By Onikepo Braithwaite: The Advocate
Last week, I said that I received the decision of Anyadike J. in the now becoming famous case of the nullification of Section 84(12) of the Electoral Act 2022 (EA) with mixed feelings. Some of these mixed feelings have arisen from the fact that like I said before, the suit seems somewhat contrived, and because of some legal questions and debates which have come to light as a result of the judgement. For instance, having nullified the provision, whether the Judge should have ordered that the offending section be deleted from the statute; and whether the National Assembly (NASS) should have been joined in the suit as a necessary party, especially since they made the law.
Deletion of Section 84(12) from the Statute
I have heard different arguments about whether the trial Judge should have ordered the deletion of Section 84(12) from the EA, but none that I have heard so far, has quite answered the question satisfactorily. I believe the answer is No, an order should not have been made for the deletion of Section 84(12) from the law. What the Judge handed down was a declaratory judgement based on an originating summons as to the question of whether a law is constitutional or not; and when such decisions are given, consequential orders which accompany a judgement to enforce it, are not made. The process was completed at the declaration of the provision as unconstitutional, invalid, null and void.
There is a plethora of authorities which explicitly hold that: “A declaratory judgement is a binding adjudication that establishes the rights and other relations of the parties, without providing for an ordering enforcement” – see the case of Government of Gongola State v Tukur 1989 4 N.W.L.R. Part 117 Page 592 per Oputa JSC. In this case, the Apex Court likened a declaratory judgement to “a toothless dog which can only bark…..but cannot bite to vindicate his overt anger and aggression”. In Government of Gongola State v Tukur (Supra), the Supreme Court had been asked to stay or suspend an order, to which the court responded that it could not do so in law, since a declaratory judgement is incapable of enforcement, thereby stripping the court of any coercion or attendant procedural sanctions. In short, such a judgement ends at the declaration.
A declaratory judgement is simply a statement of the legal state of affairs. It does not order that anything should be done, or award damages. See the case of Iragbiji v Oyewinle 2013 13 N.W.L.R. Part 1372 Page 566 at 580 per Rhodes-Vivour JSC. The Apex Court went on to say that: “a declaratory order merely declares a legal situation or rights or relationship. It is complete in itself, the declaration being the relief. It does not order anyone to do anything” – see Okoya v Santilli 1990 2 N.W.L.R. Part 131 Page 172 per Nnamani JSC.
These authorities further state that, the proper thing to do after a declaratory order or judgement has been handed down, is to then file a subsequent action based on the declaration, praying the court for executory orders. It does sound like a waste of time! Why can’t it all be accommodated within one process? But, the reason may be that, if a matter is commenced by means of an originating summons like the Section 84(12) case, such originating process is used for non-contentious matters only, in which the facts are not in dispute, but the court is simply asked to determine an issue on the construction of a statute or document. In Dalori v Sadikwu 1998 12 N.W.L.R. Part 576 Page 112 at 123 per Edozie JCA the Court of Appeal held inter alia that: “Although a declaratory judgement or order merely proclaims or declares a legal relationship, it may be the basis for subsequent proceedings to enforce particular rights recognised therein”. That is, the right declared in the initial judgement can only become enforceable in a subsequent judgement which confers the power of execution. See the case of Okoya v Santilli (Supra) per Agbaje JSC. The Apex Court even went further to specifically state that, the date of the enforceability of the judgement must be the date of the subsequent executory judgement, and not the date of the declaratory judgement. See the case of Enekwe v I.M.B. Nig. Ltd 2006 19 N.W.L.R. Part 1013 Page 146 at 185-186 per Ogbuagu JSC.
However, another school of thought maintains that declaratory reliefs and other prayers can be accommodated in a single action. Could it be that they may be referring to matters which are commenced by means of writ of summons, and not originating summons?
Be that as it may, it is trite that a provision that is declared unconstitutional, is null and void and of no effect. In Ogbu v State 53 Misc. 2d 740 the Supreme Court held inter alia that “when an act or a decision is declared null and void, it is incapable of giving rise to any rights or obligations under any circumstances”. It would not be out of place therefore, that this principle can be extended to a provision of a statute too. Such a statute that is declared null and void would be of no legal importance, and have no binding force. See the case of Imogiemhe v Alokwe 1995 7 N.W.L.R. Part 409 Page 581. I submit that presently, Section 84(12) has no binding force; and that the declaratory judgement that was handed down by the court in this particular case is actually self-executory, because of the fact that the provision was declared unconstitutional and invalid; it needs no further consequential order to execute it.
We however, await the outcome of the appeal filed by NASS in this matter, which will undoubtedly not end until it reaches the final arbiter, the Supreme Court, where a final decision will be handed down.
NASS being a Necessary Party to the Suit
A Necessary Party to an action, is a party from whom the litigant is claiming a relief from, or whose interests are affected directly by the end result of the case. In Green v Green 1987 3 N.W.L.R. Part 60 Page 480 per Oputa JSC the Supreme Court laid down the questions a court should ask in deciding the effect of non-joinder or mis-joinder of a party: “(a) Is the cause or matter liable to be defeated by non-joinder? (b) Is it possible to adjudicate on the cause or matter unless the 3rd party is added as a Defendant? (c) Is the 3rd party a person who should have been joined in the first instance? (d) Is the 3rd party a person whose presence before the court as a Defendant will be necessary, in order to enable the court to effectually and completely adjudicate or settle all the questions involved in the cause or matter?”. Also see the case of Ibegwura Ordu Azubuike v PDP & Ors LER  SC. 476/2012 per Fabiyi JSC. If a party would be bound by the decision of the action, or it is in the interest of justice to join a party, are other considerations in joinder – Ibegwura Azubuike v PDP & Ors (Supra) per Rhodes-Vivour JSC.
In the instant case, the Plaintiff was not seeking any relief from NASS; the Plaintiff only asked the court to determine whether Section 84(12) was not inconsistent with certain provisions of the Constitution and the rights of Nigerian citizens. Certainly, not just NASS, but all Nigerians, at least those in one position or the other who may want to seek elective office within their political parties or generally, would be affected by the outcome of the case. It would be possible for the matter to be decided (not adjudicated upon, since it is not a dispute but interpretation) without NASS. But, in the spirit of the principle of fair hearing (Section 36(1) of the Constitution), NASS should have been joined as a Defendant. While the bulk of the work lies with the court in the matter of an originating summons, where it is the court that is expected to give an interpretation of a document or statute, and not the litigants meant to prove their case, as there are no pleadings where facts are disputed by the litigants, many Lawyers who were in the ‘for Section 84(12) camp’ felt that the judgement was still obtained sneakily, if not almost ex-parte without the presence of NASS as a party to the suit. Others in the ‘against Section 84(12) camp’ argue that NASS’s presence was neither here nor there, since there was nothing to be proved in order to get the declaratory judgement.
The Final Questions
I watched Channels TV’s ‘Politics Today’ last Friday, in which an APC stalwart stated that the party would not allow political appointees to vote as delegates at the Convention which held last Saturday, because of Section 84(12)! (Not that they were intending to vote anyway, since they were selecting consensus candidates!). The Programme’s Anchor, Seun Okinbaloye, pointedly asked the Governor of Nasarawa State who was the interviewee, whether former Governor, Babatunde Fashola, SAN would be a voting delegate at the Convention, now that he is a political appointee. The answer to that question should have been a firm Yes, since Mr Fashola is a former Governor, and therefore, a delegate by virtue of Article 12(1)(iv) of the APC Constitution. This makes it even more obvious that Section 84(12) was not particularly well thought out, as it also contradicts the APC Constitution, at least in this situation. However, Article 2 of the APC Constitution subjects the document to the provisions of the 1999 Constitution and any other law in force; but the fact of the matter is, Anyadike J’s nullification and invalidation of Section 84(12) of the EA on the basis of unconstitutionality, makes it a provision/law that is no longer in force, because this decision remains the legal position until it is overturned on appeal.
Another question that then arises, is whether the APC should have crafted their party guidelines or policy for their Convention, based on a provision that has been declared to be unconstitutional, invalid, null and void? My dear colleagues, kindly, share your opinion on these questions.
Additionally, it is trite law that a declaratory judgement cannot be stayed; nor does the filing of an appeal act as a stay of execution of a judgement that can be stayed – in response to Hon. Gbajabiamila’s call to the AGF not to delete Section 84(12) from the EA until appeals are exhausted. The declaration by Anyadike J., effectively deleted Section 84(12) of the EA without any further action required from the AGF; it has no binding force anyway, at least, for now.