ISAH SHUAIBU LAU V. PEOPLES DEMOCRATIC PARTY & ORS (2017)

Background

Isah Shuaibu Lau participated in the Peoples Democratic Party’s primary election for the Taraba North Senatorial District on 11 December 2014 and came second. Alhaji Garba Umar was declared the winner, although Lau challenged Umar’s eligibility on the basis that Umar had not obtained the relevant National Assembly forms or been screened and cleared for the senatorial contest. While the action was pending, Umar withdrew his candidature and the PDP substituted Alhaji Sani Abubakar Danladi, who had not participated in the primary, as its candidate.

Lau commenced proceedings by originating summons in the High Court of the Federal Capital Territory, Abuja, seeking declarations that the substitution was unlawful and that he was entitled to be recognised as the PDP’s candidate. The trial court struck out the action for want of jurisdiction because INEC, a federal agency, was joined as a defendant. The Court of Appeal upheld that decision, additionally holding that the complaint was not justiciable under section 87(9) of the Electoral Act and had become academic after the election. Lau appealed to the Supreme Court.

Issues

1. Whether Lau’s complaint concerning the eligibility of the original nominee and the subsequent substitution fell within section 87(9) of the Electoral Act 2010 (as amended).
2. Whether the presence of INEC deprived the High Court of the FCT of jurisdiction.
3. Whether the holding of the election and declaration of a winner rendered the pre-election action academic or hypothetical.
4. Whether the lower court should have determined the substantive originating summons after resolving the jurisdictional objection.

Ratio Decidendi

An aspirant who participated in a party’s nomination exercise may seek redress under section 87(9) where the Electoral Act, the party’s constitution or its guidelines were not complied with. The aspirant need not have won the primary. Lau’s challenge to Umar’s ineligibility and to the nomination of Danladi was therefore within the statutory jurisdiction.

Section 87(9) confers concurrent jurisdiction on the Federal High Court, a State High Court and the High Court of the Federal Capital Territory in appropriate pre-election disputes. The presence of INEC as a respondent did not vest exclusive jurisdiction in the Federal High Court.

There must first be a valid nomination before there can be a valid substitution. Although a political party may substitute a candidate who dies or withdraws under section 33 of the Electoral Act, the replacement must emerge consistently with the Electoral Act and the party’s constitution and guidelines. In the circumstances, the proper replacement was the aspirant with the second-highest votes in the primary, namely Lau.

A pre-election matter filed before the election does not abate merely because the election has subsequently been held, its result declared or the winner sworn in. A party cannot defeat the court’s jurisdiction by completing the very act challenged in the pending proceedings.

Court Findings

The Supreme Court treated the affidavit supporting the originating summons as the material pleading for determining jurisdiction. Lau’s affidavit alleged that Umar had not been qualified for the senatorial primary and that Danladi had not obtained the required forms, undergone screening or participated in the primary. Those material allegations were unchallenged and uncontradicted and were consequently treated as admitted.

The Court held that the domestic choice of a political party’s candidate is generally non-justiciable, but the party must comply with the Electoral Act, its constitution and its guidelines. Section 87(9) permits judicial intervention where the party acts arbitrarily or in disregard of those requirements.

Because the case was commenced by originating summons and the relevant evidence was already before the court in affidavit form, the trial court ought to have determined the substantive suit as well as the jurisdictional question. Remitting the matter would cause further injustice, particularly because the statutory period for nominating candidates had passed. The Supreme Court therefore invoked its powers under section 22 of the Supreme Court Act and determined the merits itself.

Conclusion

The appeal was unanimously allowed. The decisions of the High Court and Court of Appeal were set aside. The Court declared Lau entitled to be issued a certificate of return as Senator representing Taraba North Senatorial District, ordered INEC to issue the certificate, directed Danladi to vacate the senatorial seat and ordered him to refund to the National Assembly the salary and allowances received since assuming the seat. Each party was ordered to bear its own costs.

Significance

The decision confirms the broad remedial purpose of section 87(9) of the Electoral Act: political parties must provide a level playing field and obey their constitutions, guidelines and the Electoral Act when selecting and substituting candidates. It also establishes that unlawful substitution and defective nomination remain justiciable pre-election matters, and that subsequent electoral events cannot be used to prevent an aggrieved aspirant from obtaining effective relief.