BY MONDAY UBANI

The above decision of the apex Court has, no doubt, generated considerable discussion among politicians, lawyers and legal commentators. Interpretations have varied, with different opinions being expressed about the true implication of the judgment.

The certified true copy of the judgment is not yet handy, for reasons that are largely administrative. What has prompted this intervention, however, is an interpretation offered by a colleague which, with respect, calls for further examination. I have therefore restricted myself, at this stage, to the ratios and holdings consistently reported by the major newspapers and television houses, pending the availability of the full judgment.

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. Reports indicate that the Supreme Court held that the provisions are 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.
But the judgment raises a further and important question: What happens to candidates who have already been nominated and published by INEC, particularly where an aspirant seeks to challenge their nomination on the basis of the provisions now restored by the Supreme Court? That question requires a careful distinction between the validity of the law and the validity of an individual candidate’s nomination.

The restoration of Sections 77 and 84 does not amount to automatic disqualification of candidates.
For emphasis, 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 INEC, while 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), meanwhile, prescribes direct primaries or consensus as the methods for 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.

The Supreme Court did not, by the ZLP judgment, make a blanket order disqualifying candidates who were not parties to that litigation.

This is where the constitutional principle of fair hearing under Section 36 of the 1999 Constitution becomes important. 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.

Sections 29 and 33 become particularly important. Section 29 of the Electoral Act 2026 requires a political party to submit to INEC, not later than 120 days before the general election, the names of candidates who emerged from valid primaries, after which INEC publishes the relevant particulars.

Section 29(5) creates a specific judicial procedure for redress. 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.

More importantly, Section 29(6) provides the consequence where the Court determines that such information is false in relation to constitutional requirements of eligibility: the Court is to issue an order disqualifying the candidate and the sponsoring political.

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.

Section 33 is equally significant. 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. 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. This is where the decision of the Supreme Court in.

Dingyadi & Anor v. Independent National Electoral Commission & 2 Ors (No. 2) (2011) 18 NWLR (Pt. 1224) becomes particularly instructive. In that case, the Supreme Court, per Adekeye, JSC, stated in its ratio concerning the powers of INEC thus: The Independent National Electoral Commission lacks the power to disqualify any candidate on its own.

The Court 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.

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.

Section 88 is decisive. Section 88(2) of the Electoral Act 2026 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.

Perhaps the most important question arising from the Supreme Court’s decision is: When did the aspirant’s cause of action accrue?

Section 285(9) of the 1999 Constitution 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. The courts have consistently treated this 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.

For example, if the complaint is: “Candidate A 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 if the complaint is: “INEC has unlawfully accepted or published Candidate A despite a statutory requirement governing INEC’s own decision or nomination process,” the subsequent decision of INEC may, depending on the facts and relief sought, constitute a distinct cause of action. That distinction may ultimately determine whether a particular action is statute-barred.

The next question is “what happens to cases already pending”? This is perhaps the most difficult question. A pending case does not automatically disappear merely because the legal proposition upon 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 Supreme Court. Therefore, where a pending suit seeks a declaration that Sections 77(5)-(7) or 84(2) are unconstitutional, that argument can no longer succeed in the face of the Supreme Court’s decision in ZLP.

But that does not necessarily mean that every pending action challenging a particular nomination has become incompetent. Suppose, for example, that an aspirant instituted an action within the constitutionally prescribed 14 days challenging a particular primary and alleging that the eventual candidate was not qualified to participate because his name did not appear in the relevant membership register. The Supreme Court’s decision changes the law governing that dispute. The court hearing the case must now apply Sections 77(5)-(7) as valid provisions.

But the court must still determine the facts: Was the candidate actually on the relevant register? Secondly,
was the claimant an eligible aspirant? Thirdly was the action commenced within 14 days? Fourthly, was there compliance with the applicable statutory procedure? Fifthly, what relief was sought? And, critically, does the statute permit 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.

The most controversial question is whether INEC now remove already published candidates? This, in my respectful view, requires the greatest caution before I answer.

The answer cannot simply be yes because of the fact Sections 77 and 84 have been restored. INEC will administer and enforce the Electoral Act within the powers conferred upon it by the Constitution and the Act. But where the consequence sought is the disqualification or exclusion of a particular candidate, the Electoral Act itself provides judicial mechanisms. Provision in Section 29(6) expressly contemplates a court order disqualifying the candidate and the sponsoring political party in the circumstances specified therein.
Section 88(3) likewise makes exclusion from the election consequential upon a court’s finding of non-compliance.

And the principle stated by the Supreme Court in Dingyadi & Anor v. INEC & 2 Ors (No. 2) (2011) 18 NWLR (Pt. 1224) 154 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. Section 33 reinforces this position. Once a candidate’s name has been submitted under Section 29, the political 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 are death and withdrawal, subject to the procedure prescribed by the Act.
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.

In all these, three propositions must be key take-aways in this write up.

First, the Supreme Court has restored the validity of Sections 77(5), 77(6), 77(7) and 84(2) of the Electoral Act 2026.

Second, the validity of those provisions does not automatically determine the validity or invalidity of every individual nomination.

Third, the Electoral Act provides judicial procedures for determining whether a particular candidate should be disqualified or excluded.

Section 29(5)-(6) deals with challenges relating to false information concerning constitutional eligibility, while
Section 88(2) gives a participating aspirant a right to challenge non-compliance in the selection or nomination of a candidate, and Section 88(3) provides for exclusion where the Court finds the statutory non-compliance established.

Section 33, meanwhile, restricts substitution of a candidate already submitted under Section 29 to the circumstances specified by law, principally death or withdrawal.

Accordingly, where a candidate’s nomination is challenged by an aspirant, the critical issue is not simply whether Section 77 is now valid. That issue has been settled by the Supreme Court.

The critical questions now include:
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 INEC?
What precise relief is sought?
Does the Electoral Act entrust that relief to INEC 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.”
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.

And one final point should not be lost in the excitement surrounding the ZLP decision: 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.

• Dr. M. O. Ubani, SAN is a Legal Practitioner and Policy Analyst.

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