Anatomy is the branch of science concerned with the bodily structure of humans, animals, and other living organisms, especially as revealed by dissection and the separation of parts. The Supreme Court decision in the Ondo governorship election requires a dissection to ensure appropriate understanding of the issues involved and their implications on internal democracy and political party administration in Nigeria. We have to note that the issue that was decided in the governorship election of Ondo State is a novel issue. In deciding such issues, the litigants are at the mercy of the Judges of the Supreme Court, whose pronouncement becomes the position of the law. This is why any political party worth its onions must do everything possible to avoid leaving its destiny in the hands of Judges, who are human beings that are fallible, and have their natural political, religious, ethnic, sectional and social-cultural sentiments, biases and alliances, which influence their decisions, no matter how expressionless their faces may appear to be when seated on the bench listening to cases.
The general election of Governor of Ondo State held on the 10th of October, 2020 was challenged on one ground only, “The 3rd and 4th respondents (Akeredolu and Deputy) were at the time of the election, not qualified to contest the Ondo State Governorship election held on 10th October, 2020”. The petition was prosecuted on the sole contention that sponsorship of the 3rd and 4th respondents by the 2nd respondent (APC) as its candidates for the said election of Governor of Ondo State was invalid because the letter of 27th of July, 2020 (exhibit P21) written by the 2nd respondent submitting the names of the 3rd and 4th respondents to the 1st respondent (INEC) as its candidates for the election was signed by persons who were not national officers of the 2nd respondent and that one of the signatories, Mai Mala Buni, who signed as its acting National Chairman, is also the Governor of Yobe State. It is instructive to note that 3 out of the 7 Supreme Court (SC) Justices agreed with Jegede and the PDP on this issue. However, the majority decision of the SC is what is considered the judgment of the court. The cardinal question, therefore, is where did they differ?
Firstly, the SC Justices agreed that at all times material to this case Mai Mala Buni was the National Chairman of APC. This is so by virtue of S.11(2) of the Interpretation Act Cap.23 Vol. 8 LFN 2004 which provides that “A reference in an enactment to the holder of an office shall be construed as including a reference to a person for the time being appointed to act in his place either as respects the functions of the office generally or the functions in regard to which he is appointed, as the case may be”. So it is settled law that the holder of an office includes the holder of that office in an acting capacity. Also the Caretaker/Extraordinary National Convention Planning Committee was constituted by the National Executive Committee of APC to act as the National Working Committee in the interim until the National Working Committee was reconstituted. This means that the CECPC is constituted as a governing body for APC.
They also did not differ on the express interpretation of the provision of Section 183 of the 1999 Constitution, that “The governor shall not, during the period when he holds office, hold any other executive office or paid employment in any capacity whatsoever” and Article 17(iv) of APC Constitution that “No officer in any organ of the Party shall hold executive position office in government concurrently”. They were unanimous that the flagrant desecration of this Section may have disastrous consequences on the desecrator of the provision and his party. Hear the majority judgment of the four SC Judges, “It is clear from the provisions of S.183 that if the Governor of a State holds any other executive office or paid employment in any capacity whatsoever during his tenure of office as such Governor, he or she ceases to hold the office of Governor in accordance with the provisions of the Constitution and cannot from that moment continue to hold the office of Governor and therefore shall vacate same by virtue of S.180(1)(d) of the 1999 Constitution. So the contention that Governor Mai Mala Buni as Governor of Yobe State has violated S.183 of the Constitution by holding the office of acting National Chairman of the 2nd respondent is a very serious one with grave consequences for him and no doubt for the 2nd respondent (APC) as well”. Indeed, it is because of the likely grave consequences of this Section on Mai Mala Buni that led the majority Judges to conclude that the judicial determination of the issue would involve the enforcement of the Constitution against him and would certainly affect him personally and that it would be unfair to him to try that issue in his absence without joining him as a party to the petition. This was part of the reasons why the petition failed. It is surprising to hear some members of the APC advising the party to ignore the grave issues raised in the judgment.
However, the judgment of the majority declared that “The jurisdiction of the Governorship Election Tribunal is restricted to the hearing and determination of petitions as to whether any person has been validly elected to the office of Governor or Deputy Governor of a State by S.285(2) of the 1999 Constitution that created it. In other words, the propriety, legality and constitutionality of Governor Mai Mala Buni acting as National Chairman of APC during his tenure as Governor of Yobe State is not a question that is within the jurisdiction of the Election Tribunal to try. They, however, declared that the trial should have been brought in another court. Had the case been brought in a competent court and by the right persons, maybe the outcome may be different.
We must have to state however that even if Buni had been made a party to this suit, it would not have guaranteed victory for the PDP and its candidate, Jegede, because the SC Judges differed on the application of Section 183 and Article 17(iv) to the facts of the case. The majority Judges held that S.183 of the 1999 Constitution and Article 17(iv) of the APC Constitution, cannot be relied on to disqualify the APC Governorship Candidate, Akeredolu, and nullify his election because they do not regulate any aspect of the process of the nomination, sponsorship and election and return of Akeredolu and Deputy. They reached this decision because according to them, it is settled law in Shinkafi & Anor. v. Yari & Ors (2016) LPELR – 26050 (SC), that “Once a candidate sponsored by his political party has satisfied the provisions set out in Section 177 of the Constitution and is not disqualified under Section 182(1) thereof, he is qualified to stand election to the office of Governor of a State. No other law can disqualify him.
They clarified that the letter from APC submitting the names of its candidates for the election is a notice or communication to INEC of its decision to sponsor those candidates for the election. It is wrong to describe or regard such letter as the act of sponsorship or the decision to sponsor. The decision to sponsor a person as the candidate of a political party for a general election is taken by the relevant congress or convention of a political party at a primary election of the political party held to nominate or select its candidate for the election. The National Executive Committee of APC through the National Working Committee submitted to INEC the names selected by the state congress of APC as the persons being sponsored as its candidate for the election and the fact that one of the two signatories of the letter submitting the selected names had no power to sign it, cannot nullify the decision of Ondo State Congress of APC.
They reached this decision because S.31(1) of the Electoral Act 2010 that provides for the submission of the names of the persons being sponsored as candidates, did not prescribe that the National Chairman and the National Secretary must sign the letter and the prescribed form, and did not prescribe any consequence for any defect in the process of submitting the names or for failure to submit it in a prescribed form. Paragraph 17(a) of the First Supplementary to Regulations and Guidelines for the Conduct of Elections of 9th of June, 2020 did not prescribe such consequence. What is clear is the fact that the names of APC Candidates were submitted to INEC by APC’s letter of 27th July, 2020.
They held that the essence of the argument of PDP and Jegede that Governor Mai Mala Buni who consigned the letter as acting National Chairman has no vires to sign it is that only one valid signature remained in the letter. Granting that the argument is correct, the submission of the names remain factually made even if only the acting National Secretary signed the said letter. Assuming the acting National Chairman did not sign the letter contrary to the directive or instruction of INEC in Paragraph 17(a) of the First Supplementary to Regulations and Guidelines for the Conduct of Elections of 9th of June, 2020, such failure cannot be relied on as a ground for an election petition to invalidate the election of Akeredolu because such failure is not contrary to any provisions of the Electoral Act 2010 as amended. Consequently the appeal by PDP and Jegede failed and was summarily dismissed. As can be seen above, APC would have suffered grievous damage if only Mai Mala Buni had signed the letter or if only serving Governors had signed as both Chairman and Secretary or if any section of the Electoral Act had provided for both the signatures of Chairman and Secretary. The 3 out of the 7 Judges in this case can easily change to 4 out of 7 Judges in subsequent cases who believe that S.183 of the 1999 Constitution and Article 17(iv) of APC Constitution are enough to invalidate the nomination of APC Candidates based on the same facts. These consequences are avoidable by APC abiding meticulously with the provisions of S.183 of the 1999 Constitution and Article 17(iv) of APC Constitution in the selection of the governing organs of the Party. What noble example is a ruling party setting in promoting internal democracy if it is living in obvious or likely breach of constitutional provisions?