Has The Supreme Court In Sc/Cv/448/2021 Between Mr. Eyitayo Olayinka Jegede & 1 Other And INEC & 3others Increased The Grounds For Disqualification Of A Person For Gubernatorial Election In Nigeria?

By S.O. Giwa Esq.

Periodic elections are major planks of democracy that has its attendant grievance procedure which ensures that the real consent of the governed is sought and obtained.

It is no gainsaying that in every election, including election into office of Governor of a State, there must be a winner and a person being defeated.

It is equally a known fact that by human nature, the person being defeated would be aggrieved and would avail himself/herself of the legal apparatus to question the election that produces the person declared a winner of the said election.

It is pertinently important to say here that for an election to be questioned or challenged in Nigeria, the prescribed grounds in the relevant statutes in force in Nigeria must be strictly followed and the statutes which regulate the grounds upon which elections can be questioned or challenged are Electoral Act and the Constitution of the Federal Republic of Nigeria.

The aggrieved person is known and called the Petitioner who has right to file an election petition within the prescribed period before the established election tribunal if he is desirous of challenging the election that produces a person declared a winner.

Being aggrieved by the People’s Democratic Party and its Candidate, Mr. Eyitayo Olayinka Jegede SAN of the announcement of election result of Ondo State gubernatorial election held on Saturday 10, October, 2020 and declaration of the candidate of All Progressives Congress, Oluwarotimi Odunayo Akeredolu SAN the winner of the said election; the People’s Democratic Party and its Candidate, Mr. Eyitayo Olayinka Jegede SAN filed an election petition anchored on the alleged breach of sections 177(c) and 183 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and paragraphs 29-37 of the said petition clearly demonstrate the involvement of Mai Mala Buni, Governor of Yobe State, to challenge the victory of the candidate of All Progressives Congress, Oluwarotimi Odunayo Akeredolu SAN on the ground that Oluwarotimi Odunayo Akeredolu SAN, a candidate of All Progressives Congress, was not qualified to contest the election for reason that the letter of 27^th day of July, 2020 containing the names of Oluwarotimi Odunayo Akeredolu SAN and his deputy, Hon. Orimisan Aiyedatiwa submitted to the Independent National Electoral Commission (INEC) was co-signed by Mai Mala Buni, a serving Governor of Yobe State and occupant of the office of a National Caretaker Chairman of All Progressives Congress.

It was the contention of the People’s Democratic Party and its Candidate, Mr. Eyitayo Olayinka Jegede SAN that the sponsor of candidates of All Progressives Congress for the Ondo State gubernatorial election held on Saturday 10, October, 2020 was invalid on the basis of section 183 of the Constitution which disqualifies a sitting governor of a State from holding any other executive office in any capacity.

On 28^th day of July, 2021, the Supreme Court finally dismissed the petition filed by People’s Democratic Party and its Candidate, Mr. Eyitayo Olayinka Jegede SAN against the return of candidate of All Progressives Congress, Oluwarotimi Odunayo Akeredolu SAN for failure of the Petitioners to join Mai Mala Buni in the Petition No. EPT/AK/GOV/1/2020.

It is against the forgoing which forms the background for this piece that this piece is written with a view to finding out if the scope of the grounds for disqualification of a person for election into office of a governor of a State provided for under section 182 (1) of the Constitution has been widened with another ground by the Supreme Court Judgment delivered 28^th day of July, 2021 in SC/ CV/ 448/ 2021 between Mr. Eyitayo Olayinka Jegede & 1 other and INEC & 3 others.

It is not unknown by the writer that there have been several write-ups by many writers with different views and interpretation of the said judgment but this piece is not written to condemn or support any earlier written piece. Rather this piece is written to find an answer to the question pose as its title having recourse to the Constitution and the said Supreme Court Judgment delivered on 28^th day of July, 2021 in SC/ CV/ 448/ 2021 between Mr. Eyitayo Olayinka Jegede & 1 other and INEC & 3 others.

Scouting through the Constitution of the Federal Republic of Nigeria 1999 (as amended) with a view to finding out the prescribed criteria for the qualification of a person for an election into office of governor of a State as well as circumstances under which a person may be disqualified for an election into the office of governor of a State evinced the provisions of sections 177 and 182 of the Constitution.

Section 177 of the Constitution reads thus:

‘A person shall be qualified for election to the office of Governor of a State if-

• he is a citizen of Nigeria by birth;
• he has attained the age of thirty-five years;
• he is a member of a political party and is sponsored by that political party; and
• he has been educated up to at least School Certificate level or its equivalent’

Flowing from the above quoted provisions is an indisputable fact that for a person to be qualified for an election into an office of Governor of a State; he must be a Nigerian by birth who is thirty-five years of age, educated up to at least School Certificate Level or its equivalent and he must be a card carrier of a political party that must sponsor him for the election into the office of Governor of a State which he desires.

It is clear as crystal that flowing from the above quoted provision of section 177, the criterion which links the person who wishes to be a candidate in an election into the office of Governor of a State to a political party is the provision in paragraph ‘c’ of section 177 which provides that ‘A person shall be qualified for election to the office of Governor of a State if he is a member of a political party and is sponsored by that political party’.

A close reading of the criterion provided for under section 177 (c) of the Constitution depicts that there are two conditions placed on a person who is desirous to be a candidate in an election into the office of Governor of a State to fulfil and the said two conditions are that the person must be a member of a political party of his choice and that his chosen political party must sponsor the person for the said election.

It is worth saying that each of the political parties in Nigeria has its own procedures on how a prospective member can become a member of the political party but the uniform procedures to all political parties are that a prospective member shall:

1. register at his or her Ward of origin or where he or she ordinarily resides or carries on business
2. pay the prescribed registration and other fees before admission into the Party

• have his membership application considered by the Ward Executive Committee

1. be issued a membership card produced by the National Headquarters and authenticated by the National Chairman and the National Secretary
2. carry a membership card which shall bear the photograph of the member.

The second condition provided for under section 177(c) of the Constitution is that if the person wishes to be a candidate in an election into the office of Governor of a State, he must be sponsored by that political party.

HOW THEN CAN A MEMBER OF A POLITICAL PARTY BE SPONSORED?

Finding an answer to the question pose above calls for reference to the Electoral Act wherein the provision of section 87 (4)(b) of the Electoral Act provides what a political party must do when a political party is to sponsor candidates for an election into office of the Governor of a State. The provision of section 87 (4)(b) of the Electoral Act is hereunder reproduced for easy of reference and it reads thusly:

‘In the case of nomination to the positions of Governorship candidate, a political party shall, where it intends to sponsor candidates:

• hold a special congress in the State Capital with delegates voting for each of the aspirants at the congress to be held on a specified date appointed by the National Executive Committee (NEC) of the party; and
• the aspirant with the highest number of votes at the end of the voting shall be declared the winner of the primaries of the party and the aspirant’s name shall be forwarded to the Commission as the candidate of the party, for the particular state.’

In determining the appeal filed by the People’s Democratic Party and its candidate, Mr. Eyitayo Olayinka Jegede against the decision of the Court of Appeal affirming the decision of the Tribunal dismissing the election petition between Mr. Eyitayo Olayinka Jegede & 1 other and INEC & 3 others, the Supreme Court made reference to definition of the word ‘Sponsorship’ given by the election tribunal with reference to an ordinary English Language usage of the word ‘Sponsorship’ wherein the election tribunal held thus:

‘In ordinary English Language usage, political ‘sponsorship’ refers to the backing, support and funding that is given to a candidate by his political party. This includes allowing the candidate to run on the platform of the party, campaigning for the candidate and providing logistical support for the candidate. In this sense, sponsorship of a candidate is preceded by an aspirant’s nomination as a candidate for the election. By section 87 of the Electoral Act, a political party is required to forward to INEC the name of the aspirant who won the party’s primary election for the particular office as the candidate of the party for that office.’  

It is clear as crystal from the above quoted provision that 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 the political party at a primary election of the political party held to nominate or select its candidate for the election. Thus, in the case of sponsorship of a person as a candidate of a political party for the election of Governor of a State, the decision is taken by the members of the political party in that State to nominate or select the party’s governorship candidate for the election.

Besides the provision of 177 of the Constitution on the qualification of a person for election to the office of Governor of a State is the provision of section 182 (1) of the Constitution that provides for grounds upon which a person shall be disqualified for election to the office of Governor of a State. The provision reads thusly:

‘No person shall be qualified for election to the office of Governor of a State if-

• subject to the provisions of section 28 of this Constitution, he has voluntarily acquired the citizenship of a country other than Nigeria or, except in such cases as may be prescribed by the National Assembly, he has made a declaration of allegiance to such other country; or
• he has been elected to such office at any two previous elections; or
• under the law in any part of Nigeria, he is adjudged to be a lunatic or otherwise declared to be of unsound mind; or
• he is under a sentence of death imposed by any competent court of law or tribunal in Nigeria or a sentence of imprisonment for any offence involving dishonestly or fraud (by whatever name called) or any other offence imposed on him by any court or tribunal or substituted by a component authority for any other sentence imposed on him by such a court or tribunal; or
• within a period of less than ten years before the date of election to the office of Governor of a State he has been convicted and sentenced for an offence involving dishonestly or he has been found guilty of the contravention of the Code of Conduct; or
• he is an undischarged bankrupt, having been adjudged or otherwise declared bankrupt under any law in force in Nigeria; or
• being a person employed in the public service of the Federation or of any State, he has not resigned, withdrawn or retired from the employment at least thirty days to the date of the election; or
• he is a member of any secret society; or
• he has presented a forged certificate to the Independent National Electoral Commission.’’

In view of the foregoing, it is convenient to submit that once a person has satisfied the provisions set out in section 177 of the Constitution and has not suffered any disqualification under section 182(1) of the same Constitution; such person is eligible for an election into the office of the Governor of a State.

The writer is not unknown of the fact that there have been different interpretations of the Supreme Court Judgment delivered on 28^th day of July, 2021 in SC/CV/448/2021 between Mr. Eyitayo Olayinka Jegede & 1 other and INEC & 3 others by many Nigerians and these different interpretations make some Nigerians to conclude that a person for an election to the office of the Governor of a State can be disqualified on the ground which is not part of the grounds provided for under section 182(1) of the Constitution.

It is against the aforesaid conclusion which some writers attributed to the judgment of the Apex Court delivered on 28^th day of July, 2021 in SC/CV/448/2021 between Mr. Eyitayo Olayinka Jegede & 1 other and INEC & 3 others that calls for a meticulous reading of the judgment of the Supreme Court delivered on 28^th day of July, 2021 with a view to finding out if the scope of the grounds provided for disqualification of a person for an election to the office of governor of a State under section 182(1) of the Constitution have been enlarged by the delivery of the aforesaid Supreme Court Judgment.

Reading through the majority and dissenting decisions in SC/CV/ 448/2021 between Mr. Eyitayo Olayinka Jegede & 1 other and INEC & 3 others with a view to finding out if the court disqualifies the candidate of All Progressives Congress, Oluwarotimi Odunayo Akeredolu SAN for the Ondo State gubernatorial election held on Saturday 10, October, 2020 in the judgment on the basis of section 183 of the Constitution, the outcome shows different findings.

It is the writer’s stand that the decision of the Supreme Court is that it is Mai Mala Buni who is in breach of the provision of section 183 of the Constitution and the punishment of the breach cannot be by proxy as the provision cannot apply to any other person.

It is also the writer’s stand that the Supreme Court has not made co-signing of a letter to forward or submit names of candidates of a Political Party to INEC for the gubernatorial election by a serving Governor of a State in any capacity (National Caretaker Committee) a ground to disqualify a person for the election into office of Governor of a State and the said judgment should not be stretched beyond the issues decided in the case.

It is equally worth saying that the stand of many Nigerians including some legal practitioners that if Mai Mala Buni, a serving governor of Yobe State, had been joined in the petition, Oluwarotimi Odunayo Akeredolu SAN would have lost his seat as all votes accredited to All Progressives Congress would have been declared void is a wrong interpretation of the judgment.

Fortifying the writer’s stand that even if Mai Mala Buni, Governor of Yobe State, had been joined and found liable for his role as National Chairman Caretaker of All Progressives Congress in contravention of the provision of section 183 of the Constitution, Oluwarotimi Odunayo Akeredolu SAN, winner of the Ondo State gubernatorial election held on 10^th October, 2020, would not have still been disqualified on the basis of section 183 of the Constitution is the holding of the Court herein quoted below thus:

‘In the light of the forgoing, I hold that S. 183 of the 1999 Constitution and Article 17 (iv) of the 2^nd Respondent’s constitution, cannot be relied on to disqualify the 3^rd and 4^th Respondents and nullify their election.’

It is preposterous to conclude that because Mai Mala Buni, Governor of Yobe State co-signed as the National Caretaker Chairman of APC the letter for submission of the names of the winners of the primaries of the All Progressives Congress in compliance with section 87(4) (b) of the Electoral Act as the candidates of the party for gubernatorial election in compliance with the provision of section 31(1) of the Electoral Act 2010, Oluwarotimi Odunayo Akeredolu SAN, winner of Ondo State gubernatorial election held on 10^th October, 2020, should be disqualified for breach of the provision of section 183 of the Constitution by Mai Mala Buni, Governor of Yobe State.

It is also writer’s stand that has Oluwarotimi Odunayo Akeredolu SAN, candidate of All Progressives Congress, been disqualified for Ondo State gubernatorial election held on 10^th October, 2020 on the basis of co-signing of a letter used for submission of his name to INEC as candidate of APC by Mai Mala Buni, Governor of Yobe State, as National Caretaker Chairman, the signing of a letter for forwarding name of candidate for gubernatorial election by a person who is proscribed by law to take another job would have been made an additional ground to the grounds provided for under section 182 (1) of the Constitution.

It is also the Supreme Court Judgment in SC/CV/448/2021 between Mr. Eyitayo Olayinka Jegede & 1 other and INEC & 3 others that the essence of the argument that Governor Mai Mala Buni who co-signed the letter as acting National Chairman has no vires to sign is that only one valid signature remained in the letter.

It is also the holding of the court that the submission of the names remains factually made for reason that signing a letter for submission of names of candidates to INEC is a mere directive or instruction of INEC which even if only the acting National Secretary signed the said letter, failure to sign the said letter by acting National Chairman cannot be relied on as a ground for an election petition to invalidate the Ondo State gubernatorial election held on Saturday 10, October, 2020 that produces All Progressives Congress and its candidate, Oluwarotimi Odunayo Akeredolu SAN as the winner of the said election. For easy reference, the relevant part of the Majority judgment reads:

‘The essence of the argument of the appellants (People’s Democratic Party and its Candidate, Mr. Eyitayo Olayinka Jegede SAN) that Governor Mai Mala Buni who cosigned the letter as acting  National Chairman has no vires to sign is that only one valid signature remained in the letter. Granting that the argument is correct, the submission of the names remains 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 the 1^st Respondent (INEC) in paragraph 17(a) of the First Supplementary to Regulations and Guidelines for the Conduct of Elections of 9-6-2020, such failure cannot be relied on as a ground for an election petition to invalidate the election of the 3^rd and 4^th respondents (Oluwarotimi Odunayo Akeredolu SAN and his deputy) because such failure is not contrary to any provisions of the Electoral Act 2010 as amended. As I held herein S.31 (1) of the Act did not prescribe that the National Chairman and the National Secretary must sign the letter and the prescribed form.’    

It is also the writer’s stand that it would have been disastrous to the petition if Mai Mala Buni, Governor of Yobe State had been joined because the issue of whether or not the provision of section 183 of the Constitution has been breached by Mai Mala Buni for co-signing as National Caretaker Chairman of APC a letter used for submission of name of Oluwarotimi Odunayo Akeredolu to INEC as candidate for Ondo State gubernatorial election held on 10^th October, 2020 is not maintainable in an election tribunal. Fortifying the writer’s stand is the indisputable fact that the complaint against Mai Mala Buni has nothing to do with the conduct of the election which election tribunal empowered to entertain under section 133 of the Electoral Act. The provision of section 133 (1) of the Electoral Act 2010 reads thusly:

‘No election and return at an election under this Act shall be questioned in any manner other than by a petition complaining of an undue election or undue return (in this Act referred to as an ‘’election petition’’) presented to the competent tribunal or court in accordance with the provisions of the Constitution or of this Act, and in which the person elected or returned is joined as a party.’   

Flowing from the above quoted provision is the writer’s stand that an election petition which the petitioner has right to file before tribunal for determination must contain the complaints on undue election or undue return and not the complaint that a letter for submission of the names of winners of party’s primaries at the congress to INEC was co-signed by one of the serving governor of a State in Nigeria as National Caretaker Chairman of a political party under the ground provided for under section 138 (1) (a) of the Constitution.

It is the writer’s stand that for an election to be questioned under section 138 (1) (a) of the Constitution on the ground that a person whose election is questioned was, at the time of the election, not qualified to contest the election, the complaint must be one of the grounds provided for under section 182(1) of the Constitution for disqualification of any person for gubernatorial election in any State of Nigeria.

It is also the writer’s stand that if the court had disqualified Oluwarotimi Odunayo Akeredolu as candidate for Ondo State gubernatorial election held on 10^th October, 2020 on the basis of co-signing of a letter for submission of his name to INEC as candidate of APC by Mai Mala Buni, Governor of Yobe State, as National Caretaker Chairman, the signing of a letter for submission of name of candidate for gubernatorial election by a person who is proscribed by law to take another job would have been made an enlargement of the grounds provided for under section 182 (1) of the Constitution to incorporate section 183 of the Constitution.

It is also worth saying that there is nowhere even in the dissenting judgment where the court disqualifies Oluwarotimi Odunayo Akeredolu SAN and his deputy on the basis of the provision of section 183 of the Constitution which many people wrongly hold on to as the ground other than the grounds provided for under section 183 of the Constitution for disqualifying a person for an election into office of Governor of a State.

It is to be noted that even the dissenting judgment does not say anything on disqualification of Oluwarotimi Odunayo Akeredolu SAN and his deputy on the basis of section 183 of the Constitution but their pronouncement is on non-presentation of Oluwarotimi Odunayo Akeredolu SAN and his deputy by All Progressives Congress to the INEC. For easy reference, the relevant dissenting judgment reads thusly:

‘The 2^nd Respondent (APC) cannot be heard, in all honestly and good conscience that they never presented the 3^rd & 4^th Respondents (Oluwarotimi Odunayo Akeredolu SAN and his deputy) to INEC (1^st Respondent) as their sponsored candidates through Exhibit P 21 (letter of conveying submission of candidates dated 27/7/2020) and that it is not their instrument done in compliance with Exhibit P24 (the First Supplementary to Regulations and Guidelines for the Conduct of Elections)’

It is important to say that one seems to conclude that the dissenting judgment that a defective sponsorship denies the qualification to contest an election enlarges the scope of the circumstances listed or provided for under section 182 (1) of the Constitution but the fact that the dissenting judgment is not a binding judgment makes the writer to put a halt to such conclusion.

It is also worth noting that the First Supplementary to Regulations and Guidelines for the Conduct of Elections (Exhibit P24) which the dissenting judgment anchored their decisions on is a piece of subsidiary legislation made pursuant to section 153 of the Electoral Act which provides thus:

‘The INEC may subject to the provisions of this Act, issue regulations, guidelines, or manuals for the purpose of giving effect to the provisions of this Act and for its administration therefor’

Finally, it is convenient to conclude this piece by saying that the grounds for disqualification of a person for an election into the office of Governor of a State provided for under section 182(1) of the Constitution have not been enlarged by the Supreme Court Judgment in SC/CV/448/2021 between Mr. Eyitayo Olayinka Jegede & 1 other and INEC & 3 others nor has the court punished Oluwarotimi Odunayo Akeredolu SAN for the alleged breach of provision of section 183 of the Constitution levied against Mai Mala Buni, Governor of Yobe State.

It is worthy to finally note that the First Supplementary to Regulations and Guidelines for the Conduct of Elections is a piece of subsidiary legislation which cannot expand the provisions of its enabling statute, unless expressly authorized to do so by the enabling statute. And, no piece of subsidiary legislation can expand the provisions of the Constitution, which is the Basic Law of the land.

S.O. GIWA ESQ. a.k.a pentalk (Ibadan based Legal Practitioner), giwa_pentalk@yahoo.com 08035224192