Facts have emerged on why the Supreme Court with a split decision of four-to-three on Wednesday endorsed the victory of Oluwarotimi Akeredolu of the All Progressives Congress (APC) in the last governorship election in Ondo State.
Four Justices, out of a seven-member panel, resolved on technicality that the petition filed against Akeredolu’s victory was incompetent, because the Chairman of the National Caretaker Committee of the All Progressives Congress (APC), Governor Mai Mala Buni of Yobe State was not joined as a party.
Justice Emmanuel Agim read the lead majority judgment, which was supported by Justices John Okoro, Lawal Garba and Tijani Abubakar.
The other three Justices, Mary Peter-Odili, Ejembi Eko and Mohammed Saulawa held otherwise in their dissenting minority judgment.
The judgment was on the appeal marked: SC/448/21; including the cross-appeals marked: SC/501/21; SC/508/21 and SC/509/21.
The candidate of the Peoples Democratic Party (PDP) in the election, Eyitayo Jegede and his party had challenged the competence of Akeredolu’s nomination/sponsorship for the election by the APC, claiming that the letter conveying his nomination/sponsorship to the Independent National Electoral Commission (INEC) was incompetent, having been signed by Buni and others.
They contended that by the provision of Section 183 of the Constitution and Article 17 (4) of the APC constitution, Buni acted unlawfully by being the Yobe Governor and serving as APC’s Chairman at the same time, and as such, the nomination/sponsorship letter he signed for the APC, notifying INEC of the candidacy of Akeredolu and Lucky Aiydatiwa (as governorship and deputy governorship candidates) was void.
In his lead majority judgment, Justice Agim held that, since Jegede and the PDP made Buni the centre of their allegation of constitutional breaches, he ought to have been made a party in the case to enable him to defend himself in line with the doctrine of fair hearing.
He proceeded to uphold an earlier judgment of the Court of Appeal, to the effect that the petition filed by Jegede and his party to the election tribunal was incompetent because they failed to include Buni as a party.
Agim said: “The appeal was based on the ground that Mai Mala Buni, the Chairman of the National Caretaker Committee of the party, that is, the second respondent (APC) was holding office as the Governor of Yobe State, contrary to the provision of Section 183 of the Constitution of the Federal Republic of Nigeria (1999).
“All the issues raised, revolved around Mala Buni. But, Mala Buni, who is at the centre of the dispute was not made party to the petition. It is obvious that the determination of the said issues will affect him.
“Therefore, the court below was right to have held that he was a necessary party to this suit. Failure to join him renders the determination of the matter impossible. To proceed to do so would have violated the fair trial of the case.
“Therefore, we affirm the lower court that the petitioner was incompetent.
“There is no dispute that the third and fourth respondents (Akeredolu and Aiyedatiwa) were nominated by the second respondent (APC) as its candidates for the election; that the second respondent submitted their names to the first respondent (INEC) as its candidates, in accordance with Section 31(1) of the Electoral Act.
“They were therefore sponsored by the second in accordance with Section 177(c) of the Constitution (1999). It is not in dispute that Mai Mala Buni is acting as the National Chairman of the second respondent,” he said.
Justice Agim held that the decision to allow Buni act as its National Committee Chairman (in the interim) was made by the APC, despite the provision of Article 1z(4 of its constitution, thereby making the decision internal to the party.
He added: “The second respondent (APC) allowed him (Buni) to be its Chairman in the interim in spite of Article 17 of its constitution.
The vires of this decision of the party is non-justiciable. This appeal fails and it is hereby dismissed,” he said.
He, however, rejected the cross-appeals by INEC, APC, Akeredolu and Aiyedatiwa and faulted their claims that the issue of sponsorship/qualification was a pre-election matter that could only be raised before the election.
Justice Agim said by the virtue of the provision of Section 138(1) (a) of the Electoral Act, the issue of qualification could be raised either before or after the election.
He proceeded to dismiss the cross-appeals which Justices Okoro, Garba and Tijani agreed with him.
In the lead minority judgment, Justice Peter-Odili upheld the appeal and dismiss the cross-appeals by INEC), APC, Akeredolu and Aiyedatiwa.
Justice Odili was of the view that since the APC, for which Buni acted, was a party in the case, there was no need to include him as a party.
She added that having allowed Buni to act on its behalf in signing the nomination/sponsorship letter of its candidates in Ondo despite the clear provisions of section 183 of the 1999 Constitution and Article 17(4) of the APC constitution, the party should live by the consequences of its lawlessness.
“I do not agree with the majority judgment,” she said, noting that the APC, by Article 17(4) of its constitution has provided for how its affairs should be managed and what offices its members should occupy at a time.
“This Article draws strength from Section 183 of the 1999 Constitution. Therefore when the second respondent (APC) put up a person not qualified to author its nomination by virtue of the provision of Article 1z(4) of its constitution and Section 183 of the 1999 Constitution to do so, that document has no validity, and thereby void,” she said.
She noted that the implication was that the nomination and candidacy of Akeredolu and his deputy was a nullity.
She held that the person, who ought to be declared winner of the election ” is the first appellant (Jegede), who has the majority of valid votes.”
Justice Peter-Odili held that it was unlawful and a violation of Article 17(4) of the APC constitution and Section 183 of the 1999 Constitution for Buni to be serving as the National Chairman of the APC and the Governor of Yobe State at the same time.
Justices Ejembi Eko and Mohammed Saulawa agreed with Justice Peter-Odili in upholding the appeal and dismissing the cross-appeals by INEC, APC, Akeredolu and Aiyedatiwa.
