The court has the power to decide the validly nominated candidate where there are two conflicting primaries. The Supreme Court has now made it quite clear that where there are two primaries conducted by the same political party, one by the state chapter or any faction of the party and another by the National Executive of the party, it is the one recognized or conducted by the National Executive of the party that produces the valid candidate of the party.
47 Emeka v Okadigbo [2012] ALL FWLR (pt 651) 1426
100 In Prince John Emeka v Lady Margery Okadigbo 48 the fact or issue in contention was who among the following persons (a) Prince John Okechukwu Emeka (b) Lady Margery Okadigbo and (c) Senator Alphonsus Ubanese, emerged as the winner of PDP primaries conducted for the Senatorial Seat for Anambra North general election held in April 2011. The plaintiff claimed that he contested the primaries conducted by the People‟s Democratic Party (PDP) for the Senatorial Election for Anambra North in Anambra State. Aggrieved by the declaration of the 4th defendant as the winner of the primaries, he commenced an action in the Federal High Court, Abuja, vide originating summons, seeking determination of the following questions: whether on the proper interpretation of section 87 of the Electoral Act, 2010, the 2nd defendant has the right to remove the name of the person who won the indirect primaries for the nomination of a candidate for election into the Anambra North Senatorial District and present to the 1st defendant some other person as its candidate other than the winner of the said primaries; whether the 1st defendant can accept from a political party and recognize as the candidate of the party and place on the ballot paper, a person who did not emerge as the winner of the primaries conducted by the party and whether the 1st defendant can accept from a political party and place on the ballot as candidate for the election, a nominee of a political party who is not chosen in accordance with the provisions of section 87 of the Electoral Act. He sought declaratory and injunctive reliefs, inter alia, to the effect that;
the plaintiff is the only valid and authentic candidate for the Senatorial district for Anambra North; order of injunction restraining the 1st defendant from dealing with any person except the plaintiff as 2nd defendant‟s candidate and 2nd defendant from holding out any other person as its candidate and mandatory injunction compelling the 1st defendant to recognise and publish plaintiff‟s names as the authentic candidate for the election.
The trial court granted plaintiff‟s claim. The defendants were aggrieved and filed three separate appeals to the Court of Appeal which was consolidated by order of court. The Court of Appeal allowed the appeal, declaring the 4th defendant as the authentic candidate. Also aggrieved, the 3rd defendant appealed to the Supreme Court. The appeal was dismissed on the ground that the appellant did not contest in the validly recognized primary of the party organized by the National Executive of the party.
The relevant electoral issues arising from the facts of this case are: whether the Court of Appeal and or the trial court had jurisdiction to determine who is the People‟s Democratic Party candidate for the Anambra North Senatorial District in the April 2011 general election
48 (2012) ALL FWLR (Pt 651) 1426
101 from two parallel primary elections held on 8th January, 2011 and 10th January, 2011 respectively, having regards to the provision of the Electoral Act49 and who among the following: Prince John Emeka, Lady Margery Okadigbo and Senator Alphonsus Ubanese, emerged as the winner of the PDP primaries conducted for the senatorial Seat for Anambra North in the general elections held in April, 2011.
In dismissing this appeal in favour of Lady Okadigbo who participated in the primary organized by the national executive as against Prince Emeka who participated in the primary organized by the state executive, the court made the following points : A primary election by National Executive of the party is the legally recognised primary, political parties must be joined to resolve disputes in court, and INEC is expected to play the role of an impartial arbiter. It should remain unbiased, not taking any side between two members of a political party struggling to emerge as a candidate of their parties.
The above case is a good authority to show that the issue of a primary or the nominated candidate of a party can now be properly instituted and considered by the court, contrary to the principles in Onuoha‟s case and the position under the 2006 Electoral Act. The court now has jurisdiction to investigate who indeed won a primary election whenever there is a dispute arising from a primary election, contrary to the situation in the past, before the 2010 Electoral Act (as amended).
Also the Supreme Court‟s decision in Uzodinma v Izunaso,50 is worthy of note. The issue in this case was whether the appellant‟s nomination was in compliance with the party guidelines and constitution. The trial court assumed jurisdiction, thoroughly analysed the party guidelines and constitution, particularly the provisions on appeals to the National Working Committee from screening exercise. The Supreme Court approved of the assumption of jurisdiction in the matter and held per Rhodes- Vivour, JSC, thus;51
The nomination of a candidate to contest an election is the sole responsibility of the political party concerned. The courts do not have jurisdiction to decide who should be sponsored by any political party as its candidate in an election. But where the political party nominates a candidate for an election contrary to its own constitution and guidelines, a dissatisfied candidate has every right to approach the court for redress. In
49 (2010) (as amended)
50 (2012) 2WRN 1
51 ibid p. 32-33, lines 45-50
102 such a situation, the courts have jurisdiction to examine and interpret
relevant legislation to see if the political party complied fully with legislation on the issue of nomination. The courts will never allow a political party to act arbitrarily or as it likes. Political parties must obey their own constitution, and once this is done, there would be orderliness, and this would be good for politics and the country.
It is quite apparent that what is left now of the principles enunciated in Onuoha v Okafor’s
52case is very skeletal. With the express provision granted aggrieved parties and the court in section 89 (9)53to question all that transpired on the actual day of the primaries, the only issues left under the principles in Onuoha‟s case is what the Supreme Court termed as „Pre-primary affairs of the party.‟54 By the said new term, the only area political parties can now exercise exclusive powers or jurisdiction without interference or questioning by the courts are on issue of sale of party nomination and expression of interest forms, amounts fixed for same, conditions set for screening, the actual screening exercise, disqualifying or banning of intending aspirants from partaking in the primaries, etc, these are the only areas confined to the domestic jurisdiction of political parties and continue to remain unjusticiable, at least for now.
4.8.3 Distinction Between Section 34 (2) Electoral Act, 2006 and Section 87 (9)