As Jegede Proceeds to Supreme Court, Akeredolu May Be Governing on Borrowed Time

Governor Oluwarotimi Akeredolu (SAN) of Ondo State may have recorded uncomfortable victories at both the trial Tribunal and the Court of Appeal, but the insistence of Mr. Eyitayo Jegede (SAN), governorship candidate of the Peoples Democratic Party in the 2020 Ondo State Governorship election to proceed to the Supreme Court carries a potential fatal damage against Akeredolu’s pyrrhic victory, writes Nseobong Okon-Ekong

It is exactly one week today since the Court of Appeal gave a verdict in the governorship matter brought before it by Mr. Eyitayo Jegede (SAN), governorship candidate of the Peoples Democratic Party (PDP) in the 2020 guber election in Ondo State, which the the Independent National Electoral Commission (INEC) declared the incumbent Mr. Oluwarotimi Akeredolu (SAN) of the All Progressives Congress (APC) as winner. Jegede’s case against Akeredolu had earlier been dismissed by the Ondo State Governorship Election Petition Tribunal, making it necessary for him to approach the Court of Appeal, which also gave an unfavourable verdict against Jegede.

The judgement of the trial tribunal was to the effect that the alleged sponsorship of Akeredolu by Governor Mai Bala Buni despite being constitutionally barred under Section 183 of the Constitution, was an internal affair of the APC. The trail court held that the issue raised by Eyitayo Jegede’s lead counsel being a constitutional infringement on candidate sponsorship as required under Section 177 (C) of the constitution cannot be consigned as pre-election matter. However, the court declined the interpretation of the constitution claiming lack of jurisdiction and subsequently dismissed the case. Unsatisfied, Jegede proceeded to the court of Appeal to contend the decision of the Tribunal. Although the Tribunal verdict appeared to have favoured Governor Akeredolu, through the window of not joiner of Gover Buni. But, this is clearly appear an uncomfortable victory, according to a legal analyst as the constitutional infringement angle raised by Jegede’s legal team could be very fatal to Akeredolu’s mandate if not successfully consigned to a pre-election issue.

The defence lawyers including INEC’s lawyer filed three cross-appeals against the tribunal ruling delivered in their favour. In all, there were the appellant’s appeal and three cross-appeals from Governor Akeredolu, APC and INEC before the appeal court that was determined last week. During the ruling on the appeals, the three cross-appeals by lawyers representing the APC, Akeredolu and his deputy, and INEC, Lateef Fagbemi (SAN), Akin Olujimi (SAN), Charles Edosanwa and others seeking to consign Jegede’s case to pre-election meddlesomeness into APC’s internal affair and issue of locus all failed as the law with several authorities presented did not support such grounds of cross-appeals according to the court. On the main appeal presented by the counsel to Jegede, Dr Onyechi Ikpeazu (SAN), there were six issues raised out of which the majority were resolved in favour of the appellant. However, on the main issue of the breach of the constitution by the APC’s caretaker committee chairman who is equally the Governor of Yobe State, Governor Mai Mal Buni, the court affirmed the unconstitutionality of the action but queried why the Governor was not made a party to the matter. The court, therefore, concluded that the exclusion of Buni who the APC had admitted acted for it in his capacity as the Caretaker Chairman, was unfair and had become fatal to the appeal. It, therefore, dismissed the case.
The PDP and its candidate have expressed their dissatisfaction with the outcome of the appeal and will proceed to the Supreme Court according to its spokesperson. But a major controversy is brewing! The PDP has accused the Court of Appeal of still withholding the details of the judgement many days after delivering the judgement, a practice that the party considers strange. The electoral matter is time-constrained and any delay in releasing relevant documents is akin to frustration and limiting of the ability of parties to fully maximize the law.

It will be recalled that in the case of Adeleke vs Oyetola of Osun state, the administrative error of the Appeal Court became a chemical weapon for the defence according to a legal practitioner. The court should always act in a way that encourages the justice system rather than acting in a manner that may suggest doubt to its integrity. Not releasing documents of judgement one week after the ruling is certainly not acceptable in a time-constrained case such as this. It is still early in the day to predict what becomes of this very novel case and a potentially profound outcome that will become a reference point in the history of electoral law in Nigeria.

In the last three days, the PDP in Ondo State has embarked on public awareness exercises including meetings with journalists and public procession to press home its demand for Certified True Copies of the judgment on the 2020 Ondo governorship poll.
The state Publicity Secretary of the party, Mr. Kennedy Ikantu Peretei alleged a ploy to sabotage Jegede’s case. He described the action of the Court of Appeal as, “Nothing but willful disobedience of the Constitution, unethical practices and blatant refusal to follow public service rules and ethics will explain a situation whereby a major political party and appellant in an election case would have to resort to press releases to get officials of the Judiciary to do their job. We are being portrayed as beggars in our own country despite the weight of the Constitution and the law of natural justice on our side.”

The insistence of the Ondo PDP is understandable because it is racing against time. The Supreme Court has only 60 days from the date of the judgment of the Court of Appeal, to dispose of this matter, and it may not be out of place to interprete the refusal to release the Certified True Copies of the judgment as deliberate tactics to frustrate Jegede’s case at the apex court.

The PDP, therefore appealed to the President of the Court of Appeal and the National Judicial Council (NJC) to prevail on the Court of Appeal to perform the responsibilities of that office and accede to its request without delay.

The PDP Ondo State Chapter of the PDP, further accused the Court of Appeal of an open show of partisanship, in clear violation of the laws of the land, and in defiance of the Supreme Court before which it has expressed intention to pursue its case to a logical conclusion. The party asserted that Court of Appeal was willfully holding on to the said copies in an undisguised bid to frustrate the case of its governorship candidate in the disputed election.

A Senior Advocate of Nigeria, Mr. Dada Awosika expressed his understanding of the matter at hand. According to him, there is a misconception making the rounds about the petition of Eyitayo Jegede (SAN). The case of Jegede and PDP was essentially based on the fact that the sponsorship of Akeredolu (SAN) by APC was a nullity in law and as such APC did not have a candidate for the Governorship election of October 10, 2020. The matter has nothing to do with nomination of Akeredolu to contest election. In the first place, it is the provision of Section 177 (C) of the 1999 constitution (as amended) that guides and protects the sponsorship of any candidate of a political party for an election. Secondly, the point being made by Jegede and PDP is that the Chairman of APC at the material time (Governor Mai Mala Buni) that endorsed and forwarded the name of Akeredolu to the electoral umpire (INEC) was constitutionally disabled vide section 183 of the constitution from taking up any other executive position whilst being the executive Governor of Yobe state. The constitution of APC specifically and expressly states that the chairman of the party is the Chief Executive Officer of the party performing executive functions. The Court of Appeal rightly agreed with this position that indeed there was violation of the constitution but decided to hold the view that because Mai Mala Buni was not made a party to the election petition at the tribunal (being the person directly involved in the said infraction of the constitution) and as such the violator of the constitution by the current Chairman could not be transcribed /credited to APC as the constitution doesn’t recognize violation through agency relationship.

The Learned Silk adjudged the court’s stand as strange reasoning .He said, “Even at the lower court (election tribunal) on the state of the pleadings, APC, Akeredolu and their counsel all agreed that Mai Mala Buni acted as agent of the party. The fundamental and rudimentary Principle of agency law supports the position that Mai Mala Buni is an agent of a disclosed principal (APC) who is answerable to his conduct. In any event, not clamping down on APC for violating the constitution is tantamount to allowing the party to continue to wallow and benefit from this constitution infraction. As stated by the apex court in its Judgment of December 20, 2019 in the case of Ugwumba Uche Nwosu Vs Action Peoples Party & Ors, (Unreported) Appeal No: SC/1384/2019, the court held that any act that is not authorized by the constitution is an illegality and the perpetrator of such violation must not be allowed to go scot free to enjoy the fruit of his illegal act or bask in the warmth of his iniquity. APC and Mai Mala Buni violated the constitution.”

Awosika further argued that the trial election tribunal dismissed Jegede’s petition on the ground that Jegede and PDP’s complaints were rooted in the internal affairs of APC and having not been a member, he had no locus standi to interfere. This, the court of appeal overturned and held that basis of Jegede’s case at the trial is sponsorship. Jegede and PDP’s appeal were partly allowed. Out of Jegede/PDP issues submitted for adjudication of the court of Appeal, five were in their favour. The Appeal court agreed to the extent that the constitution was actually breached by APC but that Jegede/PDP did not join the sitting Governor Mallam Buni that committed the constitutional infractions. As stated earlier, once the principal is identified, there is no need to join his agent in any suit. In this circumstance, Mallam Buni is the agent of the APC. This was the escape route created for Akeredolu.
It is pertinent to state that APC, INEC and Akeredolu all cross appealed against some of the findings of the election tribunal but the Court of Appeal in its wisdom dismissed all the cross appeals for lacking in merit.

In the estimation of Awosika, “The matter as presently constituted appears to be novel election matter in the sense that this is the first time in our electoral jurisprudence that a sitting Governor, being the chairman of a major political party, will be directly instrumental in sponsoring a candidate for a Governorship election against the express provision of Section 183 of the 1999 constitution (as amended) which forbids an Executive Governor of a state from assuming any other executive role whilst still being a Governor. The court of Appeal found unequivocally that there was indeed a breach of the constitution but the non-joinder of Mai Mala Buni is fatal to the petition of Jegede/PDP and that though he acted as agent of APC, the constitution doesn’t recognize violation of its provisions through agency relationship. Therefore, going to Supreme Court will bring finality to the issue, enrich our political space and our electoral jurisprudence.”

A closer scrutiny of the reasons advanced for the decisions reached by both the Ondo State Governorship Election Petition Tribunal and the Court of Appeal expose a wobbling legal technicality that may collapse at the Apex Court. The dismissal of the appeal of Jegede by the Court of Appeal was premised on- the non-joinder of the National Chairman of the APC Caretaker/Extra-OrdinaryConventionCommittee; Governor Mai Mala Buni by the petitioner.
Whereas, both the 1999 Constitution (as amended), the Electoral Act and the Constitution of the APC clearly expose the position of the learned judges as flawed.
Commenting on the Court of Appeal judgement, an Akure-based lawyer, Aki Amuluku identified the parties to an election petition without ambiguity as
stated in Section. 137 of the Electoral Act. There are two parties to an election petition; the Petitioner and the Respondent. The Petitioner is:
• Any person claiming to have a right to be returned at the election or
• A candidate at the election or
• A Political Party which participated at the election.

The Respondent to such petition shall be:
• The successful candidate at the polls, Section 285 CFRN 1999 (As amended).
• The political party whose candidate won the election—Buhari v. Yusuf.
• The Chief Electoral Officer of the Federation where the petition relates to the election of President or Vice President,
• The Chief Electoral Officer of the State where the election relates to that of Governor or Deputy Governor of that state,
• The Electoral Officer of a Senatorial district, Federal constituency, State constituency where the election relates to a Senator, member of House of Representatives, member of State House of Assembly respectively.
• The Returning officer: where the petition complains about the conduct of a Returning Officer or Presiding Officer, he shall for all purposes be joined as a Respondent.
It must be noted that only principal can be joined, not the agent

Again, INEC is to be joined as a respondent where the petition contains a complaint against any INEC official. There is no need to join individual electoral officer, once INEC is joined as a respondent. INEC is to defend the petition on its behalf and on behalf of the officer concerned. Thus, the non-joinder of such officer is not fatal so long as INEC is joined.

Amuluku posited that the same situation applies to any political party joined in a petition. If any official or member of a political party is mentioned to have committed an infraction, he is not a necessary party to be joined, rather he is at best a desirable party. This is because such official is an agent of the party. Based on the Doctrine of Agency., when a principal is joined in a civil suit based on an official function discharged by the agent, the onus is on the principal to make such an agent to appear in Court to clear any discomfort created by the function discharged by the agent.

The only situation where an individual who is not a candidate can be joined as a party in an election petition is when an allegation of commission of criminal offence is made against the individual, it will amount to a breach of the person’s fundamental right to fair hearing if determinations are made without the person’s participation. See Obasanjo v. Buhari; Ayogu v. Nnamani.

Before the advent of the Electoral Act 2010 (As amended), the tradition was to join any person mentioned in a petition to have committed electoral irregularity, but by the 2010 amendment, a petitioner does not need to join an agent of a principal, all that is required to be done is to join the principal. See Ayogu v. Nnamani (supra).

Also of essence to note is that, it is a well settled law and practice that a necessary party is that party who is not only interested in the subject matter of the proceedings but who also, in his absence, the proceedings cannot fairly be dealt with. See Green v. Green; Babayeju v. Ashamu.

Governor Mai Mala Buni does not fall into the above category, his office as the Caretaker National Chairman of the APC is not the subject of the dispute before the Court, rather it is the function he discharged on behalf of his party that is in dispute, hence any fatality or liability that is occasioned as a result of his action lies with the party but not with him as a person, as it is not a criminal allegation against him in person. It is only crime that is personal.

One of the clear reasons that Governor Mai Mala Buni cannot be joined is that he is clothed with immunity. By section 308 of the CFRN 1999 (As amended),
Gov. Buni is clothed with immunity hence cannot be joined in a suit in his personal capacity. See Kalu v. EFCC. A Governor can only be sued in his official capacity. Whenever a Governor is sued in his official capacity, the office of the Attorney General is also joined or the Governor is sued through the office of the Attorney General of the state. See Alliance for Democracy v. Ayodele Fayose.

Despite the immunity, if a Governor participated in an election in dispute, he is a necessary party that must be joined, unfortunately, Gov. Mai Mala Buni is not one in the instant case.

Amuluku argued that the non-joinder of Buni was not an issue before the Court He said, “The choice of the Court to have premised its decision on his non-joinder amounts to an activation of the doctrine of suo moto, that is acting withoutformal prompting from the appellant. But the Supreme Court has held in the case of Atiku Abubakar v. A. G. Federation that, when the Court suo moto raises an issue in a matter without the concurrence of parties in dispute, the Court can easily be seen as descending into the arena. In view of this established position of the Court, the decision of the Court of Appeal to have raised the non- joinder of Governor Mai Mala Buni as a yardstick to dismiss the appeal of the appellant amounts to overreaching its bounds.”

Amuluku concluded that the non-joinder of Gov. Mai Mala Buni ought not to have constituted a fatality to the case of the Appellant in the instant case, and the decision of the petitioner to proceed to the Supreme Court to test this novel electoral matter is a welcome development.

Mr Akeredolu polled 292,830 votes (51.1 percent) to beat his closest challenger, Mr Jegede, who polled 195,791 votes (34.2percent). The Deputy Governor, Agboola Ajayi, who ran on the ticket of the Zenith Labour Party, came third with 69,127 votes(12.1 percent). The total number of accredited voters was 595, 213, which represents 31.6 percent turnout of voters. The total valid votes however stood at 572, 745 as 18448 votes were rejected, while about 16,000 votes were cancelled.

But Mr Jegede said Mr Akeredolu was not validly nominated by the APC for the election.

QUOTE

The judgement of the trial tribunal was to the effect that the alleged sponsorship of Akeredolu by Governor Mai Bala Buni despite being constitutionally barred under Section 183 of the Constitution, was an internal affair of the APC. The trail court held that the issue raised by Eyitayo Jegede’s lead counsel being a constitutional infringement on candidate sponsorship as required under Section 177 (C) of the constitution cannot be consigned as pre-election matter. However, the court declined the interpretation of the constitution claiming lack of jurisdiction and subsequently dismissed the case. Unsatisfied, Jegede proceeded to the court of Appeal to contend the decision of the Tribunal. Although the Tribunal verdict appeared to have favoured Governor Akeredolu, through the window of not joiner of Gover Buni. But, this is clearly appear an uncomfortable victory, according to a legal analyst as the constitutional infringement angle raised by Jegede’s legal team could be very fatal to Akeredolu’s mandate if not successfully consigned to a pre-election issue