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Legal issues surrounding nullification of Alex Otti’s candidature as Abia governor-elect

One year in office: Otti urged to make Abia best state in Nigeria

The Federal High Court in Kano State on May 19, 2023, nullified Labour Party’s (LP) Alex Otti’s candidature as Abia State governor-elect. Otti emerged as the winner of the March 18 gubernatorial elections with 172,386 votes, surpassing Okey Ahiwe, his Peoples Democratic Party counterpart, who secured 88,174 votes.

This decision of the court is coming after the suit – Suit No FHC/KN/CS/107/2023, was filed on May 11, 2023, via originating summons by Ibrahim Haruna against LP and the Independent National Electoral Commission (INEC).

The court ruled that the failure of the Labour Party to submit its membership register to the INEC within 30 days before their primaries, rendered the election process invalid.

Delivering the judgment, Justice M.N. Yinusa stated that, the Labour Party’s failure to submit its register of members in Abia state and Kano State is in crass breach of the provisions of Section 77(3) of the Electoral Act, 2022 and the purported primary elections of the party hence is null, void and of no effect.

Issues for determination

Is this a pre-election or a post-election matter?

Pre-election matters relate to disputes arising from intra-party affairs like primary elections, the nomination of candidates, the qualification of candidates, or any other dispute, arising before the conduct of an election.

The courts that have jurisdiction to hear pre-election matters are the State High Court or the Federal High Court, as established in the case of Odedo V. INEC& Anor. 2008 JELR 46714(SC).

It is very important to note that there is a certain time limit, that a party has to bring a pre-election matter before the court and this is 14 days from the date the cause of action arose; Section 285(9) of the Constitution of the Federal Republic of Nigeria. The mode to bring a pre-election matter before the court is originating summons and the court must deliver its judgment within 180 days from the date when the action was filed.

A post-election matter, on the other hand, is filed after the election has taken place and it covers matters as to the conduct of the election, the qualification of candidates etc.

The judgment before us, which insists that the candidature of an already elected participant, be nullified because his party did not submit its register of members before the stipulated time in the electoral act, borders on a technical issue, which should be addressed before the elections and not afterwards.

Does the party filing the case have the locus to do so?

Locus standi in law means the legal right that a party has to be heard by a court or a tribunal. It is a condition precedent to the determination of a case on its merits. A challenge to a party’s locus is also a challenge to the jurisdiction of that court to hear the matter.

The requirement of locus standi is one of the law’s attempts to keep passers-by, strangers, busybodies and meddlesome interlopers out of the court. Therefore, for one to approach the court he must show that he has a cause of action, that he is directly involved in the matter.

Read also: Emotional Reasoning

Who has the locus to bring an election matter before the court?

First, a candidate at the election, as seen in Section 133(1)(a) of the Electoral Act 2022, then a political party which participated in the elections,(Section 133(1)(b) of the Electoral Act, 2022).

Following the foregoing conditions, it is safe to conclude, that Ibrahim Haruna, who filed the originating summons against the Labour Party and INEC, has no legal right in law to do so, as he does not fall under the categories of petitioners that the law recognizes. He, therefore, has no locus.

Issue of Jurisdiction

If the case happens to fall under post-election matters, the appropriate mode to file this case would be to go by election petition in the governorship election tribunal. This tribunal has original jurisdiction to hear all gubernatorial election petitions. The law which gives the tribunal this authority is Section 285(2) of the 1999 Constitution.

A Federal high court situated in Kano State has no jurisdiction whatsoever to hear a post-election matter, let alone, give judgment on it.

Consequences for not complying with section 77(3) of the electoral act

The section of the law which forms the primary basis for the judgment, Section 77(2) and (3) of the Electoral Act 2022, states that; “Every registered political party shall maintain a register of its members in both hard and soft copy. Each political party shall make such register available to the Commission not later than 30 days before the date fixed for the party primaries, congresses or convention”.

This law does not state the implications of not carrying out the above obligations, it does not mention that such consequence will be disqualification of the party’s candidate and a nullification of the entire primary election process, but rather the conditions by which a candidate can be disqualified from being a governor of a state are clearly stated in Section 177 and Section 182 of the 1999 Constitution, and the conditions in this section of the constitution does not include a political party submitting its members register to INEC before the primary elections.

What does this judgment mean for the people of Abia State?

It is no surprise that this judgment would have raised a cloud of questions in the hearts of many; questions as to what this means for the state and if the inauguration will go on as planned, by May 29, 2023.

The governor-elect, Alex Otti, on Friday, a while after the judgment was released, reassured Abians, that the decision of the court will not affect his inauguration.

From the issues discussed above, my candid advice to the petitioner if he wishes to continue his quest, will be to go through the appropriate channels, in order to successfully bring an election petition and of course to understand that he has to have the locus to do so.

Ijeoma Okorie is a lawyer who specialises in intellectual property and entertainment law.