FEDERAL ELECTORAL COMMISSION V. ALHAJI MOHAMMED GONI & ANOR

FEDERAL ELECTORAL COMMISSION V. ALHAJI MOHAMMED GONI & ANOR

final

 

CITATIONS:

1.(1983) NSCC 481

      In The Supreme Court of Nigeria

On Friday, the 14th day of October, 1983

Suit No: SC.54/1983

 

Before Their Lordships

 

ATANDA FATAYI-WILLIAMS                         -Justice of the Supreme Court

GEORGE SODEINDE SOWEMIMO              -Justice of the Supreme Court

AYO GABRIEL IRIKEFE                                     -Justice of the Supreme Court

MOHAMMED BELLO                                       -Justice of the Supreme Court

ANDREWS OTUTU OBASEKI                         -Justice of the Supreme Court

KAYODE ESO                                                      -Justice of the Supreme Court

ANTHONY NNAEMEZIE ANIAGOLU          -Justice of the Supreme Court

                 

 

 Between             

FEDERAL ELECTORAL COMMISSION                         Appellant

                     And                                          

1. ALHAJI MOHAMMED GONI

2. UNITY PARTY OF NIGERIA                                        Respondents

 

COUNSEL:                                                                                                 

Chief F.R.A. Williams, S.A.N. (with him Ladi Williams and J.A. Kester)                        -For the Appellant

G.O.K. Ajayi, S.A.N. (with him Ayo Adebanjo, Ayo Ogunsola (Miss)

and K.K. Shomade)                                                                                                                               -For the Respondents

 

 JUDGEMENT:

ANIAGOLU, J.S.C.: (Delivering the Leading Judgment): On 3rd August 1983, this Court dismissed the above appeal, with no order as to costs, and reserved the reasons for the judgment to be delivered on a later date to be notified to the parties. The notification fixed the date at 14th October, 1983. I now give my reasons for the said dismissal of the appeal.

The case, the facts of which arose from Borno State, was commenced by originating summons, filed in the High Court of Lagos and which reads:

"Originating Summons

LET the Federal Electoral Commission of Onikan, Lagos within Eight days after service of this summons on it, inclusive of the day of such service cause an appearance to be entered for it to this Summons which is issued on the application of Alhaji Mohammed Goni of Government House, Maiduguri and the Unity Party of Nigeria of 8 Eletu Odibo Street, Abule-Ijesha, Lagos, who claim for determination the following questions -

  (a) Whether the determination of the qualification of a person for election to the office of the Governor of a State under s.166 of the Constitution of the Federal Republic of Nigeria 1979 ought to be made by reference to s.62 of the Constitution or to s.64 thereof or to both?

  (b) If such determination is to be made by reference to s.62 of the Constitution whether the 1st plaintiff is disqualified from contesting election to the office of Governor of Borno State.

(c) If such determination is to be made by any reference to s.64 whether all the grounds for the loss of the seat of a senator specified in paragraphs (a)-(g) inclusive of s.64(1) are capable of being applied to a candidate for election to the office of Governor?

(d) In determining which of the said paragraphs of s.64(1) are capable of being applied thereto is it permissible to alter or substitute for the words, situations and institutions occurring in those paragraphs other words, situations and institutions different from those prescribed therein?

(e) If the answer to the question is in the affirmative, what words, situations and institutions ought to be substituted for which in each of such paragraphs?

(f) Is paragraph (g) of s.64(1) one of those which are capable of being made applicable to a candidate for the office of Governor by such alteration or substitution?

(g) If the answer is in the affirmative, whether the circumstances in which the 1st plaintiff became a member of the 2nd defendant (sic) does not preserve his eligibility for election to the office of governor aforesaid within the scope of the proviso to s.64(1) (g) of the Constitution?

AND the plaintiffs claim the following reliefs:

(i) A declaration that the 1st plaintiff is qualified for election to the office of Governor of Borno State;

(ii) A declaration that the purported rejection of the 1st plaintiff as candidate for election to the office of Governor by the defendant is wrongful ultra vires and void;

(iii) An order directing that the 1st plaintiff's name be restored to the list of candidates for election to the office of Governor of Borno State and that nomination papers in respect of the said election be supplied to the plaintiffs;

(iv) In the alternative, should the orders sought above be not granted, that the defendant do supply to the 2nd plaintiff before the date for the close of nominations for the office of governor of a State nomination papers to be used for any alternative or substitute candidate to be sponsored by the 2nd plaintiff.

Dated this 25th day of May 1983. 

Original Signed By:

G.O.K. AJAYI

G.O.K. Ajayi SAN.,

Plaintiffs' Counsel,

Unity House (14th Floor),

37 Marina, Lagos."

The Governor of Borno State, Mohammed Goni (hereinafter simply referred to as Governor Goni) had applied to the Federal Electoral Commission (referred to as FEDECO) to stand election as a candidate for the governorship of Borno State on the platform of the political party known as the, Unity Party of Nigeria (hereinafter referred to as the U.P.N.).

FEDECO disallowed his candidature and communicated this fact to him in a letter (exhibit MG1) dated 16th May 1983 as follows:

"1. I refer to your application to sponsor as gubernatorial candidate Alhaji Mohammed Goni for Borno State on the platform of your party and I regret to inform you that the Commission is unable to comply with your request.

2. The grounds on which the above decision has been based are sections 166 of the Constitution read together with section 64. It is clear to the Commission that your candidate was elected to the office of the Governor of Borno State on the sponsorship of another political party. He was still holding that office of the Governor at the time of the application to stand for the coming election on the platform of your party.

3. In the circumstances, the Commission is not satisfied that the minimum constitutional requirements for accepting of your gubernatorial candidate for Borno State have been complied with. However the Commission would like to invite your attention to section 28(2) of the Electoral Act 1982 affording you an opportunity to forward a substitute candidate for consideration."

It was this disallowance that sparked off these proceedings.

The background facts, agreed to by the parties, were summarized by the Federal Court of Appeal in its judgment as follows:

"1. Alhaji Mohammed Goni (hereinafter called the 1st respondent) was elected as the Governor of Borno State in the 1979 general elections on the platform of the Great Nigeria Peoples Party (hereinafter called the G.N.P.P.).

2. The 1st respondent became a member of the Unity Party of Nigeria (hereinafter called the U.P.N.) before the expiration of his term of office as Governor.

3. Following disagreement within the G.N.P.P. the party split into two factions, the one led by Alhaji Waziri Ibrahim and which was subsequently recognized by the Federal Electoral Commission, the appellant (hereinafter called FEDECO) and the other led by Dr. Shettima Mustapha, the faction to which the 1st respondent belonged.

4. The Shettima Mustapha faction does not recognise the national officers and governing body of the G.N.P.P. as registered with FEDECO and has appointed its own national officers and governing body.

5. The Shettima Mustapha faction held separate meetings but subsequently broke into two further groups or factions. One group or faction, of which the 1st respondent was a prominent member, was in favour of merging with the U.P.N. The other group, headed by Shettima Mustapha subsequently merged with the Nigerian Peoples Party (hereinafter called the N.P.P.).

6. The members of the pro-U.P.N. group of the Shettima Mustapha faction joined up with the U.P.N. en masse."

And so it was that the original Great Nigeria Peoples Party (hereinafter called G.N.P.P.) broke up into two factions, namely:

(i) the Ibrahim Waziri faction and

(ii) the Dr. Shettima Mustapha faction.

Governor Goni was a member of the Mustapha faction. Later, the Dr. Shettima Mustapha faction broke into a further two namely:

(i) the Governor Goni sub-faction, and

(ii) the Dr. Mustapha sub-faction.

It would, therefore, be right to say that the original G.N.P.P. had fragmented itself into the original two factions and later into four by the further subdivision of one faction into two sub-factions. It was a process of disintegration of the original G.N.P.P., first by a bifurcation and later by a quaternary.

In his affidavit in support of the originating summons, sworn to, on 24th May 1983, Governor Goni stated in paragraphs 4 and 5 as follows:

"4. That I and my supporters in the G.N.P.P. in Borno State are members of the Shettima Mustapha faction of the G.N.P.P. which has decided to merge with the Unity Party of Nigeria and have as such declared our support for the U.P.N. and merged with the same.

5. That my present membership of the U.P.N. is as a result of the merger of one of the factions of the G.N.P.P. with the U.P.N."

He therefore relied for his membership of the U.P.N. on a merger between his sub-faction of the original G.N.P.P. with the U.P.N.

The Court of Appeal in its judgment held that there was a division in the G.N.P.P. which resulted in Governor Goni joining the U.P.N. This was what the lead judgment (M. Nasir, President) said on the issue:

"Now coming to this appeal and from the facts in the record of appeal as disclosed by the various affidavits on both sides it will be a mockery of justice to fail to conclude that there was a rift in the G.N.P.P. as a result of which the party disintegrated into at least the Alhaji Waziri Ibrahim faction and Shettima Mustapha faction. Putting it simply and shortly, the obvious conclusion is that there was a division in the G.N.P.P. It is this division which became the Shettima Mustapha faction which was not recognised by FEDECO which made it necessary for the 1st respondent and other factionists to start looking for a new party.

The Shettima Mustapha faction later broke into another two factions or groups; and it was one of those factions of which the 1st respondent was a prominent member that later merged with the U.P.N. – the 2nd respondent. It was argued that the 1st respondent did not belong to a faction of the G.N.P.P., but to a sub-faction of the Shettima Mustapha faction, and as such he did not qualify for protection under paragraph (c) of the 'proviso' as analysed above. No doubt one must put a stop to the number of fragmentations which ought to be recognised as factions after a registered political party has split into groups.

My view is that if paragraph (g) of section 64(1) is to be effective and of any use, it is the divisions created by the main rift in the political party which ought to be accepted as "faction". Any further division should be ignored. Hence it cannot in my view be said that the faction to which the 1st respondent belonged, which was a sub-faction of the Shettima Mustapha faction of the G.N.P.P. was, in fact a faction of the, G.N.P.P. itself. To that extent, I am firmly of the view that the 1st respondent cannot qualify to be protected under paragraph (c) of the Proviso as analysed. Equally, the facts at our disposal do not justify a consideration as to whether or not paragraph (b) of the Proviso as analysed also applies; because this is not a case of a merger of two or more political parties, by one of which he was previously sponsored. It is therefore to paragraph (a) of the proviso as analysed that we must focus our attention. As I have previously said, there is no doubt that there was a division in the G.N.P.P., the political party of which the 1st respondent was previously a member.

It was also as a result of that division that the 1st respondent subsequently became a member of the latter political party, that is the U.P.N. However, it is to be noted that the expression 'by one of which he was previously sponsored' which appears in paragraphs (b) and (c) of the Proviso as analysed has nothing to do with paragraph (a). It is sufficient in my view that there is a division in the G.N.P.P. which ultimately resulted in the 1st respondent joining the U.P.N."

Counsel for the appellant, Chief F.R.A. Williams, S.A.N., in his argument before us submitted that section 64(1)(g) of the Constitution was applicable and that he agreed with the Court of Appeal in that regard. But his objection to the judgment centred in the fact that Governor Goni did not escape disqualification before the Federal Court of Appeal on the issue of merger which was the issue on which he predicated his case, but because of the Court – of – Appeal – imported-ground of a division in the G.N.P.P. He submitted that the Federal Court of Appeal was wrong on the findings it made on the evidence before it. The evidence before it, he said, was that Governor Goni became a member of the U.P.N. as a result of a merger between his faction and the U.P.N. and not because there was a division in the G.N.P.P. Neither in his affidavit nor in the affidavit of Chief D.O.A. Oguntoye, the Chief Legal Adviser, which Governor Goni adopted, was the matter of division put forward as a reason for his membership of the U.P.N. Chief Williams submitted further that what the Constitution wanted to avoid was carpet-crossing. He said he placed a lot of importance on the phrase "as a result of". The proviso to section 64 should not be construed as if it read that a division in the original political party need only occur before Governor Goni's membership of the U.P.N. In that case, all that would matter would be the occurrence of a division in the former political party. Once there was such an occurrence all members of the original party in all legislative houses, would be free to join any of the other political parties even if such a member did not bring with him the other dissentiates. But that way of construing the proviso would, he said, give, no effect or significance to the phrase "as a result of'. If we called the original political party, "A", and the later political party, "B" then the effect of that proviso, he said, would be that the person's membership of a party, "B" must have resulted from the division in party "A". In other words, he said, there must be a casual connection between the division in party "A" and the person's membership of party "B". The clearest illustration of such a situation would arise where a group of members of party "A" got together and formed party "B" as a result of disagreement with the majority of members of party "A".

Chief Williams further submitted that when one has to consider what the position of dissentiates was before the formation of the new political party, one has to bear in mind that the dissentiates were proscribed by law from functioning as a political party having regard to section 202 of the Constitution. If they could succeed in forming a new party, then those of them who were sponsored members of the legislative houses could cross- carpet lawfully without losing their seats as members. To adopt a construction which allowed them to cross-carpet was to advance the mischief which section 64(1)(g) was designed to suppress. He therefore submitted that this Court should not say that once there is division then there is an open licence for members to join other political parties. The licence, he argued, does not go beyond the dissentiates coming together and forming their own party. He therefore submitted that the Federal Court of Appeal was wrong in finding that Governor Goni became a member of the U.P.N. as a result of a division in the G.N.P.P.

On the evidence, he said, the so-called division of the G.N.P.P. must have occurred as a result of the split into Shettima Mustapha faction and the original G.N.P.P., but the Shettima Mustapha faction could not function as a political party without being registered. In any event, he said, the Shettima Mustapha faction later split into a pro-N.P.P. faction and a pro-U.P.N. faction. That can only happen as a result of what happened in the Shettima Mustapha faction. There was no other connection between the division in the G.N.P.P. on the one hand and the emergence of the pro-U.P.N. and pro-N.P.P. sub-faction of the Shettima Mustapha faction.

Mr. Ajayi, S.A.N., counsel for the respondents in reply submitted that the construction on the proviso to section 64 of the Constitution should not be taken in isolation of other provisions of the Constitution and in particular in the light of the rights guaranteed under section 37 of the Constitution. He said that the intention of the proviso is to curtail the freedom of a person elected to a legislative house to join another political party different from the political party that sponsored him.

The person can change his political party but he, will have to lose his seat for which he was elected. He submitted that if the proviso was being applied to the office of a governor, he could not be eligible to contest for office. This would be a penal provision and in accordance with established rules of construction such a provision would be construed strictly in favour of the person who might be penalized.

The proviso contemplates, he said, primarily the situation where a political party is split into one or more factions. The split or division might arise without any fault of the members of the political party. Rightly or wrongly, a member might find himself in the minority group with the result that if there were several factions and the factions did not get the recognition of the Federal Electoral Commission, a person would almost certainly find himself in a position where his right to contest for political office will be lost if the faction which enjoys the recognition of the Federal Electoral Commission continues to keep him out. Such, he submitted, could not be the intention of the framers of the Constitution that a person belonging to such minority faction should not be able to exercise his right to free association either to form another political party with his factional party of their choice.

He submitted that the proviso should not be read disjunctively into three parts as did the Federal Court of Appeal but only into two, namely:

(i) a division in the political party by which a candidate was sponsored.

(ii) a merger of two or more political parties or faction of the political party by which he was originally sponsored.

The word "faction", he said, would have no meaning except as factions of the original party by which a person was sponsored. He conceded that although the ruling of the Federal Court of Appeal that Governor Goni's eligibility for election was preserved as a result of the division in the political party by which he was originally sponsored was not the basis of his argument before that court yet, that construction was a permissible construction to be placed on the proviso bearing in mind that the proviso was a penal section and that where an individual was to be deprived of his rights, such a deprivation should be effected in a clear and unambiguous language. There was no doubt, he said, that there had been a division within the G.N.P.P and that two factions emerged as a result. In answer to a question from us, Mr. Ajayi agreed that a division in a political party is nonetheless a division even though fragmentation has occurred. The two issue on which FEDECO has centered its complaints are:

(i) that Governor Goni had not based his case on there being a division in the G.N.P.P, but on a merger between his sub-faction of Dr. Shettima Mustapha faction of the G.N.P.P. with the Unity Party of Nigeria and therefore the Federal Court of Appeal was wrong to have based its judgment on the non-pleaded division;

  (ii) that assuming that Governor Goni's case was based on a division, the division he relied on was not the division of the original G.N.P.P., but the later further division in the Dr. Shettima Mustapha faction of the G.N.P.P., that the joining of the Governor Goni sub-faction with the U.P.N. was not therefore as a result of the division in the original G.N.P.P., but as a result of the division in the Dr. Shettima Mustapha faction.

The affidavit of the Chief Legal Adviser, Chief D.O.A. Oguntoye which contained facts on which Governor Goni inter alia, relied, alleged both the division in the original G.N.P.P., the later further division and the ultimate merger of the Goni faction with the U.P.N. In paragraph (c) of the originating summons, Governor Goni stated that should section 64 of the Constitution be found to be applicable, the question was whether all the grounds for the loss of the seat of a senator specified in paragraphs (a) – (g) inclusive of section 64(1) are capable of being applied to a candidate for election to the office of Governor.

This would include the proviso of section 64(1)(g) specifying for both division and merger. Therefore, although emphasis was laid before the Court of Appeal on the fact of merger of the Goni sub- faction with the, U.P.N. yet, implicit in the averment of merger was the averment of the earlier division into the original G.N.P.P. This explains, in my view, the portion of the judgment of the Federal Court of Appeal in which the learned President stated that:

"It is sufficient in my view that there is a division in the G.N.P.P. which ultimately resulted in the 1st respondent joining the U.P.N."

The question naturally raises itself: Does the fragmentation of a party make the event to cease to be a division? Put in another way: does the division of a party cease to be a division by reason of its having led to fragmentation?

The original G.N.P.P. divided itself into the Waziri faction and the Dr. Mustapha faction. The Dr. Mustapha faction further sub-divided itself into the Mustapha sub-faction and the Governor Goni sub-faction. The Governor Goni sub-faction had therefore come into being following the original division of the G.N.P.P. into the Waziri and Mustapha factions and the further break up of the Mustapha faction into two. The proximate reason for the Goni sub-faction joining the U.P.N. was the further division of the Mustapha faction into two, but the remote reason was the original division of the G.N.P.P.

Dealing with the second complaint, the argument of Chief Williams as I understand it, is that in the division part of the proviso to section 64(1)(g) of the Constitution appear the important words

"as a result of'.

The "division", he argued, which a person can take advantage of in the proviso in joining another political party must be one occurring immediately before the joining of the new political party. The division occurring immediately before Governor Goni's faction joining the U.P.N. was not, he argued, the one occurring in the original G.N.P.P., but the one occurring in the Dr. Mustapha faction of the original G.N.P.P. Had it been that Dr. Mustapha faction had joined the U.P.N., that could have been, he submitted, "as a result of' the division in the original G.N.P.P.

In effect what he was complaining of, was that the division which the Governor Goni faction was given advantage of, by the Federal Court of Appeal, was not the original division of the G.N.P.P but the further division of the Mustapha faction.

This is what I have referred to as fragmentation.

Put in another way, my understanding of the argument is that once the original political party breaks up at the first split into two or more factions, each faction of that first split can take advantage of the exception in the proviso to section 64(i)(g), but a faction of a faction of that original split cannot. As occurred in the instant appeal, the argument means that a half-faction (namely Waziri or Dr. Mustapha faction) of the original G.N.P.P. can take advantage, of the exception of the proviso, but a quarter-faction (namely Dr. Mustapha and Governor Goni sub-factions) of the original G.N.P.P. cannot.

To my mind, the 'quarter-Governor-Goni-faction' is none-the- less a division albeit, a further division, of the original G.N.P.P. If the 'quarter-Governor-Goni-faction' merged with the U.P.N., the merger was none-the-less "as a result of' the division in the G.N.P.P. To argue that the membership of the U.P.N. of the 'quarter-Governor-Goni-faction' was "as a result of' the division of the Dr. Mustapha faction and not "as a result of' the division in the original G.N.P.P. is. to my mind, with great respect to Chief Williams, being unnecessarily semantic.

I would agree with the conclusion of the Federal Court of Appeal that, in the ultimate, it was the division of the G.N.P.P. into the Waziri faction and Dr. Mustapha faction which resulted in the merger of the Governor Goni faction with the U.P.N. Under section 64(1)(g) of the Constitution where a person whose election to the legislative house was sponsored by a political party, becomes a member of another political party before the expiration of the period for which that house was elected he would have to lose his seat in that house. But under the proviso to the said section 64(1)(g) if his membership of the new political party occurred because-

(i) THERE WAS A DIVISION in the political party which sponsored him and as a result

(a) he joined the new political party;

(b) he and his dissidents or faction joined the new political party;

OR

(ii) THERE WAS A MERGER of two or more political parties with -

(a) the political party which sponsored him

(b) his own faction of the divided political party which sponsored him, he does not lose his seat.

It is all agreed in this appeal that there was a division. Under the sub-section of the political party, was the one which originally sponsored his election. Under the sub-section, there could be a merger without a split or a split leading to a merger.

Each case falls within the exception.

The mischief which the framers of the Constitution wanted to avoid was carpet-crossing which, from our constitutional history, in the not distant past, had bedevilled the political morality of this country. They had however to allow for a situation where a political party, by reason of internal squabbles, had split into one or more factions. A split or division could arise without any fault of the members of a political party, resulting in a member rightly or wrongly, finding himself in a minority group which may not be big enough, or strong enough, to satisfy the recognition, as a separate political party, of the Federal Electoral Commission. For such a member not to be allowed to join another political party with his faction may be to place him in a position where his right to contest for political office will be lost.

Such a situation is entirely different from the fraudulent and malevolent practice of cross-carpeting politicians of yester years who, for financial consideration or otherwise, crossed from one political party to another, without qualms and with out conscience. Such a practice had to be discouraged by the framers of our Constitution if political public morality of our country was to be preserved.

In this appeal, the division and the merger segments of the proviso to section 64, the two segments into which the proviso to section 64 can properly be divided – are closely inter-twined and although the appellants were right in saying that Governor Goni relied on the merger segment of the proviso, I do not think that in deciding the case, a court can easily avoid making a reference to the division which occurred before the merger. Governor Goni, clearly, was not caught by the mischief against which section 64(1)(g) was provided, having been saved by the proviso to that section, in that there was a merger of h is own faction of the fragmented Great Nigerian Peoples Party (G.N.P.P.), with the Unity Party of Nigeria (U.P.N.), following that division.

It was for the foregoing reasons that I dismissed this appeal on 23rd August, 1983 with no order as to costs as herein-before stated.

 

 

FATAI-WILLIAMS, C.J.N.: I have had the advantage of reading the reasons for judgment in the above appeal delivered by my learned brother, Aniagolu, J.S.C. I entirely agree with them. In the circumstances, I have nothing to add except to indicate that those were the reasons why I agreed that the appeal should be dismissed on 3rd August, 1983.

 

 

SOWEMIMO, J.S.C.: When this appeal was dismissed, I indicated that I would give my reasons later. This I now do.

It was not in dispute by either party that the first plaintiff/respondent was elected as a Governor of Borno State, under the platform of the Great Nigeria People's Party. Whilst still in office, there was a division in that party as a result of which three factions came into existence. One faction was led by its Chairman, and he retained the certificate of registration of the political party. The other two factions after some controversy, decided to merge one with the Nigerian People's Party, and the other with the Unity Party of Nigeria. The Nigerian People's Party and the Unity Party of Nigeria are registered.

When the division first occurred, and before the mergers aforesaid, the Great Nigeria People's Party as a registered political party expelled first plaintiff and others comprising the other two factions, from the party. By virtue of his expulsion, first plaintiff/respondent, whilst retaining his office of Governor, ceased to hold that office on the platform of the Great Nigeria People's Party under which he was elected. There is no provision in the Constitution dealing with the consequence of expulsion of an elected office holder as regard his tenure of office. Section 165 of the Constitution of 1979 deals with the tenure of the office of a Governor, and reads:

165(1) "Subject to the provisions of this Constitution, a person shall hold the office of Governor until -

(a) when his successor in office takes the oath of that office;

(b) he dies whilst holding such office;

(c) the date when his resignation from office takes effect; or

(d) he otherwise ceases to hold office in accordance with the provisions of this Constitution."

(2) "Subject to the provisions of subsection (1) of this section, the Governor shall vacate his office at the expiration of a period of 4 years commencing from the date when -

(a) he took the Oath of Allegiance and oath of office in the case of a person first elected as Governor under this Constitution; and

(b) the person last elected to that office took the Oath of Allegiance and oath of office or would, but for his death, have taken such oaths".

(3) Not applicable.

The matter before the Court arose, as a result of consideration of the eligibility of the plaintiff/respondent to stand for election as a Governor under the platform of the United Party of Nigeria and it was decided by FEDECO that this matter should come under section 166, subsection (1)(a) of the Constitution, which by reference, comes under section 64(1)(g). The Federal Court of Appeal held that the proviso to the section under consideration, i.e. section 64(1)(g) of the Constitution protects the eligibility of the respondent, in that having formerly belonged to a faction of a political party he with his faction has subsequently merged with the Unity Party of Nigeria. I agree with the reasoning of the Federal Court of Appeal.

I therefore, agreed that this appeal be dismissed. There can be no cross-appeal in the peculiar circumstances of the judgment of the Federal Court of Appeal, except to urge a variation of the grounds for it.

 

 

IRIKEFE, J.S.C.: I was privileged to have a preview of the lead reasons just read in this matter by my learned brother Aniagolu, J.S.C. I am in complete agreement with the said reasons and have nothing to add.

 

 

BELLO, J.S.C.: I agree with the reasons for judgment of my learned brother, Aniagolu, J.S.C. I would only add a few words.

Sections 64(1)(g) and 155(1)(a) of the Constitution, 1979 provide:

64(1) "A member of the Senate or of the House of Representatives shall vacate his seat in the House of which he is a member if -

(g) being a person whose election to the House was sponsored by a political party, he becomes a member of another political party before the expiration of the period for which that House was elected."

166(1) "A person shall not be qualified for election to the office of Governor if -

(a) he does any act, acquires any status or suffers any disability which, if he were a member of the Senate would have disqualified him from membership of the Senate."

The provisions of section 64(1)(g) appears to me to be very clear that a senator whose election to the Senate was sponsored by a political party will automatically lose his seat in the Senate if he becomes a member of another political party before the dissolution of the Senate unless his change of political party is saved by the proviso to the sub-section. Under the proviso, the Senator will not lose his seat in the senate if he becomes a member of another political party as a result of the division in the political party which sponsored him to the Senate or if his change of a political party is as a result of a merger of two or more political parties or factions by one of which he was previously sponsored.

Now, for the purpose of disqualifications of a candidate to the office of Governor, the provisions of section 166(1)(a) of the Constitution incorporates the provisions of section 64(1)(g) in the former subsection. The combined effect of the two sub- sections is that an incumbent Governor whose election to the office of Governor was sponsored by a political party is disqualified for re-election to the office of Governor if he changes his political party which sponsored him and seeks re- election on the sponsorship of his new party unless the circumstances for the change of the political party are covered by the proviso to section 64(1)(g).

For the reasons ably stated by my learned brother, Aniagolu, J.S.C. I agree that the circumstances which caused Governor Goni to seek re-election on the sponsorship of the U.P.N. squarely fell within the proviso. He was therefore not barred by the provisions of section 64(1)(g) from seeking re-election.

 

 

OBASEKI, J.S.C.: This appeal came up for hearing on the 3rd day of August, 1983. After hearing counsel for the parties and considering their submissions on the grounds of appeal, we dismissed the appeal and the purported cross-appeal which was in its context a notice of intention to contend that the judgment of the Federal Court of Appeal be supported on other grounds and reserved the reasons for the judgment till today. I now give my reasons.

I have had the advantage of a preview of the reasons for judgment just delivered by my learned brother, Aniagolu, J.S.C. and found that his reasons accord with my opinions on the issues raised in the appeal. I hereby adopt his reasons for the judgment as mine.

Additionally, the concern of the people of Nigeria over the problem of carpet-crossing in its most immoral aspect was fully projected in the argument of counsel on the construction of section 64(1)(g) of the Constitution of the Federal Republic 1979 (referred to hereinafter as the 1979 Constitution).

It is now political history that some of the Nigerian politicians who had the honour of being voted into Parliaments and the Houses of Assembly under the previous civilian Constitutions just before and after independence did little to keep their loyalty to the political parties which sponsored them for election. No self- respecting politician would wish to see a repeat of the wave of carpet-crossing and sitting-tight that characterised those eras.

Section 64 of the 1979 Constitution was therefore aimed at curbing the sit-tight appetite of corrupt politicians who were honoured by the Nigerian electorate with elective office of Governors and seats in the National Assembly.

Subsection (1)(g) by its provision affords a sanctuary for the guiltless innocent victim in the game of carpet-crossing. It reads:

"A member of the Senate or of the House of Representatives shall vacate his seat in the House of which he is a member if -

(g) being a person whose election to the House was sponsored by a political party, he becomes a member of another political party before the expiration of the period for which that House was elected. Provided that his membership of the latter political party is not as a result of

(1) a division in the political party of which he was previously a member or

(2) of a merger of two or more political parties or factions by one of which he was previously sponsored."

The provisions of this subsection are made to constitute a disqualification for an incumbent governor who wishes to contest an election for a second term to the office of governor by section 166(1)(a) of the Constitution which reads:

"A person shall not be qualified for election to the office of Governor if -

(a) he does any act, acquires any status or suffers any disability which if he were a member of the Senate would have disqualified him from membership of the Senate."

The 1st respondent, Alhaji Mohammed Goni, was the incumbent governor of Borno State when he made known his desire to contest the 1983 gubernatorial election under the sponsorship of the Unity Party of Nigeria (U.P.N.). He got to the office in 1979 as a result of his victory at the 1979 gubernatorial election for the office of Governor of Borno State his election having been sponsored by the Great Nigeria Peoples Party (G.N.P.P.).

Subsequently, there was a division in the Great Nigeria Peoples party into two which found the 1st respondent in the faction half of which subsequently decides to merge with the U.P.N. which decided to sponsor him for the 1983 gubernatorial election in Borno State. The G.N.P.P. was a registered political party and members of the faction to which 1st respondent belonged lost their bid to become the registered officials of the party. Under section 75(1) of the Electoral Act 1982, and section 201 of the 1979 Constitution, no association other than a political party shall canvass for votes for any candidate at any election or contribute to the funds of any political party or to the election expenses of any candidate at an election.

Having found himself in the faction that cannot operate, as a political party, he, together with those of his political sympathies, found the U.P.N. agreeable and became members of the U.P.N. another registered political party. It is therefore obvious and I so hold also that it was as a result of a division in the G.N.P.P. that the 1st respondent joined the U.P.N. He did not even achieve this feat in one leap.

As my learned brother, Aniagolu, J.S.C. has in his reasons for judgment dealt with the facts and issues in admirable detail, it is unnecessary for any further comments from me other than that it was for the above reasons and those set out in the reasons for judgment delivered by Aniagolu, J.S.C. a short while ago that I dismissed the appeal.

 

 

ESO, J.S.C.: I had the privilege of a preview of the reasons which have just been given by my learned brother Aniagolu, J.S.C. I agree. I will adopt these reasons for my decision to dismiss the appeal which was dismissed on 3rd August, 1983.

Appeal dismissed.