LEGAL OPINION: EFFECTS OF SUPREME COURT JUDGEMENT OF 24TH DAY OF SEPTEMBER 2026 (INEC VS. ZLP) ON PDP LATE DEFECTORS IN KWARA STATE

A. Introduction and Scope

1. This opinion considers the effect of the Supreme Court’s decision restoring Sections 77(5), (6), (7) and 84(2) of the Electoral Act 2026 on PDP candidates in Kwara State who joined the party after its membership register was submitted to INEC. It pays particular attention to the pending pre-election suits over the Kwara North and Kwara Central senatorial tickets.
2. It addresses six issues:
   a. whether the judgment operates in rem or in personam;
   b. whether it applies to nominations made while the Court of Appeal’s decision was in force;
   c.whether substitution cures ineligibility;
   d. the effect of pending suits compared with unchallenged nominations;
   e. standing (locus standi);
   f. the probable outcomes for each Kwara candidate.

B. Background Facts
3. The decision. A seven-member panel, in a unanimous judgment delivered on 24 September 2026, allowed INEC’s appeal and reinstated Sections 77(5), 77(6), 77(7) and 84(2) of the Electoral Act 2026, with Justice Adamu Jauro delivering the lead judgment. The Court held the provisions were not inconsistent with the 1999 Constitution, reversed the Court of Appeal’s 16 July judgment, and restored the Federal High Court’s 5 May decision dismissing ZLP’s challenge.
4. Kwara North. Iliasu won the PDP Kwara North primary on 20 May 2026 and received the party’s Certificate of Return in June. INEC published his name on 1 August 2026, then published Jiya’s name on 12 September 2026 as his replacement. Iliasu has sued, arguing that he never withdrew his candidacy and did not authorise the PDP to replace his name.
5. Kwara Central. Mustapha obtained the PDP nomination form for Kwara Central on 21 August 2026, hours after announcing his resignation from the APC. His nomination has reportedly been challenged by two separate party members questioning how he emerged as candidate.
6. The Ayilara claim. Reports say Ayilara resigned from the PDP in November 2025 and registered with the APC in April 2026, yet he is now touted as a factional PDP candidate for the same seat. This propriety of this will surely be unfolded in court.
7. The key chronology. The primaries were held on 20 May, so the register under s.77(4) was due no later than about 29 April 2026. Both defectors joined the PDP in August, which is:
o after the register was submitted;
o after the primaries were held;
o during the window (16 July to 24 September) when the Court of Appeal’s decision voiding s.77(5)–(7) was in force.

C. Issue 1: Is the Judgment In Rem or In Personam?
8. The distinction. In Ogbogu v Ndiribe (1992) 6 NWLR (Pt 245) 40, the Supreme Court explained the difference:
o A judgment in personam determines rights between the parties.
o A judgment in rem determines the status of a thing or a legal condition and binds the whole world.
9. As res judicata, the decision binds only the parties. INEC v ZLP resolved a dispute between those two parties. It did not name Mustapha, Jiya or any Kwara candidate, and it did not adjudicate anyone’s candidacy. No defector is disqualified by the judgment itself.
10. In substance, it operates in rem. A declaration that a statute is constitutional settles the legal status of the enactment, not a private right. The provision is valid for everyone. Under stare decisis, all lower courts must follow it. In Dalhatu v Turaki (2003) 15 NWLR (Pt 843) 310 and Osakue v Federal College of Education, Asaba (2010) 10 NWLR (Pt 1201) 1, the Supreme Court held that lower courts are bound by its decisions and cannot depart from them, however they view them.
11. Conclusion on Issue 1. The judgment is in personam as an adjudication but in rem in effect. It reaches the Kwara defectors through the pending suits: each trial court must now treat s.77(5)–(7) as valid law and give no effect to the Court of Appeal’s decision.

D. Issue 2: Does the Judgment Apply to Nominations Made While the Court of Appeal Decision Stood?
12. The PDP’s likely argument. The defectors’ nominations occurred between 16 July and 24 September, when s.77(5)–(7) stood voided. The PDP will rely on the principle that a subsisting judgment remains valid and binding until set aside (Babatunde v Olatunji (2000) 2 NWLR (Pt 646) 557).
13. Why the argument is weak.

• (a) The declaratory theory. A court declaring a statute’s validity does not make new law. It states what the law has always been. Section 77 was continuously valid from enactment, and the Court of Appeal’s decision was an erroneous statement of it.
• (b) Reversal operates backwards. Once set aside on appeal, a judgment ceases to have effect, and rights claimed under it fall with it. Lord Denning’s dictum in Macfoy v UAC [1962] AC 152, often adopted by Nigerian courts, applies by analogy: “You cannot put something on nothing and expect it to stay there. It will collapse.” A nomination resting only on the Court of Appeal’s decision now rests on nothing.
• (c) The risk was known. INEC’s appeal was pending throughout. A party relying on a judgment under active appeal to the final court takes the risk of reversal.
• (d) Section 77(6) was never suspended in practice. Even while the Court of Appeal decision stood, the only register lodged with INEC was the one submitted before the May primaries. The defectors were not on it. No lawful register containing their names has been identified.

14. Caveat. Premium Times reported that because primaries had already been held, the restored provisions would govern future elections and the processes preceding them. That appears to be the paper’s reading, not a quotation from the judgment. The certified true copy must be checked. If the Court expressly limited the judgment to future elections, the defectors’ position improves significantly.

E. Issue 3: Does Substitution Cure Ineligibility?
15. Short answer: No.
16. The substitute inherits the same test. A substitute must meet every condition a candidate emerging from the primary must meet. Section 77(5) makes being on the register a precondition to being voted for at any primary, and s.77(6) forbids using any other register. A substitution primary, or any process standing in for one, is still a “primary” under s.77(5). Two maxims apply:

• nemo dat quod non habet: the party cannot give eligibility it does not have to give;
• ex nihilo nihil fit: a defective substitution produces nothing.

17. Substitution needs a genuine vacancy. In Ugwu v Ararume (2007) 12 NWLR (Pt 1048) 367, the Supreme Court held that a party cannot substitute a validly nominated candidate at will; there must be cogent and verifiable reasons. Amaechi v INEC (2008) 5 NWLR (Pt 1080) 227 went further. The Court declared the candidate who won the primary to be the party’s rightful candidate, holding that a substitution made without lawful basis was void and that the substitute could not benefit from it. Uzodinma v Izunaso (No. 2) (2011) 17 NWLR (Pt 1275) 30 reaffirmed that the winner of a valid primary cannot be displaced by an unlawful substitution.
18. Application to Kwara North. Iliasu has two independent grounds:

• (a) The withdrawal ground. If his withdrawal was forged, no vacancy arose. Jiya’s substitution is void on the Amaechi principle, and s.77 need not even be reached.
• (b) The s.77(5) ground. Even if a vacancy arose, Jiya was not on the register and could not lawfully be the substitute.

19. Evidential burden on forgery. Forgery is a criminal allegation. Under s.135(1) of the Evidence Act 2011, it must be proved beyond reasonable doubt even in civil proceedings (Nwobodo v Onoh (1984) 1 SCNLR 1). Iliasu should support it with handwriting evidence, the original withdrawal document, and INEC’s records of receipt.

F. Issue 4: Pending Suit Compared With No Pending Suit
20. Pre-election suits are time-bound. Under s.285(9) of the Constitution (Fourth Alteration), a pre-election suit must be filed within 14 days of the event complained of. Under s.285(10), it must be determined within 180 days of filing. These periods are strict and cannot be extended.
21. Where a competent suit is pending and was filed in time:
(a) The trial court must apply s.77 as valid (Dalhatu v Turaki).
(b) A candidate who was not on the register submitted to INEC is ineligible.
(c) If a rightful candidate exists, such as the winner of the valid primary,the court may declare that person the candidate (Amaechi v INEC; Uzodinma v Izunaso).
(d) If no valid candidate emerged from a lawful process, the party may be left without a candidate. In APC v Marafa (2020) 6 NWLR (Pt 1721) 383, the Supreme Court held that because the APC held no valid primaries in Zamfara, it had no candidates, and the votes cast for it were wasted.
22. Where no suit was filed, or the 14 days have passed:
(a) Nomination and membership are pre-election matters and generally internal affairs (Onuoha v Okafor (1983) 2 SCNLR 244; PDP v Sylva (2012) 13 NWLR (Pt 1316) 85; Lado v CPC (2011) 18 NWLR (Pt 1279) 689).
(b) After the election, these complaints cannot be raised in an election petition. In the 2023 presidential appeals (Atiku Abubakar v INEC, SC/CV/935/2023, and Obi v INEC, SC/CV/937/2023), the Supreme Court treated the complaint about the Vice-Presidential candidate’s double nomination as a pre-election matter. It held that the petitioners, being members of other parties, lacked standing to raise it.
(c) An unchallenged late defector is therefore effectively protected by time, despite s.77.
23. Conclusion on Issue 4. Whether a defector’s candidacy survives depends less on s.77 itself than on whether a competent plaintiff filed in time.

G. Issue 5: Standing (Locus Standi)
24. Who can sue. Standing to challenge a party’s nomination belongs to an aspirant who participated in the primaries. This is s.84(14) of the Electoral Act 2022; the corresponding section of the 2026 Act must be confirmed. In Emenike v PDP (2012) 12 NWLR (Pt 1315) 556, the Supreme Court read “aspirant” as a person who took part in the primary in question.
25. Non-members cannot sue. In Modibo v Usman (2020) 3 NWLR (Pt 1712) 470, the Supreme Court held that membership of a party is its domestic affair. A person who is not a member cannot complain about another party’s internal processes.
26. Application to the three claimants.
(a) Iliasu (Kwara North). He won the primary, so his standing is unquestionable.
(b) Ayilara (Kwara Central). If he resigned from the PDP and joined the APC as reported, he may lack standing under Modibo. Section 77(5) also cuts against him, since he too was probably not on the PDP register. His case is weak on standing, even though the substantive point against Mustapha is strong.
(c) The excluded form-purchaser (Kwara Central). This claimant is better placed if they were on the April register. The courts are divided on whether an aspirant wrongly excluded from a primary “participated” in it. The stronger view is that a party cannot defeat an aspirant’s standing through its own wrongful exclusion.

H. Issue 6: Application to the Kwara Candidates
27. Kolo Baba Jiya (Kwara North). He is the most exposed. He faces two independent grounds (Issue 3), brought by a claimant with clear standing who filed in time. The likely outcome is that the substitution is voided and Iliasu is restored as candidate, subject to proof of the forgery or success on s.77(5).
28. Saliu Mustapha (Kwara Central). He is vulnerable on the merits, since he joined three months after the primaries and was not on the register. His survival depends on the challengers’ standing and on whether they filed in time. If his nomination is voided and no eligible PDP candidate emerged from a lawful process, the PDP risks the Marafa result of having no candidate for Kwara Central.
29. Other late defectors (state assembly and elsewhere). The same principles apply. Where no competent suit was filed in time, their candidacies are practically secure. Where a suit is pending, s.77(5) weighs heavily against them.

I. Summary of Conclusions
30. The main conclusions are:
(i) The judgment binds the parties as res judicata, but in effect it operates in rem as a binding declaration of the law’s validity.
(ii) Relying on the Court of Appeal’s decision is unlikely to save nominations made between July and September, because the declaratory theory and the effect of reversal apply. This is subject to anything to the contrary in the certified judgment.
(iii) Substitution does not cure ineligibility under s.77(5), and a forged withdrawal voids the substitution independently.
(iv) A pending, timely suit by a claimant with standing is decisive. Without one, late defectors are protected by the 14-day limit and the bar on raising pre-election matters in petitions.
(v) In Kwara, Jiya is highly exposed, Mustapha is exposed on the merits with the outcome turning on standing and timing, and the PDP faces a real Marafa risk in Kwara Central

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