independent National Electoral Commission (INEC) in the nomination of candidates of Political Party for the 2023 General Elections.
2. A declaration that before the purported second primaries of 4th June, 2022 whereat the 3rd defendant was purportedly nominated as the State House of Assembly candidate of Labour Party (LP) for Anaocha II Constituency of Anambra State, the 2nd defendant has conducted a valid, free and fair primary election on the 26th May, 2022 in which the 3rd defendant validly emerged as the State House of Assembly candidate of Labour Party (LP) for Anaocha II Constituency of Anambra State for the 2023 General Election.
3. A declaration that the 2nd defendant did not give a mandatory notice of twenty-one (21) days to the Independent National Electoral Commission (INEC) before it conducted another fresh primaries of 26th May, 2022 where the 3rd Defendant was purportedly nominated as the State House of Assembly candidate of Labour Party (LP) for Anaocha II Constituency of Anambra State for the 2023 General Election.
4. A declaration that as at the 26th May, 2022 when the 3rd defendant was purportedly nominated as the State House of Assembly candidate of Labour Party (LP) for Anaocha Il Constituency of Anambra State in the 2023 General Election, he was not a registered member whose name was contained in the Register of Members of the Labour Party (LP) made available to the 1st defendant thirty (30) days before the date of the primary election as contemplated under section 77(2) and (3) of the Electoral Act, 2022.
5. A declaration that the election, nomination, sponsorship, and candidacy of the 3rd defendant by the Labour Party (LP) as its candidate in the State Assembly Election for Anaocha II Constituency of Anambra State in the 2023 General Election was not conducted in compliance with section 177 (c) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), sections 82(1) & (5), 77(2) & (3) and 84 (13) of the Electoral Act, 2022; and therefore liable to be nullified.
6. A declaration that the 1st defendant lacks competence under the Electoral Act, 2022 to recognize, accept and publish the name of the 3rd defendant in the final list of candidates qualified to contest the election into the office of as the State House of Assembly candidate of Labour Party (LP) for Anaocha II Constituency of Anambra State in the 2023 General Election for non-compliance with section 65(2) (b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and sections 82(1) & (5), 77(2) & (3) and 84(13) of the Electoral Act, 2022.
7. A declaration that based on the primaries conducted by the 2nd defendant on the 26th May, 2022 for the nomination of its candidates for the House of Assembly for Anaocha II Constituency of Anambra State in which the plaintiff emerged unopposed and was ratified by the delegates, the plaintiff is the validly nominated State House of Assembly candidate of Labour Party (LP) for Anaocha II Constituency of Anambra State for the 2023 General Election.
8. An order of this honourable court restraining the Independent National Electoral Commission (INEC) from recognizing, accepting, including, or publishing the name of 3rd defendant as the State House of Assembly candidate of Labour Party (LP) for Anaocha II Constituency of Anambra State in the 2023 General Election.
9. An order of this honourable mandating the 2nd defendant, Labour Party (LP) to remove the name of the 3rd defendant and replace and forward the name of the plaintiff as its validly nominated State House of Assembly candidate for Anaocha II Constituency of Anambra State for the 2023 General Election.
10. An order of perpetual injunction restraining the 3rd defendant from parading himself as the State House of Assembly candidate of Labour Party (LP) for Anaocha II Constituency of Anambra State in the 2023 General Election for failure of complying with provisions of section 65(2)(b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and sections 82(1) & (5), 77(2) & (3) and 84(13) of the Electoral Act, 2022 in the process leading to his purported nomination, candidacy, and publication of his name in the list candidates released by the Independent National Electoral Commission (INEC) on the 22nd July, 2022.
11. Pursuant to the provisions of section 65(2) (b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and sections 29 and 84(1) of the Electoral Act, 2022, an order of this Honourable Court mandating the Independent National Electoral Commission (INEC) to recognize, accept, include, and publish the name of the plaintiff, Michael Chinedu Oli as the validly nominated State House of Assembly candidate of Labour Party (LP) for Anaocha II Constituency of Anambra State in the 2023 General Election.
12. And such further orders(s) as the honourable court may deem fit to make in the circumstances.

At the hearing of this appeal, the appellant distilled 5 issues for determination in the brief filed by Chief C. P. Oli as set out below:

1. Whether the court below was not in error in its decision that the appellant lacked the locus standi to have initiated the suit which gave rise to this appeal. (Distilled from ground 1)
2. Whether the court below was not in error in its application of section 285(9) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) to the facts of the appellant’s case in the determination of the date of accrual of the cause of action in this suit. (Distilled from grounds 2 & 3)
3. Whether the court below was not in error in its holding that the issue of non-membership of the 3rd respondent in the 2nd respondent party were not established by credible evidence and that the membership of the 3rd respondent herein and his sponsorship by the 2nd respondent herein as its candidate following the primary election of 5th June, 2022, is the internal/domestic affair of the 2nd respondent, and is therefore non-justiciable. (Distilled from grounds 4, 8, 9 & 10)
4. Whether the Court of Appeal was not in error to hold that the appellant did not discharge the evidential burden of proof necessary to prove that the 2nd respondent herein conducted a primary election on 26th May, 2022 from which the appellant was elected unopposed. (Distilled from grounds 5 & 6)
5. Whether the Court of Appeal was justified in ascribing weight/probative value to the ipse dixit of 1st respondent (INEC) admitting that the 2nd respondent herein gave her 21 days mandatory notice before conducting the primary election of 5th June, 2022 without the production of the said notice. (Distilled from ground 7)

The 1st respondent’s brief settled by Wolemi Esan identified two issues for determination as follows:

1. Whether the lower court was right when it found that the appellant lacked the locus standi to initiate the suit which gave rise to the appeal? (Distilled from ground 1)
2. Whether the lower court was right when it held that the appellant’s cause of action is the primary election of 26th May, 2022 and that the appellant’s suit instituted on 4th August, 2022 was therefore statute barred? (Distilled from grounds 2 & 3)

The 2nd respondent’s brief settled by Oluwole Osaze Uzzi asked the court to determine similar issues to wit:

1. Whether the court below was right when it held that the trial court lacked the jurisdiction to entertain the action of the appellant… (Related to grounds 1, 2, 3, and 4 of the appellant’s notice of appeal).
2. Whether the court below was right to have held that the appellant failed to discharge the burden of proof to entitle him to the declaratory reliefs sought (Related to grounds 5, 6, 7, 8, 9, and 10 of appellant’s notice of appeal.)

The 3rd respondent on his own part in the brief settled by Ezika Clement Amechi identified for determination similar issues.

I will resolve as a sole issue, the question of the jurisdiction of the trial court to entertain the action. A resolution of that issue will suffice to determine this appeal.

Sole issue

This issue has two legs. The first one is the question of the locus standi of the appellant to challenge the primary election of 5/6/2022 which he did not participate in, and the second is whether the suit is not statute-barred.