Can Governor Mai Buni extend the privilege of his immunity as Governor to his office as National Caretaker Chairman of APC? – By Akintayo Balogun Esq.

He who comes into equity, must come with clean hands.
Legal Maxim

The constitutional issues surrounding the office of the National Caretaker Chairman of the All Progressive Congress, Governor Mai Buni, while seating as the Governor of Yobe State, has raised a lot of legal debates in recent times. A person occupying the office of the Caretaker Chairman or substantive National Chairman of any political party in Nigeria, ordinarily can be sued, whether in his personal capacity or official capacity. However, the scenario in this case creates a different situation. The person that seats as the caretaker chairman of the All Progressive Congress, being a seating Governor, enjoys an immunity that forbids any legal action against him.

The Governor holding both offices was not so much of an issue until the stir caused by the recent decision in Eyitayo Jegede, SAN & Anor v Independent Electoral & 3 Ors, SC: 448/2021, delivered by the Supreme Court on 28th July, 2021, where 3 Justices out of 7 delivered a dissenting judgment. They had held that the Governor cannot act in the capacity of a National Caretaker Chairman of the All Progressive Party (APC), while still seating as the Executive Governor of a Nigerian State. The dissenting Justices had held that Section 183 of the Constitution prohibits Governor Buni, being the executive Governor of Yobe from holding another executive position concurrently. They held that since the Governor had breached Section 183 of the Constitution, he should have been joined as a Party in the action to answer to the case. Justice Mary Odili, while dissenting, further held that Governor Buni’s letter presenting Governor Rotimi Akeredolu as the Governorship candidate of the APC for the Ondo gubernatorial election to INEC had no value and should be ignored.

However, the only saving grace for Governor Rotimi Akeredolu in the leading judgment, which position was in the majority was that the failure of the Appellants to join Governor Buni, who is at the center of the main issue as a Party in the suit, rendered the appeal incompetent. It was for this slim reason that the appeal of the Appellants was disallowed.

This dissenting opinions had raised a whole lot of constitutional concerns as to whether the Governor could be joined as a party since he enjoys an immunity clause that shields him from any civil or criminal action while his tenure as Governor lasts.

Considering this 3 statutory provisions on the issue.

1. The Governor presently seats as the Executive Governor of Yobe State and will occupy the said position till 2023. As a serving Governor in Nigeria, he enjoys an immunity as provided for under section 308 of the Constitution of the Federal Republic of Nigeria, which provides to the effect that no action, whether civil or criminal shall be brought against a seating Governor except in a nominal capacity.
2. On the other hand, Section 183 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), provides as follows:
   The Governor shall not, during the period when he holds office, hold any other executive office or paid employment in any capacity whatsoever,
3. Furthermore, Article 17(iv) of the APC constitution provides thus:
   No officer in any organ of the Party shall hold executive position office in government concurrently.

The question that arises from these issues are as follows:

1. Does the office of a caretaker chairman carry the same weight, authority and privileges as that of a substantive chairman? Does the office come with remunerations, reimbursements, salaries or allowances?
2. Can a person who occupies the position of the chairman of a political party sue and be sued?
3. Can a Governor under any circumstance shelve his immunity and go to court in his personal capacity or be sued in his personal capacity?

Answer to questions raised above

1. Powers and privileges of a caretaker chairman of a political party
   A person occupying a position as a caretaker chairman, enjoys most of, if not all the rights, privileges, powers and mandates that comes with the substantive office. He executes documents on behalf of the party, attends Board of Trustees meetings, presides over the meetings of the caretaker committee, and is a signatory to the bank accounts of the party. His office is equivalent to that of a substantive chairman as he carries out all the functions and responsibilities that accrues to the office of the substantive chairman. The office of the caretaker chairman and a substantive chairman cannot exist at the same time. A caretaker chairman may not receive as much salaries or remunerations as a substantive chairman, but would definitely enjoy certain allowances, benefits and privileges that accrues to the office.
2. Whether a person who occupies the position of the Chairman of a Political party can sue and be sued?
   Yes, for all intents and purposes, a person occupying the office of a political party chairman (interim or substantive) can sue and be sued, either in his personal capacity or his official capacity.
3. Whether a Governor under any circumstance can shelve his immunity and go to court in his personal capacity or be sued in his personal capacity?
   Yes, we have had instances in Nigeria where serving Governors instituted actions in court in their personal capacities against other persons while their tenure lasts. Just to mention a few:
4. In 2020, Governor Nasir El-Rufai of Kaduna State instituted an action in libel against Reno Omokiri and Thisday newspaper.
5. Also in 2020, Governor Nasir El-Rufai of Kaduna State instituted an action suit against Prof. Chidi Odinkalu and others, for alleged character defamation.
6. In 2019, Governor Yahaya Bello of Kogi State applied to be joined as a Defendant in a suit instituted by Natasha Akpoti against INEC & Anor.
7. Governor Ganduje of Kano State instituted an action in libel against one Bugaje who had alleged mismanagement of COVID-19 funds by the Governor.
8. In 2020, Governor Nyesom Wike of Rivers State instituted an action against ThisDay Newspaper for a story published about him by the media house on June 23, 2020.

If these Governors have waved their immunity and instituted an action in their personal capacities, will the law restrain the Defendants in these suits from entering a defence or counter claiming against the Governors because of the immunity the Governors enjoy? Definitely not! The Supreme Court has held severally that the essence of immunity is to protect the President, his Vice, the Governor and his Deputy from unnecessary legal battles and to reduce baseless and frivolous distractions which hamper development rather than contribute to the growth and development of the society while in office. See Mustapha v. Suntai & Ors (2013) LPELR-22109(CA). However, where the Governor decides to be the distraction himself by instituting an action in court during the pendency of his tenure in office, then he cannot stop the other party from raising a defence or counter claiming against him.

The same rule applies here. A Governor who has an immunity over his head, but decides to pick an appointment in any capacity that puts him in the way of litigation cannot run back under the covering of immunity to object to the litigation. No one puts his hand to the plough and looks back, he must bear the brunt. He has moved out of his immunity cover to pick an appointment whether interim or substantive, not covered by immunity. He cannot extend the privileges of his immunity to the party he is presiding over.

The maxim he who comes to equity must come with clean hands bars relief for anyone guilty of improper conduct in the matter at hand. It operates to prevent any affirmative recovery for the person with ‘unclean hands’ no matter how unfairly the person’s adversary has treated him or her. If the Governor has taken a decision to deliberately disobey and or disregard the extant provisions of the Constitution (Section 183) as well as his party Constitution that forbids officers of the Party from holding executive position in government concurrently, by picking up an appointment, unrelated to his office while his tenure as Governor lasts, then he cannot hide under the constitutional covering of immunity (Section 308) to stop any legal action being taken against his separate appointment. His hands are unclean.

Appointing a seating Governor as a caretaker chairman of a political party, is tantamount to an attempt to technically shield the caretaker chairman office from any form of litigation while he is a caretaker chairman. This will lead to a erroneous trend, where political parties will begin to appoint Governors as caretaker chairmen or into other offices of the party, thereby shielding the office(s) from litigation and allow the abuse of the office. This should not be encouraged in any guise.

My submission
Governor Buni has wilfully disobeyed the extant provision of the Constitution, by picking up an appointment (whether interim or substantive) with his political party. To my mind, the decision to take up an appointment outside his executive position has placed the Governor at par with his job and has willfully taken steps to uncover his covering (immunity). The Governor having willfully put himself out, without being coerced, deceived or cajoled to pick up an appointment outside his executive position, thereby flagrantly and willfully disobeying the Constitution of the land, he cannot hide under the same Constitution to shout immunity. The appointment as a Caretaker Chairman of the APC, is actually an abuse of his office as Governor. If the courts decide to allow this flagrant disobedient of the Constitution, every tom, dick and harry will rest their offices on the shoulders of a Governor. A person that has been elected as the executive Governor of a State in Nigeria must remain consistent with his position as a Governor and nothing more. In Alamieyeseigha V. F.R.N. (2006) 16 NWLR (Pt. 1004) 41, the Court held thus:-
“It is certainly not the purport of that provision for the beneficiaries of the said immunity to hide behind the Constitution and OFFEND THE LAW. To the contrary, it is intended to protect the beneficiaries from the hindrance of frivolous Court actions and from litigation aimed to them for actions taken in public interest against any individual interest. It is to allow the executives function without fear or favour in the discharge of their duties. I make bold to say that it is even in the furtherance of the independence of the executive arm of government from the caprice and unrestrained control of the judiciary and the legislature, otherwise I must wonder how the law allowed such immunity to elude the members of the legislative houses who made the laws.”
The functions of a Chairman of a political party are at variance with his position as the Governor of a State. IT IS BIG DISTRACTION. A Governor of a State seats in a position as an executive, decision-making, policy-making, chief administrative officer of the entire State, the number one citizen of the State and a person that stands as a Governor to both his followers, the opposition and the non-partisan. Now condescending to pick an appointment as the chairman or caretaker chairman to a political party, which does not serve the interest of everyone in his State is actually an abuse of his office and same must be strongly discouraged and stopped. A person is elected as a Governor to serve the interest of the State for the period of 4 years and nothing more.
In conclusion, Governor Buni’s immunity starts and ends in his office as a Governor of the State. Having stretched out his hands to receive an appointment not covered by his immunity, he can no longer hide under immunity to restrain his caretaking appointment from being challenged in the court of law or his office as Caretaker Chairman from being joined as a party in a suit. He must face the consequences.

Akintayo Balogun Esq., LL.B (Hons), BL, LL.M, is a legal practitioner in private practice and based in Abuja, FCT. A prolific writer, public affairs analyst and commentator on national issues.
akinson6@gmail.com.