Nigerian Anttorney-General Writes Confidential Memo To APC Governors’ Forum, Offers Legal Opinion On Issues Implicated In Supreme Court Judgment In Guber Election Tribunal Appeals In Eyitayo Jegede V. Rotimi Akeredolu & Others As It Affects APC
CONFIDENTIAL
29th July, 2021
To: APC Governors’ Forum
c/o APC National Secretariat,
40 Blantyre Street, Wuse 2,
Abuja.
OPINION ON THE LEGAL ISSUES IMPLICATED IN THE SUPREME COURT JUDGMENT IN THE GUBERNATORIAL ELECTION TRIBUNAL APPEALS BETWEEN MESSRS. EYITAYO JEGEDE & ORS VS. ROTIMI AKEREDOLU & ORS-
AS IT AFFECTS THE ALL PROGRESSIVES CONGRESS
1. On 28th July 2021, the Supreme Court, albeit by a simple majority , gave Judgment in favour of Arakunrin Rotimi Akeredolu, SAN and the All-Progressives Congress (APC/the Party) in the Appeal filed by Mr. Eyitayo Jegede, SAN and the People’s Democratic Party challenging the victory of Mr. Akeredolu and APC in the October 2020 Gubernatorial Elections.
2. As a fall-out from the Judgment, expectedly, there have been diverse Opinions in the public space on the implication of the Judgment for the Party. Chief among the proponent of free-opinions on the subject matter is Mr. Festus Keyamo SAN, a member of APC and the Minister of State for Labour and Productivity. Mr. Keyamo inter alia opined that the Party must immediately halt all preparations for the forthcoming congresses stipulated to hold on 31st July 2021, and disband the Governor Mai Mala Buni led National Caretaker/Extra-Ordinary Convention Planning Convention Planning Committee (CECPC).
3. In view of the far-reaching views expressed by Mr. Keyamo (and others), on the future of our Party under the leadership of H.E, Governor Mai Mala Buni, as the Chairman of CECPC of the Party, as well as the continuance of the proposed Congresses of the Party slated for 31st July 2021, it has become necessary to render this Opinion to set the records straight.
4. The Opinion expressed herein is based on general understanding of the Nigerian Legal System; the position of the applicable Laws in Nigeria and interpretation of Statutes as at the date hereof.
5. It is important to state as a foundational point that the decision of the Party to put in place the CECPC as presently constituted was not taken lightly, it was most necessary and realistic in light of the uncertainties that characterized the Party and its affairs at the relevant period. Furthermore, this is by no means saying that the decision to set up CECPC was merely for convenience but one that was subjected to and passed the scrutiny of legal review and examination.
6. As to the Supreme Court decision under review, a full panel of the Supreme Court by a simple majority of 4/3 dismissed the Petition of the Peoples’ Democratic Party’s Aspirant. The ratio decidendi for the decision was that H.E., Mai Mala Buni was not joined as a party to the Suit and therefore the matter could not be determined on its merits as it would be a violation of his Right to Fair Hearing as Constitutionally guaranteed.
7. Meanwhile, the lynchpin of Mr. Jegede/PDP’s case was the provision of Section 183 of the 1999 Constitution of Federal Republic of Nigeria (as amended) on the Disqualification of a Governor from Other Jobs which provides that:
‘’The Governor shall not, during the period when he holds office, hold any other executive office or paid employment in any capacity whatsoever…’’
8. In the instant case, the Supreme Court did not determine the justice of Section 183 of the 1999 Constitution vis-à-vis the peculiar position of H.E, Mai Mala Buni as the Chairman of our Party’s CECPC.
9. For emphasis, it is important to quote the Supreme Court, per Agim, JSC where the Court held that:
“The Appeal was based on the ground that Mai Mala Buni, the Chairman of the National Caretaker Committee of the party, that is, the Second Respondent (APC) was holding office as Governor of Yobe State, contrary to section 183 of the Constitution of the Federal Republic of Nigeria (1999)’’..
‘’All the issues raised, revolved around Mai Mala Buni. But, Mala Buni, who is at the centre of the dispute was not made party to the petition. It is obvious that the determination of the said issues will affect him.’’..
‘’Therefore, the Court below was right to have held that he was a necessary party to the Suit. Failure to join him renders the determination of the matter impossible. To proceed to do so would have violated the fair trial of the case.’’
10. The foregoing ratio decidendi of the Supreme Court is clear and admits of no ambiguousity.
11. Therefore, it is shocking that the interpretation of Section 183 of the 1999 Constitution, in light of the above-quoted decision of the Supreme Court, could be stretched in some quarters to state that chairmanship of an ad-hoc committee duly constituted by the National Executive Committee of a registered political party (by a registered member of the Party) could constitute paid employment or an executive position as envisaged under Section 183 of the Constitution.
12. It remains to be seen how a Governor functioning in an ad-hoc capacity as mandated/delegated by his political party can be construed as ‘’holding any executive office or paid employment’’ as envisaged by the drafters of our Constitution.
13. To further show the meritless nature of the position under review, assuming without conceding that the argument is right, then, it will equally be contrary to the spirit and intent of Section 183 of the Constitution for any sitting Governor to be Chairman of say the Governors’ Forum, Chairman of the Progressive Governors Forum, or any other similar body. This, in my humble view can definitely not be the intention of the drafters of the 1999 Constitution.
14. Available information on the instant proceedings is to the effect that at the Tribunal hearings, the Principal Witness of the Party- Mr. Dare Oketade Esq, who is the Director Legal Services of the APC was thoroughly Cross- Examined by Chief Onyechi Ikpeazu SAN of Counsel to the PDP, and Mr. Oketade duly informed the Court affirmatively that H.E, Gov Mai Mala Buni was not drawing salary from the Party; was never occupying the Office of the National Chairman of the Party, and that he only functions in an ad-hoc or caretaker capacity.
15. The appointment of Gov. Mala Buni in the circumstances is not irregular and the possibility of any member of the Party to be so appointed is in compliance with the APC Constitution which empowers the National Executive Committee (NEC) of the Party to appoint any Member into any Committee, give such Committee any name and empower it as the NEC may deem fit.
16. The foregoing said, needless to state that the determination of the propriety or otherwise of H.E., Mai Mala Buni to function as Chairman of the Party’s CECPC in his capacity as a Member of the Party and Executive Governor of Yobe State, or whether such dual-responsibility amounts to occupying an executive position or paid employment as envisaged under Section 183 of the 1999 Constitution (as amended) is a matter which will have to be specifically submitted to the Court, for proper adjudication before a firm position of the Law can be arrived at in respect thereof.
17. However, it remains to be seen how the Court will hold that an ad-hoc caretaker committee chairman exercising the powers of, and subject to the supervision and control of NEC and the Convention of his Party, is occupying an executive position.
18. It is trite that Case Law (or judicial precedent) operates under the principle of stare decisis to the effect that the Court must follow and apply the Law as set out in the decisions of higher Courts in previous cases. The principle is not inviolable as it is only applicable to the specific stare decisis and not any orbiter dictum in the case. Importantly, a case is also only a judicial precedent for a subsequent case where the facts and circumstances are similar, to avoid a situation where the Court will perpetuate injustice.
19. The Supreme Court has NOT determined the import of Section 183 of the Constitution as it affects H.E., Buni (in the instant peculiar circumstances) vis-a-vis the APC. Thus, any speculative insinuation that any future Suit against the Party or its activities, where H.E, Buni is joined as a party will automatically be lost by or be against the Party is without any known basis in Law. Such outlandish position, to say the least, is both unjustifiable and unfounded in Law.
20. In the premise of the foregoing, it is important to note as follows that:
a. The Supreme Court did not consider nor determine the justice of Section 183 of the 1999 Constitution vis-à-vis the peculiar case of the position of H.E, Mai Mala Buni as the Chairman of our Party’s CECPC.
b. As the Supreme Court did not make any definite declaration or proclamation on Section 183 of the 1999 Constitution vis-à-vis the position of H.E, Mai Mala Buni as the Chairman of our Party’s CECPC, any speculative interpretations of the instant Supreme Court Judgment go to no issue and should be discountenanced.
c. If the issue is submitted to the Court for determination, same will be determined based on a proper construction of the relevant facts and review of evidence.
Abubakar Malami, SAN
Attorney General’s Chambers,
Federal Ministry of Justice, Abuja.
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