The Supreme Court in a slim majority judgment of 4/3 delivered on 28 July 2021 dismissed the appeal of Mr. Eyitayo Jegede and the PDP against the election of Mr. Rotimi Akeredolu as the Governor of Ondo State.
The appeal was founded on the ground that Akeredolu’s nomination as the candidate of the All Progressives Congress (“APC”) was invalid because the Nomination Form was signed by His Excellency, Mai Mala Buni, the Governor of Yobe State who also doubles as the Chairman of the National Caretaker/Extra-Ordinary Convention Planning Committee (“Caretaker Committee”) of the APC.
Jegede’s arguments were premised on the provisions of section 183 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (the “Constitution”) and Article 17 of the APC Constitution. The Supreme Court however held that the appeal revolved around Governor Buni, and he was therefore a necessary party to the appeal.
The failure to join Buni as a party was held to be fatal to the appeal and the appeal was dismissed on this ground. In dismissing the appeal, the majority decision did not consider the merits of the arguments on Section 183 of the Constitution and Article 17 of the APC Constitution. The minority judgment of the Supreme Court however agreed with Jegede and held that Governor Buni is not eligible to hold the office of Caretaker Chairman of the APC by virtue of Section 183 of the Constitution and Article 17(iv) of the APC Constitution and allowed the appeal.
Since the delivery of the Judgment, different, often conflicting opinions have been expressed on the implications of the Judgement. One school of thought has argued that the Judgment has indicated that Governor Buni is not eligible to act as the Caretaker Chairman of the APC and all actions taken by the Caretaker Committee are consequently invalid. This school of thought believes that had Governor Buni been joined as a party, the appeal would have succeeded and the election of Governor Akeredolu voided. There is another school of thought which believes that since the Supreme Court did not decide the merits of the argument on the eligibility of Governor Buni to act as the Chairman of the caretaker committee of the APC, the judgment cannot be relied on as authority on this point. This has created an uncertainty on the purport of Section 183 of the Constitution and left the APC in a state of confusion. This piece is therefore intended to provide some clarity on the position of the law on the eligibility or otherwise of Governor Buni to act as the Chairman of the Caretake Committee of the APC and the implications of the judgment of the Supreme Court. A necessary starting point of this endeavor is a consideration of section 183 of the constitution and Article 17(iv) of the APC Constitution.
Section 183 of the Constitution provides that “The governor shall not, during the period when he holds office, hold any other executive office or paid employment in any capacity whatsoever”. It is clear from the express provisions of Section 183 of the Constitution that the prohibition from holding a position simultaneously with that of the Governor extends only to executive positions and paid employment. In my view, executive position, in the context of the Constitution means a position in the executive arm of the government. This would obviously exclude the position of a Caretaker Committee of a political party like the APC. The second question is whether the office of Caretaker Chairman of the APC is a paid employment. Ordinarily, one would have expected to get the answer to this question from the APC Constitution. However, the APC Constitution is silent on the remuneration of officers of the Party. There is also no evidence to the effect that Governor Buni is being remunerated as Caretaker Committee Chairman. It is therefore difficult to satisfy this element of Section 183 to establish Governor Buni’s ineligibility to act as the Chairman of the Caretaker Committee. In the absence of evidence to the effect that that Governor Buni is being remunerated by the APC as the Chairman of the Caretaker Committee, I am of the view that his appointment as the Chairman of the Caretaker Committee of the APC does not constitute a breach of Section 183 of the Constitution. This would be the reasonable conclusion from a literal interpretation of Section 183 of the Constitution. Any interpretation to include non-executive and non-remunerated positions such as chairmanship of a Caretaker Committee of a political party would be a stretch beyond the contemplation of the Constitution.
Section 17(iv) of the APC Constitution on the other hand provides that “No officer in any organ of the Party shall hold executive position office in government concurrently”. Unlike Section 183 of the Constitution, Article 17(iv) of the APC Constitution clearly precludes Governor Buni and any other person holding an executive position from simultaneously holding any office in any organ of the APC. On the strength of this provision, the Governor Buni led Caretaker is illegal under the APC Constitution and all decisions and actions of the Caretaker Committee, including the nomination of candidates, is invalid. But what is the implication of the violation of Article 17(iv) of the Constitution in the appointment of Governor Buni as the Caretaker Committee Chairman? In answering this question, the Supreme Court in its majority judgment held that a violation of Article 17(iv) of the APC Constitution in the appointment of Governor Buni is an internal affair of the APC and is not justiciable. In essence, a challenge on the strength of Article 17(iv) of the APC Constitution to the validity of theGovernor Buni led Caretaker Committee of the APC and actions and decisions taken by the Caretaker Committee cannot be entertained by a court of law. While the correctness of this decision may be datable, it is the current position of the law and persons who may be aggrieved by the decisions and actions of the Buni led Caretaker Committee may not be able to challenge the validity of those decisions and actions in court on the basis of Article 17(iv) of the APC.
In the light of the foregoing, it is my view that a joinder of the Governor Buni to the suit may not have made any difference, as his appointment as the Caretaker Committee Chairman does not constitute a breach of Section 183 of the Constitution and a breach of Article 17(iv) of the APC Constitution has been held by the Supreme Court to be a non-justiciable internal affair of the APC.
On a final note, the dismissal of the appeal on the technical point of non-joinder of Governor Buni is curious. By section 308 of the Constitution, Governor Buni enjoys immunity from judicial proceedings as a sitting governor. It was constitutionally impossible to join him as a party to the Petition or the appeal. The Supreme Court seems to have ignored this provision in holding that the Governor ought to have been joined as a party. But then, the Supreme Court is infallible because it is final.