The Supreme Court had in a split judgement on July 28 upheld the election of Governor Rotimi Akeredolu of Ondo State and dismissed the appeal of the Peoples Democratic Party’s (PDP) candidate, Eyitayo Jegede for lack of “any scintilla of merit.”
Jegede and the PDP had challenged the October 10, 2020 governorship election and pegged their main relief on the ground that Governor Akeredolu and his deputy, Orimisan Aiyedatiwa, were not qualified to contest the election.
They contended that the signing of Akeredolu’s nomination certificate (exhibit P21) by the APC’s caretaker committee led by Governor Buni of Yobe State was invalid based on section 183 of the Nigerian constitution, 1999 and Article 17(iv) of the APC constitution.
Both the majority judgement of four justices and the minority judgement of three justices concurred that Governor Buni had violated section 183 of the constitution, which holds that ,“The governor shall not, during the period when he holds office, hold any other executive office or paid employment in any capacity whatsoever,” as well as Article 17(iv) of the APC constitution, which holds that, “No officer in any organ of the party shall hold executive position in government concurrently.”
However, the majority judgement read by Justice Emmanuel Akomaye Agim submitted that the contention, being one with grave consequences for the governor involving the determination of the constitutional issue of his action, would be unfair to try in his absence.
“The fair trial of such issue in his absence without joining him as a party is impossible. There is no need to stress the point that he is a necessary party to the case because the issue upon which the appellants have predicated their case, namely, the invalidity of the said exhibit itself cannot be fairly, effectually and conclusively be determined without joining him as a party to the case,” Agim held.
The apex court’s main decision further held that the issue of the constitutionality of Buni as the caretaker committee chairman of the APC is not within the jurisdiction of the state election tribunal where the petition was commenced, expected to hear and determine petition as to whether any person has been validly elected to the office of the governor or deputy governor.
As a corollary to its finding that Article 13.3(vi) that the APC “National Executive Committee has power to create, elect and appoint any committee it may deem necessary, desirable or expedient and assign to them such powers and functions as it may deem proper,” the apex court further held that being a voluntary organisation, the question of who should hold offices in the party cannot be entertained by any court.
“Those are non-justiceable questions. Courts have no jurisdiction over the internal affairs of a political party except where a statute expressly gives a court jurisdiction to deal with any internal affairs of a political party,” he said.
But the dissenting judgement of Justice Mary Odili, which was read by Justice Ejembi Eko, allowed the appeal and dismissed the Akeredolu and APC cross appeals and declared Jegede and the PDP winners of the governorship election.
The dissenting justices declared that the non-joinder of Governor Buni would not occasion any substantial miscarriage of justice, adding that his principal, the APC, was already joined in the matter, thus, in view of his constitutional immunity in section 308, his joinder would rather occasion injustice to the appellants (Jegede and PDP).
“On the principle of vicarious responsibility, I find it rather bizarre, spurious or preposterous, the contention that the non-joinder of Mai Mala Buni, the governor Yobe State, whose immunity, under section 308 of the constitution of the Federal Republic of Nigeria, insulates him and prohibits his joinder in any civil proceedings during his period in office as governor; had vitiated the petition; even when his appointor/principal had been made a party,” he said.
On the majority verdict that the choices of the APC NEC were an internal affair of the party, and therefore, non-justiceable, the dissenting justices declared that the appellants, who were seeking to protect the constitution from being contravened, have the locus standi to appear in court over the matter.
“It is an issue raising the violation or contravention of the constitution of the Federal Republic of Nigeria. On this ground I will not hesitate to dismiss offhand, the contention that the appellants lack the locus standi or reasonable cause of action on which to found their petition because Section 1(1) of the constitution provides, inter alia that the ‘Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria,’” Eko said.
The dissenting justices held that the APC did not cross-appeal the adverse findings of the lower courts that it appointed Governor Buni as the national chairman of the Caretaker/Extra Ordinary Convention Committee to perform the executive functions of the national chairman.
“The law is settled, that a specific adverse finding of fact or decision not appealed remains subsisting, conclusive and binding on the parties, including the party adversely affected by it,” he said.
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