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WHEN DOES A WITHDRAWAL TAKE EFFECT – WHEN LETTER IS DELIVERED TO THE POLITICAL PARTY, NOT INEC

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It is glaring from the express wordings of Section 31 of the Electoral Act 2022 that the legislative intention is that the withdrawal should take effect upon the nominated candidate personally delivering a written notice of his withdrawal to the political party and not when the political party conveys it to INEC. Section 31 states that what the party conveys to INEC is the withdrawal. The provision gives the party not later than 90 days to the election to convey the withdrawal of its candidate to INEC. Since the election held on 25-2-2022, the political party had up to 24-11-22 to convey the 4th Respondent’s withdrawal to INEC. So, it matters not if it was conveyed in 10-7-2022, 15-7-2022 or any other date, provided it is conveyed not later than 90 days to the election. The date of the conveyance within the prescribed period has no effect on the withdrawal that had already been done. Therefore, the 4th respondent withdrew as the 2nd respondent’s Senatorial candidate for Borno Central Senatorial District on 6-7-2022 when his written letter of withdrawal dated 6-7-2022 was received by his party on 6-7-2022.

— H.S. Tsammani, JCA. APM v INEC & Ors. (2023) – CA/PEPC/04/2023

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SUBSTITUTION OF CANDIDATE MUST BE ON A COGENT & VERIFIABLE REASON

In Ugwu & Anor. v. Araraume & Anor [2007] 16 S.C. (pt.1) 88, this Court considered the import and effect of Section 34 of the Electoral Act on the substitution of a candidate where no cogent reason was given for the substitution. At page 134 of the report this Court per Tobi J.S.C. said: “Taking Section 34(2) in the con of primaries in particular, I have no doubt in my mind that the subsection is not only important but has an imperative content; considering the general object intended to be secured by the 2006 Act. It is certainly not the intention of the Act to gamble with an important aspect of the electoral process, such as primaries in the hands of a political party to dictate the pace in anyway it likes, without any corresponding exercise of due process on the part of an aggrieved person…. If a section of a statute contains the mandatory ‘shall’ and it is so construed by, the court, then the consequence of not complying with the provision follows automatically. I do not think I sound clear. Perhaps I will be clearer by taking Section 34(2). The subsection provides that there must be cogent and verifiable reasons for the substitution on the part of the 3rd respondent. This places a burden on the 3rd respondent not only to provide reasons but such reasons must be cogent and verifiable. If no reasons are given, as in this case, not to talk of the cogency and verifiability of the reasons, then the sanction that follows or better that flows automatically is that the subsection was not complied with and therefore interpreted against the 3rd respondent in the way I have done in this judgment. It is as simple as that. It does not need all the jurisdiction of construction of statute. I know of no canon of statutory interpretation which foists on a draftsman a drafting duty to provide for sanction in every section of a statute.”

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DIVISIONS AND FACTIONS IN POLITICAL PARTIES

The mischief which the framers of the Constitution wanted to avoid was carpet-crossing which, from our constitutional history, in the not distant past, had bedevilled the political morality of this country. They had however to allow for a situation where a political party, by reason of internal squabbles, had split into one or more factions. A split or division could arise without any fault of the members of a political party, resulting in a member rightly or wrongly, finding himself in a minority group which may not be big enough, or strong enough, to satisfy the recognition, as a separate political party, of the Federal Electoral Commission. For such a member not to be allowed to join another political party with his faction may be to place him in a position where his right to contest for political office will be lost.

– Aniagolu, J.S.C. FEDECO v. Goni (1983) – SC

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WHEN CAN IT BE SAID THAT A POLITICAL PARTY IS SPONSORING A CANDIDATE

I have pondered over the submissions of counsel for appellants on this sub-issue and have not clearly seen the connection between publications of the names of candidate by 3rd respondent and qualification to contest any election to which the publication or non publication relates. I hold the view that publication of names of candidates by 3rd respondent is not evidence of sponsorship by a political party which nominated the candidates. Evidence of nomination and sponsorship of a candidate by a political party lies in the declaration of the winner of the party’s primary election conducted to elect the party’s candidate for the general election in question coupled with the political party forwarding the names of the said elected candidate to the 3rd respondent as its nominated candidate for the election see Section 31 of the Electoral Act, 2010, as amended, which enacts thus.

— Onnoghen, JSC. Kubor v. Dickson (2012) – SC.369/2012

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IT IS POLITICAL PARTIES THAT WIN OR LOSE ELECTION, NOT CANDIDATES

It is the political party that participated in the conduct of an election that is the winner or the loser and not the Candidates sponsored by the political parties sometimes, the goodwill of a candidate being sponsored in an election may contribute to the victory of the political party in an election. Section 221 of the 1999 Constitution of Nigeria does not recognize an Independent candidate contesting in our elections.

– Coomassie JSC. Odedo v. INEC (2008)

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CANDIDATE MUST BE SPONSORED BY HIS POLITICAL PARTY

It is trite that for a person to qualify as a candidate for a general election, he must not only be a member of a political party but he must have been sponsored for the election by his political party. See the cases of Gwede v. INEC & Ors. (2014) LPELR-23763 (SC); and Al-Hassan & Anor v. Ishaku & Ors. (2016) LPELR-40083.

— M.A.A. Adumein JCA. Yusuf Kabir v. APC, INEC, NNPP (CA/KN/EP/GOV/KAN/34/2023, 17TH DAY OF NOVEMBER 2023)

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A CANDIDATE OF A POLITICAL PARTY MUST NOT BE JOINED IN THE PETITION FILED BY THE POLITICAL PARTY

The 2nd Respondent/Applicant also contended that the Petition is not properly constituted as the candidate sponsored by the Petitioner has not been joined as a Co-Petitioner in the petition. The short answer to that is that, Section 133(1)(b) of the Electoral Act, 2022 entitles the Petitioner as a political party to institute an election petition. The Applicant has not referred us to any provision of the Electoral Act, or any authority that mandates the political party to file an election petition, only where its candidate has been joined as Co-Petitioner. It is true that, it is proper for the candidate of the party to be so joined but there is no law that compels the political party to join its candidate in the petition. Afterall, the purpose of such joinder is so that the candidate be bound by any judgment or order of the Court or Tribunal but any non-joinder will not invalidate the Petition. This is particularly so when Section 133(1) of the Electoral Act (supra) states that: “An election petition may be presented by one or more of the following persons – (a) a candidate in an election; or (b) a political party which participated in the election.” By the use of the disjunctive word “or”, it means that an Election Petition may be filed by the candidate alone, or the political party alone, or both of them. See Buhari & Anor v. Yusuf & Anor (2003) 14 NWLR (pt. 841) 446 and APC v. PDP & Ors (2015) LPELR – 24349 (CA). The objection on this ground is therefore discountenanced.

— H.S. Tsammani, JCA. APM v INEC & Ors. (2023) – CA/PEPC/04/2023

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