1.EYITAYO OLAYINKA JEGEDE
2.PEOPLES DEMOCRATIC PARTY (PDP)
1.INDEPENDENT NATIONALELECTORAL COMMISSION (INEC)
2.ALL PROGRESSIVES CONGRESS (APC)
4.HON. ORIMISAN AIYEDATIWA
SUPREME COURT OF NIGERIA
MARY UKAEGO PETER-ODILI, J.S.C. (Presided and Dissented)
JOHN INYANG OKORO, J.S.C.
EJEMBI EKO, J.S.C.
MOHAMMAD LAWAL GARBA, J.S.C.
IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.
TIJJANI ABUBAKAR, J.S.C.
EMMANUEL AKOMAYE AGIM, J.S.C. (Read the Leading Judgment)
WEDNESDAY, 28TH JULY 2021
ACTION – Case of a party – Need for a party to be consistent in thecase he presents – Rationale.
ACTION – Internal affairs of political parties – Whether courts caninterfere.
ACTION – Joinder of parties – Principles governing – Chairman ofpolitical party – Whether a necessary party to join in electionpetition.
A CTION – Locus standi – Qualification of candidate – Issue of -Locus standi of another candidate to raise – Whether pre-election matter.
ACTION – Parties to election petition – Chairman of a politicalparty – Whether a necessary party.
ACTION – Parties to election petition – Necessary party – Whoqualifies as.
ACTION – Party to an action – Mandatory party – Who is – Need tojoin to an action.
ACTION – Party to an action – Necessary party – Who is – Whenmust be joined to an action – Relevant considerations.
ADMINISTRATIVE LAW – Occupier of an office in acting capacity- Acts done by – Effect of -How treated – Section 11 (2),Interpretation Act.
AGENCY – Principal – Disclosed principal – Liability of for acts ofan agent.
AGENCY – Vicariuos liability – Acts of agent – Vicarious liability ofprincipal therefor.
APPEAL – Finding of lower court not appealed against – Effect of- How treated.
CONSTITUTIONAL LAW – “Executive office” in section 183 of1999 Constitution – Meaning and connotation of.
CONSTITUTIONAL LAW – “Whatsoever” in section 183 of 1999Constitution – Meaning and connotation of.
CONSTITUTIONAL LAW – Constitution – Breach of – Gravity of -Rationale.
CONSTITUTIONAL LAW – Constitution – Breach of by a Governor -Gravity of – Consequence of – Section 188 of 1999 Constitution.
CONSTITUTIONAL LAW – Constitution – Duty on court tocourageously give effect to and enforce.
CONSTITUTIONAL LAW – Governor of State – Holder of -Prohibition of from holding any executive office or paidemployment – Section 183, Constitution of the FederalRepublic of Nigeria, 1999 (as amended).
CONSTITUTIONAL LAW – Right to fair hearing – Section 36 of1999 Constitution – Essence and application of – Attributes of- Duty on courts to adhere to – Whether can be waived.
CONSTITUTIONAL LAW – Section 183 of 1999 Constitution -Purport and effect of – Rationale for.
CONSTITUTIONAL LAW – Words used in the Constitution – Needto give literal and ordinary meaning.
CONSTITUTIONAL LAW – Governor of a State – Qualificationof – Section 177 of 1999 Constitution – Disqualification of- Section 182 of 1999 Constitution – Distinction between -Relevance of distinction.
CONTRACT – Agency – Disclosed principal – Liability of for actsof an agent.
COURT – Case of parties – Case presented by parties – Duty oncourt not to depart from.
COURT – Findings and conclusions of court – Need for to beconsistent with.
COURT – Foreign authorities – Whether binding on Nigerian courts.
COURT – Jurisdiction – Political parties – Internal affairs of -Whether courts can interfere.
COURT – Jurisdiction of court – Primary issue before the court -Where court does not have jurisdiction to entertain – Duty oncourt to decline jurisdiction.
ELECTION – Candidate for election – Names of – Duty on politicalparties to submit to INEC – How complied with – Section 31(1),Electoral Act, 2010 (as amended).
ELECTION – Candidate for election – Need to be validly sponsoredby a political party – Sections 138 and 177 of 1999Constitution.
ELECTION – Candidate for election – Sponsorship of – Petitionerwho admits respondent was duly sponsored at an election bya political party – Implication of – Whether can turn round tochallenge the validity of the sponsorship of the respondent.
ELECTION – Candidate for election – Sponsorship of by politicalparty – What constitutes.
ELECTION – Constitution of political party – Bindingness of on theparty and its members.
ELECTION – Governor of a State – Office of – Person not qualifiedto hold under the Constitution – Whether can be disqualifiedunder any other law.
ELECTION – INEC regulations – Whether can override the
provisions of the Electoral Act, 2010 (as amended) – Sections138 and 153, Electoral Act, 2010 (as amended).
ELECTION – Laws and regulations – Bindingness of on politicalparties.
ELECTION – Qualification for election – Section 177(c), 1999Constitution – Disqualification for election – Section 285 (1),1999 Constitution – Distinction between – Relevance ofdistinction.
ELECTION PETITION – Candidate for election – Need to be validlysponsored by a political party – Sections 138 and 177of 1999 Constitution.
ELECTION PETITION – Candidate for election – Sponsorship of- Petitioner who admits respondent was duly sponsored at anelection by a political party – Implication of – Whether canturn round to challenge the validity of the sponsorship of therespondent.
ELECTION PETITION – Election tribunal – Jurisdiction of -Qualification of candidate – Breach of the Constitution orElectoral Act touching on question of -Jurisdiction of electiontribunal to entertain.
ELECTION PETITION – Governor of a State – Office of – Personnot qualified to hold under the Constitution – Whether can bedisqualified under any other law.
ELECTION PETITION – Governorship Election Tribunal -Jurisdiction of – Extent and scope of – Section 285(2),Constitution of the Federal Republic of Nigeria, 1999 (asamended).
ELECTION PETITION – INEC regulations – Whether can override
the provisions of the Electoral Act, 2010 (as amended) -Sections 138 and 153, Electoral Act, 2010 (as amended).
ELECTION PETITION – Parties to election petition – Chairman ofa political party – Whether a necessary party.
ELECTION PETITION – Parties to election petition – Joinder ofparties – Principles governing – Chairman of political party -Whether a necessary party to join in election petition.
ELECTION PETITION – Parties to election petition – Necessaryparty – Who qualifies as.
ELECTION PETITION – Qualification of candidate – Issue of- Locus standi of another candidate to raise – Whether pre-election matter.
FAIR HEARING – Right to fair hearing – Section 36 of 1999Constitution – Essence and application of – Attributes of – Dutyon courts to adhere to – Whether can be waived.
INTERPRETATION OF STATUTES – Clear and unambiguouswords of a statute – Interpretation of – Principles governing.
INTERPRETATION OF STATUTES – Constitution – Duty on courtto courageously give effect to and enforce.
INTERPRETATION OF STATUTES – Constitutional provision -Breach of – Gravity of – Rationale.
INTERPRETATION OF STATUTES – “Executive office” in section183 of 1999 Constitution – Meaning and connotation of.
INTERPRETATION OF STATUTES – Expressio unius exclusio
alterus – What is specifically excluded by a statute – Rule of -Application of.
INTERPRETATION OF STATUTES – Foreign statutes -Interpretation of – Whether can be used to interpret Nigerianstatute.
INTERPRETATION OF STATUTES – INEC regulations – Whethercan override the provisions of the Electoral Act, 2010 (asamended) – Sections 138 and 153, Electoral Act, 2010 (asamended).
INTERPRETATION OF STATUTES – Occupier of an office in actingcapacity – Acts done by – Effect of – How treated – Section 11(2), Interpretation Act.
INTERPRETATION OF STATUTES – Principles governinginterpretation of statutes.
INTERPRETATION OF STATUTES – Section 183 of 1999Constitution – Purport and effect of – Rationale for.
INTERPRETATION OF STATUTES – “Whatsoever” in section 183of 1999 Constitution – Meaning and connotation of.
INTERPRETATION OF STATUTES – Words of a statute – Whethercourt can import into or export out of.
INTERPRETATION OF STATUTES – Words used in the Constitution- Need to give literal and ordinary meaning.
JUDGMENT AND ORDER – Findings and conclusions of court -Need for court to be consistent with.
JUDICIAL PRECEDENT – Foreign authorities – Whether binding
on Nigerian courts.
JURISDICTION – Election tribunal -Jurisdiction of – Qualificationof candidate – Breach of the Constitution or Electoral Acttouching on question of – Jurisdiction of election tribunal toentertain.
JURISDICTION – Political parties – Internal affairs of -Whethercourts can interfere.
JURISDICTION – Primary issue before the court – Where courtdoes not have jurisdiction to entertain – Duty on court todecline jurisdiction.
LOCUS STANDI – Locus standi – Qualification of candidate – Issueof – Locus standi of another candidate to raise – Whether pre-election matter.
NOTABLE PRONOUNCEMENT – On Whether desirable for agovernor to be running a political party and abandon hisconstitutional responsibility.
POLITICAL PARTIES – Laws and regulations – Bindingness of onpolitical parties.
POLITICAL PARTY – Candidate for election – Names of – Dutyon political parties to submit to INEC – How complied with -Electoral Act, 2010 (as amended).
POLITICAL PARTY – Candidate for election – Need to be validlysponsored by a political party – Sections 138 and 177of 1999 Constitution.
POLITICAL PARTY – Candidate for election – Sponsorship of bypolitical party – What constitutes.
POLITICAL PARTY – Constitution of political party – Bindingness
of on the party and its members.
POLITICAL PARTY – Internal affairs of political parties – Whethercourts can interfere.
PRACTICE AND PROCEDURE – Appeal – Finding of lower courtnot appealed against – Effect of – How treated.
PRACTICE AND PROCEDURE – Case of a party – Need for a partyto be consistent in the case he presents – Rationale.
PRACTICE AND PROCEDURE – Case of parties – Casepresented by parties – Duty on court not to depart from.
PRACTICE AND PROCEDURE – Findings and conclusions ofcourt – Need for court to be consistent with.
PRACTICE AND PROCEDURE – Joinder of parties – Principlesgoverning – Chairman of political party – Whether a necessaryparty to join in election petition.
PRACTICE AND PROCEDURE – Locus standi – Qualification ofcandidate – Issue of – Locus standi of another candidate toraise – Whether pre-election matter.
PRACTICE AND PROCEDURE – Parties to election petition -Necessary party – Who qualifies as.
PRACTICE AND PROCEDURE – Parties to election petition -Chairman of a political party – Whether a necessary party.
PRACTICE AND PROCEDURE – Party to an action – Mandatoryparty – Who is – Need to join to an action.
PRACTICE AND PROCEDURE – Party to an action – Necessary
party – Who is – When must be joined to an action – Relevantconsiderations.
PRINCIPLES OF INTERPRETATION – Interpretation of statute -Clear and unambiguous words of a statute – Interpretation of- Principles governing.
STATUTE – Constitution – Duty on court to courageously give effectto and enforce.
STATUTE – “Executive office” in section 183 of 1999 Constitution- Meaning and connotation of.
STATUTE – Interpretation of statute – Foreign statutes – Interpretationof – Whether can be used to interpret Nigerian statute.
STATUTE – Section 183 of 1999 Constitution – Purport and effectof – Rationale for.
STATUTE – “Whatsoever” in section 183 of 1999 Constitution -Meaning and connotation of.
STATUTE – Words of a statute – Whether court can import into orexport out of.
TORT – Vicariuos liability – Acts of agent – Vicariuos liability ofprincipal therefor.
WORDS AND PHRASES – “Any capacity whatsoever” – Meaningof.
WORDS AND PHRASES – “Executive office” in section 183 of1999 Constitution – Meaning and connotation of.
WORDS AND PHRASES – Necessary party – Who is.
WORDS AND PHRASES – Mandatory party – Who is.
WORDS AND PHRASES – “Whatsoever” in section 138 of 1999Constitution – Meaning and connotation of.
Whether, in the circumstance of the appellants’petition, the Court of Appeal was not wrong when itheld that a violation of section 183 of the Constitutionof the Federal Republic of Nigeria 1999 (as amended)only affects a Governor and does not affect the rightsof any other party.
Whether the Court of Appeal was not wrong when,while considering section 183 of the Constitution ofthe Federal Republic of Nigeria 1999 (as amended),it held that in order for a position to be considered anoffice within the contemplation of the law, the officemust have duties that are continuing in nature, ratherthan temporary or intermittent.
Whether the Court of Appeal was not wrong in holdingthat the only means of ascertaining or challengingviolation of Section 183 of the Constitution of theFederal Republic of Nigeria 1999 (as amended) isthrough a civil action in a regular Court of law.
Whether, having regard to the facts of the petition, theCourt of Appeal was not wrong when it held that HisExcellency Mai Mala Buni, Governor of Yobe Statewho signed the 2nd respondent’s purported letter ofsponsorship of 3rd and 4th respondents as Chairman of2nd respondent’s Caretaker Committee, was a necessaryparty.
Whether the Court of Appeal was not wrong in holdingthat the appellants’ case was rightly dismissed for thereason that the appellants failed to prove any of thedisqualifying factors enumerated in section 182 of theConstitution of the Federal Republic of Nigeria 1999
6.Whether, after having held that subject matter of thepetition was within the jurisdiction of the tribunal andthat the appellants had the locus standi to present thepetition, the Court of Appeal was not wrong in notsustaining the petition but rather, dismissed the appeal.
The general election for the governorship position of OndoState held on 10-10-2020. The 1st appellant contested the election ascandidate of the 2nd appellant for the office of the Governor, whilethe 3rd respondent contested as candidate of the 2nd respondent.
The 3rd respondent scored the majority of the lawful votescast at the election and was declared and returned as winner of theelection by the 1st respondent.
The appellants herein did not agree with the result of the electiondeclared by the 1st respondent. Consequently, they filed an electionpetition at the Ondo State Governorship Election Tribunal on thegrounds that:
“i. The 2nd, 3rd and 4th respondents were not duly electedby majority of the lawful votes cast at the election.
ii. The 3rd and 4th respondents were at the time of theelection, not qualified to contest the Ondo StateGovernorship election held on 10th October, 2020.
iii. The election of the 2nd, 3rd and 4th respondents is invalidby reason of corrupt practices.
iv. The election of the 2nd, 3rd and 4th respondents is invalidby reason of non-compliance with the provisions ofthe Electoral Act 2010 (as amended).”
At the trial, the appellants, withdrew grounds i, iii and iv oftheir petition and did not elicit any evidence in proof of them.
They prosecuted the petition on ground ii only that thesponsorship of the 3rd and 4th respondents by the 2nd respondent asits candidates for the said election was invalid, because the letter(exhibit P21) written by the 2nd respondent submitting the names ofthe 3rd and 4th respondents to the 1st respondent as its candidates for
the election was signed by persons who were not national officersof the 2nd respondent; and that one of the signatories, Mai MalaBuni, who signed as its acting National Chairman, was also theGovernor of Yobe State.
That was the sole substantive issue tried by the tribunal. It alsotried and determined the preliminary issues of whether it had thejurisdiction to entertain and determine the issue of how the 3rd and4th respondents’ names were submitted by the 2nd respondent to the1st respondent as its candidates for the election.
The election tribunal upheld the objection to its jurisdictionon the grounds that submission of names of sponsored candidatesbeing a pre-election event is not within the jurisdiction of an electiontribunal, that the issue of whether Governor Mai Mala Buni did notviolate section 183 of the 1999 Constitution could not be tried sincehe was not joined as a party to the petition, and that the appellantshad no locus standi to raise that question.
After holding that it had no jurisdiction to try the sole groundof the petition, however, it struck out the petition, and thenproceeded to determine the merit of the sole substantive issue, anddismissed the petition as lacking merit.
Dissatisfied with the judgment of the election tribunal, theappellants appealed to the Court of Appeal.
The Court of Appeal held that the tribunal erred in its holdingthat it had no jurisdiction to entertain and determine the issue ofsponsorship of the 3rd and 4th respondents as candidates of the 2ndrespondent for the election, and that the appellants had the locusstandi to challenge the qualification of the 3rd and 4th respondentsas candidates for the election due to invalid sponsorship by the 2ndrespondent.
The Court of Appeal, however, held that the contention thatthe 2nd respondent’s sponsorship of the 3rd and 4th respondentsas its candidates for the election was invalid because the nationalchairman of its Caretaker/Extraordinary Convention Committee,Governor Mai Mala Buni, was also holding office as Governor ofYobe State, could not be determined without joining Governor MaiMala Buni as a party to the petition. It then dismissed the appeal for
lack of merit.
Dissatisfied with the judgment of the Court of Appeal, theappellants appealed to the Supreme Court. The 1st, 3rd and 4threspondents on their part cross-appealed against some aspects ofthe judgment of the Court of Appeal that they were not satisfiedwith.
In resolving the appeal, the Supreme Court considered theprovisions of sections 177(c), 183, and 285(2) of the Constitutionof the Federal Republic of Nigeria, 1999 (as amended), sections31(1) and 138(1) of the Electoral Act, 2010 (as amended), andsection 11(2) of the Interpretation Act. They provide as follows:
Sections 177(c), 183, and 285(2) of the Constitution of theFederal Republic of Nigeria, 1999 (as amended) state:
“183. The Governor shall not, during his tenure of officehold any other executive office or paid employment inany capacity whatsoever.”
“177(c) A person shall be qualified for election to the office ofGovernor of a State if – he is a member of a politicalparty and is sponsored by that political party.”
“285(2) There shall be established in each State of theFederation one or more election tribunals to be knownas the Governorship Election Tribunals which shall,to the exclusion of any court or tribunal, have originaljurisdiction to hear and determine petitions as towhether any person has been validly elected to theoffice of Governor or Deputy Governor of a State.”
Sections 31(1) and 138(1)(a) of the Electoral Act, 2010 (asamended) provide:
“31(1) Every political party shall not later than 60 days beforethe date appointed for a general election under theprovisions of this Act, submit to the Commission inthe prescribed forms, the list of the candidates the partyproposes to sponsor at the elections, provided that thecommission shall not reject or disqualify candidatesfor any reason whatsoever.”
“138(1) An election may be questioned on any of thefollowing grounds, that is to say –
that the person whose election is questionedwas, at the time of the election, not qualified to(a)contest the election.”
Section 11(2) of the Interpretation Act, Cap. I23, Laws of theFederation of Nigeria, 2004 states:
“A reference in an enactment to the holder of an officeshall be construed as including a reference to a personfor the time being appointed to act in his place eitheras respects the functions of the office generally or thefunctions in regard to which he is appointed, as thecase may be”.
Held (Dismissing the appeal by majority decision of 4 to 3, Peter-Odili, Eko, and Saulawa, JJ.S.C. dissenting:
1.On Effect of finding of lower court not appealedagainst –
A decision not appealed against is correct,conclusive and binding on the parties. In thiscase, there was no ground of appeal or cross-appeal that complained against the holding of theCourt of Appeal that, in keeping with Article 13.3of the respondent’s constitution, the Caretaker/Extraordinary National Convention PlanningCommittee was constituted by the NationalExecutive Committee of the 2 nd respondent toact as the National Working Committee in theinterim until the National Working Committee wasreconstituted. By not appealing against the holding,the parties herein accepted it as correct, conclusive,and binding upon them. [Iyoho v. Effiong (2007)11 NWLR (Pt. 1044) 31; S.P.D.C. (Nig.) Ltd. v. X.MFederal Ltd. (2006) 16 NWLR (Pt. 1004) 189; Dabup
v. Kolo (1993) 9 NWLR (Pt. 317) 254 referred to.](P. 547, paras. B-E)
Per EKO, J.S.C. at pages 637-638, paras. F-C:
“The lower court found, at pages 3807 &383, Vol. 7 of the records of appeal, thathis Excellency Mai Mala Buni, a servingGovernor of Yobe State, was appointed bythe 2 nd respondent as the National Chairmanof the Caretaker/Extra Ordinary ConventionCommittee to perform the Executive Office ofthe National Chairman of the 2 nd respondent.These crucial findings of fact were not, asadverse to the respondents’ case as they were,appealed by the respondents. The law is settledthat a specific adverse finding of fact or decisionnot appealed remains subsisting, conclusiveand binding on the parties, including the partyadversely affected by it: Lewis Opara v. DowellSchlumberger (Nig.) Ltd. & anor. (2006) 7 SC(Pt. iii) 56, (2006) 15 NWLR (Pt. 1002) 342;Alakija v. Abdulai (1998) 6 NWLR (Pt. 552) 1 at4; Awote v. Owodunni (No. 1) (1986) 5 NWLR(Pt. 46) 941. Accordingly, it is no longer indispute that Mai Mala Buni, who settled orsigned exhibit P21 as National Chairman ofthe Caretaker Committee of the 2 nd respondent(a political party) and was in that capacitydischarging or performing the political party’sexecutive office while also being concurrentlythe Governor of Yobe State. By this, at theinstance of the 2 nd respondent, the said MaiMala Buni had done that expressly prohibitedby section 183 of the CFRN.”
2.On Validity of act done by occupier of an office in
acting capacity –
By virtue of section 11(2) of the Interpretation Act,Cap. I23, Vol. 8, Laws of the Federation of Nigeria,2004 which provides that a reference in an enactmentto the holder of an office shall be construed asincluding a reference to a person for the time beingappointed to act in his place either as respects thefunctions of the office generally or the functions inregard to which he is appointed, as the case maybe. Thus, the holder of an office includes the holderof that office in an acting capacity. In this case, theletter of 27-7-2020, exhibit P21, by which the 2 ndrespondent submitted the names of its candidatesto the 1 st respondent for the election of Governorof Ondo State was signed by two of its NationalOfficers, namely, Mai Mala Buni as acting NationalChairman and Senator John Akpan Udoehehe, theacting National Secretary. Therefore, it compliedwith Paragraph 17(a) of the First Supplementaryto Regulations and Guidelines for the Conduct ofElection (exhibit 24), which requires that such aletter and Form EC9B be signed by the NationalChairman and Secretary. (Pp. 547-548, paras. E-A)
3.On Duty of political parties to submit names ofcandidates for elections to the Independent NationalElectoral Commission (INEC) –
By virtue of section 31(1) of the Electoral Act, 2010(as amended) every political party shall not laterthan 60 days before the date appointed for a generalelection under the provisions of the Act submit tothe Commission in the prescribed forms, the listof the candidates the party proposes to sponsorat the elections, provided that the commissionshall not reject or disqualify candidates for anyreason whatsoever. In this case, the 1 st respondent,
the competent electoral authority that receivessubmissions of the list of candidates of politicalparties and that administers the Regulations andGuidelines for the Conduct of Elections, on 9-6-2020 accepted exhibit 21 and the Form EC9B fromthe 2 nd respondent and acted on them, listing themas the 2 nd respondent’s candidates for the election.(P. 548, paras. B-D)
4.On Effect where a petitioner admits that a respondentwas duly sponsored by a political party at an election –
Where a petitioner, in its pleading admits thata respondent was nominated and sponsored by apolitical party as its candidate for an election thatwould defeat an allegation that the respondent wasnot qualified for the election because he was notsponsored for the election. In this case, it was notin dispute, as it was admitted by all sides that the3 rd and 4th respondents contested the election andwere duly returned elected on the platform andsponsorship of the 2 nd respondent. The appellants’pleading in paragraph 12 of their petition thatthe 2 nd respondent nominated and sponsored the3 rd respondent as its candidate for the election ofGovernor of Ondo State defeated the only remainingground of the petition that the 3 rd and 4 th respondentswere not qualified for the election because they werenot sponsored for the election. The other pleadingsin the petition that the sponsorship should bevoided because the 2 nd respondent submitted thenames it decided to sponsor by a letter, exhibit P21signed by its acting National Chairman, a servingGovernor of Yobe State and the acting NationalSecretary, further supported the fact that the 2 ndrespondent sponsored them and raised a differentissue of the effect of the 2 nd respondent’s failure to
obey or follow the directive or instruction of the1 st respondent contained in Paragraph 17(a) of theFirst Supplementary to Regulations and Guidelinesfor the Conduct of Elections of 9-6-2020 on thevalidity of exhibit P21 and Form EC9B submitted tothe 1 st respondent. Because of this admission of thefact that the 2 nd respondent sponsored the 3 rd and4 th respondents as its candidates for the election,the petition of the appellants on the ground that the3 rd and 4 th respondents were not qualified for theelection because they were not sponsored by the 2 ndrespondent collapsed completely on the pleadingsand should not have gone for trial. The SupremeCourt is bound by its decision above in keepingwith the doctrine of stare decisis. The Court ofAppeal decision that paragraph 12 of the petition ifread together with other paragraphs of the petitionchallenging the validity of the sponsorship, did notamount to an admission that the 1 st respondentwas in fact sponsored by the 2 nd respondent waswrong. It therefore wrongly set aside the decisionof the Election Tribunal that it was an admissionof the fact that the 2 nd respondent sponsored the 1 strespondent. The said decision of the trial court wasthus restored. [Al-hassan v. Ishaku (2016) 10 NWLR(Pt. 1520) 230 referred to.] (Pp. 548-550, paras. E-B)
5.On Whether INEC regulations can override theprovisions of the Electoral Act –
By virtue of section 138(2) of the Electoral Act,2010 (as amended), an act or omission whichmay be contrary to an instruction or directiveof the Commission or of an officer appointedfor the purpose of the election but which is notcontrary to the provision of the Act shall not of
itself be a ground for questioning the election. Inthis case, the pleading that exhibit P21 and FormEC9B by which the 2 nd respondent submitted thenames of the 3 rd and 4 th respondents was signedby non-national officers or members with nocompetence to sign it contrary to Paragraph 17(a)of the First Supplementary to Regulations andGuidelines for the Conduct of Elections of 9-6-2020, was irrelevant as there is no pleading thatit was contrary to any provision of the ElectoralAct. Failure to obey the directive or instructionof the 1 st respondent in the said Regulations andGuidelines could not be relied on as a ground foran election petition to invalidate the election of the3 rd and 4 th respondents, because such failure wasnot contrary to any provisions of the Electoral Act2010 (as amended). (P. 550, paras. B-F)
6.On Whether INEC regulations can override theprovisions of the Electoral Act –
By section 153 of the Electoral Act, 2010, theCommission may, subject to the provisions ofthe Act, issue regulations, guidelines, or manualsfor the purpose of giving effect to the provisionsof the Act and for the administration thereof.Clearly, therefore, the Act makes the regulations,guidelines or manuals issued by the IndependentNational Electoral Commission subject to theprovisions of the Electoral Act. Thus, as long asan act (commission) or omission in relation to theGuidelines and or Regulations is not contrary tothe provisions of the Act, it shall not of itself be aground for questioning the election. Therefore, thefailure to follow the Manual and Guidelines whichwere made in exercise of the powers conferredby the Electoral Act, cannot in itself render an
election void. In this case, the relevant provisionsof the Electoral Act did not state that the letter andprescribed form for submitting or forwarding thenames of the members of a political party that theparty has decided to sponsor as its candidates foran election to the Independent National ElectoralCommission (INEC) must be signed by the NationalChairman and National Secretary of the politicalparty submitting the names. [Nyesom v. Peterside(2016) I NWLR (Pt.1492) 71 referred to.] (Pp. 550-551, F-B)
Per AGIM, J.S.C. at page 551, paras. C-H:
“The relevant provisions are Ss. 31(1) and S.87(4)(b) of the Electoral Act, 2010 as amended.I have already reproduced the exact text of S.31(1) of the Act earlier in this judgment. Letme reproduce that of S. 87(4)(b) for ease ofreference. It reads thusly –
“In the case of nomination to the positionsof Governorship candidate, a politicalparty shall, where it intends to sponsorcandidates:
hold a special congress in the StateCapital with delegates voting foreach of the aspirants at the congressto be held on a specified dateappointed by the National ExecutiveCommittee(NEC) of the party; and
the aspirant with the highest numberof votes at the end of the votingshall be declared the winner ofthe primaries of the party and theaspirant’s name shall be forwardedto the Commission as the candidate of(ii)the party, for the particular state;
From the foregoing, I hold that the 3 rd and
4 th respondents were sponsored by the 2 ndrespondent, the political party, in which theyare members, and therefore were qualified forelection to the office of Governor as requiredby S.177(c) of the 1999 Constitution thatprovides that
“A person shall be qualified for electionto the office of Governor of a State if -he is a member of a political party and issponsored by that political party.”
7.On What constitutes sponsorship of candidate of apolitical party –
The decision to sponsor a person as the candidateof a political party for a general election is taken bythe relevant congress or convention of the politicalparty at a primary election of the political partyheld to nominate or select its candidate for theelection. In the case of sponsorship of a person asa candidate of a political party for the election ofGovernor of a State, the decision is taken by themembers of the political party in that state at aState congress held in that State to nominate orselect the party’s Governorship candidate for theelection. This is expressly stated in Section 87(4)(b)of the Electoral Act. The decision is not taken bythe national officers of the political party. In thiscase, the decision was taken by the members of the2 nd respondent in Ondo State at a State congressheld in Ondo State for that purpose. The NationalExecutive Committee of the Political party throughthe National Working Committee submitted tothe 1 st respondent the names selected by the saidState congress of the party as the persons being
sponsored as its candidate for the election. Exhibit21, the letter from the 2 nd respondent and FormEC9B submitting the names of its candidate forthe election was a notice or communication tothe 1 st respondent of its decision to sponsor thosecandidates for the election. It was wrong to describeor regard such letter as the act of sponsorship orthe decision to sponsor. (Pp. 551-552, paras. H-D)
Per AGIM, J.S.C. at page 552, paras. D-H; 553,paras. B-G:
“It is preposterous to argue that because oneof the two signatories of the letter submittingthe selected names had no vires to sign it, thesaid decision of Ondo State Congress of the 2 ndrespondent should be nullified. The appellantshave repeatedly asserted in this case thatthey are not challenging the nomination orselection of the 3 rd and 4 th respondents. Yetthey contend that the letter from the nationaloffice communicating to the 1 st respondent thenames nominated or selected as its candidatesfor the election is defective for want of vires ofone of the signatories and that the defect shouldnullify the sponsorship of the said candidates.This contention is as contradictory as it isinvalid. The contention is not consistent withthe repeated assertions of the appellants thatthey are not complaining about the nominationor selection of the 3 rd and 4 th respondents asthe candidates of the 2 nd respondent for theelection. …
Assuming there is such defect in that letter,there is no statutory prescription of suchconsequence. S. 31(1) of the Electoral Act, 2010that provides for the submission of the names
of the persons being sponsored as candidates,did not prescribe any consequence for anydefect in the process submitting the names orfor failure to submit it in a prescribed form.Paragraph 17(a) of the First Supplementaryto Regulations and Guidelines for the Conductof Elections of 9-6-2020 did not prescribesuch consequence. What is clear is the factthat the names of the 3 rd and 4 th respondentswere submitted to the 1 st respondent by the2 nd respondent’s letter of 27-7-2020 and theprescribed Form EC9B.
The essence of the argument of the appellantsthat Governor Mai Mala Buni who cosignedthe letter as acting National Chairmanhas no vires to sign it is that only one validsignature remained in the letter. Grantingthat the argument is correct, the submissionof the names remains factually made evenif only the acting National Secretary signedthe said letter. Assuming the acting NationalChairman did not sign the letter contraryto the directive or instruction of the 1 strespondent in paragraph 17(a) of the FirstSupplementary to Regulations and Guidelinesfor the Conduct of Elections OF 9-6-2020, suchfailure cannot be relied on as a ground for anelection petition to invalidate the election of the3 rd and 4 th respondents because such failure isnot contrary to any provisions of the ElectoralAct 2010 as amended. As I held herein S. 31(1)of the Act did not prescribe that the NationalChairman and the National Secretary mustsign the letter and the prescribed form.”
8.O n Need for a party to be consistent in the case he
A party must be consistent in the case he presents incourt. He cannot approbate and reprobate. The lawwould not allow him to approbate and reprobateover the same issue. In this case, having admittedthat they are not challenging the nomination orselection of the 3 rd and 4 th respondents as candidatesof the 2 nd respondent for the election, they cannotcanvass for the nullification of the same nominationon the basis that the letter communicating thenomination or selection to the 1 st respondent isdefective. [Suberu v. State (2010) 1 NWLR (Pt.1176) 494; Intercontinental Bank Ltd. v. Brifina Ltd.(2012) 13 NWLR (Pt. 1316) 1; Ude v. Nwara (1993)2 NWLR (Pt.278) 638 referred to.] (Pp. 552-553,paras. G-A)
9.On Whether person qualified for election as Governorof a State can be disqualified under any other law –
Once a candidate sponsored by his political partyhas satisfied the provisions set out in section 177of the Constitution and is not disqualified undersection 182(1) thereof, he is qualified to standelection to the office of Governor of a State. Noother law can disqualify him. In the instant case,the validity of the primary election, nominationor selection of the 3 rd and 4 th respondents ascandidates of the 2 nd respondent was not disputedor challenged. Even the process of the electionand return of the 3 rd and 4 th respondents by the 1 strespondent as the Governor and Deputy Governorof Ondo State on 10-10-2020 was not disputed orchallenged. [Shinkafi v. Yari (2016) 7 NWLR (Pt.1511) 340 referred to; A.P.C. v. Marafa (2020) 6NWLR (Pt. 1721) 383 distinguished. ] (Pp. 553-554,paras. G-B; 554, paras. F-G)
Per AGIM, J.S.C. at pages 553-554, paras. G-E:
“The case of A.P.C. v. Marafa (2020) 6 NWLR(Pt. 1721) 383 is not applicable to this casebecause the facts of that case and the issuesdetermined therein are completely differentfrom this case. That case was a pre-electionmatter that challenged the primary electionand nomination of candidates of the 2 ndrespondent on the ground that S.87 of theElectoral Act 2010, the Constitution of theparty was not followed in the nominationand selection of the said candidates. That iswhy this court declared the list of candidatessigned and forwarded by the Chairman of theZamfara State Chapter of the 2 nd respondentvoid in that case. The instant case is a postelection matter. The validity of the primaryelection, nomination or selection of the 3 rdand 4th respondents as candidates of the 2 ndrespondent is not disputed or challenged. Eventhe process of the election and return of the 3 rdand 4 th respondents by the 1 st respondent as theGovernor and Deputy Governor of Ondo Stateon 10-10-2020 is not disputed or challenged.
After the election of the 3 rd and 4 th respondents,the appellants who have accepted the conductand results of the said election of 10-10-2020 as valid, now challenges the validityof the 2 nd respondent’s letter of 27-7-2020submitting their names to the 1 st respondentas its candidate for the election on the basisof S.183 of the 1999 Constitution and Article17(iv) of the 2 nd respondent’s Constitutionthat do not regulate any aspect of the processof the nomination, sponsorship and electionand return of the 3 rd and 4 th respondents.No part of the 2 nd respondent’s constitution,
the Electoral Act and 1999 Constitutionconcerning the nomination, sponsorship andelection of the 3 rd and 4 th respondents wasviolated by the 2 nd , 3 rd and 4 th respondents whohave satisfied the provisions set out in S.177 ofthe 1999 Constitution and have not sufferedany disqualification under S. 182(1) of thesame Constitution.
In the light of the forgoing, I hold that S.183 ofthe 1999 Constitution and Article 17(iv) of the2 nd respondent’s constitution, cannot be reliedon to disqualify the 3 rd and 4 th respondents andnullify their election.”
10.On Prohibition of a Governor from holding anyexecutive office or paid employment –
By virtue of section 183 of the 1999 Constitutionthe Governor shall not, during his tenure of officehold any other executive office or paid employmentin any capacity whatsoever. The wordings of theprovision are very clear and unambiguous. Thesection restrains the Governor and not any otherperson. A person who is not holding the office ofGovernor cannot be restrained by that provisionfrom holding any other executive office or paidemployment in any capacity whatsoever. Therefore,the provisions cannot apply to a person or bodythat is not holding the office of Governor of a State.(Pp. 558-559, paras. G-A)
Per AGIM, J.S.C at page 559, paras. A-G:
“There is no doubt that Mai Mala Buni waselected as Governor of Yobe State and remainsin that office on behalf of himself and the 2 ndrespondent that sponsored him as its candidatefor the election and that his right to hold theoffice is not exclusively his as it belongs to him
and the 2 nd respondent, the political party onwhich platform sponsorship he was electedto and is holding that office. This does notmake S.183 applicable to the 2 nd respondentbecause it is its member that is holding theoffice that is executing the functions of theoffice, presumably in pursuance of the 2 ndrespondent’s manifesto, campaign promisesand plan of good governance and developmentof the State.
It is clear from the provisions of S.183 thatif the Governor of a State holds any otherexecutive office or paid employment in anycapacity whatsoever during his tenure ofoffice as such Governor, he or she ceases tohold the office of Governor in accordance withthe provisions of the Constitution and cannotfrom that moment continue to hold the office ofGovernor and therefore shall vacate same byvirtue of S. 180(1)(d) of the 1999 Constitutionwhich provides that –
“(1) Subject to the provisions of thisConstitution, a person shall hold theoffice of Governor of a State until –
he otherwise ceases to hold officein accordance with the provisions(d)of this Constitution.”
So the contention that Governor Mai Mala Bunias Governor of Yobe State has violated S.183 ofthe Constitution by holding the office of actingNational Chairman of the 2 nd respondent is avery serious one with grave consequences forhim and no doubt for the 2 nd respondent aswell. The judicial determination of that issuehere would involve the enforcement of the
Constitution against him and would certainlyaffect him personally as I have shown above.”
11.On Who is a necessary party and when must be joinedas a party –
A necessary party is one whose right or interestwould be affected by the determination of thedispute and the dispute cannot be fairly, effectuallyand properly resolved in his absence. The exceptionto the rule that non-joinder of a necessary party toan action may not vitiate the action is where thenon-joinder makes the fair and effectual trial of thecase impossible. In the instant case, there was noneed to stress the point that Mai Mala Buni’s was anecessary party to the case, because the issue uponwhich the appellants predicated their case, namely,the invalidity of his signature in exhibit P21 andthe invalidity of the said exhibit itself could notbe fairly, effectually, and conclusively determinedwithout joining him as a party to the case. It wouldbe unfair to him to try that issue in his absencewithout joining him as a party to the petition. Thefair trial of such issue in his absence without joininghim as a party is impossible. [Green v. Green (1987)3 NWLR (Pt. 61) 480; Babayeju v. Ashamu (1998)9 NWLR (Pt. 567) 546; Panalpina World Transport(Nig.) Ltd. v. J.B. Olandeen (2012) 2 NWLR (Pt.1285) 465; A.-G., Fed. v. A.-G., Abia State (2001) 11NWLR (Pt. 725) 689; Okoye v. Nigerian Construction& Furniture Co. Ltd. (1991) 6 NWLR (Pt. 199) 501;Okonta v. Phillips (2010) 18 NWLR (Pt.1225) 320;NURTW v. RTEAN (2012) 10 NWLR (Pt. 1307) 170referred to.] (Pp. 559-560, paras. G-D)
Per OKORO, J.S.C, at page 566, paras. B-F:
“From the above paragraphs of the appellants’petition, it is crystal clear that the wrong
doings regarding the improper forwardingor conveyance of the sponsorship of the 3 rdand 4 th respondents to the 1 st respondentwas orchestrated by Mai Mala Buni whichis alleged to be contrary to section 183 ofthe Constitution of the Federal Republic ofNigeria, 1999.
Now, in view of the enormous involvementof Mr. Buni in this matter, coupled withthe provision in section 36(1) of the 1999Constitution of the Federal Republic ofNigeria, can this matter be fully and fairlyresolved without the presence of the said Buni.Whereas the learned senior counsel for theappellants submitted that it is possible since the2 nd respondent has been sued, all the learnedsenior counsel for the respondents argueotherwise. In fact the learned senior counselfor the 2 nd respondent, L. O. Fagbemi, SAN,submitted that Mallam Mai Mala Buni whois alleged to have breached the Constitution isdistinct from the 2 nd respondent and that theviolator of the Constitution must be personallyheld liable for, his misdeed and/or infraction.Learned senior counsel further opined thatBuni, being the alleged violator of section 183of the 1999 Constitution (as amended), must beafforded opportunity to defend the allegationmade against him.”
12.On Scope of and limit to jurisdiction of GovernorshipElection Tribunal –
By virtue of section 285(2) of the 1999 Constitutionthere shall be established in each State of theFederation one or more election tribunals to be
known as the Governorship Election Tribunalswhich shall, to the exclusion of any court or tribunal,have original jurisdiction to hear and determinepetitions as to whether any person has beenvalidly elected to the office of Governor or DeputyGovernor of a State. The Governorship ElectionTribunal cannot exercise any jurisdiction outsidethe scope of the jurisdiction vested on it by Section285(2) of the 1999 Constitution. Where a law thatgives jurisdiction to a court limits that jurisdictionto the determination of specific questions, thecourt lacks the jurisdiction to exceed that limit todetermine questions not listed within its jurisdictionto determine. In this case, the propriety, legalityand constitutionality of Governor Mai Mala Buniacting as National Chairman of the 2 nd respondentduring his tenure as Governor of Yobe State wasnot a question that was within the jurisdiction ofthe Election Tribunal to try. The jurisdiction ofthe Governorship Election Tribunal is restrictedto the hearing and determination of petitions as towhether any person has been validly elected to theoffice of Governor or Deputy Governor of a State.Since the issue of the constitutionality of GovernorMai Mala Buni acting as National Chairman of the2 nd respondent cannot be competently raised in anelection petition in the Election Tribunal and theElection Tribunal lacks the jurisdiction to entertainit, then the case of the appellants collapsed as itwas predicated on that issue. The limited scopeof the jurisdiction vested in the Election Tribunalby section 285(2) of the 1999 Constitution cannotextend to the determination of the issue. It is clearlyout of its jurisdiction. It is, therefore, incompetenta nd not valid for consideration. [Obasanjo v. Yusuf
(2004) 9 NWLR (Pt.877) 144; Adams v. Umar (2009)5 NWLR (Pt. 1133) 41 referred to.] (Pp. 560-561,paras. D-H; 562, paras. F-G)
13.On Duty on court where the case before it is based ona primary issue that is not within its jurisdiction –
Where the case presented before the court, thoughwithin its jurisdiction, is predicated on a primaryissue that is not within the jurisdiction of the court,that court would lack the jurisdiction to entertainit. So both the question brought for the court’sdetermination within its competent jurisdiction andthe underlying questions on which its determinationis predicated must be within the jurisdiction of thecourt before the case can be within its jurisdiction.Section 285(2) of the 1999 Constitution cannot beviolated in a bid to remedy a perceived violation ofSection 183 of the 1999 Constitution. You cannotviolate one provision of the Constitution in the bidto remedy the alleged breach of another provisionof the Constitution. In this case, it was obvious fromthe pleadings and evidence of the appellants at thetrial, the grounds of appeal, the issues raised fordetermination in their brief and arguments of same,that the primary issue on which the appellants’case was predicated was the constitutionality orpropriety of Governor Mai Mala Buni actingas Chairman of the 2 nd respondent during histenure of office as Governor of Yobe State. Thedetermination of the validity of his signing exhibitP.21 and the validity of the submission of the 3 rdand 4 th respondents’ names depended on thedetermination of the constitutionality and legalityof Governor Mai Mala Buni as National Chairmanof the 2 nd respondent during his tenure as Gover norof Yobe State. (P. 562, paras. A-E)
14.On Whether courts have jurisdiction over internal
affairs of political parties –
Courts have no jurisdiction over the internalaffairs of a political party, except where a statuteexpressly gives a court jurisdiction to deal with anyinternal affair of a political party. The practice ofthe court is not to run associations (corporationsand unincorporated associations) for the members.It leaves the members to run their association. Inthis case, the 2 nd respondent, a registered politicalparty being a voluntary organization, the questionsof who should hold offices in it, whether it canappoint its member to hold office in acting capacityor authorize a member to exercise the powers ofan office in it and whether it has violated its ownconstitution by appointing a member to hold aparticular office in it or discharge the functions ofthat office, cannot be entertained by any court. Thosequestions deal with the internal administration ofthe internal affairs of the political party. Those arenon-justiciable questions. [Onuoha v. Okafor (1983)2 SCNLR 244; P.D.P. v. Sylva (2012) 13 NWLR (Pt.1316) 85 referred to.] (Pp. 562-563, paras. G-E)
15.On Purport of section 183 of the 1999 Constitution –
The marginal note of section 183 of the Constitutionclearly explains the purport of the section, whichstates: “Governor: disqualification from otherjobs.” From the wordings of section 183 of theConstitution, it is not in doubt that it prohibits aGovernor, while serving as such, from acceptingany other executive office or paid employment inany capacity whatsoever. The words “any capacitywhatsoever” includes permanent and/or actingcapacities amongst others. The primary person
who can breach that section is a sitting Governor.(P. 567, paras. C-D)
16.On Meaning of “any capacity whatsoever” –
The words “any capacity whatsoever” includespermanent and/or acting capacities, amongstothers. (P. 567, para. D)
17.On Principles governing interpretation of statutes –
In the interpretation of statutes, the Constitutioninclusive, courts are enjoined to have in mind theclearly defined objectives of such a statute. The lawis also well settled that where the words of a statuteare clear and unambiguous, the courts are to givethem their literal and ordinary meaning. [Maizabov. Sokoto N.A. (1957) SCNLR 142; Olarenwajuv. Gov., Oyo State (1992) 9 NWLR (Pt. 265) 335;Adewunmi v. A.-G., Ekiti State (2002) 2 NWLR (Pt.751) 474 refered to.] (P. 567, paras. D-F)
18.On Gravity of breach of the Constitution –
Every act which is founded on a void act is notonly bad but incurably bad. Allegation of breachor infraction of the Constitution is of immensemagnitude with far-reaching implications.Therefore, it should not be handled with levity. Inthis case, if it was found that Buni had contravenedsection 183 of the Constitution, it meant that allhis actions and activities while holding any otherexecutive position would be null and void as youcannot put something on nothing and expect it tostand. In such a situation, Mai Mala Buni, who wasalleged to have breached the Constitution ought tohave been made a party to the petition. The alleged
violator of the Constitution must be personally heldliable for his misdeeds. (Pp. 567-568, paras. F-A)
19.On Right to fair hearing and duty on court to adhereto –
By virtue of section 36(1) of the 1999 Constitution, inthe determination of his civil rights and obligations,including any question or determination by oragainst any government or authority, a person shallbe entitled to a fair hearing within a reasonabletime by a court or other tribunal established bylaw and constituted in such a manner as to secureits independence and impartiality. The sectiongrants a right to fair hearing to all persons whohave matters against them in a court of law. One ofthe attributes or principle of fair hearing is that acourt or tribunal shall not take or hear evidence ina case or receive any submissions or representationfrom one party at the back of the other. Withthe exception of certain applications which couldbe moved ex-parte, no court is permitted to heara matter against a person ex-parte and deliverjudgment on same behind the back of the saidparty. The law does not allow an aggrieved party tomake complaints against another in court ex-parte.He must summon the wrongdoer before the courtcan exercise jurisdiction over the matter. A court oflaw will decline jurisdiction where a party soughtto be punished or disciplined is not found in a suitbefore it. [Ejike v. Nwankwoala (1984) 12 SC 301;Ndukauba v. Kolomo (2005) 4 NWLR (Pt. 915) 411referred to.] (P. 568, paras. C-F)
20.On Attributes of right to fair hearing and whether canbe waived –
The right to fair hearing is a constitutional rightwhich cannot be waived or statutorily taken away.The court must give equal treatment, opportunity
and consideration to all the parties. Where oneparty who should answer to allegations madeagainst him is not brought to court, the court willnot have jurisdiction to entertain such a matter.The issue in this appeal is so bad in that in spite ofthe fact that Mai Mala Buni was the central figurein the appellants’ petition, he was not made a partyto the petition. Section 36(1) of the Constitution willnot allow that to happen. It is only when properparties are before the court which makes the courtcompetent to adjudicate on the suit. Also, a courthas no jurisdiction to make an order which affectsthe interest of a person who has not been joined as aparty. [Ovunwo v. Woko (2011) 17 NWLR (Pt.1277)522; Usani v. Duke (2004) 7 NWLR (Pt.871) 116;Okafor v. A.-G., Anambra State (1991) 3 NWLR (Pt.200) 59; Okonta v. Philip (2010) 18 NWLR (Pt. 1225)320 referred to.] (Pp. 568-569, paras. G-B)
21.On Who is a necessary party and need to join as aparty –
A necessary party to a proceeding is a party whosepresence is essential for the effectual and completedetermination of the claim before the court. Itis the party in the absence of whom the claimcannot be effectually and completely determined.He is one who is not only interested in the subjectmatter of the proceedings but whom in his absence,the proceedings cannot be fairly and judiciouslydecided. In other words, the question to be settledin the action between the existing parties must bea question which cannot be properly settled unlessthe necessary party to the particular claim is joinedin the action. In this case, the petition made weightyallegations of constitutional breach against Mai
Mala Buni, making him a necessary and desirableparty to the proceedings. Any order made againsthim would be a nullity having been denied a rightto be heard. Mai Mala Buni was indeed a necessaryparty to the proceedings. [Ige v. Farinde (1994)7 NWLR (Pt. 354) 42; Azubuike v P.D.P. (2014) 7NWLR (Pt. 1406) 292; Green v. Green (1987) 3NWLR (Pt. 61) 480 referred to.] (P. 569, paras. B-G)
Per ABUBAKAR, J.S.C. at page 588, paras. B-G;589, paras. D-G:
“The appellants clearly stated in theirpleadings that Mai Mala Buni is the pivot whoconstituted the claim of the petitioner. Thequestion then is, can you proceed to determinethis claim behind the much talked about MaiMala Buni, I say NO, this is because decidingsuch a matter in the absence of Mai Mala Buniwould amount to strangulating him withoutgiving him a hearing, he is a necessary party,he is the pivot, he is the centre piece, all cardsmust be put on the table for him to see and havea say. Right from the commencement of thepetition, to the appeal at the lower court andthis appeal, Mai Mala Buni did not feature asa necessary party. The law is very well settledthat where a party is projected in the processof litigation as a necessary party, that partymust be made an integral part of the litigationprocess before the court, the party must beheard. Where a decision is reached withoutaffording a necessary party a fair hearing theproceedings will be null and void See; Okonta v.Philips (2010) 18 NWLR (Pt. 1225) 320. Again,a court has no jurisdiction to make any orderagainst the interest of any person as in theinstant case unless he is made a party. Where
there is brazen and far-reaching allegation ofinfraction against a party, that party must beheard, the adversary will not be allowed to diga hole around the party, so doing will amountto setting a trap or laying ambush in litigation,it will not be allowed. His Excellency MaiMala Buni is a necessary party in the petitionhaving prominently featured, his allegedinfraction of section 183 of the Constitution ofthe Federal Republic of Nigeria 1999, cannotbe determined in his absence, he is a necessaryparty, he must therefore constitute an integralpart of the parties before the court. see: Greenv. Green (2001) FWLR (Pt.76) 795, (1987) 3NWLR (Pt. 61) 480. …
I need not over emphasise the fact that section183 of the Constitution of the Federal Republicof Nigeria 1999 as amended deals directly withalleged infraction by a Governor, nobody elsecan answer the alleged infractions except theGovernor, section 183 of the Constitutionrefers to the Governor to the exclusion ofevery other person having provided thus: TheGovernor shall not during the period whenhe holds office, hold other executive office orpaid employment in any capacity whatsoever.Words in such circumstance following rulesof interpretation must be given their naturaland ordinary meaning, courts must notsurrender to flowery gimmicks or tantalisinginterpretations by counsel. We must stickto the intention of the law. Section 183 ofthe Constitution of the Federal Republic ofNigeria 1999 will not admit of any other fancyor elongated meaning different from the one
ascribed to it in the leading judgment.
I entirely agree with the reasoning andconclusion encapsulated in the lucid leadingjudgment prepared and rendered by mylearned brother, Agim, JSC, who graciouslygranted me the privilege of having a preview. Ialso hold that failure to Join Mai Mala Buni asa necessary party in the petition rendered thepetition totally barren, sterile, deficient andpatently incompetent.”
22.On Duty on court to give words in the Constitutionliteral and ordinary meaning –
The requirement of the law is that the duty of acourt of law is to give the words used and employedin the provisions of the Constitution; the groundnorm, their natural, literal and ordinary meaningswhich best embed, reveal and convey the realpurpose and intendment of the legislature inmaking the provisions, for, in effect, there is nothingto interpret. In this case, the provisions of section183 of the 1999 Constitution, which provides thatthe Governor shall not, during the period when hehold office hold any other executive office, or paidemployment in any capacity whatsoever, are notonly plain, clear and unambiguous, but in simple,ordinary, straight forward, concise and precisewords and legislative language, such that theirevident purport is not left to any difficulty to callfor interpretation outside the provisions. [EkuloFarms Ltd. v. U.B.N. Plc (2006) 4 SC (Pt. II) 1; Ahmedv. Kassim (1958) SCNLR 28; Awolowo v. Shagari(1979) 6 – 9 SC 73; A.-G., Bendel State v. A.-G., Fed.(1982) 3 NCLR 1 referred to.] (Pp. 571-573, paras.G-B)
23.On Purport and effect of section 183 of 1999Constitution –
In their proper context, the provisions of section183 of the Constitution of the Federal Republic ofNigeria, 1999 simply prohibit the holder of the officeof the Governor of a State from holding any otherexecutive office or paid employment which involvesthe exercise of executive authority or power, duringthe period he holds the office. In other words, aperson holding the office of a Governor of a Stateis constitutionally barred from holding any otherexecutive office or paid employment whatsoever; ofwhatever nature, type or kind, simultaneously andat the same time with the office, or while holdingof, the Governor of a State. These provisions, veryclearly, arc specifically provided for, aimed atand meant to apply to and affect the “Person” ofthe Governor of a State while holding or duringthe period he holds the office as Governor andprevent him from accepting or taking any otherappointment, position, post or occupying any otherexecutive office of whatever nature that involvesthe exercise of executive functions, duties andpower which are in conflict and direct interferencewith the exercise of the executive mandate of theoffice of the Governor of his State, while and duringthe period he holds that office. The provisions,personally, forbid and prevent the person whoholds the office of Governor of a State from agreeingto accept, accepting, taking and holding anyother office by which he would exercise executivepowers, perform executive functions and dischargeexecutive duties or any other paid employment inany capacity whatsoever, during the period whenhe holds the office of the Governor. The deliberateuse of the word “shall not” in the provisions shows
the mandatory nature and purpose intended by thelegislature in enacting them, to personally, legallyand constitutionally, disable and ban a personholding the office of Governor of a State from takingup and holding another executive office or any paidappointment, position, post, job or employmentof whatever nature whilst he occupies and holdsthe officer of Governor of a State. [Mokelu v. Fed.Comm. For Works and Housing (1976) 3 SC 35; Kattov. C.B.N. (1991) 9 NWLR (Pt. 214) 126; Onochie v.Odogwu (2006) 6 NWLR (Pt. 975) 65; Nwankwo v.Yar’adua (2010) 12 NWLR (Pt. 1209) 518 referredto.] (Pp. 573-574, paras. B-A)
24.On Rationale for the provisions of section 183 of the1999 Constitution –
In our constitutional democracy, the Governor ofa State, represents the entire people of the State;without qualification, is vested with and exercisesthe executive powers of the State by dint of theprovisions of section 5 of the 1999 Constitution(as altered and amended) which provides thatsubject to the provisions of the Constitution, theexecutive powers of a State:
Shall be vested in the Governor of thatState and may, subject as aforesaid and tothe provisions of any law made by a Houseof Assembly, be exercised by him eitherdirectly or through the Deputy Governorand Commissioners of the government ofthat State or officers in the public service of(a)the State: and
Shall extend to the execution andmaintenance of the Constitution, all laws(b)made by the House of Assembly of the State
and to all matters with respect to which theHouse of Assembly has for time being powerto make laws.
Apparently, the executive powers vested inthe Governor of a State by the provisions ofthe Constitution are enormous, very huge andlarge. To be effectively exercised in line with theintendment of the Constitution and expectations ofthe electorates who elected the Governor, therebygiving him the mandate to assume and hold theoffice, the Governor must devote himself, all histime and efforts during the time he holds the office,to the discharge and performance of the duties andfunctions involved in the exercise of the powers. TheGovernor’s energy and loyalty shall be invested inthe faithful exercise of the executive powers vestedin and conferred on him by the Constitution,courtesy of the electorates who voted him into theoffice. It is to personally prevent, bar and stop theGovernor of a State from neglecting, disregardingand even failure to effectively exercise the executivepowers vested in him as the person who holds theoffice, that the Constitution, in the wide wisdom ofthe legislature, prescribed the provisions of section183 thereof. (P. 574, paras. A-H)
25.On Whether court can import into or export out ofwords of a statute –
The courts cannot import into or export out ofthe clear, unambiguous and plain words of astatute and/or constitution in the construction andapplication of the provisions. In this case, since theprovisions of section 183 of the 1999 Constitutionare directed, specifically and frontally, at theperson of the Governor who holds the office, it is
beyond reasonable arguments that it is the personof the Governor, exclusively, whilst he holds theoffice, that can; factually, be capable and able ofomitting, failing, neglecting or refusing to obeyor comply and thereby disobey, breach or violatethe provisions. The provisions do not mention orenvisage any other person other than the Governoras the subject therein. [Awolowo v. Shagari (1979) 6- 9 SC 73; Okotie-Eboh v. Manager (2004) 18 NWLR(Pt. 905) 242; Amaechi v. INEC (2008) 5 NWLR (Pt.1080) 5 NWLR (Pt. 1080) 227 referred to.] (Pp. 574-575, paras. H-C)
26.On Application of expressio unius exclusio alterus ruleof interpretation of statute –
An established rule of construction of clear,unambiguous and plain words of a statute or/andConstitution, is to exclude what is not specificallystated in the provisions, which, in Latin, is expressiounius exclusio alterus, that is, the express mention ofone thing automatically excludes any other whichotherwise would have been included by implication.In this case, because the person of the Governor isexclusively the only subject of the provisions and noother person, they can only be disobeyed, breached,violated or contravened by the Governor in persondirectly and not otherwise by any other person orparty not mentioned therein. It was in apparentrecognition of the position of the provisions thatthe appellants in paragraph 29 – 34 of their petitionmade the very specific and weighty allegations ofthe contravention, violation and breach of theprovisions by Mai Mala Buni, the current Governorof Yobe State. The allegations and assertions offacts made in the paragraphs were personally
against Mai Mala Buni, the person who currentlyholds the office of the Governor of Yobe State andno other person, as provided for and envisaged bythe provisions of section 183. The facts alleged werewholly and completely based on the acts, actions orsteps personally said to have been done or takenby Mai Mala Buni, the Governor of Yobe Stateand considered by the appellants to constitute oramount to holding “any other executive office orpaid employment in any capacity, whatsoever” inviolation, breach or contravention of the section.The allegations were not directed or specificallymade against any other person or party, for whomMai Mala Buni was to have acted as an agent, butagainst him personally. [Ogbuanyiya v. Okudo (1979)6 – 9 SC 32; Udoh v. O. H. M. B. (1993) 1 NWLR(Pt. 304) 139; Buhari v. Yusuf (2003) 14 NWLR (Pt.841) 446, PDP v. INEC (1999) 11 NWLR (Pt. 626)200; Awoye v. Obasanjo (2006) All FWLR (Pt. 334)1967; Obi v. INEC (2007) 11 NWLR (Pt. 1046) 436;Ojukwu v. Yar’ Adua (2008) 4 NWLR (Pt. 1078) 435referred to.] (Pp. 575-576, paras. C-A)
27.On Gravity of breach of the Constitution by a Governorof a State –
It is very grievous and serious for the Governorof a State who had subscribed to the oath andsolemn affirmation prescribed in the 7 th Scheduleof the Constitution as a condition precedent to theassumption, holding and exercise of the powersvested by the Constitution in him as the holder of theoffice of Governor, to be accused of the deliberateviolation, breach, contravention of or non-compliance with any provisions of the Constitutionwhich he swore to preserve, protect and defend inthe discharge of the duties and performance of the
function of the office. In this case, the allegationsagainst Mai Mala Buni, the Governor of Yobe State,were weighty and this was because, Mai Mala Buni,as Governor of Yobe State, before assuming andholding the office of Governor, had, in complianceand in accordance with the prescription in section185 of the Constitution, subscribed to the Oathof office of Governor of a State set out in the 7 thSchedule to the Constitution. (P. 576, paras. A-F)
28.On Consequence of deliberate violation of 1999Constitution by any Governor of a State in Nigeria –
Section 188 and 2 and of the 1999Constitution provide for the consequence ofdeliberate violation, breach or contravention of theprovisions of the Constitution by any Governor ofa State in Nigeria. It provides that the Governoror Deputy Governor of a State may be removedfrom office in accordance with the provisions ofthe section, whenever a notice of any allegation inwriting signed by not less than one – third of themembers of the House of Assembly –
is presented to the Speaker of the House of(a)Assembly of the State,
Stating that the holder of such office is guiltyof gross misconduct in the performance of(b)the function, of his office
While in subsection “gross misconduct” meansa grave violation or breach of the provisions of theConstitution or a misconduct of such nature asamount in the opinion of the House of Assembly, togross misconduct. (Pp. 576-577, paras. F-B)
Per GARBA, J.S.C. at page 577, paras. C-F:
“As can clearly be seen, violation, breachand contravention of the provisions of the
Constitution by any Governor of a Stateconstitute and amount to gross misconducton his part which is a ground, if proved, thatwill warrant his removal from the office ofGovernor. So, as much as the breach, violationor contravention of the provisions of section183 can only be committed by the person whoholds the office of the Governor of a State,the constitutional and legal consequence ofsuch infraction or noncompliance with theprovisions, is strictly and unavoidably personalto the Governor, i.e., removal from the officeof Governor.
All the above said, the question that willnecessarily arise and agitate itself whetherthe allegations and assertions of facts againstMai Mala Buni, the Governor of Yobe State,made and relied on by the appellants as thefoundation and pivot of their petition againstthe election of the 3 rd and 4 th respondents, onthe ground that he had breached, violated andcontravened the provisions of section 183 ofthe Constitution can be heard and determinedin the absence of Mai Mala Buni, the Governorof Yobe State and without joining him as anecessary party to the petition?”
29.On Meaning of “mandatory party” and need to join toa suit –
A “mandatory party” in a case is the person/s orparty/parties whose civil rights and obligationsare to be determined in the judicial proceedingsof a court of law or other tribunal establishedby or under or pursuant to the provisions of theConstitution. In the absence of such parties/
persons, their civil rights and obligations cannotproperly and validly be determined and decidedby a court or tribunal no matter the nature of theallegations or assertions of facts against them in acase. A “mandatory party” in a case, is not only anecessary party without whom the proceedings ofa matter, case or action could not be dealth withfairly, effectively and completely by a court, butone in whose absence, a matter or case becomesincompetent for lack or want of proper constitutionas to competent parties thereby depriving thecourt or tribunal, the requisite jurisdiction toadjudicate on the rights and obligations of suchparties. Therefore, a claimant/plaintiff/petitionerin a matter/case/petition, has the legal duty tobring any or all mandatory party/parties whosepresence is not only crucial and fundamental, buta condition precedent to the determination of andresolution of all material questions or issues raised,by the facts pleaded and relied on by him in thecase/matter/petition. Failure to do so, as was/is thecase in the petition of the appellants, the action isliable to be truck out for being incompetent. In theinstant case, Mai Mala Buni, the Governor of Yobe,against whom the allegations and assertions of factswere made by the appellants and relied upon or onto challenge the validity of the sponsorship of the3 rd and 4 th respondents by the 2 nd respondents forthe questioned election, was not only a necessaryparty, but a “mandatory party” in a trial by anycourt of law or tribunal established by or underthe Constitution or any law, where such allegationsand assertions are to be judicially determined andfinally decided. [Adisa v. Oyinwola (2000) 10 NWLR(Pt. 674) 116; Amuda v. Ajobo (1995) 7 NWLR (Pt.
406) 170; Tafida v. Bafarawa (1999) 4 NWLR (Pt.597) 70; Ayoola v. Baruwa (1999) 11 NWLR (Pt.628) 595 referred to.] (Pp. 577-578; paras. F-E)
Per GARBA, J.S.C. at pages 583-584, paras. A-B:
“Similarly, it has been argued by theappellants that even if allegations were madeagainst persons/parties who are not joinedin an election petition, that fact alone wouldnot render the petition incompetent for thenon-joinder and the affected paragraphs ofthe petition would merely be struck out by atribunal. This general position of the law iscorrect to the extent only that there are otherfacts after the excision of the allegations againstthe absent persons/parties, that arc capable ofsustaining the substance of the petition againstthe parties that have been joined. A carefuland calm reading of the facts in the petitionof the appellants, but particularly, paragraphs29 – 34 set out earlier in this judgment,reveals that the appellants’ case was centredand completely based on the allegations ofbreach of the provisions of section 183 by MaiMala Buni; the Governor of Yobe State. Thisposition is clearly and manifestly shown inthe fact that eighteen out of the nineteengrounds of this appeal contained on thenotice of appeal dated and filed on the 23 rd ofJune, 2021, which is at pages 3835 of vol. 7 ofthe record of appeal, are complaints againstthe decision by the lower court on the issue ofwhether the allegations that Mai Mala Buni;Governor of Yobe State violated, breached orcontravened the provisions of section 183 of the(19)Constitution could be heard and determined
without him and in his absence in the petition.
Again, of the Six issues raised from thegrounds of appeal and submitted to thiscourt for determination in the appeal, as setout at page 4 of the appellants’ brief filedon the 5 th of July, 2021, Four of them areon the allegations of the violation, breach orcontravention of the provisions of section183 of the Constitution by Mai Mala Buni;Governor of Yobe State.
In the above circumstances, if the allegationsmade by the appellants personally against MaiMala Buni; the Governor of Yobe State in theirpetition were to be struck out, the petition wouldautomatically, as a matter of course, crumbleand collapse for being rendered hollow andbarren and so incompetent for lacking a validground in law to sustain it since the appellantshad ignored and abandoned the only otherground of the 3 rd and 4 th respondents not beingduly elected by majority of lawful votes cast atthe election.
On the whole, since the appellants’ petitionwas/is incompetent and due to the peculiarnature of election petitions that have fixedlifespans under the Constitution, a discuss orconsideration of all other issues raised andcanvassed in the appeal and cross appealswould merely be academic and of no legalvalue or worth. Courts loathe an exercise infutility. A.-G., Plateau State v. A.-G., Fed. (2006)All FWLR (Pt. 305) 590, (2006) 1 SC (Pt. 1)1, (2006) 3 NWLR (Pt. 967) 346; Adeogun v.Fashogbon (2008) 5 – 6 SC (Pt. 1) 23, (2008) 17NWLR (Pt. 1115) 149; Adelaja v. Alade (1999)6 NWLR (Pt. 608) 544; Okulate v. Awosanya
(2000) 2 NWLR (Pt. 646) 530; A.-G., Fed. v.A. N. P. P. (2003) 12 SC (Pt. II) 146, (2003) 18NWLR (Pt. 851) 182.”
30.On Essence and application of fair hearing –
In all trials, whether judicial or administrative,the person against whom a complaint is laid mustbe heard in compliance with the principle ofaudi alteram parterm. This is the crux of section36 of the Constitution of the Federal Republicof Nigeria, 1999 and always reflected in statuteswhere persons could be put on trial or investigatedwith possible consequence of reprimand and/orpunishment. For every accusation, there must bethe right to be heard. This is premised on, first, thecommon law principle and rule of natural justicewhich require and prescribe that before a courtor tribunal hands down a decision in a case whichmaterially and prejudicially affects the rights and/or obligation of a person, he must be afforded orgiven a reasonable opportunity to be heard in thecase. The rule is expressed in latin as “Audi AlteramPartem” i.e. hear the other side. Second, and morefundamentally, is the constitutional provision insection 36(1) of the 1999 Constitution (as alteredand amended). Both the common law principleand rule on natural justice, as well as the aboveconstitutional provisions, can only be given effectto, complied with and applied in a case where theperson to be materially and prejudicially affectedby the decision of a court or tribunal is formallybrought before the court or tribunal by beingmade a party against whom allegations of facts aremade, which the court or tribunal is called uponto determine and decide by the persons/parties
making them. In the absence of such other personsin the trials of allegations against them, theycould not be said to have been afforded or givenreasonable opportunity to be heard as mandatorilyand stipulated and prescribed by the provisions ofsection 36(1). [Council, Federal Poly Mubi v. Yusuf(1998) 1 NWLR (Pt. 533) 343; Deduwa v. Okorodudu(1974) 6 SC 21; Otapo v. Sunmonu (1987) 2 NWLR(Pt. 58) 587; Amadi v. Thomas Aplin Co. Ltd. (1972)SC 228; Kano N.A. v. Obiora (1959) SCNLR 577;Victino Fixed Odds Ltd v. Ojo (2010) 8 NWLR (Pt.1197) 486 referred to.] (Pp. 578-580, paras. E-A)
31.On Whether right to fair hearing can be waived –
The right to fair hearing provided for in section 36(1)of the Constitution is one which cannot be waived,ignored, disregarded or taken away even by statute,in the conduct of the judicial proceedings of a courtor tribunal in which the rights and obligations of aperson were to be determined. In this case, on theabove premises, the Court of Appeal was on terrafirma (firm terrain) of the law when it affirmed thedecision by the trial tribunal that Mai Mala Buni,the Governor of Yobe State, was a necessary partywithout or in the absence of whom the appellants’allegations of violation, breach or contraventionof the provisions of section 183 of the Constitutionagainst him personally, could not be properly,competently and validly determined by thetribunal as a basis for challenging the constitutionalqualification of the 3 rd and 4 th respondents to contestthe election in question on ground of lack of validsponsorship by the 2 nd respondent. [Kotoye v. C.B.N.(1989) 1 NWLR (Pt. 98) 419; Osasona v. Ajayi (2004)14 NWLR (Pt. 894) 527; Bamgboye v. Univ. of Ilorin
(1999) 10 NWLR (Pt. 622) 290; Awoniyi v. Reg.Trustees of the Rosicrucian Order Amore Nig. (2000)10 NWLR (Pt. 676) 522 referred to.] (P. 580, paras.A-E)
Per GARBA, J.S.C, at pages 581-582, paras. F-G:
“As regards the issue of agency between the 2 ndrespondent and Mai Mala Buni; the Governorof Yobe State against whom allegations of thebreach of the provisions of section 183 werepersonally made, it is rather Mai Mala Buni, asGovernor of Yobe State and the only subject ofand person mentioned and named therein whocan personally and directly violate, breachand contravene the provision, is the principalwho may and could be said to have done sohimself or by or through authorized andacknowledged agent, if that was possible withinthe proper context of the section. It wouldtherefore be a misconception to say and arguethat Mai Mala Buni, the Governor of YobeState was the agent or acted as the agent of the2 nd respondent for the purpose of the breach,violation, or contravention of the provisionof section 183 which did not mention and inlaw, does envisage or even contemplate the2 nd respondent in its very clear, unambiguous,precise, concise, straight forward and simplywords and language.
But, assuming there was any agencyrelationship between the 2 nd respondent andMai Mala Buni, the Governor of Yobe State,from the facts alleged by the appellants intheir petition and that he acted as an agentfor the 2 nd respondent; said to be a disclosedprincipal by the appellants, I need to point outthat the allegations of the breach, violation
or contravention of the provisions of section183 were not made and directed at the 2 ndrespondent; the alleged disclosed principal,but, once more and for umpteenth time, weremade personally against Mai Mala Buni; theGovernor of Yobe State as the only subjectand person specifically mentioned and namedtherein. For that reason, the general principlethat the agent of disclosed principal needsnot be joined in an action when the principalis made a party, does not apply to Mai MalaBuni; the Governor of Yobe State, since theallegations of the appellants were personallymade against him in his name and the office heholds as Governor and so is the principal ratherthan the agent against who the al1egationswere made.
In addition, both the 2 nd respondent and MaiMala Buni; Governor of Yobe State werealleged to be wrong doers by the appellantsin the violation, breach or contraventionof the provisions of section 183 and so thegeneral principle that the agent of a disclosedprincipal incurs no liability is inapplicable andwould not apply to Mai Mala Buni in the casepresented by the appellants, so as to make himnot a necessary party in the case. In the caseof PDP & Ogembe Ahmed Salau v. INEC (2008)LPELR – 8597 (CA), the law was restated inthe leading judgment by His Lordship, MaryU. Peter-Odili, JCA (now JSC), relying on thecases of B.B. Apugo & Sons Ltd v. O. H. M. B.(2005) 17 NWLR (Pt. 954) 305 at 340; Rickettv. B. W.A. Ltd. (1960) SCNLR 227; West AfricanShipping Agency Nig. Ltd. v. Kalla (1978) 3 SC
2 1; Asafa Foods v. Alraine Nig. Ltd. (2002) 12NWLR (Pt. 781) 353.”
32.On Interpretation of clear and unambiguous words ina statute –
The cardinal principle of the interpretation ofstatutes is that where the words used by thelegislature in a statute are clear and unambiguousin their ordinary meaning, effect should be given tothem without resort to any external aid. The dutyof the court therefore is to interpret the words asused in the statute. In the instant case, section 183of the 1999 Constitution provides that the Governorof a State shall not when he holds office in thatcapacity, “hold any other executive office in anycapacity.” The section does not invite any addition,as the words utilised are plain and simple. [NNPCv. Lutin Investments Ltd. (2006) 2 NWLR (Pt. 965)506; Elelu-Habeeb v. A.-G., Fed. (2012) 12 NWLR(Pt. 1318) 423 referred to.] (P. 603, paras. A-D)
33.On Meaning and connotation of “whatsoever” insection 183 of 1999 Constitution –
“Whatsoever” means whatever. No matter what;regardless of what. It excludes any limitationor qualification, and implies that the genus towhich it relates is to be understood in its utmostgenerality. The wordings of section 183 of the 1999Constitution simply mean that a Governor shallnot while in occupation of that office hold any otherexecutive office “no matter what” or “regardless ofwhat” office is comprised of. (P. 603, paras. D-G)
34.On Locus standi of other candidates to challenge thequalification of another ca ndidate contesting election –
The issue whether the purported sponsorship ofa candidate by a political party followed the due
process of law comes neither under sections 31(5)nor 87(9) of the Electoral Act, 2020, read togetherwith 285(9) and of the Constitution of theFederal Republic Nigeria, 1999. In this case, it wasno longer the internal affairs of the political partywhich, in obedience to section 31(1) of the ElectoralAct, 2020 had conveyed, submitted or transmittedthe names of its duly nominated candidates toINEC, as the candidates it intended to sponsor forthe election. The appellants, who were also cross-respondents in the cross-appeals, did not need tobe members of the political parties sponsoring theother candidates against them in order to havelocus standi to challenge the qualification of theother candidate(s) contesting them. The fact thatcandidates returned were on the ballot againstthem, the appellants, and contested the electionwith them was what clothed or vested in themthe right or the standing in law to challenge thereturn made from the election on the permissiblegrounds for challenging the return, including theground that the person returned was not qualifiedto contest at the election or that his sponsorship toINEC as a candidate did not follow the due processof law. (Pp. 633-634, paras. H-C)
Per EKO, J.S.C. at pages 635-637, paras. C-D:
“On this ground I will not hesitate to dismissoffhand the contention that the appellants lackthe locus standi or reasonable cause of actionon which to found their petition.
Because section 1 of CFRN provides, inter alia:
1(1) This Constitution is supreme and itsprovisions shall have binding force onall authorities and persons throughoutthe Federal Republic of Nigeria;
and that the country shall be governed onlyin accordance with the rule of law and theprovisions of the Constitution, and furtherthat if any act or law is inconsistent with theprovisions of the Constitution such act or lawshall, to the extent of inconsistency, be void;I should think, and I so hold, that a cause ofaction founded on breach of the mandatoryprovisions of the Constitution, such as section183 and 177 thereof, vests locus standi onthe petitioners as the instant appellants. Istated in Centre for Oil Pollution Watch v. NNPC(2018) LPELR – 50830 (SC), (2019) 5 NWLR(Pt. 1666) 518 that
“every person including NGO’s, publicspirited individuals or associations, havesufficient interest in ensuring that publicauthorities or corporations submit to therule of law and that no public authorityhas power to, arbitrarily or with impunity,break the law or general statute” andthat “the right of the citizen or lawfulorganisation to see that the rule of law isenforced vests in him or the associationsufficient standing to request the courtto call to order (any person or authority)allegedly violating the law”.
Lord Denning, M. R. in Mcwhirters (1973) QB649, had re-stated the law to the effect thatit is a matter of high constitutional principlethat, if there is a good ground for supposingthat the law is being transgressed or is aboutto be transgressed, anyone of those offendedor injured thereby can bring to the attentionof the court of law or tribunal established
by law that fact and seek to have the lawenforced. This is exactly what the appellants,as the petitioners, have set out to do. That is,to have section 183 of CFRN enforced againstthose who, allegedly, had transgressed thesaid section 183 CFRN in the matter of thesponsorship of the 3 rd and 4 th respondents bythe 2 nd respondent to contest the Governorshipelection in Ondo State on 10 th October, 2020.They point accusing fingers largely at the 2 ndrespondent (APC) that sponsored 3 rd & 4 threspondents vide exhibit P21.
This court’s decision, in Fawehinmi v. Akilu &Anor (In Re: Oduneye, DPP) (1987) 12 SC 136;(1987) 18 NSCC (Pt.2) 1269; (1987) 4 NWLR(Pt. 67) 797 to the effect that every Nigerian,being his brother’s keeper, has a duty toensure, bona fide, that the law breakers aresanctioned for their illegalities, has liberalisedlocus standi viz-a-viz violation of public law.I think I am on firma terra to opine and holdthat the appellants, as the petitioners, havethe standing in law to request, as they did, theadjudication on whether the 2 nd respondent canlegitimately violate section 183 of the CFRN;and also whether the INEC (1 st respondent)can whimsically condone such alleged brazenunconstitutionality in the manner the 2 ndrespondent purportedly sponsored 3 rd & 4 threspondents to 1 st respondent as its candidatein the 10 th October, 2020 election. They havesufficient interest in ensuring that these namedrespondents submit to the rule of law, andnot to breach the mandatory or prohibitoryprovision of section 183 of the NationalConstitution. The English Court, in Reg. v.
I.R.C. (Ex parte: National Federation of Self-Employed and Small Business Ltd. (1982) A.C.617, held that the plaintiff has the standingto request adjudication on whether a publicauthority can condone illegality by abdicatingor shierking its statutory responsibility, andensure that the rule of law prevails.
It is, therefore, my firm view that the appellants,as the petitioners, had genuine locus standiwhen they initiated the petition, the subject ofthis appeal; and that their petition was filedin time in accordance with section 285(5) ofCFRN, as altered….
A defective sponsorship denies the qualificationto contest an election. It appears that allparties herein are ad idem that a person is bythe Constitution and Laws of this Country,qualified to contest an election only if he wasduly sponsored as a candidate by a politicalparty. That is why section 138(1)(a) of theElectoral Act, 2010 provides:
138(1) An election may be questioned on anyof the following grounds, that is to say –
that person whose election isquestioned was, at the time ofthe time of the election, NOTQUALIFIED TO CONTEST THE(a)ELECTION.
Accordingly, the respondents’ insistence thatqualification or otherwise to contest the disputedelection was purely a pre-election matter totallylacks any foundation to be erected on. I agree withthe lower court and the appellants that the issue:whether the 3 rd & 4 th respondents were not qualifiedto contest the election by the fact of their alleged
defective sponsorship was a proper issue raisedin the petition of the appellants to challenge theirelection.”
35.On Bindingness of constitution of political party on theparty and its members –
A political party, like its members, is bound byits constitution. In this case, the Court of Appealstated the law correctly to that effect. That specificholding on point of law, not having been appealed,remained binding and subsisting as between theparties herein. [Onuoha v. Okafor (1983) 2 SCNLR244; P.D.P. v. Sylva (2012) 13 NWLR (Pt. 1316) 85;Lau v. P.D.P. (2018) 4 NWLR (Pt. 1608) 60; A.P.C.v. Karfi (2018) 6 NWLR (Pt. 1616) 479; Amaechi v.INEC (2008) 5 NWLR (Pt. 1080) 227; Gana v. S.D.P.(2019) 11 NWLR (Pt. 1684) 510 referred to.] (P.639, paras. D-F)
Per EKO, J.S.C.at pages 638-639, paras. G-D:
“Now the question: if the Governor of aState, as Mai Mala Buni of Yobe State is, isprohibited by section 183 of the CFRN as wellas Article 17(iv) of the APC (2 nd respondent’s)Constitution – Exhibit P22, from concurrentlyholding the offices of the State Governor andany other executive office whatsoever in apolitical party; will it be right for the politicalparty, as the APC (2 nd respondent) is, toappoint, procure, induce, instigate, aid andabet the Governor (in this case His Excellency,Mai Mala Buni of Yobe State) to do that or themischief expressly prohibited by the NationalConstitution and its own constitution?
Equity acts in personam, just as it follows thelaw. Is the 2 nd respondent, in appointing HisExcellency Mai Mala Buni to deliberately flout
and breach the National Constitution (Section183 thereof) and Article 17 of its ownConstitution (Exhibit P22) not in pari delicto,that is equally guilty of doing the mischiefproscribed? According to Black’s LawDictionary 9 th ed, at page 862 “in pari delicto, anadverb [Latin: in equal fault] means “equallyat fault”. I have no doubt, therefore, in holdingthat 2 nd respondent, in appointing Mai MalaBuni, Governor of Yobe State to concurrentlyperform and/or discharge the executive officeof National Chairman Caretaker Committeeconcurrently with his office as the ChiefExecutive Officer of Yobe State was “in equalfault” as His Excellency Mai Mala Buni in thecontravention or breach of section 183 of theCFRN as well as Article 17 of exhibit P22,its constitution”
DISSENTING OPINIONS OF PETER-ODILI, EKO, ANDSAULAWA, JJ.S.C.
1.On Purport and effect of section 183 of the 1999Constitution –
By virtue of section 183 of 1999 Constitution, theGovernor shall not, during the period when heholds office, hold any other executive office orpaid employment in any capacity. This disclosesa mandatory disabling provision which followsthat the Governor so disabled from ascending theprescribed position, if by any means he finds himselfin any such position all acts done by him by suchderogation is disabled and without validity. In thiscase, the Court of Appeal was right in holding thatthe section imposes a disability on the Governor
but veered off when it held that the disability doesnot affect a political party and in particular the 2 ndrespondent. (Pp. 599-600, paras. H-A)
Per PETER-ODILI, J.S.C, at pages 600-601, paras.C-D:
“It is not in dispute that Governor Mai MalaBuni was appointed by the 2 nd respondentas its Chairman and Chief Executive for thepurpose of carrying out all the acts complainedof in the petition. That act of appointmentwas effected by the 2 nd respondent and wasnot a unilateral act of the Governor. By the2 nd respondent’s admission and evidence onrecord, Mai Mala Buni was a representative ofthe 2 nd respondent. The 3 rd and 4 th respondentsby their pleadings contended that the 2 ndrespondent is a corporate body, and all actionstaken or thing done by Governor Mai MalaBuni were done by the 2 nd respondent. (Seeparagraph 26 of the 3 rd and 4 th respondents’reply to the petition at page 216 of the recordof appeal, volume 3). The said paragraph 26reads:
“The 3 rd and 4 th respondents will contendat the hearing that the 2 nd respondentbeing a corporate body, all actionstaken or things done on its behalf by thecaretaker committee in respect of thesponsorship of the 3 rd and 4 th respondentsare deemed or taken in law to have beendone by the 2 nd respondent and they werevalidly done.”
The matter had thus by admission of therespondents gone beyond a unilateral actof a Governor which could conceivably be
restricted to himself or which effect on otherscan be rightly denigrated or enshrouded. Ifunderstood, the offensive act which formedthe basis of the petition was a purportedact of the 2 nd respondent attained throughunconstitutional means. That unconstitutionalact violated section 183 CFRN 1999 by virtue ofthe fact that a constitutionally disabled personwas sent to crystallise the act. It is wrong forthe Court of Appeal to even classify that as theact of the governor when that was indeed anillegal act of the 2 nd respondent accomplished atransgression of the Constitution. As was heldby the Supreme Court per Ogunbiyi, J.S.C. inOsi v. Accord Party (2017) 3 NWLR (Pt. 1553)387, (2016) LPELR – 41388 (SC) 27, paras.B-F:
“A breach of the Constitution is sofundamental and which cannot beremedied. It is an abuse of process”.
See also Edibo v. State (2007) 13 NWLR (Pt.1051) 306, (2007) LPELR 1012 (SC) at 32,paras. B-C where the Court on this salientpoint held thus –
“In effect, it is now firmly established thata breach of a mandatory constitutionalprovision, is more than a mere technicality.That it touches on the legality of the wholeproceedings …”
If it touches on legality of the letter signed bythe Governor, it cannot conceivably be an actwhich affects the Governor. It is indeed theother way round. The act of the Governorinvariably rendered the letter signed by him inbreach of the Constitution illegal.”
2.On Effect of breach of provisions of the Constitution –
Where a party acts contrary to, infringes, or violatesany of the provisions of the Constitution, suchaction is null and void and of no effect whatsoever.If the act is illegal, then the consequences of thatillegality must be given their resultant effect. In thiscase, the Court of Appeal held erroneously whileconsidering section 183 of the 1999 Constitution,that for a position to be considered an office withinthe contemplation of the law, the office must haveduties that are continuing rather than temporary orintermittent. [Knight Frank & Rutley (Nig.) Ltd. V. A.-G., Kano State (1998) 7 NWLR (Pt.556) 1 referredto.] (Pp. 601, paras. D-E; 602, paras. E-F)
Per PETER-ODILI, J.S.C, at pages 601-602, paras.F-F:
“A consideration of the petition in a mo…