Electoral Act: Whether a Complaint Alleging the Presentation of Forged Information To INEC by a Candidate to Contest a Political Party Primary Confers a Right Of Action

CASE TITLE:   SDP & ANOR v. INEC & ORS (2023) LPELR-59836(SC)

JUDGMENT DATE:      7TH FEBRUARY, 2023

JUSTICES:                     CHIMA CENTUS NWEZE, JSC

                                       AMINA ADAMU AUGIE, JSC

                                       MOHAMMED LAWAL GARBA, JSC

                                       HELEN MORONKEJI OGUNWUMIJU, JSC

                                       EMMANUEL AKOMAYE AGIM, JSC

PRACTICE AREA:          ELECTORAL MATTERS

FACTS:

The Appellants instituted a suit at the Federal High Court, sitting at Yenagoa, Bayelsa State, by way of an originating summons seeking amongst other reliefs: “a declaration be made that the decision of the 1st Defendant to accept the nomination of the 3rd Defendant as the candidate of the 2nd Defendant for the February 2023 general election into the office of member Yenagoa Constituency 1 (One) An the Bayelsa State House of Assembly even though the 3rd Defendant gave false information in her affidavit, and the accompanying documents and the subsequent publication of the name of the 3rd Defendant as the candidate of the 2nd Defendant contravene Section 107 (1) (i) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).”

In reaction, the 3rd Respondent challenged the Appellants’ locus standi to institute the suit and mode of commencement thereof. The 2nd Respondent also challenged the competence of the suit.

The Appellants reacted to the objections by the Respondents and after a consideration of the parties’ addresses, the trial Court, in a ruling delivered on the 11th October, 2022, found that the suit was statute barred pursuant to the provisions of Section 285(9) of the Constitution since it was filed outside the fourteen (14) days after the accrual of the cause of action on the 13th July, 2022, relying on APC v. Elebeke (2022) 10 WLR (pt. 1837) 1 & 28. Thus, the suit was struck out for want of jurisdiction. Dissatisfied, the Appellants lodged an appeal at the Court of Appeal.

The Court of Appeal however found that the suit was not statute-barred, but that the Appellants not being “an aspirant” as provided in Section 29 (5) of the Electoral Act, 2022, lack the locus standi to institute the action and so dismissed the appeal before it in the judgment delivered on the 7th December, 2022. Still dissatisfied, the Appellant further appealed to the Supreme Court.

ISSUES FOR DETERMINATION:

The Court determined the appeal on the sole issue thus:

“Whether having regard to the extant provisions of the Electoral Act, 2022 and the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the Appellants in the circumstances of this case were bereft of the locus standi to maintain the action?”

COUNSEL SUBMISSION

Appellants’ counsel submitted that the Appellants possess the requisite legal capacity to sue on the basis of the provisions of Sections 107 (1) (i) and 285 (14)(c) of the Constitution, beyond the provision of Section 29(5) of the Electoral Act, 2022 relied on by the Court of Appeal for its decision that the Appellants lack locus standi. He argued that Section 285(14)(c) bestows on political parties the right to challenge 1st Respondent’s acceptance of name of a candidate who submitted false information to it, as other activities by the 1st Respondent in respect of preparation for an election as provided for in the last part of the Section.

Counsel further referred to Section 29(4) of the Electoral Act and stated that where a person gets copies of the information submitted to the 1st Respondent by a candidate and finds false information therein, he is supposed to act even if he is not an aspirant who participated in the primary election of a political party.

In response, the counsel for the 2nd Respondent argued that the provisions of Section 29(5) has restricted the right to sue on such allegations, to an aspirant who participated in the primary election from which a candidate emerged, which has been the position of the law established by the decision of this Court in P.D.P. v. Sylva (2012) 13 NWLR (pt. 1316) 85, Uba v. Moghalu (2022) 15 NWLR (pt. 1853) 271, amongst other cases.

Counsel reiterated that the provisions of Section 29(5) of the Electoral Act, confer locus standi on only aspirants and no other persons such that the Appellants here, who do not qualify as aspirant to sue or initiate the action at the trial Court.

The 1st Respondent (INEC) did not file any brief in the appeal.

DECISION/HELD:

In a unanimous decision, the appeal was dismissed and accordingly, the judgment of the Court of Appeal was affirmed.

RATIO:

ELECTORAL MATTERS- RIGHT OF ACTION: Whether Section 107 of the Constitution vests locus standi/right of action to file a pre-election matter on disqualification of a candidate who presents forged information to INEC; who has locus standi/right of action to challenge a candidate on alleged falsity of information presented to INEC

“It is the Electoral Act, 2022, that provides for procedures to regulate the processes of selection and nomination of the candidates for elections by the political parties as well as the penalty for the failure or non-compliance with the provisions provided therein for the exercise.

In addition, the Electoral Act expressly made provisions on the person/s who possess/s the statutory right to complain and ventilate such a complaint by the legal processes of a Court of law by way of legal action in respect of the process of selection and nomination of candidates by political parties for the election. One of the categories of such complaints is what was defined in Section 285 (14) of the Constitution as a “pre-election matter”.

It is the Electoral Act, and not the definition Section of Section 285 (14) of the Constitution that creates, recognizes, and confers the right of action, the legal competence or locus standi on the specifically identified and named persons, to initiate legal action in Court to ventilate any such complaints arising from or in respect of the processes of selection and nomination or other activities provided for in the Act in preparation for elections.

​In this appeal, the Appellants’ real grouse hinged on the provision of Section 107 (1) (i) of the Constitution is a veiled challenge, complaint and even an attack against the selection and nomination of the 3rd Respondent by the 2nd Respondent which arose from the primary election conducted for that purpose as prescribed by the Electoral Act, on the ground of submission of a forged certificate and false information.

Section 29 (5) of the Electoral Act provides for a complaint of giving false information by a candidate in relation to his constitutional requirement to contest an election. It provides thus: –

“(5) 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 that candidate seeking a declaration that the information contained in the affidavit is false.”

​These provisions not only created a cause of action, i.e. giving any information by the candidate of a political party in the Affidavit or any document submitted by him in relation to his satisfying the constitutional requirement to contest the election, which, on reasonable ground, is believed to be false, but also, specifically vest or confer the right of such action, the legal competence or locus standi, to initiate, undertake or commence the said action before the Federal High Court, on “Any aspirant who participated in the primaries of his political party” to do so.

The constitutional requirements on the qualification for a person to contest for election as a member of a House of Assembly are set out in Section 106 of the Constitution. It is in respect of the requirements for the qualification that the provision of Section 107 (1) (i) prescribes that no person, including the person who had otherwise satisfied the requirements in Section 106, shall be qualified for election to a House of Assembly if he has presented a forged certificate to the INEC.

​As can easily be seen, Section 107 (1) (i) only prescribes or stipulates the legal consequence or penalty for the presentation of a forged certificate by any, every person/s, to INEC; i.e., disqualification for election to the House of Assembly. The provision does not vest in or confer the right of action, legal competence, or locus standi on any person/s to initiate or undertake a legal action for the purpose of determining whether a certificate presented by a person to INEC is a forged certificate or not for non-qualification or disqualification for election to a House of Assembly.

As I said elsewhere before now, the Electoral Act was enacted by the National Assembly to provide for a comprehensive code to guide, regulate, and govern the procedure, and processes to be complied with by all the critical stakeholders involved in the preparation for elections provided for in the Constitution; the grund norm.

Section 29(5) of the Electoral Act is the law that provides for the class or category of the “person” generally provided for in both Sections 106 and 107 (1) of the Constitution on the requirement for qualification and non-qualification or disqualification; respectively, to contest for election to a House of Assembly.

​It may be recalled that the word “person” generally used in the provisions of Sections 106 and 107 of the Constitution was employed and used in the provisions of Section 31 (5) of the Electoral Act, 2010 (as amended in 2015), which was repealed and replaced by the extant Act of 2022, for the right of action, legal competence or locus standi to initiate or commence a legal action to challenge any information given by a candidate in the Affidavit or any document submitted by him for the purpose of his constitutional qualification to contest election a House Assembly. Just as in Sections 106 and 107 of the Constitution, the provisions of Section 31 (5) of the 2010 Electoral Act were that-:

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

Apparently, the provisions of Section 29 (5) of the 2022 Electoral Act are impari materia or substantially and maternally, similar in their purport; to create and vest a right of action and locus standi for the initiation of a legal action to challenge or question information given by a candidate for an election in the Affidavit or any document he submitted in respect of his constitutional qualification to contest the election. The noticeable difference is the replacement of the words “Any person” in the provisions of Section 31 (5) of the 2010 Act with the restrictive words: –

“Any aspirant who participated in the primaries of his political party in the 2022 Act.”

Therefore, whereas under Section 31 (5) the right of action was at large, free for all; every “Tom, Dick & Harry”, under the provisions of Section 29(5) of the 2022 Act, only an or any aspirant who actually participated in the primaries of his political party is vested, conferred and clothed with the legal right of action, the legal competence or locus standi to undertake, initiate or commence a legal action in a Court of law to challenge or question a candidate on alleged falsity of any information given by the candidate in the Affidavit or any other document submitted in respect of his satisfying the constitutional requirement to contest an election in question.

​Under the new regime in Section 29(5), “meddlesome interlopers”; of any classification, not being an aspirant who participated in the primaries of his political party, lack the requisite legal competence or locus standi to undertake or initiate legal action on the ground of the alleged falsity of any information given by a candidate in the Affidavit or any document he submitted in relation to his Constitutional qualification to contest the election.

It is beyond argument in this appeal that the Appellants’ action is one provided for, entirely, by and under the provisions of Section 29 (5) of the Electoral Act, 2022 which provides for a right of legal action to challenge or question any information in the Affidavit or any other document given by a candidate and submitted by him in respect of his constitutional qualification to contest the election to a House of Assembly and the disqualification or non-qualification as prescribed in Section 107 (1) (i).

It is clear that the provision of Section 29(5) of the Electoral Act, 2022 is complementary to both Sections 106 and 107 (1) (i) of the Constitution on the qualification and disqualification or non-qualification of a person (candidate) to contest election to a House of Assembly by providing for the procedure by which compliance with provisions can be legally questioned and judicially determined by way of legal action. The argument by the Learned Counsel for the Appellants that the provisions of Section 29 (5) of the Electoral Act are in conflict with the provisions of Section 285 (14) for restricting the rights conferred by it, is grossly misconceived since the provisions of Section 285 (14) as demonstrated earlier, only define what a pre-election matter is and do not vest any right of action to initiate or undertake such a pre-election matter.” Per GARBA, J.S.C.

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