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Published online by Cambridge University Press: 27 January 2025
One of the issues for determination in All Progressives Congress v Bashir Sheriff and Others was whether the first respondent won the primary election that was conducted according to the Electoral Act 2022. This issue, however, was not addressed because the Supreme Court set aside the suit because the first respondent failed to initiate it through the proper originating process. This decision contrasts with its previous judgment in Ekanem v The Registered Trustees of the Church of Christ the Good Shepherd, where it held that an inappropriate originating process does not undermine the competence of a suit. By departing from this previous decision, this note argues that there is a high possibility that the Supreme Court may have aided in the subversion of the Constitution. It recommends that the Electoral Act 2022 be amended to restrict the court's authority to dismiss election disputes if they were initiated through inappropriate originating processes.
PhD; lecturer, Faculty of Law, University of Nigeria.
PhD; senior lecturer, Faculty of Law, University of Nigeria.
PhD; lecturer, Faculty of Law, University of Nigeria.
PhD; senior lecturer, Faculty of Law, University of Nigeria.
1 Odigwe, DA “Nigerian political parties and internal democracy” (2015) 4/2 African Journal of Governance and Development 66Google Scholar; Sule, B and Yahaya, MA “Internal democracy and Nigerian political parties: The case of All Progressive Congress (APC)” (2019) 4/1 Qualitative and Quantitative Research Review 113Google Scholar.
2 Constitution of the Federal Republic of Nigeria 1999 as amended, sec 153; Nigeria's Electoral Act 2022, sec 2.
3 LPELR-59953(SC).
4 Id at 6.
5 Id at 37.
6 [2008] 5 NWLR (Pt 1080) 227.
7 See the Constitution, sec 221.
8 Amechi v INEC, above at note 6 at 317.
9 [2008] 5 NWLR (Pt 1080) 227.
10 [2020] 3 NWLR (Pt 1712) 470.
11 Amechi v INEC, above at note 6.
12 Citing Lawson-Jack v SPDC (Nig) Ltd [2002] LPELR- 1767 (SC).
13 Citing State v Onaguruwa [1992] 2 SCNJ 1 at 20.
14 Citing the Evidence Act 2011, sec 135(1); UAC Ltd v Taylor [1936] 2 WACA 70; Usenfowokan v Idowu [1969] NMLR 77; Nwobodo v Onoh [1984] NSCC 1.
15 Citing Ekanem v The Registered Trustees of the Church of Christ, the Good Shepherd (SC/349/2011 delivered on 02/12/2022) reported in [2023] All FWLR (Pt 637) 203.
16 Citing Odiase and Another v Agho and Others [1972] 1 All NLR (Pt 1) 170 at 177.
17 APC v Bashir Sheriff and Others, above at note 3 at 47–49.
18 Id at 38.
19 This rule was used because APC v Bashir Sheriff and Others was commenced at the Federal High Court.
20 The Federal High Court (Civil Procedure Rules) 2019, order 3 rules 2, 6 and 7.
21 Rule II(1) of the Practice Directions 2022 states that the directions shall apply to every pre-election matter brought pursuant to the provisions of the Constitution of the Federal Republic of Nigeria 1999 and the Electoral Act 2022.
22 APC v Bashir Sheriff and Others, above at note 3.
23 [1984] 1 NWLR (Pt 1) 143.
24 [2004] 16 NWLR (Pt 900) 487.
25 [2009] 5 NWLR (Pt 1133) 41.
26 The Court of Appeal emphasized in The Governor of Kogi State v Oba SA Mohammed [2008] LPELR-CA/A/79/07 24 that one of the merits of originating summons is the swift resolution of proceedings initiated through this process.
27 Federal High Court (Civil Procedure) Rules 2019, order 3 rules 6, 7 and 8. See also Ossai v Wakwah & Others [2006] 4 NWLR (Pt 969) 208; Federal Government of Nigeria v Zebra Energy Ltd [2002] 18 NWLR (Pt 798) 162.
28 [2012] 4 NWLR (Pt 1291) 529 at 533.
29 [2007] LPELR-928 (SC).
30 See Director State Security Service v Agbakoba [1999] 3 NWLR (Pt 595) 314; Keyamo v Lagos State House of Assembly [2002] 18 NWLR (Pt 799) 605.
31 Famfa Oil Ltd v AG of the Federation [2003] 18 NWLR (Pt 852) 453.
32 APC v Bashir Sheriff and Others, above at note 3 at 37.
33 When the claim is based on or includes an allegation of fraud and when the facts are substantial, contentious and likely to be disputed by the parties, the law provides that the suit must be initiated through a writ of summons. See Federal High Court (Civil Procedure) Rules, order 3 rule 2; PDP v Abubakar [2007] 3 NWLR (Pt 1022) 515 at 540.
34 Ekanem v The Registered Trustees, above at note 15.
35 Citing its previous decision in Emezi v Osuagwu (2005) All FWLR (Pt 259) 1891.
36 Ekanem v The Registered Trustees, above at note 15 at 227.
37 APC v Bashir Sheriff and Others, above at note 3 at 37.
38 [1983] NSCC 226.
39 Id at 227.
40 Abdulkarem v Incar (Nigeria) Ltd [1992] 7 NWLR (Pt 251) 1 at 17.
41 Id at 18.
42 J Wallace, H Kundnani and E Donnelly “The importance of democracy” (14 April 2021, Chatham House), available at: <https://www.chathamhouse.org/2021/04/importance-democracy> (last accessed 29 January 2024).
43 A Lincoln “The Gettysburg address” (19 November 1863, Houston Independent School District), available at: <https://www.houstonisd.org/cms/lib2/TX01001591/Centricity/Domain/9764/The_Gettysburg_Address.pdf> (last accessed 29 January 2024).
44 Buchanan, A “Political legitimacy and democracy” (2002) 112/4 Ethics 689CrossRefGoogle Scholar.
45 Ebegbulem, JC “The imperative of democratic consolidation in Nigeria through credible elections” (2017) 10/1 African Journal of Politics and Administrative Studies 70Google Scholar at 71. Elections are not only fundamental to competitive politics, but they also provide political participation and competitiveness, which are critical to democratic transition and consolidation. See Omotola, JS “Elections and democratic transition in Nigeria under the fourth republic” (2010) 109/437 African Affairs 535CrossRefGoogle Scholar at 537.
46 Sec 13 of the Constitution mandates every organ of the government to inter alia discharge its obligation to protect democracy in Nigeria.
47 See the Constitution, sec 4.
48 [1986] 5 NWLR (Pt 45) 528 at 886.
49 Judgment No CCZ 21/19; Constitutional Application No CCZ 42/18 available at: <https://www.veritaszim.net/sites/veritas_d/files/Nelson%20Chamisa%20and%2024%20Ors%20v%20Emmerson%20Mnangagwa.pdf> (last accessed 29 January 2024).
50 By the provisions of sec 93(1) and rule 23(2), the applicant was meant to file and serve the application challenging the presidential election not later than 10 August 2018. Even though the application was filed on 10 August 2018, the respondents were served on 11 August 2018, outside the period prescribed by the rules.
51 Chamisa v Mnangagwa, above at note 49 at 41.
52 Twinomugisha, BK “The role of the judiciary in the promotion of democracy in Uganda” (2009) 9 African Human Rights Law Journal 1Google Scholar.