Section 84

Who can challenge the nomination of a candidate in a party primaries?

PDP V. INEC, APC, TINUBU BOLA AHMED, KASHIM SHETTIMA (SC/CV/501/2023) (Unreported) @ Pg. 30-31
In dismissing the Appellant’s Appeal challenging the alleged multiple nomination of Kashim Shettima as both the party’s Senatorial and Vice Presidential candidate, the Court, per Adamu Jauro, JSC., held that:
“The position of the law has always been that no political party can challenge the nomination of the candidate of another political party. The position did not change with Section 285 (14) (c) of the Constitution. No matter how pained or disgruntled a political party is with the way and manner another political party is conducting or has conducted its affairs concerning its nomination of its candidates for any position, it must keep mum and remain an onlooker, for it lacks the locus standi to challenge such nomination in court. A political party equally lacks the locus standi to challenge the actions of INEC in relation to another political party.”

On the Jurisdiction of the Court to hear primary election complaints

The Supreme Court in PDP v. INEC & 3 Ors. (Supra) at Page 34, held as follows:
“It is therefore abundantly clear that a political party that files a suit to challenge the nomination of the candidate of another party will be a nosy busy body, a meddlesome interloper, peeping into the affairs of his neighbor without any backing in law. No court of law can entertain such a suit. “

YUSUF ABBA KABIR v. ALL PROGRESSIVES CONGRESS (APC) & 2 ORS. (SC/CV1179/2023) (Unreported) Per. John Inyang Okoro, JSC @ Pg 25
The Supreme Court in pronouncing on the non-justiciability of challenging the nomination and sponsorship of a candidate by a political party held that:

“My Lords, this Court has consistently held in a legion of decided cases that the issue of nomination and sponsorship of a candidate for an election is exclusively within the prerogative of a political party, as long as such selection for sponsorship is in compliance with the law. Being an internal affair of the sponsoring party, it is not justiciable how a candidate participated in all stages leading up to his nomination. ”

MUFTWANG CALEB MANASSEH V. NENTAWE YILWATDA GOSHWE, APC, INEC & PDP (SC/CV/1190/2023) (Unreported).

The Supreme Court made several pronouncements on nominations in this case. It stated that:
“The primary election and nomination or sponsorship of a person by a political party as its candidate for an impending general election, being a process preparatory to and before the general election is clearly a pre-election process.”

On section 84 (5) (b) - Holding of Party Congresses & Executive Committees of Parties:
“the question of the validity of the primary election and nomination of the candidate of a political party for a general election and the question of whether Ward, Local Government and State Executive Committees existing at the time were validly elected are clearly outside the subject-matter jurisdiction given to a State Governorship Election Tribunal by S.285(2) of the Constitution of the Federal Republic of Nigeria which provides that the Governorship Election Tribunal shall to the exclusion of any court or tribunal, have original jurisdiction to hear and determine petitions as to whether any person has been validly elected to the office of Governor or Deputy Governor of a State." [Per Agim J.S.C on page 20]

On non-justiciability of internal affairs of parties:
“Matters about a political parties congress to elect officers of any level of its executive committees, the constitution of such executive committees and matter related to the administration of the party are its internal affairs and not within the jurisdiction of the courts. See Aguma V. APC (supra) and Osagie V. PDP (2023) 5 NWLR (Pt. 1877) 355 at 3820387). Only a primary election congress is open to litigation as a pre-election action by virtue of s.84 of the Electoral Act, 2022. A congress to elect officers of any level of the executive committees of a political party has to do with the internal management of the political party. It is non-justiciable. Therefore, a court or tribunal has no jurisdiction to entertain any dispute arising therefrom.” – Per Agim, JSC at page 30.

See also: KENTE V. BWACHA (2023) 9 NWLR (Pt. 1889) 329 at 380 and 387: The primary elections of political parties cannot be conducted by a State chapter; neither can a State chapter decide the mode of primary election to be adopted.

YUSUF ABBA KABIR v. APC, INEC & NNPP (SC/CV/1179/2023) (Unreported)

On the sponsorship and nomination of a candidate by a political party or whether a court can inquire into a political party's choice of candidate for an election.
Inyang Okoro JSC, in his lead judgment stated that:

“The fact that the party decides to sponsor the person makes the person automatically qualified for the office of governor of a state.”

Also, that:
“The court below erred in law when it held that Section 134(1)(a) of the Electoral Act juxtaposed with Sec 177(c) of the Act has opened the window for the court to investigate the qualification of the appellant duly sponsored by the 3rd respondent. “No door or window was opened at any point. It does not matter whether the appellant was a foundation member of the 3rd respondent or joined shortly before the primaries. “As long as the 3rd respondent has accepted, nominated and sponsored him, that door is shut and the ship has sailed.”

Read JEGEDE & ANOR V. INEC & ORS (2021) LPELR-55481 (SC) AND KARSHI V GWAGIRA (2022) 9 NWLR (PT 1834) 139

APC V. MARAFA (2020) 6 NWLR (PT. 1721) 838.

It is the statutory duty of a political party to determine its candidates by a process of primary election. Where a political party does not conduct primary election for the nomination of its candidate, it is deemed not to have a candidate for that election.

Whether court can inquire into a political party's choice of candidate for an election: See TUKUR V. UBA (2013) 4 NWLR (PT. 1343) 90 at 134; GBILEVE V. ADDINGI (2014)16 NWLR (PT.1433) 394 at 428.

A political party which is sponsoring candidate for an election is the proper person/body to determine which of the Aspirants amongst its members it has cleared for the primaries and general election. As long as the guidelines and Constitution of the political party are not violated or breached, the Court has no power to question the choice of a party's candidate presented for election.

On the Conduct of Indirect Primaries

AWESU ABDULAZEEZ v. ABDULKAREEM OLUGBENGA SHITTU & 2 ORS. (SC/CV/1507/2022) (Unreported), Per John Inyang Okoro, JSC @ pg. 27
The Supreme Court in reiterating the criteria for nominating a candidate for a political party through indirect primaries held that:
“…it is clear that where a party adopts to select its candidate through indirect primaries, it is the aspirant who polled the highest number of votes cast at the end of the exercise that must be declared winner and his name sent to the Independent National Electoral Commission and not the other way round.”

On What Happens to a Candidate when a Pre-Election Matter Lingers:

JOHNCROSS ENYIVIGBO & LP V. EZEANI & 2 ORS. (CA/E/EP/SHA/EN/25/2023) (Unreported)
In this case the Court of Appeal affirmed the Tribunal holding that the platform upon which the Appellant contested the election (Labour Party) has lost its candidate in the election because the candidacy was invalidated by the judgement of a pre-election matter. Mustapha JCA held thus:
“...I hasten to emphasize that it is settled, where a pre-election matter lingers or drags on until it is decided by the courts after the election in issue nullifying the candidacy of the person who contested the election, the political party will be deemed not to have had a candidate in the election.”

ORJI CHIMA & ORS (2023) LPELR-60345-SC and Modibbo V. Usman MODIBBO V. USMAN (2020) 3 NWLR (PT. 1712) 470

On the ineligibility of political Appointees to be voting delegates or be voted for at a Party Convention or Congress

COLE TONYE PATRICK v. INEC, FUBARA SIMINALAYI & PDP (SC/CV/1193/2023) (Unreported) @ page 32

By virtue of section 84(12) of the Electoral Act, 2022 any person holding a political office, by whatever name or designation so called-as a minister, commissioner, special adviser, et al, must resign or relinquish the position to be eligible to participate in the political process, either as a candidate or delegate. Undoubtedly, section 84(12) of the Electoral Act, 2022 specifically and unambiguously relates to political appointees (of whatever class or distinction) who aspire to be voting delegates or contest primary elections for any elective position. Such political appointees are required to first and foremost resign their appointments before voting as a delegate or being voted for as an aspirant, in a primary election. Failure to comply with section 84(12) (supra) renders the primary election null, void and of no effect whatsoever per section 84(13).

PDP v. EDEDE & ANOR (2022) LPELR-57480(CA) @ 43 - 53, Para E

In a suit filed at the Federal High Court, Abia Judicial Division, the petitioner, Chief Nduka Edede asked the court to set aside section 84(12) of the 2022 Act for being discriminatory and contrary to the provisions of the 1999 Constitution. While the Federal High Court, Abia Judicial Division agreed with him, the Court of Appeal set aside the judgment on grounds of locus standi and the non-applicability of the provisions on public officers, but agreed that the provision offends section 42(1)(a) for being discriminatory against political appointees as a “community.” The Court of Appeal held per Barka, JCA, that:
“Given the rule of constitutional interpretation that a constitutional provision is to be given a liberal and wide interpretation (see Skye Bank Plc v. Iwu (2017) 16 NWLR (Pt. 159028, 88) it is my view that political appointees fall into the phrase “community”, in Section 42 (1)(a) of the Constitution since members of that group share the same job and therefore the same political interest. Section 84 (12) of the Electoral Act expressly subjects them to disabilities and restrictions to which citizens of Nigeria in other communities or political interests or political jobs are not made subject. It therefore contravenes the provision of section 42(1)(a) of the constitution and is null and void”

President Muhammadu Buhari and the Attorney-General of the Federation also instituted a suit (SC/CV/504/2022) invoking the original jurisdiction of the Supreme Court seeking to set aside the said section 84(12), which suit was also struck out by the Supreme Court. It therefore, remains the position of the law that political appointees cannot be aspirants to any elective office while occupying the office as such, nor can they vote as delegates in any primary election.

On Aspirant’s right to challenge the conduct of his party’s nomination exercise.

ONI V. OYEBANJI (2023) NWLR(PT.1902) 507 Per Akomaye Agim JSC @ pg. 546- 547

The Supreme Court in emphasizing the right of an ‘Aspirant’ to challenge the legality of the conduct of a nomination exercise in which he participated held thus:
“The jurisdiction to try complaints that the selection, nomination, or sponsorship of the candidate of a political party did not comply with the Electoral Act 2022, its Constitution and Guidelines is clearly vested on the Federal High Court by S.84(14) of the Electoral Act 2022 which provides as follows - 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 have 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 for redress."

UGOCHINYERE v. OBI & 2 ORS (Appeal No: CA/ABJ/EP/HR/IM/66/2023) (UNREPORTED) Per Affen JCA @ pg. 19

The Court of Appeal held as follows:
“To my mind, the obvious legislative intent behind s. 84(14) of Electoral Act 2022 and s. 285(14) CFRN (as amended) regulating when, where and by whom the validity of the select nomination and sponsorship of a candidate can be challenged is to ensure that such pre-election grievances are concluded before the general election, so that Election Tribunals would grapple with post-election challenges arising from the conduct of the general election or such questions bordering or criteria for qualification and/or disqualifying factors for various elective offices as specified in the Constitution.“

See also:
OBIDIGBO V. OBIANO (2015) 1 NWLR (PT. 1441) 471 at 500 – 501
Election Tribunals have no jurisdiction to hear disputes over nomination or sponsorship of a candidate by a party for election (hear pre-election matters)

On political appointees not being eligible to be aspirants: PDP v. EDEDE & ANOR (2022) LPELR-57480(CA)

In a suit filed at the Federal High Court, Abia Judicial Division, the petitioner, Chief Nduka Edede asked the court to set aside section 84(12) of the 2022 Act for being discriminatory and contrary to the provisions of the 1999 Constitution. While the Federal High Court, Abia Judicial Division agreed with him, the Court of Appeal set aside the judgement on grounds of locus standi and the non-applicability of the provisions on public officers, but agreed that the provision offends section 42(1)(a) for being discriminatory against political appointees as a “community.” President Muhammadu Buhari and the Attorney-General of the Federation also instituted a suit invoking the original jurisdiction of the Supreme Court seeking to set aside the said section 84(12), which suit was also struck out by the Supreme Court. It therefore, remains the position of the law that political appointees cannot be aspirants to any elective office while occupying the office as such, nor can they vote as delegates in any primary election. Election Tribunals have no jurisdiction to disputes over nomination or sponsorship of a candidate by a party for election (hear pre-election matters) OBIDIGBO V. OBIANO (2015) 1 NWLR (PT. 1441) 471 at 500 - 501

Sections 65, 66, 107, 131, 137, 177 and 187 of the Constitution of the Federal Republic of Nigeria, 1999 (on qualifications and disqualifications for elective offices)

Section 285 (9) to (14) of the 1999 Constitution dealing with pre-election matters.