Nigerian By Birth’s Dual Citizenship: Effect On Qualification For Election

At the conclusion of the trial, the Tribunal dismissed the petition for the Appellant’s failure to prove the facts of the disqualification of the 2nd and 3rd Respondent to contest the election. The Appellant’s appeal to the Court of Appeal was dismissed, and the Tribunal’s decision was affirmed. Aggrieved, the Appellant appealed to the Supreme Court.

Issues for Determination 

In resolving the appeal, the Supreme Court reformulated the sole issue raised for determination by the Appellant as follows:

Whether the Court of Appeal was right to affirm the decision of the Tribunal that the Appellant did not prove the sole ground of the petition on the disqualification of the 2nd and 3rd Respondent under the provisions of Section 182(1)(a) and 187(1) and (2) of the Constitution.

Arguments

Counsel for the Appellant argued that, the evidence adduced by the Appellant before the Tribunal as well as the evidence elicited under cross-examination of the Respondents’ witnesses, established that the 3rd Respondent had voluntarily acquired the citizenship of the USA and had declared allegiance to that country and that the declaration disqualified him and the 2nd Respondent from contesting the election.  He submitted that the Court of Appeal was wrong to have upheld the finding of the Tribunal, that since the 3rd Respondent is a citizen of Nigeria by birth, his subscription to an oath or declaration of allegiance to the USA cannot and does not strip him of his citizenship by birth.

Counsel contended that so long as it had been established that the 3rd Respondent had voluntarily acquired the citizenship of USA and declared allegiance to USA, evidence of his renunciation of his Nigerian citizenship was not required for the success of the Appellant’s petition. He maintained that although Section 177(a) of the 1999 Constitution specifically mentions being a citizen of Nigeria by birth as a condition to qualify to contest, the disqualifying disabilities set out in Section 182(1)(a) relate to those who are citizens by birth and have acquired the citizenship of another country, or have made a declaration of allegiance to another country as in the case of the 3rd Respondent. He submitted that citizenship by birth is therefore, not an immunity to the disqualifying disabilities listed under Section 182(1)(a).

In response, counsel for the 1st Respondent submitted that a community reading of Section 182(1)(a) and 187(1)&(2) of the 1999 Constitution shows that the 3rd Respondent’s purported adoption of the citizenship of the USA does not disqualify him and the 2nd Respondent from contesting the election. He contended that such adoption does not constitute a ground for losing Nigerian citizenship by birth for the purpose of Section 177 of the Constitution.

Also responding to the Appellant’s arguments, Counsel for the 2nd and 3rd Respondent argued that the evidence adduced by the Appellant did not prove the disqualification alleged, since he did not produce credible evidence that the 3rd Respondent had voluntarily renounced his citizenship of Nigeria by birth pursuant to Section 29 of the Constitution.

Counsel for the 4th Respondent argued similarly that the Appellant who sought declaratory reliefs, had the burden to prove the allegation of the disqualification of the 2nd and 3rd Respondent, but failed to discharge the burden.

Court’s Judgement and Rationale

In reaching a resolution of the issue, the Apex Court considered it necessary to interpret the provisions of Sections 177(a); 182(1)(a) and Section 28 of the 1999 Constitution (as amended), on the qualification and disqualification of a person to contest election for the office of a Governor of a State in Nigeria.

The Court held that the use of the word “shall” in the provision in Section 177(a) of the Constitution that a person shall be qualified for election to the office of the Governor if he is a citizen by birth indicates that, automatically, once a person is a citizen of Nigeria by birth and has satisfied the requirements in the following paragraphs (b ) and (c) of the Section as to attainment of the age of thirty-five years old; being a member of and sponsored by a political party; has been educated up to at least school certificate level or its equivalent at the time of the election, such person is completely and totally eligible and qualified to contest the election. 

The Court went further to consider the import of Section 182(1)(a) of the Constitution which provides that subject to the provisions of Section 28 of the same Constitution, no person shall be qualified for election to the office of the Governor of a State, if he has voluntarily acquired the citizenship of a country other than Nigeria or has made a declaration of allegiance to such other country.

The Court held that by a clear reading of Section 182(1)(a), it is evident that the provision is made subject to Section 28 of the Constitution which provides that a person shall forfeit his Nigerian citizenship if, not being a citizen by birth, he acquires or retains the citizenship or nationality of a country, other than Nigeria, of which he is not a citizen by birth.

The Court held that by the rules of construction, where the provision in a section in statute is made subject to another provision, the subordinated section is only applicable as may be allowed, permitted or accommodated within the provisions of the section to which it is made subject to, and such subordinated section does not apply independently of the provisions which it is made subject to. The Court referred to its decision in FRN v OSAHON (2006) LPELR – 3174 (SC).

On this premise, the Court held that for the purpose of the application of Section 182(1)(a), Section 28 is the principal provision in the context of which it is to be interpreted and applied; and the provisions of the said Section 28 clearly deals with a person who is not a citizen of Nigeria by birth as provided in subsection (1)such as citizens by registration or naturalisation. The provisions of Section 182(1)(a) is thus, only applicable to such Nigerians who are citizens other than by birth. 

The Apex Court found that a person who is a citizen of Nigeria by birth is undoubtedly not within the purview, contemplation or context of the provision of Section 28 of the Constitution which controls, regulates and governs the application of the provisions of Section 182(1)(a) which are made subject to it. A citizen of Nigeria by birth as defined and provided in 25(1) of the Constitution automatically acquires his citizenship as a birth right, and needs no registration or naturalisation for that status to be acquired by him or to be conferred on him. 

The Court held that there is no provision in the Constitution which strips, takes away or removes the citizenship by birth from a Nigerian on the ground of acquisition of the citizenship of another country other than Nigeria, and dual citizenship of a Nigerian by birth and of another country by registration or naturalisation, is not renunciation of Nigerian citizenship by a person as prescribed and provided for in Section 29 of the Constitution, as to constitute a factor disqualifying the person from contesting for the office of Governor of a State under Section 182(1)(a).

The Court held further than even where an argument can be made that a Nigerian citizen by birth has renounced his Nigerian citizenship, there must be credible evidence to prove the valid renunciation in the manner prescribed under Section 29 which is a renunciation registered by the President of the Federal Republic of Nigeria. Mere subscription to the oath of allegiance of another country alone without more, does not constitute a renunciation of the Nigerian citizenship by birth without compliance with the procedure in Section 29. 

The Court held that apart from the bare assertion of renunciation of the 3rd Respondent’s citizenship by birth, the Appellant didn’t attempt to adduce any credible evidence which meets the requirements of Section 29 in order to discharge the burden of proof placed on him. It follows therefore, that the 3rd Respondent being a Nigerian citizen by birth, his acquisition of the citizenship of USA and/or declaration of allegiance to that country cannot strip or rob him of his right to contest election into any office in Nigeria. It is thus, incontestable that the 2nd Respondent complied with the provision of Section 187(1) of the Constitution which requires him to nominate a Deputy Governorship candidate for his own nomination to be valid, by nominating the 3rd Respondent who has been demonstrated not to be affected by the disqualifying disabilities in Section 182(1)(a).

Appeal Dismissed.

Representation

Professor A. Amuda-Kannike, SAN with D. D. Fiderikumo and A. O. Yusuf for the Appellant.

1. O. Balogun for the 1st Respondent.
2. Afilola . and O. O. Agbaje for the 2nd Respondent.
3. Mohammed for the 3rd Respondent.

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR)(An affiliate of Babalakin & Co.)