SECTION 87 OF THE ELECTORAL ACT, 2010: WHY CHARLES SOLUDO “MAY NEVER BE” THE GOVERNOR OF ANAMBRA STATE

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BY: JOHN MARY CHUKWUKASI JIDEOBI, Esq.
EXORDIUM


The Governorship election held on the 6th day of November 2021 in Anambra State has come and gone and the result of the exercise was officially declared by the Independent National Electoral Commission [INEC], the electoral umpire. “Chukwuma Soludo of APGA, having satisfied the requirements of the law is hereby declared the winner of the election.” so announced Professor Florence Obi, the INEC’s returning Officer on the 10th day of November 2021.


On the 19th day of November 2021, Dakuku Peterside, a former Director-General of Nigerian Maritime Administration and Safety Agency[NIMASA], wrote a piece titled “Soludo: A post-election Anambra” and published by the Vanguard Newspaper on its website: https://www.vanguardngr.com/2021/11/soludo-a-post-election-anambra/. In that entertaining post-mortem by Dr Dakuku, the following instructive observation appeared:
“And come March 2022, he will become the next executive governor of the state, barring any legal manoeuvrings”.


By the phrase “legal manoeuvrings”, Dr Peterside acknowledged that it is not yet over until it is over. In other words, Soludo’s victory is not iron-clad but susceptible to being overturned or upstaged by “legal manoeuvrings”. This article, therefore, primarily, focuses on one of such “legal manoeuvrings” to which Dr Dakuku has subordinated Prof. Soludo’s 2021 electoral victory. It is the case instituted by an aggrieved aspirant of the All Progressives Grand Alliance (APGA henceforth) in the primary election conducted by the APGA on the 23rd day of June 2021. The aspirant is Hon. OKWUDILI CHRISTOPHER EZENWANKWO (a serving Member of the Federal House of Representatives currently representing Orumba North/Orumba South Federal Constituency). To the facts, we now turn.


FACTUAL PREMISES:
Before the Federal High Court, Awka, the Plaintiff, instituted an action centred on Section 87of the Electoral Act, 2010 (as amended) in Suit No: FHC/AWK/CS/43/2021. In the said suit, while the APGA is the 1st Defendant, Professor Charles Chukwuma Soludo was named the 7th Defendant and the INEC the 6th Defendant. For clarity purposes, it is imperative to set out the prescription of Section 87(8) of the Electoral Act as follows:
“No political appointee at any level shall be a voting delegate at the Convention or Congress of any political party for the nomination of candidates for any election.”


The above provision of the law is the centre and cynosure of Plaintiff’s case. It is also the springboard of the present write-up. To put the grievances of Plaintiff in perspective, we move to set reproduce the core issue accentuated by him which the Court was called upon to resolve. Question 1 (d) posed by Plaintiff’s Originating Summons reads as follows:
“Having regard to Section 87 (8) of the Electoral Act, 2010 (as amended) and Item (c) in the Preamble to the Electoral Guidelines for Primary Election of the All Progressives Grand Alliance (APGA) enacted under Article 12(3) and Section 23 of the Constitution of the All Progressives Grand Alliance (APGA), whether the use of political appointees as automatic/statutory voting delegates at the Party’s special state congress to nominate the APGA Governorship Candidate in the Anambra State Governorship election scheduled for 6th day of November 2021 did not render the said primary election unlawful and thus invalid?”


Upon a determination of the foregoing question, the Plaintiff, inter alia, implored the trial Federal High Court to favour him as follows:
“A declaration that Having regard to Section 87 (8) of the Electoral Act, 2010 (as amended) and Item (c) in the Preamble to the Electoral Guidelines for Primary Election of the All Progressives Grand Alliance (APGA) enacted under Article 12(3) and Section 23 of the Constitution of the All Progressives Grand Alliance (APGA), the use of political appointees as automatic/statutory voting delegates at the Party’s special state congress to nominate the APGA Governorship Candidate in the Anambra State Governorship election scheduled for 6th day of November 2021 is unlawful and renders the primary election invalid.


According to Plaintiff, in his supporting affidavit:
“The list compiled by the 1st and 7th Defendants as the list of automatic/statutory delegates is made up of several political appointees, contrary to the Constitution and guidelines of the 1st Defendant, and equally contrary to the Electoral Act, 2010 (as amended).
The 1st Defendant proceeded to utilize the said list as part of the list of the voting delegates at the primary election of the 1st Defendant conducted on 23rd June 2021.
The above is the kernel of the case of Plaintiff. For reasons which only the Defendants alone can explain, the Defendants did not meet the Plaintiff full length in refuting these damaging allegations, which if accepted to be correct, establishes a gross violation of the Electoral Act, particularly Section 87(8) thereof.

The Defendants appeared contented with only raising preliminary objections orbiting around the locus standi of the Plaintiff and the jurisdiction of the Court with emphasis on Section 285(9) of the Constitution by which they argued that the case of the Plaintiff was/is already statute-barred (or filed outside of the statutorily prescribed period). What did the Court do with the grievances as tabled by Plaintiff?
THE DECISION OF THE COURT:
The Federal High Court, presided over by the Honourable Justice H. A. NGANJIWA, on Friday, the 10th day of December 2021 decided that the case of the Plaintiff was/is statute-barred. He came to the following conclusions:
“The Plaintiff’s complaint that the ward congress which was supposed to nominate, select or elect delegates from wards to participate in electing a Gubernatorial candidate for the 1st Defendant, is an internal affair of the party and I so hold. Hence it is not justiciable. The issue is also resolved in favour of the Defendants and against the Plaintiff. Given the above-reviewed facts and the law, all processes filed, exhibits and arguments of counsel, I find merit in the Preliminary Objections on the ground that the suit is statute-barred and issues complained of are internal affairs of a party. Hence the Court lacks the jurisdiction to entertain the matter and I so hold…I hold that the suit was filed outside the limitation period prescribed by the 1999 Constitution (as amended). In other words, it is statute-barred. Accordingly, the suit is hereby dismissed” [found at pages 30-31 of the Judgment]

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MATTERS ARISING:
It is pertinent to note that the decision of the learned trial Judge is the sequel to the Preliminary Objection filed by both Soludo and the APGA to the effect that the Plaintiff filed his suit outside of the 14 days limitation period prescribed by Section 285(9) of the amended 1999 Constitution of the Federal Republic of Nigeria [henceforth called the Constitution]. To turn the full circle, we proceed to set out verbatim the provisions of Section 285(9) of the Constitution below:
Every pre-election matter shall be filed not later than 14 days from the date of the occurrence of the event, decision or action complained of in the suit
The question may be asked as to the meaning of “pre-election matter” envisaged by Section 285(9) of the Constitution. The answer is found in Section 285(14) (a) of the same Constitution, which clearly defines a “Pre-Election Matter” thusly:
“For this section, ‘Pre-Election Matter’ means any suit by;
(a) An aspirant who complains that any of the provisions of the Electoral Act or any Act of the National Assembly regulating the conduct of primaries of political parties and the provisions of the guidelines of a political party for the conduct of party has not been complied with by a political party in respect of the selection or nomination of candidates for an election;”


Before proceeding to examine the purport of the provisions of Section 285(9) of the Constitution on which the Court relied in “dismissing” the suit of the Plaintiff, I will make hast remind my reader that this is a pre-election matter [as already defined above] which does not remove the jurisdiction of ordinary courts because the election it is/was targeted at has taken place. Elaborating on this point, the Court, while relying on the earlier cases of Odedo v. INEC (2008) 17 NWLR (pt. 1117) 554; Amaechi v. INEC (2008) 5 NWLR (1080) 227 taught us in UWAZURUIKE V NWACHUKWU & ORS (2012) LPELR-15353 (CA) that “The jurisdiction of ordinary Courts in pre-election matters is sacrosanct and the holding of an election when an action relating thereto was pending would not deprive the ordinary Court of its jurisdiction to conclude this matter even to the Appeal Court.

In other words, the jurisdiction of the ordinary Courts to adjudicate in pre-election matters remains intact and unimpaired. A Court would not lose its jurisdiction to determine a suit in a pre-election matter where elections were held before the Judgment of the Court hearing the suit.”
THE PITFALLS OF JUSTICE NGANJIWA’S JUDGMENT:
A perusal, in-depth, of the Judgment of the Federal High Court, would reveal that the planks of the Judge’s reasoning, among others, include that:
(a) The case of the Plaintiff was filed “later than 14 days from the date of the occurrence of the event, decision or action complained of in the suit”; and that the
(b) Issues complained of are internal affairs of a party. Hence the Court lacks the jurisdiction to entertain the matter
For the reasons we would hasten to adduce anon, we express the considered view that the ratiocinations undergirding the decision of the Learned Trial Judge are replete with fundamental errors since they did not meet the prescriptions of the Nigerian Supreme Court on similar matters.
In the first place, the locus standi bestowed on the Plaintiff [Hon. OKWUDILI CHRISTOPHER EZENWANKWO], is traceable to Section 87(10) of the Electoral Act providing in the clearest of language thusly:
Notwithstanding the provisions of the 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 has 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 or the High Court of a State, for redress.
By the literal interpretation of the above provision, it can be safely deduced that what the law has empowered “an aspirant”, such as Hon. OKWUDILI CHRISTOPHER EZENWANKWO, to complain is that “any of the provisions of this Act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election”. In other words, the locus standi conferred on the Plaintiff under Section 87(10) can only be activated after the primary election has been conducted since the right of action cannot precede a cause of action.
THE CASE OF THE PLAINTIFF WAS FILED WITHIN TIME:
Contrary to the computation of the learned trial Judge, Plaintiff filed his action on the 5th July 2021 while the primary election he was challenging as invalid took place on the 23rd June 2021. It, therefore, means that the Plaintiff’s cause of action ripened upon the 1st Defendant conducting its primaries on the 23rd day of June 2021 relying on the delegate list which the Plaintiff contends was generated in gross violation of all the relevant provisions of the amended 1999 constitution of the Federal Republic of Nigeria, the Electoral Act, 2010 as amended, the 1st Defendant’s constitution and the Guidelines for the conduct of the Primaries election relating to the conduct of primary election of parties given the decision in Emenike v PDP (2012) 12 NWLR (Pt 1315) 556. The Supreme Court had earlier observed that Section 87 (10) of the Electoral Act on which the Plaintiff rode into the Court, is intended to vouchsafe to actual applicants who participated in their party primaries the right to impugn the conduct of such primaries for non-compliance with the provisions of the Electoral Act and Guidelines of their parties for which see UFOMBA V INEC (2017) 4 SC (Pt. 1) 49. This can only be so for outside of the ward congress as ordained by the relevant statutory provisions encircling same, the primary election is a sham as it stands on no legitimate foundation following Anyanwu v. Ogunewe (2014) 8 NWLR (Pt 1410) 437. It has been stressed by the Courts, and this too is settled, that the target of Section 87(9) of the Electoral Act 2010 (as amended) is to ensure that a political party must obey its constitution as the courts will never allow a political party to act arbitrarily or as it likes as reasoned in Mahmud Aliyu Shinkafi & Anor V. Abdulazeez Abubakar Yari & 2 Ors (2016) LPELR-26050. Therefore, the locus standi or right of action granted the Plaintiff under Section 87(10) can only be activated after the primary election has been conducted not before since the right of action cannot precede a cause of action. What this sums up is this: the case of Hon. OKWUDILI CHRISTOPHER EZENWANKWO, which was filed on the 5th day of July 2021 [12 days after the conduct] of the APGA primary election conducted on the 23rd day of June 2021 [when the cause of action crystalised] did not violate Section 285(9) of the 1999 Constitution as decided by the Learned Trial Judge. That is the only mathematically correct position to arrive at. That is the position of the law.

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On this very point, this is what the Supreme Court decided in the case of Dr Umar Ardo v. Admr. Nyako [2014] 10 NWLR (Pt. 1416) 591 per Okoro, J.S.C. as follows:
Now coming to the definition of ‘aspirant’, as laid down in Section 156 of the Evidence Act vis-a-vis Section 87 (9) of the Electoral Act, I wish to state that for a person to have locus to sue in a court of law to challenge the nomination of a candidate of a political party, the party must have conducted a primary election in the first place and the complainant must have participated in the nomination exercise and lost. It is only then that he can have the locus to challenge the result of the primary election. It is also then that the court by Section 87 (9) of the Electoral Act can have jurisdiction to entertain the matter. Where a party did not conduct a primary election in its nomination process, no court will have jurisdiction to entertain a complaint on the nomination of a candidate
THE COURT HAS JURISDICTION OVER THE ISSUES COMPLAINED OF:
The decision of the Learned Trial Judge to the effect that the “issues complained of are internal affairs of a party hence the “Court lacks the jurisdiction to entertain the matter” is not correct.
THE LAW AS IT STOOD:
Before the enactment of Section 87(8), (9) and (10) of the Electoral Act, 2010 as amended, the position of the law was that the primary election processes for nominating a candidate of a political party for an election were the exclusive preserve of the political parties over which the courts were not prepared to exercise jurisdiction. This old view of the law was well espoused in the cases of Onuoha v. Okafor (1983) 2 SCNLR 244 and extended in Dalhatu V. Turaki (2003) 15 NWLR (Pt. 843) 310 and kindred others. In AGI V. PDP & ORS (2016) LPELR-42578(SC), the Supreme Court felt the need to recapitulate the well-known position thusly:
“… The above makes it very clear that a party is supreme over its affairs…A party is like a club, a voluntary association. It has its rules, regulations, guidelines and Constitution. Members join the party of their own free will. By joining they have freely given their consent to be bound by the rules, regulations, guidelines and Constitution of the party. These rules of the party must be obeyed by all members of the Party, as the party’s decision is final over its affairs. Members of a Party would do well to understand and appreciate the finality of a party’s decision over its domestic or internal affairs.
HOW THE LAW NOW STANDS:
As expected, the old position of the law accentuated above, fueled impunity and allowed unchecked excesses to fester such that a handful but powerful individuals constituted themselves into cabals who high-jacked party structures and almost became gods unto the weaker members of the party. Needless to say, that this scourge killed internal party democracy and gravely endangered the democratization process of the larger society. Perhaps, no better words graphically captured what the situation was like and why the tide of the law changed as per the enactment of Section 87 of the Electoral Act than the words of the Supreme Court, per Eko, J.S.C., in LAU V PDP & ORS (2018) 4 NWLR (Pt. 1608) 60 at 128 as follows:
…Hitherto, there was no internal democracy in all the political parties. All the political parties were hijacked by the high and mighty. Impunity was the norm. Within the parties, there was nothing like the rule of law. The situation looked like the bleak situation in Israel as reported by Prophet Habakkuk: that in those days, there were no laws in Israel and everybody did what was right in his own eyes, and justice went forth perverted. That was the mischief Section 87 of the Electoral Act was enacted to address, contain and reverse.
Given the above extrapolations, it is clear that the complaint which the Plaintiff registered at the Registry of the Federal High Court (Awka Division) is not one over which the “Court lacks the jurisdiction to entertain” as erroneously concluded by the Learned Trial Judge. This is more so when the Electoral Act has by its Section 87(9) ordained a calamitous consequence for conducting party primaries in breach of the Electoral Act. This is what the law says:
Where a political party fails to comply with the provisions of this Act in the conduct of its primaries, its candidate for election shall not be included in the election for the particular position in the issue.
In reversing the cruelty visited on weaker party members in the conduct of party affairs, the new law has now clothed all aspirants with the locus standi to challenge the conduct of primary elections in which they participated after they have been conducted to ensure that political parties obey their constitution and other laws governing the selection or nomination process of a party’s candidate as stated in CPC V. OMBUGADU (2013) LPELR 21007 (SC).

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CONCLUSION:
The decision of the trial Federal High Court to the effect that the case as conceived and initiated before it by the Plaintiff is “not justiciable” flies in the face of the decision of the Supreme Court in LAU V PDP & ORS (2017) 6-7 SC PART II 18; (2018) 4 NWLR (Pt. 1608) 60 at 128. The legislative intervention has imbued the Courts (including the Federal High Court besieged by the Plaintiff herein to table his grievances) with the limited jurisdiction which would be invoked if primaries were not conducted by Party’s Constitution, Guidelines and the Electoral Act; Emenike V. PDP (2012) 12 NWLR (Pt. 1315) 556. The case of the Plaintiff revolves around the processes adopted by the 1st Defendant in nominating the 7th Defendant which the Plaintiff has vigorously impugned as being invalid for the reason of being not in compliance with, not only the Constitution of the 1st Defendant and its Electoral Guidelines but also in violent conflict with the Constitution of the land and the Electoral Act, 2010 as amended. What is more, the law allows him, not only to present this case as an aspirant in the said primary election but also imbues the Federal High Court with the requisite jurisdiction to adjudicate and dispose of the claim on the merit contrary to the erroneous finding and holding of the Hon. Justice H. A. NGANJIWA; MATO V. HEMBE & ORS (2017) LPELR-42756 (SC).
DRAWING THE CURTAINS:
In logging out, we have made the point that APGA mutilated the otherwise sacrosanct provision of Section 87(8) of the Electoral Act by fielding political appointees as delegates who voted in nominating Professor Charles Soludo as the candidate of the party. The only known consequence, as ordained by the law, is a declaration to the effect that the party, APGA, does not have a candidate for the said election. This may be a very bitter pill for APGA and Soludo (even their supporters) to swallow in the entire circumstances. However, this would not be the first time where such unintended consequences have played out. In similar circumstances in time past, the Court has maintained, with unbending rigidity, that such must be the “hard and very bitter lesson for Political Parties” to learn! This is what the Supreme Court said, after nullifying the irregular primaries conducted in violation of Section 87 of the Electoral Act, in its Leading Judgment in the case of LAU V PDP & ORS (supra):
This is a hard and very bitter lesson for Political Parties to learn; they may have chosen candidates or eminent personalities they want to present as candidates to INEC, but they have to play by the rules The chosen candidates must comply with the requirements of the law; they must abide by the provisions of the Electoral Act, which creates a level playing field for all aspirants, who seek to contest elections. So, the Political Parties, and their candidates, must obey the Rules.


In his contribution in that judgment, Onnoghen, C.J.N (as he then was) sternly warned that:
Political parties must do all that is possible to ensure adherence to the provision of their Constitution to encourage Nigerians to be confident in entrusting the protection and enforcement of the provisions of the Nigerian Constitution into their hands. Where a political party refuses or neglects to abide by the provision of its constitution in its relationship with its member we have the beginning of the culture of impunity and with it, chaos, uncertainty and indiscipline which should not be encouraged. It must always be kept in mind that the intention of the legislature in enacting the Electoral Act, 2010, as amended, as it relates to nomination of candidates for election is to do away with the hitherto prevalent practice of the political parties to do anything in the name of nomination and get away with it
By the above, the Court is saying that the APGA may have “chosen an eminent personality” in the person of Professor as its candidate, his nomination will not stand if it did not comply with “the requirements of the law”. APGA must “abide by the provisions of the Electoral Act which creates a level field for all aspirants”! It is flowing from the foregoing that one entertains no doubt that Honourable Justice Nganjiwa’s judgment [hobbled by colliding with established authorities] is bound to bow before the Supreme Court in the event the Plaintiff decides to take his case to that rare judicial altitude. Time and again, the Supreme Court has condemned, in very strong terms, Judges/Justices who deliver opinions that fly in the face of existing Supreme Court’s decision(s) as herein demonstrated. Please see Dalhatu V. Turaki (2003) 15 NWLR (Pt. 843) 310.
UNLESS Hon. OKWUDILI CHRISTOPHER EZENWANKWO decides not to appeal against the judgment of the Federal High Court sitting at Awka, and barring every other technical blunder Plaintiff’s Counsel “may” commit in pursuing the appeal, the Judgment of the Federal High Court, Awka cannot stand! It will, willy-nilly, bow at the feet of the Supreme Court’s decisions on the score as discussed here. That is when and why Professor Soludo “may never be” the Governor of Anambra State.


The author may be reached on +2348131131942 OR [email protected]

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