SUIT ON SHETTIMA KASHIM’S ALLEGED DOUBLE NOMINATION: HOW THE SUPREME COURT DISMISSED THE CASE

by Branham Chima (SAL). 

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Peoples Democratic Party (PDP) v. Independent National Electoral Commission (INEC) & Ors. (2023) - SC/CV/501/2023

SUIT ON SHETTIMA KASHIM’S ALLEGED DOUBLE NOMINATION: HOW THE SUPREME COURT DISMISSED THE CASE.

FACTS:

The Appellant is basically disagreeing with the qualification of the 4th Respondent (Shettima Kashim). The Appellant is saying that the 4th Respondent let himself to be nominated for more than one position before the 2023 Presidential election. The 4th Respondent was accused of being the 2nd Respondent’s (APC) candidate for Borno Central Senatorial District even after he agreed to be the party’s candidate for Vice President of Nigeria on July 14, 2022.

He supposedly withdrew his nomination for Senatorial candidate on July 15, 2022, after accepting the Vice Presidential nomination. The 2nd - 4th Respondents said that the 4th Respondent actually withdrew from being a Senatorial candidate by sending a letter to the party on July 6, 2022. All the Respondents argued that the court did not have the right to hear the case for different reasons, like the case being filed too late after the event in question and the Appellant not having the locus standi to bring the case.

The appeal is against the decision made by the Court of Appeal on March 24, 2023, in a case where the Appellant disagreed with the Federal High Court’s decision. The Court of Appeal agreed with the Federal High Court that the Appellant’s case should not be heard and that the Court should not have jurisdiction over it.

RATIO DECIDENDI:

👨🏿 ⚖️ THE APPELLANT HAS NO LOCUS STANDI TO INSTITUTE THIS ACTION

‘The above subsection [section 84(14) Electoral Act] clearly vests locus standi only on an aspirant who complains that any of the provisions of the Electoral 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. The subsection and its predecessor, Section 87(9) of the Electoral Act, 2010 (as amended) have been subject of interpretation by this court in an innumerable number of cases and the court has been firm and consistent in holding that only an aspirant who participated in the primary election of a political party can institute an action pursuant to Section 84(14) of the Electoral Act. Thus, for a Plaintiff to have locus standi to challenge the nomination of a candidate of a political party under Section 84(14) of the Electoral Act, he must be a member of the party in question and he must be an aspirant who actually participated in the primary election leading to the nomination of the party's candidate. See WAZIRI V. P.D.P. (2023) 7 NWLR (PT. 1882) 57; ODUAH V. OKADIGBO (2019) 3 NWLR (PT. 1660) 433; MAIHAJA V. GAIDAM (2018) 4 NWLR (PT. 1610) 454; SHINKAFI V. YARI (2016) 7 NWLR (PT. 1511) 340; TARZOOR V. IORAER (2016) 3 NWLR (PT. 1500) 463.’

‘The Appellant not being a member of the 2nd Respondent or a person who participated in the nomination process leading to the emergence of the 4th Respondent lacks locus under Section 84(14) of the Electoral Act.’

‘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 busybody, a meddlesome interloper, peeping into the affairs of his neighbour without any backing in law. No court of law can entertain such a suit. The Appellant by its Originating Summons and affidavit in support failed to disclose any nexus between the actions of the Respondents and its suit and it has failed to show which harm it has suffered or that it stands to potentially suffer from the actions complained of. In fact, no dispute has been shown to exist between the Appellant and the Respondents. On these premises, I am in complete agreement with the learned Justices of the lower court that the Appellant lacked locus standi to institute and maintain its action at the trial court. The issue is therefore resolved in favour of the Respondents and against the Appellant.’

👨🏿 ⚖️ A POLITICAL PARTY CANNOT CHALLENGE ACTIVITIES OF ANOTHER POLITICAL PARTY VIS-A-VIS INEC

No matter how pained or disgruntled a political party is with the way and manner another political 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. Section 285(14)(c) only allows a political party to challenge the decisions and activities of INEC disqualifying its own candidate from participating in an election, or to complain that the provisions of the Electoral Act or any other law have not been complied with in respect of the nomination of the party's own candidates, timetable for an election, registration of voters and other activities of INEC in respect of preparation for an election. A political party is only vested with locus to file a pre election matter when the aforesaid situations affects it or its own candidates. When the actions of INEC relate to the activities of a political party, no court has the jurisdiction to entertain a suit brought by another political party in that regard. — A. Jauro, JSC.

👨🏿 ⚖️ CHALLENGING OR POKING INTO THE AFFAIRS OF ANOTHER POLITICAL PARTY IS NOT PERMITTED

Paragraph (c) of Section 285(14) of the Constitution is however the only provision that empowers a political party to institute a pre-election matter. The Appellant has latched on to the provision and argued strenuously that it vests it with locus standi to institute its case before the trial court. It should be noted that by the use of the words "...decisions or activities of the Independent National Electoral Commission paragraph..." and "...or any other applicable law has not been complied with by the Independent National Electoral Commission..." paragraph (c) only empowers a political party to challenge the actions of INEC. Anything outside this is beyond the scope of the provision of the paragraph. Notwithstanding the foregoing, the applicability of Section 285(14)(c) is not at large. The provision does not make the filing of pre-election matters by political parties an all-comers affair. It is not the purpose of the provision that a floodgate of pre-election litigation be open to political parties who will hide under it to challenge the actions or inactions of rival political parties under the guise of challenging the decisions or activities of INEC. The application of Section 285(14)(c) of the Constitution does not extend to a political party poking into the affairs of another. 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. — A. Jauro, JSC.

👨🏿 ⚖️ THE CASE OF UCHE NWOSU DOES NOT APPLY TO THIS INSTANT CASE

So, for the decision of this Court in Uche Nwosu's case to apply mutatis mutandis, the fourth Respondent, who the Appellant contends has offended the law, would need to have contested two Primary Elections, emerged winners of both, and had his name forwarded by both Parties as their respective candidates for the 2023 General Election. Did he purchase a second nomination form to warrant stepping into the Appellant's shoes in Uche Nwosu V. APP (supra), and thus, invite the same pronouncement thereat on himself? No; the fourth Respondent was not required to buy any nomination form. He was the second Respondent [APC]'s candidate at the election into the Office of Senator representing the Borno Central Senatorial District. But before the election could hold, he was nominated as the third Respondent's associate, who is to occupy the office of Vice-President. The fourth Respondent did not buy a nomination form for the said office, and most importantly, did not contest any primary election in order to emerge as APC's Vice-Presidential candidate. Given these acute dissimilarities, can the facts of the two cases be the same? Can such a scenario come within the parameters of Section 35 of the said Act? I think not; this cannot be the intention of the lawmaker as that will lead to absurdity. It is the law that statutes should be given their natural meaning, except to do so will lead to absurdity Toriola V. Williams (1982) 7 SC 27/46, Nonye V. Anyichie (2005) 2 NWLR (Pt. 910) 623, (2005) 1 SCNJ 306 at 316. — A.A. Augie, JSC.

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Law Student,

Faculty of Law, University of Benin.