ADC, the Law and INEC No-Win Situation  

The Advocate

By Onikepo Braithwaite

Onikepo.braithwaite@thisdaylive.com

Incessant Intra-Party Disputes

Most of our Politicians and so-called leaders, particularly in this Fourth Republic, have proven to be unworthy, unqualified and non-performers, hence, Nigeria has found herself in a downward spiral in the last two decades. Even within their parties, Politicians are unable to manage themselves, yet, they want to manage the country! In Dahiru & Anor v APC & Ors (2016) LPELR-42089 (SC) per Olabode Rhodes-Vivour, JSC, the Supreme Court held that: “an intra-partyfhh dispute is a dispute between members of the party inter se, or between a member or members on the one hand or and the party on the other hand….”. While some intra-party issues, such as primaries not being conducted in accordance with the Electoral Act may be justiciable, some are not. For instance, in Emenike v PDP & Ors (2012) LPELR-7802(SC) per John Afolabi Fabiyi, JSC, the Supreme Court held inter alia that: “… matters relating to nomination of the candidate of a political party are regarded as domestic affairs, and are generally treated as not justiciable”. 

I have not seen the statement of claim in the Hon. Gombe/African Democratic Congress (ADC) case at the Federal High Court (FHC), and though some have argued about the justiciability of his case, this is left for the court to decide. Be that as it may, we have also heard that there may be allegations of forgery of Hon. Gombe’s resignation. Such an allegation is certainly justiciable, as it borders on criminality.

With no particular ideology, apart from that of joining the political party where one is most likely to be able to fulfill one’s aspirations/win elections, it is easy to jump from one party to another quicker than butterflies jump from flower to flower. Even Legislators who Sections 66(1)(g) & 109(1)(g) of the 1999 Constitution of the Federal Republic of Nigeria (as amended)(the Constitution) set conditions that must be met before they can ‘defect’ to another political party without losing their seats, have become experts in manipulation, so much so that, they are able to jump from one party to another freely, without a care in the world! 

It even appears that the constitutional role of the courts, adjudicating in all manner of disputes (see Section 6(6)(b) of the Constitution) has been greatly diminished to mainly electoral disputes, particularly about 18 months to the general elections running up to at least a year after the elections, as there are pre-election matters, and then elections which have become two-fold in Nigeria – the actual elections, and the ensuing litigation, turning the courts into a political battle field – see Section 287 of the Constitution. 

The Latest Battle: ADC Leadership Tussle

In addition to the PDP and Labour Party battles, the latest battle is that of ADC (which appears to be the major opposition party presently), concerning its recognised party officials. I recall when the Senator David Mark Group (SDMG) moved into ADC, there appeared to be a problem right from the get-go, as the ADC 2023 Presidential Candidate, Dumebi Kachikwu had protested on various platforms that SDMG had sought to hijack the party unlawfully, alleging that the former Chairman, Mr Ralph Nwosu’s tenure had expired in 2022, and therefore, he had no power to handover to SDMG.  He went to court to challenge SDMG’s leadership, but his case was dismissed on the ground that it was an intra-party matter which the court lacked jurisdiction to entertain. See Emenike v PDP & Ors (Supra).

Another ‘Protester’, Hon. Nafiu Bala Gombe, who was the ADC Deputy National Chairman, also filed a case against SDMG at the FHC, contesting the party leadership. Last week, by virtue of an order of the Court of Appeal in CA/ABJ/145/2026 Mark v Gombe, Independent National Electoral Commission (INEC) & Ors, an interlocutory appeal stemming from the FHC case, INEC removed the name of SDMG members from the INEC Portal as Chairman and Secretary of the ADC, citing two conflicting letters from Counsel of SDMG and Hon. Gombe, the pending FHC case and the Court of Appeal ruling, which had inter alia, ordered that the parties be returned to the ‘Status Quo Ante Bellum’ (SQAB) pending the determination of the case at the FHC, so that the outcome of the case is not rendered negatory. 

Status Quo Ante Bellum and Status Quo Ante Litem

In Akapo v Hakeem-Habeeb & Ors (1992) LPELR-325 (SC) per Philip Nnaemeka-Agu, JSC, the Supreme Court held that: “…the literal meaning of status quo ante bellum, is the state of affairs before the beginning of hostilities”. In Dangote Industries Ltd & Anor v Ocean Bean Golf and Leisure Resorts Ltd & Ors (2021) LPELR-53464(CA) per Obande Festus Ogbuinya, JCA (now JSC), the Court of Appeal held that “…status quo ante bellum is the state/situation of things/affairs that existed before the something else, the case/controversy, occurred”. In Ayorinde v AG and Commissioner for Justice, Oyo State & Ors (1996) LPELR-685(SC) per Anthony Ikechukwu Iguh, JSC, the Apex Court had held thus: “Status quo means the position prevailing, when the Defendant embarked upon the activity sought to be restrained”.

There is a controversy as to what the SQAB is in the ADC matter, particularly as the Court of Appeal didn’t expressly state it. And, at a Press Conference held last week, SDMG stated that INEC should have approached the Court of Appeal for an interpretation of the SQAB, before taking action. It also prompted SDMG to state that, by INEC removing their officers from the portal, INEC has shown bias against them.

SQAB is the position before the wrongful act or conduct, that gave rise to the dispute. It must not be confused with ‘Status quo ante litem’ (SQAL), which is the position of things after the conduct complained of took place, but before the suit was instituted. These two scenarios, are not always the same. While SQAB means the situation before the war, SQAL means the situation before the litigation. Some also argue that SQAB is the last ‘peaceable situation’, before the hostilities and litigation. It appears that INEC has interpreted the SQAB to be, the last peaceable time before SDMG. This position, however, would appear to leave ADC’s leadership empty because former ADC Chairman, Mr Nwosu and his Exco who SDMG succeeded, had resigned from office.  

On the other hand, SDMG has interpreted the SQAB to be when it took over the leadership of ADC, seeing as it had been recognised by INEC and had started functioning as such. See Ayorinde v AG and Commissioner for Justice, Oyo State & Ors (Supra). Though it is clear that INEC didn’t choose Hon. Gombe or SDMG, there is no one left to man the affairs of ADC pending the outcome of the FHC case, and this is probably why the Court of Appeal ordered an accelerated hearing at the FHC. 

SQAB is to ensure that neither party to the litigation enjoys any gains until the dispute is resolved, and this is why the Court of Appeal may have held that it was ordering the SQAB to prevent a ‘fait accompli’. This points to the fact that the SQAL may not have been what was intended, since one can safely conclude from this, that the Court of Appeal didn’t want either of the two factions to be in the driver’s seat of ADC, until the FHC decides. 

The argument of those who therefore, assert that the SDMG members should continue to act in those positions until the court may decide otherwise, appears to go against the Court of Appeal’s ruling – it would amount to allowing the SQAL, which in this scenario doesn’t appear to be the SQAB that the Court of Appeal intended. It would also translate to INEC breaching the court order, if SDMG were left in the driver’s seat before FHC has decided the substantive matter, prejudging the matter at an interlocutory stage before evidence has been led. In Odutola Holdings Ltd & Ors v Ladejobi & Ors (2006) LPELR-2260(SC) per Walter Samuel Nkanu Onnoghen, JSC (later CJN), the Apex Court held that “… courts should desist from making positive pronouncements on substantive matters pending before them while dealing with interlocutory applications, as the practice prejudges the real matter in controversy between the parties“. In Agwu & Ors v Julius Berger (Nig) Plc (2019) LPELR-47625(SC) per John Inyang Okoro, JSC, the Supreme Court held inter alia that “….in determining an interlocutory application pending the trial of a substantive case, care should be taken not to make pronouncements which may prejudice the trial of claims filed and still pending before the court. To do otherwise, is to prejudge the matter, in respect of which evidence is yet to be led”.

In making a determination as to the SQAB, the court must examine the pleadings, to ascertain when the actionable wrong or the conduct being complained about, took place. In the case of the ADC leadership tussle, the SQAB would seem to refer to the state of affairs before the SDMG took over the reins of the party, as the SDMG purported takeover is part of the subject-matter of not only Hon. Gombe’s FHC case, but also Dumebi Kachikwu’s matter previously.

For INEC to have kept SDMG in the driver’s seat, may have been tantamount to deciding the leadership tussle at an interlocutory stage, and disobedience to the court order. In BPE & Anor v BFI Group Corp (2024) LPELR-62011(SC) per Tijani Abubakar, JSC, the Supreme Court held thus: “It is a well-established principle of our constitutional law that a court order must be obeyed, unless and until it has been set aside or varied by the Court….The duty to obey a court order which has not been set aside is a rule of law, and not merely a matter of good practice, and this duty persists, even where it is perceived or contended that the Court order is a nullity”. It is trite law that disobedience of court orders, amounts to contempt of court. In Ezekiel-Hart v Ezekiel-Hart (1990) LPELR-1354(SC), the Supreme Court held inter alia that, contempt of court “….is civil, when it consists of disobedience to the judgements, orders, or other process of court….”.

Another side of the argument I have heard is that, the Court of Appeal made preservatory orders, and that by de-recognising SDMG, ADC has been stifled and denied of functioning of as a political party, instead of being preserved, left in limbo without the requisite leadership to function. But, a perusal of the Court of Appeal order however, indicates that the Court was referring to the preservation of the subject-matter of the FHC case, so as not to prejudice those proceedings.  

These are the type of informed conversations that we should be having in the ADC circumstances, instead of taking refuge in politics, ethnicity and playing blame games to destroy INEC’s already dented credibility. INEC, a party to the action, is bound by the ruling of the Court of Appeal.

The argument as to whether or not Hon. Gombe had resigned from ADC, and has absolutely no locus standi to institute his action at the FHC, is part of the subject-matter of the suit for the FHC to decide after taking evidence, and not at this interlocutory stage. So also, ADC stating that their leadership tussle is an intra-party dispute, which is outside the jurisdiction of the court, as per Section 83(5) of the Electoral Act 2026 (EA). Also see Sections 82 & 83 of the EA. The issue of jurisdiction or the lack of it, isn’t so straightforward, because even the issue of convening of Congresses and Conventions concerns INEC.

Conclusion 

We all appreciate the undesirability of Nigeria becoming a one-party State, and that INEC’s refusal to accept correspondence or monitor the activities of either ADC faction, Hon. Gombe’s or SDMG’s, an action which on the face of it appears to be neutral, potentially leaves ADC hanging in limbo, seeing as if the SQAB is pre-SDMG or before any leadership issue, there’s a vacuum, since the Ralph Nwosu Exco had resigned, thereby fuelling the narrative that INEC is biased in favour of the APC. Even the claim that the Deputy National Chairman should have taken over the reins of the party upon the resignation of the Chairman, is that what the ADC Constitution provides? 

The moral of the story for Politicians here is that, when taking over an already existing party structure, everyone within that old structure must be carried along to avoid future ‘wahala’. The new members must be one step ahead, in order to checkmate mischief makers. Ensure that resignation letters are properly written and executed, videotape the handover of the resignation letter and acceptance of same by the Ward Chairmen, to avoid those who have resigned returning to recant in the future. The fact that people who are alleged to have resigned from a political party subsequently deny their resignation, is an indication that there are loopholes in the process of resignation from political parties which mischief makers are able to exploit, and they must be blocked to make the resignation process unimpeachable. 

It is trite law that where the interlocutory prayers may coincide with the prayers in the substantive case, the court orders accelerated hearing – see Dustin Pharmaceutical & Chemical Co. Ltd v Beneks Pharmaceutical & Cosmetics Ltd & Ors (2009) LPELR-974(SC) per Francis Fedode Tabai, JSC, where the Supreme Court held thus: “it has often been advised that in appropriate cases, a recourse to an order of accelerated hearing should be preferred to an interlocutory injunction….”.