A missed opportunity to stand up for democracy.

Mahmood Yakubu, INEC, Abdul Aboki
New INEC Chairman, Professor Mahmood Yakubu takes oath of office before President Muhammadu Buhari at the Presidential Villa in Aso Rock, Abuja on Monday, November 9, 2015 | NAN

A few hours ago, the Independent National Electoral Commission, INEC, released the final list of candidates for the Ondo State gubernatorial elections slated for November 26, 2016. This rather routine electoral process has been complicated by the infighting in the Peoples’ Democratic Party where two candidates – Jimoh Ibrahim and Eyitayo Jegede (SAN) – laid claim to the ticket of the party for the elections.

Contrary to expectations in many quarters INEC listed Jimoh Ibrahim, a controversial Nigerian businessman as the PDP candidate. Alabi Ebenezer Omotayo was listed as his running mate. INEC cited an Order given by Justice Okon Abang of the Federal High Court as the basis for its decision to list Jimoh Ibrahim as its candidate.

The thing is, the order given by Justice Abang defies all known principles of law as provided for by the Electoral Act and as upheld by the Supreme Court. To my mind, the order is by itself inchoate as it seeks to determine the rights and obligations of people who were not parties to the suit before it.

To make reading this easier, I have distilled the following issues relating to the legality of this order. It’s a bit of a long read, and I hope you do not get bored.

  1. THE SUIT BEFORE JUSTICE OKON ABANG

The suit before Justice Okon Abang was filed to resolve a leadership tussle in the South West region of PDP. It related to the tenure of the South West zonal leadership of the party. At the time the suit was filed and judgment given on June 29th, 2016 the party had not held primaries to elect a candidate for the polls.

Neither Jimoh Ibrahim nor Eyitayo Jegede (SAN) were parties to any of the suits before the Court – whether the substantive suit for which judgment was given on June 29th, 2016 or the contempt of court proceedings brought to seek enforcement of the judgment of the court. The question of who the candidate of the party was not in issue. There was no prayer in the Writ of Summons seeking the declaration of a candidate as the candidate of the party for the Ondo elections.

It is trite law that the Court is not Santa Claus and will not grant a prayer to a litigant that such a litigant did not ask for. It is, therefore, surprising that while determining Contempt of Court Proceedings brought further to the judgment in the substantive suit, Justice Abang made an order purportedly declaring the Jimoh Ibrahim as candidate of the party.

Secondly, it is also trite law that a Court cannot determine a suit that seeks affects the rights and obligations of people who are not parties to the suit. In Ejike Oguebego v PDP (SC: 71/2015), the Supreme Court stated thus:

“It is settled as a matter of general rule that no person is to be adversely affected by a judgment in an action to which he was not a party because of the injustice on deciding an issue against him in his absence. See Clay Industries Ltd v Aina (1997) 7 SCNJ 491”

Eyitayo Jegede (SAN) was not a party before Justice Abang in the suit in which issues relating to his candidature were determined. What is worse, when he sought leave of the Court to appeal as a party interested, Justice Abang denied that application. In reaching the decision, Justice Abang referred to the fact that he was not a party to the suit, even though his rights had been abridged by the decisions of the Court in the suit.

The suit before Justice Abang also raises serious issues of ethical conduct on the part of the counsels to the parties. I will lay the facts out and leave you to make your judgment.

The Writ of Summons was issued by the law firm of G. O. Fakunle (SAN) & Co. In layman’s terms, this means that the law firm of G. O. Fakunle (SAN) & Co initiated the proceedings on behalf of the plaintiffs in that suit – Mr. Biyi Poroye and others.

But the same G. O. Fakunle (SAN) appeared on behalf of the 2nd Defendant – PDP. And the record of proceedings showed that while “appearing” on behalf of PDP, he made concessionary arguments to the Court accepting why judgment should be given against his client.

This is not all. The motion via which the Contempt of Court proceedings was instituted was signed by a lawyer from TRLP Law – a firm of “international commercial lawyers & arbitrators”. To add to the twist, Ajibola Oluyede – who is listed as Founding/Principal Partner of TRLP Law – appeared on behalf of the 2nd Defendant – PDP. I am sure you know how those proceedings went.

The above scenario raises all sorts of ethical red flags. Surely at some point Justice Okon Abang must have known to question this funny sort of representation. Or did he know and ignore?

  1. WHAT ORGAN/BODY OF A PARTY IS AUTHORISED TO CONDUCT PRIMARIES?

The appropriate organ of a political party authorised to conduct primaries and submit names to the Independent National Electoral Commission (INEC) for the purpose of general elections is the National Executive Committee of the party.

This is a principle that has been upheld by the Supreme Court in a plethora of cases. These include Emeka v Okadigbo (2012) 18 NWLR (pt 1331) 55; Emenike v PDP (2012) 18 NWLR (pt 1315) 556; Oguebego v PDP SC: 37/2015.

Furthermore, this principle is domesticated within Article 17.1 of the PDP Constitution which provides that the National Executive Committee (NEC) of the party is the organ authorised by law to organise primaries and to present candidates to INEC for the purpose of general elections.

As such the State Executive Committee of the party lacks the requisite power to conduct primaries and submit names to INEC. Consequently, the claim by an estranged member of the PDP in Ondo State Mr. Biyi Poroye that he has the power to conduct primaries and submit names of candidates to INEC has no foundation in law.

  1. WHAT IS THE VALID NEC OF THE PARTY?

As it stands, the relevant judicial pronouncements to be considered regarding the leadership of the PDP are the judgments given by Justices Abdullahi Liman, Valentine Ashi and Nwamaka Ogbonnaya – all of the Federal High Court.

In reaching his judgment, Justice Valentine Ashi nullified the amendment of the PDP Constitution which provided that upon the death, resignation or incapacitation of a member of the National Working Committee (NWC) of the party, a person could be nominated to complete his tenure. He ordered a reversal to the previous provision that upon the death, resignation or incapacitation of a member of the National Working Committee (NWC) of the party elections had to be held to fill the vacant position.

This judgment is very instructive because this amendment formed the basis upon which Senator Ali Modu Sheriff was nominated as acting chairman of the Party. He was ostensibly nominated to complete the tenure of the Alhaji Adamu Muazu.

In her judgment, Justice Nwamaka Ogbonnaya refused to entertain a suit filed by a group of disgruntled members of the party on the issue of the Ali Modu Sheriff’s tenure. Her holding was to the effect that the judgment of Justice Valentine Ashi was still valid and subsisting having not been overruled by a superior court of record.

In his judgment, Justice Ahmed Liman authenticated the Ahmed Makarfi led National Caretaker Committee (CTC) of the party. In reaching his decision, Justice Liman held that:

  • The Convention at which the CTC was set up was validly summoned having been approved by the NWC and Board of Trustees (BoT) of the party.
  • The Convention was empowered, as the highest decision making body of the party, to dissolve the NWC of the party.
  • Having been validly summoned, the Convention could only be postponed by delegates at the Convention and not unilaterally by Ali Modu Sheriff.
  • In the absence of the Chairman, the Deputy National Chairman (a position filled at the time by Chief Uche Secondus) could chair the Convention.
  • The decisions made by the Convention having been validly summoned were valid and binding on all organs of the party.

Once considered in tandem with the Supreme Court judgements referred to in Issue 2 above, one can see that it is the Ahmed Makarfi led CTC that is empowered to conduct primary elections and to submit names to INEC for the purposes of general elections.

The Makarfi led CTC held the primaries from which Eyitayo Jegede (SAN) emerged as candidate of the party for the Ondo State gubernatorial elections.

  1. MEMBERSHIP OF THE PARTY

There is a plethora of decisions which define the membership of political parties as internal issues of the party. In A.P.G.A. v Sen. Christina Anyawu (Suit No: SC.20/2013), the Supreme Court stated thus:

“There is a plethora of decisions of this court to the effect that membership of a political party is the domestic affair of the party concerned and the courts will not be involved in deciding who the members of a political party are.

See: Onuoha v. Okafor (1983) 2 SCNLR 244: (1983) NSCC 494; Lado V. C.P.C. (2012) ALL FWLR (pt.607) 598 @ 622 – 623 C – D & F – H: (2011) 12 SC (Pt.III) 113 @ 139 140: P.D.P. V. Sylva (2012) 13 NWLR (Pt.1316) 85.

As such, it is only the party that can state who its members are. And PDP insists that Jimoh Ibrahim is not a member of the party.

On 19/06/2016 in an interview with Trace News Magazine which was published in Vol. 6 No. 10 of the magazine, Jimoh Ibrahim stated he was no longer a member of the party, but that he had defected to Accord Party, the platform upon which he desired to actualise his ambition of becoming Governor of the State.

It therefore begs belief that Jimoh Ibrahim will be seeking to claim benefits of a judgement that was passed at the time he stated he was a member of Accord Party.

Furthermore, Article 17.2(g) of the PDP Constitution states that only a person who has been a member of the party for a two year period can contest general elections on the platform of the party unless a waiver has been granted such a person by the appropriate executive committee.

Assuming, conceding that Jimoh Ibrahim had validly returned to the party, he has not been a member for a two year period neither was he granted any waiver by any executive committee of the party

  1. WHETHER PRIMARIES THAT PRODUCED JIMOH IBRAHIM ARE VALID

A group of people purportedly held primaries in Ibadan where Jimoh Ibrahim emerged as candidate of the party. These “primaries” were held in spite of an order by Justice Omolara of the Ondo State High Court issuing an order restraining them conducting any such exercise pending the determination of a substantive matter before her. The import of this is that the primaries are illegal, null & void.

Furthermore, Section 85 of the Electoral Act provides that a political party must furnish INEC with 21 days notice before the conduct of any primary election, convention, congress or meeting for the purpose of nominating candidates for elective office covered by the Electoral Act.

No such notice was given to INEC in respect of the primaries from which Jimoh Ibrahim purportedly emerged as candidate of the party. However, this notice was given regarding the primaries from which Eyitayo Jegede (SAN) emerged as candidate of the party further to which INEC monitored the primaries.

Section 87 of the Electoral Act stipulates a procedure for nominating a candidate of a party through direct or indirect primaries. This procedure includes the conduct of special congresses in all local government areas of the state to elect delegates prior to the conduct of primaries where the delegates elect a candidate for the party (in the case of indirect primaries) or a primary election where all members of the party can vote for the candidate of their choice.

There was absolutely no compliance with this provision of the Electoral Act in respect of the primaries that from which Jimoh Ibrahim purportedly emerged. On the other hand, this process was fully complied with in respect of the primaries from which Eyitayo Jegede (SAN) emerged as candidate of the party.

Finally, the PDP Constitution requires that primaries organised to nominate a candidate for gubernatorial elections are to be held in the state. The primaries form which Jimoh Ibrahim purportedly emerged as the PDP candidate were held in Ibadan. A discussion about whether or not these primaries are legal cannot be more binary. 

CONCLUSION

The release of this list of candidates represented an opportunity to redeem the image of the electoral umpire that has been severely battered by its conduct since the inauguration of the Buhari administration. If it follows laid down principles of law & judgments of the Supreme Court and other courts, the Professor Yakubu led INEC would have taken its first steps towards restoring public confidence in the organization.

It also presented an opportunity to redeem the image of a judicial system badly battered by the allegations of corruption that have filled recent socio-political discuss. Unfortunately, the judgments and orders handed down by Justice Okon Abang do the Bench no favours and in fact lend credence to those claims.

It is most unfortunate that neither INEC nor Justice Abang took the opportunity to redeem the images of the institutions they represent. And it is a crying shame.

Ilemona Onoja is a lawyer, political activist, and social media influencers. He can be reached by email HERE

The opinion expressed in this article are solely those of the author.

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