The body traps that lie ahead
By Chief Mike A.A. Ozekhome, SAN, OFR, Ph.D.
INTRODUCTION
The APC has ruled Nigeria for over 6 years. It has failed in all indices of governance. The three core areas on which President Muhammadu Buhari campaigned as its candidate, have been honoured more in breach than in observance. They are economy, security and corruption. Each pigeon hole oozes with the putrefaction of non-performance and abysmal failure.
Nigeria is worse off today under the APC than she was in 2015. Not a few Nigerians pray every day that the Party should be booted out of power with the urgency of yesterday. Some Nigerians have since mounted a calendar, counting how many days more Buhari has to remain in office before vacating same upon effluxion of his mandatory 2 terms tenure of 4 years each. Just 668 days. Only 668 days for Buhari to leave power; many celebrate. They count days. Some count weeks; some others, months. A beleaguered Nigerian wrote to me that he is only counting hours (16, 032 hours). Another added humorously that he prefers to count minutes (961,920 minutes)! Such is the disillusionments and regrets of the APC- Buhari administration.
The realization that Buhari under Nigeria’s constitutional organogram cannot have a third term gladdens many hearts, giving them a ray of hope; some light at the end of Nigeria’s dingy asphyxiating and strangulating tunnel. But, Nigerians do not know how to go about ensuring that another Emperor Buhari does not come back. They fear there would be no free and fair elections in 2023. What with Senate’s unpatriotic and undemocratic rejection of electronic transmission of votes, and the House of Representatives’ double-speak on it! Not few Nigerians believe that the outright rejection of electronic voting is preparatory to APC’s readiness to massively rig the 2023 elections, knowing it has performed below average in service and democratic dividends-delivery. So, Nigerians belly-ache. They gnash teeth.
However, Nigerians may now heave a sigh of relieve. Unwittingly. From the most unexpected source: the Supreme Court. There are many ways to kill a stubborn rat that enters a calabash without breaking the calabash itself. The cheapest opportunity is the current banana peel that sits like an emancipator under the APC’s rickety and crincky chair of nepotism, sectionalism, prebendalism, cronynism, apaque3ness in governance and poverty spread.
THE SUPREME’S JUDGMENT
It is the Wednesday, July 28, 2021, Supreme Court judgment in the Eyitayo Jegede V. Oluwarotimi Akeredolu (Appeal Nos: SC/448/21; SC/501/21; SC/508/21; and SC/509/21. The judgment was a very narrow 4 – 3 split decision in favour of Akeredolu. What a narrow escape! Aketi needs to go to Church for special thanksgiving.
The candidate of the Peoples Democratic Party (PDP) in the Ondo election, Eyitayo Jegede, SAN, and his party, the PDP, had challenged the competence of Akeredolu, SAN’s nomination/sponsorship for the election by the APC, contending that the letter conveying his nomination/sponsorship to the Independent National Electoral Commission (INEC) was incompetent, having been signed by Buni and others. They specifically urged the Court to determine whether Buni as a sitting Governor of Yobe State, could simultaneously double as the National Caretaker Committee Chairman of the APC (NCCC) to sign the nomination of Akeredolu, SAN, for the said governorship election.
They contended that by the provisions of Section 183 of the 1999 Constitution and Article 17 (4) of the APC constitution, Buni had acted unlawfully by being the Yobe Governor and serving as APC’s NCCC Chairman, all at the same time. They contended that because of this vice, the nomination/sponsorship letter Buni signed for the APC, notifying INEC of the candidacy of Akeredolu and Lucky Aiydatiwa (as APC’s Governorship and Deputy Governorship candidates) was void. They then urged the apex court to void the July, 16, 2021 judgment of the Court of Appeal, Akure Division, which had validated Akeredolu’s election.
THE MAJORITY DECISION
In his lead majority split judgment, Justice Emmanuel Akomaye Agim held that, since Jegede and the PDP made Buni the centre of their allegations of constitutional breaches, he ought to have been made a party in the case to enable him defend himself in line with the doctrine of fair hearing.
The Supreme Court proceeded to uphold the earlier judgment of the Court of Appeal, to the effect that the petition filed by Jegede and his party to the election tribunal was incompetent because they failed to join Buni as a party.
Justice Agim held: “The appeal was based on the ground that Mai Mala Buni, the Chairman of the NCCC of the second respondent (APC), was holding office as the Governor of Yobe State, contrary to the provisions of Section 183 of the Constitution of the Federal Republic of Nigeria (1999).
“All the issues raised, revolved around Mala Buni. But, Mala Buni, who is at the centre of the dispute was not made party to the petition. It is obvious that the determination of the said issues will affect him.
“Therefore, the court below was right to have held that he was a necessary party to this suit. Failure to join him renders the determination of the matter impossible. To proceed to do so would have violated the fair trial of the case.
“Therefore, we affirm the lower court’s decision that the petitioner was incompetent.
“There is no dispute that the third and fourth respondents (Akeredolu and Aiyedatiwa) were nominated by the second respondent (APC) as its candidates for the election; that the second respondent submitted their names to the first respondent (INEC) as its candidates, in accordance with Section 31(1) of the Electoral Act.
“They were therefore sponsored by the second in accordance with Section 177(c) of the Constitution (1999). It is not in dispute that Mai Mala Buni is acting as the National Chairman of the second respondent,” he said.
Justice Agim therefore held that the decision to allow Buni act as its National Committee Chairman (in the interim) was made by the APC, despite the provisions of Article 17 (4 of its Constitution, thereby making the decision internal to the party.
He added: “The second respondent (APC) allowed him (Buni) to be its Chairman in the interim inspite of Article 17 of its constitution.
The vires of this decision of the party is non-justiciable. This appeal fails and it is hereby dismissed,” he held.
THE MINORITY DECISION
The minority judgment differed in all material particular from this majority opinion.
In the lead minority judgment, Justice Mary Peter-Odili (who also presided on the panel) upheld Jegede’s appeal and dismissed the cross-appeals by INEC), APC, Akeredolu and Aiyedatiwa; just as the same majority Justices had also done.
Justice Odili was of the firm view that since the APC, for which Buni acted, was already a party in the case, there was no need to include him as a party.
She added that having allowed Buni to act on its behalf in signing the nomination/sponsorship letter of its candidates in Ondo despite the clear provisions of section 183 of the 1999 Constitution and Article 17(4) of the APC Constitution, the party should live by the consequences of its lawlessness.
“I do not agree with the majority judgment,” she dilated emphatically, noting that the APC, by Article 17(4) of its Constitution has provided for how its affairs should be managed and what offices its members should occupy at a time.
“This Article draws strength from Section 183 of the 1999 Constitution. Therefore when the second respondent (APC) put up a person not qualified to author its nomination by virtue of the provision of Article 17(4) of its Constitution and Section 183 of the 1999 Constitution to do so, that document has no validity, and thereby void,” she said.
She noted that the implication was that the nomination and candidacy of Akeredolu and his Deputy was a complete nullity and that the person, who ought to be declared winner of the election” is the first appellant (Jegede), who has the majority of valid votes.”
Justice Peter-Odili further held that it was unlawful and amounted to a violation of Article 17(4) of the APC Constitution and section 183 of the 1999 Constitution for Buni to be serving as the National Chairman of the APC and the Governor of Yobe State at the same time.
Justices Ejembi Eko and Mohammed Saulawa concurred with Justice Peter-Odili in upholding the appeal and dismissing the cross-appeals filed by INEC, APC, Akeredolu and Aiyedatiwa.
LEGAL ANALYSIS
THE LAW
Section 183 of the 1999 Constitution provides as follows:
‘‘The Governor shall not, during the period when he holds office, hold any other executive office or paid employment in any capacity whatsoever’’.
If there was any doubt as to the dangerous implications of this section in Buni acting as the APC National Caretaker Committee Chairman, section 17 (iv) of the APC Constitution is quite clear and unambiguous on this. It provides that “No official of the party shall at the same time hold any Government position in any Government institution”.
Thus, while the 1999 Constitution views Buni’s appointment from the position of Governor (Executive) to the party, the APC Constitution takes the reverse view of Buni’s appointment from the APC to the Governor (Executive). So, head or tail, position APC is in trouble.
CANONS OF STATUTORY INTERPRETATION
Canons of statutory interpretation are clear to the effect that when a statute is enacted in clear words, such words should be given their natural, usual and ordinary meaning in their interpretation. This shows the intent of the Legislature. See Ikpaezu V. Ogah & Ors (2016) LPELR-40845 (CA); Ofodile & Anor V. Aliozo & Ors (2021) LPELR-54159 (CA); Gana V. SDP & Ors (2019) LPELR-47153 (SC); Skye Bank V. Iwu (2017) LPELR-42595 (SC).
The Supreme Court majority judgment did not disagree with the fact that Mai Mala Buni as Governor of Yobe State was not competent to function as National Chairman of a political party (APC) and nominate a candidate for election through the INEC. Its view (and this must be respected) is based mostly on the rather technical stance (also earlier adopted by the Court of Appeal), that the non-joinder of Buni as a party in the suit was fatal to the PDP and Jegede’s appeal. Was it really? How, when the APC, which sponsored Buni, and for whom Buni at all material times acted as an agent was already a party to the suit? I do not and cannot understand this. Or, do you? The law is trite that you do not need to go after an agent (Buni) where there is a disclosed principal (APC). Such a disclosed principal is solely liable for its agent’s authorized actions, as the agent is not personally liable. See Okafor V. Ezenwa (2002) 13 NWLR (Pt. 784) 319; Osigwe V. PSPLS Management Consortium Ltd (2009) 3 NWLR (Pt 1128) 378.
EXTRAPOLATIONS FROM THE SUPREME COURT’S JUDGMENT
The simple conclusion is that if Buni had been joined as a party in the suit, the story would have been different, as the APC would have lost Ondo State to the PDP. Pronto! It is that simple. Indeed, it is rare to see such a close shave of 4-3 split judgment by the Supreme Court. Minority decisions are usually more rigorous and better researched as they seek to swim against the tide of the majority opinion that may be tyrannical.
The Supreme Court’s judgment has simply furiously (perhaps, inadvertently), weaponised all those that would be aggrieved by the APC’s forthcoming Congresses and other elections. They only need to go to court to challenge the competence of the Buni-led NCCC to organise the forthcoming Congresses and National Convention. Thus from bottom to top, the APC’s amorphous structures made up of disparate tendencies have been irretrievably damaged, nay, destroyed. All Congresses, meetings, conventions and elections that henceforth have the imprimatur of Governor Mai Mala Buni are subject to being quashed by the court at the instance of any aggrieved party member. Indeed, all actions so far taken by the Buni-led NCCC in that capacity can be quashed by any aggrieved member of the APC. Such a member has locus standi if he can show his membership card. Here comes the banana peel! APC will slip. And the fall will be thunderous. And Nigerians will applaud. God, how mighty thou Art!
