The Chairman of the Nigerian Bar Association Section on Public Interest and Development Law (NBA-SPIDEL), Dr. Monday Ubani has stated that the reported annulment of the election of Dr. Alex Otti as Abia State Governor-elect cannot stand as the matter is statute-barred.

In a statement made available to CITY LAWYER, the fiery human rights lawyer also noted that such matter could only be ventilated at an election petition tribunal and not the Federal High Court.

According to Ubani, “he (petitioner) has 14 days to file the action challenging his qualification in a pre-election contest. If he fails, refuses and neglects to file a pre-election suit within 14 days as allowed by the constitution, he is forever barred (it is statute barred) to bring the same suit as a pre-election matter after election has been held and result announced with a winner.”

On the forum for hearing of the petition, he said: “But if he wants to challenge the election after it has been held and result announced, he can only do that at the Election Petition Tribunal and AND NO WHERE ELSE. It means that the matter must get up to supreme court. The winner remains in power until the final decision of the Supreme Court!”

Below is the full text of the statement.

PURPORTED FEDERAL HIGH COURT ORDER AGAINST DR. ALEX OTTI

I was taken aback when news filtered out that a Federal High Court in Kano has ruled that all the candidates of Labour Party including Dr. Alex Otti who won the gubernatorial election in Abia were not proper candidates of Labour since according to the court, Labour Party did not submit its Members’ Register 30 days before it held its primary election that produced the candidates for the general election in accordance with Section 77(3) of the Electoral Act of 2022.

The Section referred to states: S. 77 (1) A political party registered under this Act shall be a body corporate with perpetual succession and a common seal and may sue and be sued in its corporate name.
(2) Every registered political party shall maintain a register of its
members in both hard and soft copy.
(3) Each political party shall make such register available to the
Commission not later than 30 days before the date fixed for the party primaries, congresses or convention.

After examining this section and sub-section 3 of it, it may be possible that this Section and its non-compliance can raise issue as a pre-election matter. I use the word “may” advisedly. However, note that the section did not contain any penalty for non-compliance. Whether that sub-section can be raised as a qualification issue in a pre-election matter or post-election matter is a matter of debate. It hinges on many factors: (1) Who is the plaintiff, what is his locus in this case? Is he a presidential, gubernatorial or legislative candidate in the held election? Did the Section of the Act provide any penalty against the candidates of the party or against the party itself for non-compliance?

Why was this issue not raised before now? Or has it been raised and disposed off before now? Why was the suit filed at Federal High Court and not in Election Petition Tribunal since election has been held and a winner declared? If this is regarded as pre-election grievance, is the aggrieved not caught by S285(9) of 1999 constitution that gives only 14 days for an aggrieved candidate to file pre-election matter? So many questions seeking answers.

The question continues. If we all agree on some basic truth that this matter is a pre-election issue what was this meddlesome interloper and busybody doing at the Federal High Court, Kano after several months of the primaries? Even if it is a post-election matter, was Federal High Court the proper court with jurisdiction? I doubt it.

ARGUMENT

Whether a candidate is qualified to contest election has over time become a matter of argument in several quarters. Some are of the opinion that where a candidate is found not to be qualified to contest an election whether as a governor or legislator, the issue must be raised timeously since it is a pre-election matter. Some others have however argued that the qualification of a candidate is a subject matter within the jurisdiction of the Election Petitions Tribunal and not otherwise. The truth of the matter is that the argument is no longer necessary as the Electoral Act has made qualification of the candidate as a ground for petition before the Election Petition Tribunal. Therefore, it can also be raised at the Election Tribunal.

It must be noted that it is within the prerogative of the person contesting the qualification of a candidate to raise it either at the pre-election stage or post-election stage.

However, he has 14 days to file the action challenging his qualification in a pre-election contest. If he fails, refuses and neglects to file a pre-election suit within 14 days as allowed by the constitution, he is forever barred (it is statute barred) to bring the same suit as a pre-election matter after election has been held and result announced with a winner.

But if he wants to challenge the election after it has been held and result announced, he can only do that at the Election Petition Tribunal and AND NO WHERE ELSE. It means that the matter must get up to supreme court. The winner remains in power until the final decision of the Supreme Court!

If a court has given a pronouncement on the qualification of a candidate at the pre-election stage, the principle of “Estoppel per rem judicatum” would apply. i.e. the Plaintiff is estopped from raising it at the Election Tribunal as a Petitioner or where the question of qualification of a candidate is a pending subject in a pre-election suit, the Election Tribunal will lack jurisdiction to entertain it. It would only amount to an abuse of court process.

All suits arising from general complaints like this issue of non-submission of members register to INEC 30 days before the primaries appears as pre-election issue that should take a back seat since election has been concluded and winner announced.

However, if any one feels strongly that the issue of non-submission of members register of party is qualification issue that is covered under S177 of the 1999 Constitution as Amended or any other section, he should bring it on and the appropriate place is the Election Petition Tribunal. Most importantly we must note that the Petitioner must be someone who must have contested election as a gubernatorial candidate in the 2023 general elections with Dr. Alex Otti in Abia State. No one else has locus! The petition CANNOT BE FILED BY A MEDDLESOME INTERLOPER OR A BUSY BODY.

On a final note, the allegation that a political party did not submit its members’ Register 30 days before their primaries will be decided by the Court and that court includes the Supreme court which will decide whether the issue of non-submission of members’ register to INEC constitutes grounds for non-qualification of a candidate as provided under the 1999 constitution as amended.

Be reminded that INEC never said that it did not receive the members’ Register of Labour Party 30 days before their primaries. On the contrary this vexed issue has been decided in other pre-election issues involving Labour Party candidates before now at the various courts.

INEC was the one that accepted the candidates of Labour Party, cleared them for the general elections, conducted the elections and declared them winners with certificates of return. So why this unnecessary brouhaha at this time?

CONCLUSION

Come 29th of May, 2023, Dr Alex Otti will be sworn in as the next governor of Abia State. It is only Almighty God that can stop him and fortunately He, God will not stop him now because the mandate of Dr. Alex Otti is not only divine, it was generously and genuinely given by Abians and God approved it.
Too late for them! Too late.

By Dr. M. O. Ubani
Legal Practitioner
ubangwa@gmail.com

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