Dr. M. O. Ubani, SAN, has said that the certified true copy of the Supreme Court’s judgment in INEC v Zenith Labour Party & Others confirms that the decision does not authorise the automatic disqualification of any candidate under sections 77(5) to (7) of the Electoral Act 2026.
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He had argued that position two days earlier, before the certified copy was available, and said he did so 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,” he wrote. “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,” he wrote.
“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 or 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,” he wrote.
He explained how the subsections operate.
“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.”
On whether there is a legal remedy for non-compliance, he pointed to section 88(2) of the Act.
“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,” he wrote.
“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,” he wrote.
“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.”
Turning to section 29, which requires a party to submit to the commission the list of candidates who emerged from its validly conducted primaries, he said the provision undoubtedly imposes obligations on 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.”
He said he had consistently resisted what he called the simplistic proposition that the judgment means that a candidate whose name is not on the party register is automatically disqualified.
“That is not the ratio of the judgment,” he wrote. “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.”
He listed the questions which he said may become material: who instituted the action; whether the claimant has locus standi; what exactly the complaint is; when the cause of action accrued; what reliefs have been sought; whether the challenge was brought within the applicable statutory period; the nature of the alleged non-compliance; whether a register was submitted and if so when; whether the candidate’s name was contained in the register; the nature of the primary conducted by the party; and what remedy the Act provides 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,” he wrote.
“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,” he wrote.
The judgment, he said, recognises the statutory consequences of non-compliance with section 77, but also makes a crucial distinction between an irregularity affecting the nomination or conduct of a party primary; the statutory eligibility of a political party to field a candidate; and 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,” he concluded.
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