By Kenneth Ikonne
For Ondo State Governor, Rotimi Akeredolu, it was a close shave: by a split decision (4 – 3), the Supreme Court today (Wednesday) affirmed his re-election as Governor of Ondo State, and dismissed the petition of his PDP challenger Eyitayo Jegede.
In my humble view, the majority opinion is the correct position – his challenger not having successfully shown, as section 138(1) of the Electoral Act demands, that Akeredolu’s election was invalid by reason of corrupt practices or non compliance with the provisions of the Act – or that Akeredolu was not duly elected by a majority of the lawful votes cast at the election!
The three dissenting justices hinged their minority opinion on the premise that Governor Mai Mala Buni of Yobe State, who forwarded Akeredolu’s name to INEC as a candidate for the election, in his capacity as the National Chairman of the APC Caretaker Committee, was forbidden by section 183(1) of the constitution of the Federal Republic of Nigeria, 1999, as amended, from combining his job as governor with any other job; his chairmanship of the APC Caretaker Committee was, according to the argument, thus illegal, and all actions taken by him in that capacity, including the forwarding of Akeredolu’s name to the electoral body, therefore a nullity!
It is a profoundly interesting and novel argument, and one which is bound to have potentially far reaching consequences in the ensuing intra – party struggle for the soul of the APC itself! But within the context of an inter – party election petition litigation, it was an argument anchored on quicksand!
For, section 183 of the constitution does not prescribe any penal consequences for its contravention, the only possible consequence being impeachment by the defaulting party, in this case, Governor Buni. By virtue of s.308 of the constitution, the governor is not amenable to civil or criminal processes in his personal capacity, and his joinder to the petition would therefore have been incompetent.
To have visited the consequences of Governor Buni’s apparent contravention of section 183 of the constitution on Akeredolu’s election, in the absence of the prescription of any specific penal sanctions in the section itself, would have been most monstrous!
In FELIX OLUSEGUN OROGUN V FIDELITY BANK PLC, (2018) LPELR 46601 (CA), the Court of Appeal, per Ikyegh, JCA(Pp 46 -47), made it clear that where an enactment does not provide any penalty for its breach, an act carried out in breach of the statute, especially where third party rights are affected, should not be declared illegal by the court.
Besides, how could the fact of the signing of the respondent’s nomination form constitute a disqualifying criterion under s. 182 (1) of the constitution where the particulars of non qualification are clearly spelt out. The dissenting jurists, with the greatest respect, were merely reading into the section what it does not contain.
The majority decision is also correct in another fundamental respect. There was no way, in the first place, that a court of law would have entertained such grave allegations against Governor Buni when he was not joined as a party to the petition, and as a matter of fact, could not have been joined, by virtue of the immunity bestowed on him as governor by section 308 of the constitution. To have done so would have amounted to an egregious contravention of the fair hearing provision enshrined in section 36 of the Constitution, commanding that in the determination of a person’s civil rights and obligations, the person must be afforded a hearing!
The only judicious discretion in the circumstance therefore was to discountenance the allegation in its entirety.
That the APC itself was joined as a party in the election petition is of no moment. That specific allegation of constitutional incapacity to sign and forward the nomination documents to INEC was directed at Governor Buni, not the APC; the law of agency does not apply in election petitions, being sui generis.
° Ikonne is a Senior Advocate of Nigeria