THE CTC OF THE SUPREME COURT JUDGMENT IN INEC v. ZENITH LABOUR PARTY IS OUT. WHAT IT ACTUALLY DECIDED!

THE CTC OF THE SUPREME COURT JUDGMENT IN INEC v. ZENITH LABOUR PARTY IS OUT. WHAT IT ACTUALLY DECIDED!

By Monday Onyekachi Ubani (SAN)

Two days ago, I argued strongly that the judgment of the Supreme Court of Nigeria in INEC v. Zenith Labour Party & Others did not authorise the automatic disqualification of any candidate on the basis of the provisions of section 77(5)-(7) of the Electoral Act 2026.

At the time, the Certified True Copy of the judgment was not yet available. I nevertheless considered it necessary to make that position clear because several interpretations of the judgment were already being circulated which, in my respectful view, were misleading the public as to the actual ratio of the decision.

I am now in possession of the Certified True Copy.

To the glory of God, the judgment has substantially strengthened and affirmed the position I took.

The Supreme Court's reasoning makes an important distinction between the personal qualification or disqualification of a candidate and the statutory eligibility of a political party to field a candidate.

Where a candidate's name is not contained in the party's membership register, the consequence is a matter relating to irregularity in the nomination/primary process. It does not, by that fact alone, constitute a personal qualification or disqualification of the candidate under the Electoral Act.

Similarly, where a political party fails to submit its membership register within the time prescribed by section 77, the statutory consequence under section 77(7) is directed at the party's eligibility to field a candidate. It does not transform the failure into a personal disqualification of every candidate associated with the party.

This distinction is fundamental.

Sections 77(5) and (6) regulate participation in the party primary by reference to the membership register submitted to INEC.

Consequently, where a candidate participated in a primary notwithstanding an alleged failure to comply with those provisions, the question that arises is whether the party complied with the statutory requirements governing the conduct of its primary and whether the candidate validly emerged from that process.

That is a question concerning the validity of the nomination process.

It should not be confused with the separate question whether the candidate personally possesses the constitutional or statutory qualifications to contest the general election.

The Supreme Court's treatment of section 77(7) reinforces this distinction. The failure of a political party to submit its register within the prescribed period affects the party's statutory eligibility to field a candidate. It does not, without more, constitute a personal disqualification of the candidate.

Is there a legal remedy for non-compliance?

This is where section 88(2) of the Electoral Act becomes particularly important.

Where there has been non-compliance with the provisions of the Act or the applicable party rules in the conduct of a primary, an appropriate claimant may invoke the judicial process and seek the appropriate relief.

The claimant's entitlement to maintain such an action will, of course, depend upon the facts of the particular case, including who instituted the action, the claimant's locus standi, the nature of the complaint, the reliefs sought and the applicable statutory limitation or procedural requirements.

Therefore, it is legally unsafe to transform every breach of section 77 into an automatic disqualification which INEC can impose administratively.

The fact that a candidate's name was not contained in the membership register does not, by itself, mean that INEC has acquired a new power to summarily disqualify that candidate.

Likewise, the failure of a political party to submit its register within the prescribed period does not mean that INEC has thereby acquired an unfettered power to determine, administratively and conclusively, the fate of every candidate sponsored by that party.

The Electoral Act provides a judicial mechanism through which such complaints may be ventilated and determined.

Section 29 requires a political party to submit to INEC the list of candidates who emerged from its validly conducted primaries.

That provision undoubtedly imposes obligations upon political parties.

But it should not be interpreted as conferring upon INEC a general judicial jurisdiction to determine, conclusively and without recourse to the courts, every disputed question concerning whether a party primary was validly conducted.

Where the validity of the primary is challenged on the basis of non-compliance with section 77, the question becomes one for determination through the appropriate judicial process.

INEC's administrative role cannot be equated with the judicial power to finally determine disputed questions of law and fact concerning the validity of a nomination.

EVERY CASE MUST THEREFORE BE DETERMINED ON ITS OWN FACTS

This is why I have consistently resisted the simplistic proposition that the Supreme Court judgment means:

"If a candidate's name is not on the party register, the candidate is automatically disqualified."

That is not the ratio of the judgment.

Nor does the judgment mean that every failure to submit a register automatically renders every candidate personally disqualified.

The legal consequences will depend upon the particular facts and circumstances of each case.

Among the questions that may become material are:

Who instituted the action?

Does the claimant have locus standi?

What exactly is the complaint?

When did the cause of action accrue?

What reliefs have been sought?

Was the challenge brought within the applicable statutory period?

What was the nature of the alleged non-compliance?

Was a register submitted, and if so, when?

Was the candidate's name contained in the register?

What was the nature of the primary conducted by the political party?

What remedy does the Electoral Act provide for the particular complaint?

These questions cannot be answered by simply declaring that section 77 has been breached and that the candidate is consequently disqualified.

The Supreme Court's decision in INEC v. Zenith Labour Party & Others should therefore not be presented to the Nigerian public as having created a new regime of automatic candidate disqualification.

The judgment recognises the statutory consequences of non-compliance with section 77, but it also makes the crucial distinction between:

(a) an irregularity affecting the nomination or conduct of a party primary;

(b) the statutory eligibility of a political party to field a candidate; and

(c) the personal qualification or disqualification of an individual candidate.

These are not the same legal questions and should not be conflated.

Where an interested and legally competent claimant challenges a candidate's emergence on the basis of non-compliance with section 77, the appropriate judicial process under section 88(2), subject to the claimant's locus, the reliefs sought, limitation provisions and the facts of the particular case, remains available.

The court may then determine the legal consequence of the proved non-compliance.

What the Supreme Court did not do was to confer upon INEC an automatic judicial power to disqualify a candidate merely because INEC considers that section 77(5), (6) or (7) has not been complied with.

The ultimate determination of a disputed nomination, where properly brought before the court, remains a matter for the judiciary.

That distinction is fundamental to a proper understanding of the judgment.

Dr. M.O. Ubani SAN.