By Kasiemobi Oranugo, Esq.
Does GMM’s defection from PDP to APC amount to any breach of duty/obligation to the PDP, constitutionally/statutorily, morally and/or contractually?
GOVERNOR MATAWALLE’S DEFECTION: ANY BREACH OF CONSTITUTIONAL DUTY TO PDP?
Constitutionally, the grundnorm of the Federal Republic of Nigeria is silent on what happens to a sitting governor who defects to another political party. The Constitution only provided for defection and consequences of doing so by the Legislators. One of the cardinal principle of interpretation of statute is the accepted principal of “expressio unis est exclusio alterius or expressum facit cessare tacitum” meaning “to express one thing is impliedly to exclude the other”. This principle is well settled and accepted that in the construction of statutory provisions, where a statute mentions specific things or persons, the intention is that those not mentioned are not intended to be included. This principal received judicial blessing in the case BUHARI & ANOR. V. YUSUF & ANOR (2003) LPELR -812(SC). Since the Constitution provided for defection and possible consequences if not legally done within the ambit of the law by the legislators while remaining akimbo on the issue of governor’s defection automatically excludes any governor(s) from the constitutional consequences of any possible defection. Furthermore, there is another basic canon of interpretation of interpretation or construction of a statute/Constitution which states that what is not expressly prohibited by a statute will be deemed permitted by implication. See the cases of OJO THEOPHILOUS V. FEDERAL REPUBLIC OF NIGERIA (2012) LPELR-9846(CA). The Supreme Court re-echoed this principle in the case of DANKWAMBO V. ABUBAKAR & ORS (2015) LPELR-25716 (SC), when it held thus: “….it is a cardinal principle of law that what is not expressly forbidden is permitted…..” Per Inyang Okoro, J.S.C. From all intent and purposes, the Constitution did not prohibit and/or forbid any defection by a sitting governor. Consequently, a critical examination of the constitutional implications of GMM’s defection from the above analysis purges the governor of any constitutional infringement. Besides, it is within the province of the court to ensure strict adherence to the spirit and letters of the Constitution for the endurance of a democratic regime. See the case of ALAMIEYESEIGHA V. IGONIWARI & ORS (2007) LPELR -8220 (CA). Accordingly, the courts cannot enact or write into the Constitution what its makers failed to insert. The implication where it is done as Lord Simmons described such an act as “ ….a naked usurpation of legislative functions under the thin disguise of interpretation…..”
RIGHTS PROTECTED BY PUBLIC AND PRIVATE LAW
On whether a right protected by public law can be taken away without express provision of the law? The Supreme Court, per Ayoola, J.S.C. in the case of PDP & ANOR. V. INEC & ORS (1999) LPELR – 24856(SC), enthused as follows:
“…..there are rights protected by Private Law as well as rights protected by Public Law. A person who is elected to an office acquires a right protected by Public Law to assume that office. It is a right which only persons elected have and which a person not elected does not have. It can only be taken away by clear and express provisions of the law…..”
Even in the process of judicial activism, the courts must still act within the confines of the law. See the case of EMESIM V. NWACHUKWU (MRS) & ORS (1999)LPELR-6573(CA), where Court of Appeal, per Tobi. J.C.A (as he then was) held accordingly: “….Lord Denning, one of the greatest protagonists of a judge doing justice in a case before him, said at page 174 of his book entitled, “The Family Story: “My root belief is that the proper role of a judge is to do justice between the parties before him. If there is any rule of law which impairs the doing of justice, then it is the province of the judge to do all he legitimately can: to avoid that rule-or even to change it – so as to do justice in the instant case before him. He need not wait for the legislature to intervene: because that can never be of any help in the instant case, I would emphasise however, the word ‘legitimately: the judge is himself subject to the law and must abide by it.” In Willoughby v. International Merchants Bank (Nig) Ltd (1987) 1 NWLR (Pt.48) 105, the Supreme Court held that the primary function of a court is to do justice between the parties to a dispute and not to do abstract justice. In Edun v. Odan Community (1980) 9 – 11 SC 103, the Supreme Court also held that the moment a court ceases to do justice in accordance with the law and procedure laid down for it, it ceases to be a regular court to become a kangaroo court.”
On the issue of whether APC which did not produce any candidate in the last election in Zamfara State could validly and legally reap where it did not sow? This issue had since been laid to rest by the Supreme Court in the case of All Progressive Congress (APC) & Anor. V. Senator Kabiru Garba Marafa & 179 Ors., in appeal no. SC/377/2019. Consequently, this issue is no longer of moment with respect to GMM’s defection to APC. The judgment in Appeal no. SC/377/2019 did not delist/delete the APC from being a political party in Nigeria, neither did it ban the APC from accepting politicians and political office holders who defect from their party to APC from joining the party. Issue of defection of GMM was never a ground of appeal in appeal no. SC/377/2019. From all intents and purposes, the Supreme Court having laid to rest the issues raised in that appeal, politicians and political office holders are free start breathing a new lease of fresh air while continuing with their politicking in preparation for the 2023 elections.
ON WHETHER A GOVERNOR COULD BE REMOVED FROM OFFICE IN CIVIL SUIT AND NOT THROUGH A PETITION EMANATING FROM A TRIBUNAL
Constitutionally and within the provisions of the Electoral Act, the Court of Appeal, per Rhodes-Vivour, J.C.A. (as he then was), in the case of EJURA V. IDRIS & ORS (2006) LPELR -5827 (CA), performed a legal surgery on the issue of whether a Governor can be removed from office in a civil suit as follows:
“The issue being whether a Governor can be removed from office in a civil Suit. I shall now consider the provisions of Sections 285(2) of the Constitution and Sections 131 and 21(5) of the Electoral Act 2002. Section 285(2) of the Constitution states that: “There shall be established in each State of the Federation one or more Election Tribunals to be known as the Governorship and Legislative Houses Election Tribunals which shall, to the exclusion of any Court or tribunal, have original jurisdiction to hear and determine petitions as to whether any person has been validly elected to the office of Governor or Deputy Governor or as a Member of any Legislative house.” AND Section 131 of the Electoral Act 2002 states that: “No election and no return at an election under this Act shall be questioned in any manner other than by a petition complaining of an undue election or undue return (in this Act referred to as an election petition) presented to the competent tribunal or Court in accordance with the provisions of the Constitution or of this Act, and of which the person elected or returned is joined as a party.” ?These provisions to my mind are clear. The only venue in which election petitions are heard at first instance is before an Election Tribunal, and the only way to question the election/return is by petition complaining of an undue election or undue return. My Lords, the complaint of the appellant could only have succeeded in a High Court if filed and heard before the 1st respondent was elected Governor of Kogi State. Since this case was instituted in the Federal High Court after the 1st respondent had been duly elected Governor, the Federal High Court had no jurisdiction to hear the case. Furthermore the suit ought to have been by petition before an Election Tribunal. Since it was not by petition and was not filed before an Election Tribunal, the trial Judge was right to have thrown out the suit. Section 21(5) of the Electoral Act states that: “If the Court determines that any of the information contained in the affidavit is false the Court shall issue an order disqualifying the candidate from contesting the election and if already elected the Court shall issue an order against the person to vacate the office and the next person with the highest number of votes shall be declared duly elected.” There are two arms to the above. They are – (a) disqualifying a candidate from contesting (b) after the candidate has been elected making an order that he vacate office. The 2nd limb of Section 21(5) can only be achieved before an election petition Tribunal and not a regular Court. In this matter the suit was commenced by originating summons filed before the Federal High Court seeking in the main the removal of a validly elected Governor. This is a civil proceedings within the contemplation of Section 308 of the Constitution. Section 308 of the Constitution ensures that there is an absolute prohibition on the Courts from entertaining civil and criminal proceedings in respect of any claim or relief against the following persons: (a) President; (b) Vice President (c) Governor (d) Deputy governor ?Proceedings are held in abeyance until the person concerned vacates office, thereafter proceedings can commence. Where the election of any of these persons are questioned in an Election Tribunal, the provisions of Section 308 of the Constitution no longer applies. The provisions of Section 21(5) of the Electoral Act 2002 can only operate to remove an elected Governor if the said provisions are invoked before an election Tribunal. The 1st respondent, the Governor of Kogi State can only be removed by a successful petition heard by an Election Petition Tribunal. Where, as in the instant case the appellant sought to remove the Governor, by an originating summons filed before the Federal High Court, the provisions of Section 308 of the Constitution protects the Governor from such a civil proceeding notwithstanding the provisions of Section 21(5) of the Electoral Act. The trial Judge was right to decline jurisdiction in the light of the clear provisions of Section 308 of the Constitution.” Per OLABODE RHODES-VIVOUR, JCA (Pp 15 – 19 Paras F – E)
GOVERNOR MATAWALLE’S DEFECTION: ANY BREACH OF MORAL OBLIGATION TO THE PDP?
Morally speaking, GMM owes the PDP moral obligation to finish his tenure as a governor in the party, having won the election through that platform. However, moral obligation is a duty which is valid and binding in conscience and according to natural justice but it is not recognized by the law as adequate to set in motion the machinery of justice. It is a duty which rests upon ethical considerations alone and is not imposed or enforced by positive law. See the case of KABIRU AIR LTD V. MOHAMMED (2014) LPELR – 23614 (CA). Similarly, in this same case, the intermediate court, per Abiru, J.C.A. (as he then was), enthused further as follows:
“There is a saying in jurisprudence that law and morality are not synonymous. Hence, an act that is morally reprehensible m ay not be legally punishable. Attorney-General Federation V. Abubakar (2007) 10 NWLR (Pt. 1041) 1. The Supreme Court has stated over and over that the court is for espousing the law and not a place for sentiments and that sentiments commands no place in judicial adjudication.”
GOVERNOR MATAWALLE’S DEFECTION: ANY BREACH OF CONTRACTUAL OBLIGATION TO PDP?
Before we x-ray the issue of whether there is any breach of contract from such defection, it will be pertinent to look at the meaning of contract. The Court of Appeal, per Bage, J.C.A, (as he then was), in the case of ATOYEBI V. BARCLAYS BANK PLC & ANOR. (2015) LPELR – 26025 (CA), imprimatured thoroughly on the definition of a contract as follows:
“The definition of the word “contract” in Black’s Law Dictionary (9th edition) at page 365 -366 is in this context most generally illuminating as it extensively captures and distinguishes the arrangement between the parties in the ordinary course of banking business as: – (1) An agreement between two or more parties creating obligations that are enforceable or otherwise recognizable at law (a binding contract). (2) The writing that sets forth such an agreement (a contract is valid under the law of the residence of the party wishing to enforce the contract). The term contract has been used indifferently to refer to three different things: (1) The series of operative acts by the parties resulting in new legal relations: (2) The physical document executed by the parties as the lasting evidence of their having performed the necessary operative acts and also as an operative fact in itself; (3) The legal relations resulting from the operative acts, consisting of a right or rights in personam and their corresponding duties, accompanied by certain powers, privileges, and immunities. The sum of these legal relations is often called “obligation”. “A contract is a promise or a set of promises, for breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty. This definition may not be entirely satisfactory since it requires a subsequent definition of the circumstances under which the law does in fact attach legal obligation to promises. But if a definition were attempted which should cover these operative facts, it would require compressing the entire law relating to the formation of contracts into a single sentence.” The term “contract” is also used by law, persons and lawyers alike to refer to a document in which the terms of a contract are written. Use of the word in this sense is by no means improper so long as it is dearly understood that rules of law utilizing the concept “contract” rarely refer to the writing itself. Usually, the reference is to the agreement; the writing being merely a memorial of the agreement.” (3) A promise or set of promises by a party to a transaction enforceable or otherwise recognizable at law; the writing expressing that promise or set of promises… The promissory element present in every contact is stressed in a widely quoted definition: “A contract is a promise, or set of promises, for breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty. Frequently the promise is coupled with other elements such as physical acts, recitals of fact and the immediate transfer of property interests. In ordinary usage the contract is not the promise alone, but the entire complex of these elements. (4) Broadly, any legal duty or set of duties not imposed by law of tort; esp., a duty created by a decree or declaration of a Court (an obligation of record, as a judgments, recognizance, or the like is included within the term “contract”. (5) The body of law dealing with agreements and exchange the general theory of contract (6) The terms of an agreement, or any particular term (there was no express contract about when the money was payable). (7) Sometimes the word “contract” is used to designate a transaction involving the exchange of goods or land for money. When money is exchanged for goods, this constitutes a sale. When money is exchanged for land, this constitutes a conveyance. Sales and conveyances may be the result of a previous contract but they are not the contracts in themselves. There is no undertaking or commitment to do or refrain from doing anything in the future. This indispensable element of contract is missing. (8) Loosely, an enforceable agreement between two or more parties to do or not to do a thing or set of things; a compact (when they finally agreed, they had a contract).”
From the above definitions, it is crystal clear that GMM had a contractual relationship/obligation with/to PDP, the constitutional/statutory platform through which he was elected. Before the governor was elected the flagbearer of the party, and after being elected, through legal/constitutional agreement, he entered into a contractual relationship with PDP and having acted contrary to the terms of the contract, the PDP could sue him and claim damages for breach of contract. In the case of AHMED & ORS V. CBN (2012) LPELR – 9341 (SC), the Supreme Court, per Adekeye, J.S.C., held as follows on when a contract will be discharged by breach:
“A contract will be discharged by breach when the party in breach had acted contrary to the terms of the contract either 1. By non performance or 2. By performing the contract not in accordance with its terms or 3. By wrongful repudiation of the contract. A party who has performed the contract in consonance with its terms cannot be said to have been in breach thereof – Pan Bisbilder (Nig.) Ltd. V. First Bank of Nigeria Ltd. (2000) pg. 1.”
Accordingly, in the consideration of remedies for breach of contract, the options open to a party to valid contract is an action for damages in breach of the contract. See the cases of NWAOLISAH V. NWABUFOH (2011) LPELR – 2115 (SC), BEN-NELSON (NIG) LTD. V. MORO LOCAL GOVERNMENT, KWARA STATE (2001) 8 NWLR Part 1037 pg. 623.
Finally, I humbly refer to the famous and immortal observations of Lord Holt, as re-echoed by Justice Chukwudifu Akunne Oputa, J.S.C. in the case case of THOMAS & ORS OLUFOSOYE (1986) LPELR -3237 (SC), Ipsissima Verba: “If men will multiply injuries, actions must be multiplied too, for every man that is injured ought to get a recompense”.
God bless Nigeria. Thank you.
Kasiemobi Oranugo, Esq, Writes from Maitama, Abuja., 08065613658
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