*Says “Validity Of Sections 77 And 84 Does Not Automatically Invalidate Every Nomination”
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Dr. M. O. Ubani, SAN, has said that the decision of the Supreme Court in INEC v Zenith Labour Party restored the validity of the disputed provisions of the Electoral Act 2026 without adjudicating the nomination of any individual candidate, and that the electoral commission has no power, on the strength of that judgment alone, to remove the names of candidates it has already published.
In a written analysis of the decision, the senior advocate and policy analyst said the certified true copy of the judgment was not yet available for reasons largely administrative, and that he had therefore restricted himself to the ratios and holdings consistently reported by the major newspapers and television houses pending the availability of the full judgment. He said the intervention had been prompted by an interpretation offered by a colleague which, with respect, called for further examination.
The senior advocate set out the common ground first.
“What is presently not in contest is that the recent decision of the Supreme Court in INEC v. Zenith Labour Party, SC/CR/495/2026, has set aside the judgment of the Court of Appeal and restored the legal validity of Sections 77(5), 77(6), 77(7) and 84(2) of the Electoral Act 2026, which the Court of Appeal had earlier declared unconstitutional,” he wrote, adding that reports indicate the court held those provisions not inconsistent with the 1999 Constitution.
“The practical consequence is that political parties are once again required to comply with the statutory requirements relating to their membership registers and the statutory methods of nominating candidates.”
He said the decision nonetheless raises a further and important question: what happens to candidates already nominated and published by the commission, particularly where an aspirant seeks to challenge their nomination on the basis of the restored provisions.
“That question requires a careful distinction between the validity of the law and the validity of an individual candidate’s nomination,” he wrote.
He restated the effect of the provisions. Section 77(5) provides that only persons whose names appear in the party’s membership register are eligible to vote or be voted for at party primaries, congresses and conventions. Section 77(6) requires the party to use the register submitted to the commission. Section 77(7) provides that a party which fails to submit its register within the prescribed period is not eligible to field a candidate. Section 84(2) prescribes direct primaries or consensus as the methods for the nomination of candidates.
“The Supreme Court has now restored the legal validity of those provisions. But there is a fundamental distinction between saying the statutory requirement is valid and saying a particular candidate has consequently been disqualified,” he wrote.
“The Supreme Court did not, by the ZLP judgment, make a blanket order disqualifying candidates who were not parties to that litigation.”
He said the point engages the constitutional guarantee of fair hearing.
“A candidate whose nomination is being attacked must be given an opportunity to be heard before an order affecting his or her legal rights is made. The validity of Sections 77 and 84 cannot, by itself, amount to a judicial determination that every candidate whose nomination is alleged to have been conducted in breach of those provisions is automatically disqualified.”
“In other words, the Supreme Court has restored the law; it has not adjudicated the individual facts of every nomination conducted under that law.”
He then turned to the statutory machinery governing nomination and its challenge.
Section 29 of the Electoral Act 2026, he wrote, requires a political party to submit to the commission, not later than 120 days before the general election, the names of candidates who emerged from valid primaries, after which the commission publishes the relevant particulars.
Section 29(5) creates a specific judicial procedure for redress, under which an aspirant who participated in the party’s primary and has reasonable grounds to believe that information supplied by the candidate concerning his constitutional eligibility is false may approach the Federal High Court.
Section 29(6), he wrote, provides the consequence where the court determines that such information is false in relation to the constitutional requirements of eligibility, namely that the court is to issue an order disqualifying the candidate and the sponsoring political party.
“This provision is significant. The legislation itself identifies the Court, rather than INEC acting unilaterally, as the institution that makes the consequential order of disqualification under that provision.”
On section 33, he wrote that it provides that a political party shall not change or substitute a candidate whose name has been submitted under section 29 except in the case of death or withdrawal, and that where death or withdrawal occurs the party is required, within 14 days of the occurrence, to conduct another primary and submit a new candidate.
“Thus, once the statutory process under Section 29 has occurred, the question whether a particular candidate should cease to be recognised cannot simply be answered by saying that the Supreme Court has restored Section 77.”
The senior advocate relied on the Supreme Court’s decision in Dingyadi & Anor v Independent National Electoral Commission & 2 Ors (No. 2) (2011) 18 NWLR (Pt. 1224) 154, in which, per Adekeye, JSC, the court stated in its ratio concerning the powers of the commission that it lacks the power to disqualify any candidate on its own, and further held that the power of disqualification of a candidate, after the candidate’s name has been forwarded to the commission, belongs to the appropriate court.
He entered a qualification. “It must, however, be emphasised that Dingyadi was decided under the Electoral Act 2006. Its precise statutory setting is therefore different from the Electoral Act 2026.”
“Nevertheless, the principle concerning INEC’s inability to unilaterally disqualify a candidate after nomination is highly relevant to the present discussion, particularly when read alongside Sections 29 and 88 of the 2026 Act. Indeed, the 2026 Act gives the principle even stronger statutory context.”
He described section 88 as decisive.
Section 88(2), he wrote, expressly permits an aspirant who participated in a party primary and complains that the Electoral Act or the party’s guidelines were not complied with in the selection or nomination of a candidate to approach the Federal High Court for redress. Section 88(3) then provides that where the court finds that the political party failed to comply with the Act in conducting its primaries, its candidate shall not be included in the election for the particular position in issue.
“The language is instructive. It says: ‘Where a court finds…’ It does not say: ‘Where INEC finds…'”
“This reinforces the proposition that where the alleged non-compliance requires a consequential determination affecting the candidature of an identified person, the statutory scheme contemplates judicial determination.”
He identified the accrual of the cause of action as perhaps the most important question arising from the decision.
Section 285(9) of the Constitution, he wrote, provides that every pre-election matter must be commenced within 14 days from the date of the occurrence of the event, decision or action complained of, and the courts have consistently treated that limitation as strict.
“Consequently, an aspirant cannot ordinarily wait for the publication of a candidate’s name by INEC and automatically contend that the publication created an entirely new cause of action concerning an earlier defective primary.”
He drew the distinction by example. Where the complaint is that a candidate was not qualified to participate in the primary because his name was not on the statutory membership register, the critical event may be the primary or nomination process itself. But where the complaint is that the commission has unlawfully accepted or published a candidate despite a statutory requirement governing the commission’s own decision or nomination process, its subsequent decision may, depending on the facts and the relief sought, constitute a distinct cause of action.
“That distinction may ultimately determine whether a particular action is statute-barred.”
On pending cases, which he described as perhaps the most difficult question, he wrote that a pending case does not automatically disappear merely because the legal proposition on which one party relied has subsequently been rejected by the Supreme Court.
“What changes is the law applicable to the determination of the pending controversy.”
A lower court is bound by the authoritative interpretation of the apex court, so that a pending suit seeking a declaration that sections 77(5) to (7) or 84(2) are unconstitutional can no longer succeed. “But that does not necessarily mean that every pending action challenging a particular nomination has become incompetent.”
Where an aspirant instituted an action within the constitutionally prescribed 14 days challenging a primary and alleging that the eventual candidate was not qualified to participate because his name did not appear in the relevant register, he wrote, the decision changes the law governing that dispute, and the court must now apply the provisions as valid.
“But the court must still determine the facts,” he wrote, listing the questions: whether the candidate was actually on the relevant register; whether the claimant was an eligible aspirant; whether the action was commenced within 14 days; whether there was compliance with the applicable statutory procedure; what relief was sought; and, critically, whether the statute permits the particular relief claimed.
“The ZLP judgment therefore does not necessarily extinguish every pending cause of action. It changes the legal framework within which those causes of action are to be determined.”
He described this as the most controversial question, requiring the greatest caution.
“The answer cannot simply be yes because of the fact Sections 77 and 84 have been restored.”
The commission administers and enforces the Electoral Act within the powers conferred on it by the Constitution and the Act, he wrote, but where the consequence sought is the disqualification or exclusion of a particular candidate, the Act itself provides judicial mechanisms. Section 29(6) expressly contemplates a court order disqualifying the candidate and the sponsoring party in the circumstances specified, and section 88(3) makes exclusion from the election consequential upon a court’s finding of non-compliance.
“And the principle stated by the Supreme Court in Dingyadi remains highly relevant: INEC does not possess an unfettered independent power to disqualify a candidate after the candidate’s name has been forwarded to it.”
“Accordingly, the ZLP judgment does not, without more, authorise INEC to erase the names of already published candidates.”
“Where an aspirant has a valid and timely complaint, the proper question is whether the aspirant has invoked the appropriate judicial procedure and whether the court, applying the restored provisions to the established facts, ought to grant the relief sought.”
He said section 33 reinforces the position, because once a candidate’s name has been submitted under section 29, the party cannot simply substitute that candidate “because of a subsequent political development, internal disagreement or because another person is considered more suitable,” the statutory exceptions being death and withdrawal, subject to the prescribed procedure.
“Consequently, Section 33 cannot reasonably be construed as conferring upon INEC a general power of substitution. Nor can the restoration of Sections 77 and 84 by the Supreme Court be converted into a general administrative power in INEC to substitute candidates who have already been submitted and published.”
He set out three key take-aways.
The first is that the Supreme Court has restored the validity of sections 77(5), 77(6), 77(7) and 84(2). The second is that the validity of those provisions does not automatically determine the validity or invalidity of every individual nomination. The third is that the Electoral Act provides judicial procedures for determining whether a particular candidate should be disqualified or excluded, with section 29(5) and (6) dealing with challenges relating to false information concerning constitutional eligibility, section 88(2) giving a participating aspirant a right to challenge non-compliance in the selection or nomination of a candidate, section 88(3) providing for exclusion where the court finds the non-compliance established, and section 33 restricting substitution of a candidate already submitted to the circumstances specified by law, principally death or withdrawal.
He listed the questions which, in his view, now determine any challenge to a candidate’s nomination.
When did the cause of action accrue? Was the claimant an aspirant entitled to invoke the relevant statutory procedure? Did the claimant have the requisite locus standi? Was the action commenced within the constitutional 14-day period under section 285(9)? Was the complaint about the conduct of the primary, the qualification of the candidate, or an act or decision of the commission? What precise relief is sought? Does the Electoral Act entrust that relief to the commission or to a competent court? Had the candidate already been submitted and published under sections 29 and 32? Would the relief sought amount, in substance, to disqualification, exclusion or substitution?
“These questions cannot simply be answered by saying that ‘the Supreme Court has restored Section 77,'” he wrote.
“For candidates whose cases were already pending when the Supreme Court delivered its judgment in ZLP, those cases should ordinarily be determined in accordance with the Supreme Court’s authoritative interpretation of the restored provisions. But the judgment does not, without more, transform every pending action into a disqualification proceeding, nor does it retrospectively confer upon INEC a power of unilateral disqualification.”
“The Supreme Court has restored the law. It is now for a competent court, where properly invoked and within the jurisdiction conferred upon it by the Constitution and the Electoral Act, to determine the consequential rights of a particular candidate on the facts of each case.”
He closed with an observation on suits commenced during the period when the Court of Appeal judgment was in force.
“If a cause of action accrued while the Court of Appeal judgment was operative, the subsequent reversal by the Supreme Court does not necessarily mean that the suit was never competent from the moment it was instituted. The court must examine the nature of the cause of action, the date on which it accrued, the applicable limitation period, the relief claimed and the effect of the Supreme Court’s authoritative declaration of the law.”
“In every pending case, therefore, the exact relief sought and the date on which the cause of action accrued will be crucial.”
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