By Peter Adedoyin
A Federal High Court, sitting in Abeokuta, Ogun State capital has directed the Independent National Electoral Commission (INEC) to expunge the name of the governorship candidate of African Democratic Congress (ADC) in Ogun State, Barr. Biyi Otegbeye from its list of governorship candidates in the state, for not complying with Electoral Act 2022.
The Court on Thursday decided a case filed by the Ogun State chapter of All Progressives Congress (APC) against INEC regarding the publication of Biyi Otegbeye as candidate of the African Democratic Congress (ADC).
The court overruled ADC's arguments that APC did not have the legal standing to file the case, since APC was not an aspirant in the ADC primaries.
The court also overruled ADC's claim that the case was filed outside the time allowed by the Constitution to file pre-election cases.
In overruling these objections, Hon Justice Akintayo Aluko ruled that the case was filed by APC against the action of INEC, and not against ADC's primaries.
He concluded that based on the provisions of the fourth alteration of the Constitution and following recent decisions of the Court of Appeal and Supreme Court, a political party is allowed to bring pre-election matters that challenge the actions of INEC.
Justice Aluko analysed APC's prayers and concluded that the principal questions formulated and the main reliefs sought were not directed at the ADC primaries, but were directed against the actions of INEC and were to that extent competent.
The court also held that the case was not statute-barred because under the Constitution, a person with a grievance must file a claim within 14 days of the grievance.
The court held that a grievance occurs only when all the facts that trigger the grievance crystallize and that in this case the facts did not crystallize until 4 October 2022 when INEC published the list of candidates.
The Court held that until INEC published the list, APC could not have filed a case because the issues in contention were still internal to ADC and INEC's default had not yet occurred.
On the substance of the case, the court found that based on the evidence before the court, it was clear that INEC did not monitor ADC substitution gubernatorial primaries, that said substitution occurred before the original candidate withdrew from the election, and that ADC did not give INEC notice of gubernatorial substitution primaries.
The court declared that ADC and Mr Otegbeye did not counter the contents of INEC's reports with any credible evidence.
Instead, in the counter-affidavit filed, Mr Otegbeye stated that notice of primaries was given to INEC and INEC was notified of the resignation of the former candidate at 5pm on 12 August 2022, but the notice of primaries he attached showed the primaries held earlier at 2pm of the same day.
The court held that under the Electoral Act, substitution primaries should be held within 14 days after withdrawal of a former candidate, and not before.
However, in this case, ADC served the purported notice of withdrawal signed by Hon Matemilola Adelanwa three days after the alleged substitution primaries (as stated by INEC) or at 5 pm on 12 August 2022 after the substitution primaries (as stated by Otegbeye).
The court held that this did not comply with the requirements of the Electoral Act and suggests a deliberate attempt by ADC to prevent INEC from monitoring primary elections which is now a mandatory requirement under the law.
The court held that having noted these infractions, INEC should not have published Mr Otegbeye's name as candidate.
The court declared that INEC has the sole responsibility to ensure that electoral law is complied with and that it was under the old law that INEC was a toothless bulldog.
The judge held that under the new Electoral Act, INEC is empowered to not include candidates who do not emerge from valid primaries and that where INEC chickens out from this obligation, a political party can challenge failure of INEC to enforce the law.
The court admonished ADC for refusing to follow the law. The judge reminded political parties that the people of Nigeria deserve leaders who observe the law, and not law violators.
Based on all the above, the court ordered INEC to exclude and expunge the names of ADC and Biyi Otegbeye from the list of contestants in the Ogun State 2023 gubernatorial elections
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