Who is a Public Officer and can a Minister of the Federal Republic of Nigeria be described as a public officer who must resign before he can contest an electoral office?

These are issues the Supreme Court of Nigeria will have to determine in the days ahead in an appeal filed by the former Deputy Chairman (South West), All Progressives Congress, Chief Adebayo Segun Oni against the Governor Kayode Fayemi of Ekiti State.

Chief Oni, a former governor of the state, is disputing Fayemi’s qualification to contest the May 12, 2018 primary elections and the subsequent July 14, 2018 governorship of the state under the platform of the APC.

Already, two lower courts had given two different meanings of who a public officer is. The trial judge in the case, Justice U.N. Agomo of the Federal High Court, Ado-Ekiti, in his judgement which was in favour of Dr Fayemi said section 318 of the 1999 constitution of the Federal Republic of Nigeria did not contemplate or define a Minister as a public officer and that the first respondent having been admittedly appointed as a minister by the President cannot be said to be a public officer.

The Court of Appeal, Ado-Ekiti division, in its judgment delivered on February 12, 2019, and read by Justice Emmanuel Agim, while in agreement with the decision of the lower court said: “It is clear from the foregoing the first respondent (Fayemi) as Minister of Mines and Steel, even though in the Public Service of the Federation, was not an employee in the Public Service. Therefore article 2 of the guidelines does not apply to him”. Justices Adamu Juaro and Abubakar Lamido, concurred with the lead judgment.

However, Chief Oni has invited the Supreme Court as a final arbiter in what has become a very tricky case. It is now left to the apex court to give a decision and definition that will guide those in elective public service and those guided by the civil service rules.

The brief filed by Oni’s lawyer, Chief Anthony Adeniyi raised two issues for determination. They are:

“Whether the lower court was right in holding that the 1st Respondent was eligible to contest for the primary election under consideration without resigning from public office 30 days to the said primary election because he was not an employee for wages/salary, with a letter of appointment and for a fixed period in the public service having rightly earlier found that the 1st Respondent was a public officer and a person in or engaged in the public service of the Federation; and

Whether the lower court was right in holding that a validly made Guidelines and Regulations of the 2nd Respondents party did not conform with the provisions of 1999 Constitution as amended and Electoral Act 2010 as amended despite the fact that the validity of the said Guidelines was not in issue before the lower court.

Chief Adeniyi, the appellant’s lawyer further stated: “The main task in this appeal is the application of mischief rule of interpretation in resolving the proprietary of a public officer like a Minister of the Federal Republic of Nigeria or any other Public Officer contesting a party primary or general election while still retaining his public office and thereby using all the advantages of that office to advance a political course to the disadvantage of every other co-contestant who is not a public officer”.

The brief stated further: “The Appellant who was the claimant at the trial court and the Appellant in this appeal at the lower court contested alongside 31 others including the 1st respondent the governorship primary election of the 2nd Respondent’s party. The said primary election to nominate the candidate of the 2nd Respondent was held on May 12, 2018 for the Ekiti State gubernatorial election, which was subsequently held on the 14th July, 2018.

The said primary election was conducted in compliance with the provisions of the Electoral Act 2010 as amended and was expected to be conducted strictly in line and in accordance with the 2nd Respondent’s Constitution and the 2014 party Guidelines and Rules for nomination of candidates for public office.

Exhibit C contained at pages 399 of Record spelt out the conditions and qualifications which must be met in the 2nd Respondent’s Guidelines, the relevant part of which provides as follows:-

“The party prescribes that any aspirant seeking public office on the platform of the party “shall NOT have remained as an employee of the Public Service within 30 days preceding the date of an election; and must not be convicted for embezzlement or fraud by a judicial Commission Inquiry or a Tribunal set up under the Tribunal of Inquiry Act, or any other law by the Federal or State Government which conviction has been accepted by the Federal or State Government.”

The Primary election was conducted by the designated Officials/Committee of the 2nd Respondents at the designated venue in Ado-Ekiti on 12th May, 2018 wherein the 1st Respondent was declared and returned as the winner of the said primary election.

No sooner than the 1st Respondent was declared as having won the election he granted a press interview stating that he remained a Minister of Federal Republic of Nigeria, a position he would retire from in few weeks’ time. The Appellant was dissatisfied or aggrieved by the 2nd Respondent’s declaration and return of the 1st Respondent as the winner of the said primary on the ground that, the 1st Respondent ought not to have contested against him in the first instance, for being ineligible having not resigned his appointment as a Minister of the Federal Republic of Nigeria as at 12th May, 2018 when 1st Respondent contested against the Appellant and others in the said primary in line with the 2nd

Respondent Guidelines and Constitution

It was further discovered that the 1st Respondent failed to comply with another provision of the 2nd Respondent’s guideline which renders ineligible any person who has been indicted by a Judicial Commission of Inquiry which conviction has been approved by the relevant government.

The trial court in dismissing the Appellant’s claim in its judgment at pages 1206-1245, particularly at 1236-1237 of the Record held that the Constitution, particularly section 318 thereof does not contemplate or define a Minister as a Public Officer and that the 1st Respondent having been admittedly appointed and not employed as a Minister by the President, cannot be said to be a Public officer and further that to satisfy the second leg; a conviction must be handed down by the court of law.

The Appellant consequently appealed the judgment to the Court of Appeal to determine whether a Minister of a Country appointed or employed by definition; in law; international best practice; judicial pronouncement; ordinary definition; and job schedule is a Public Officer and a person employed in Public Office; and on the other hand whether a person who had been convicted by a Judicial Commission of Inquiry stands ineligible to stand for an election under the 2nd Respondent’s Guideline which prescribed the minimum qualification for an aspirant to stand for the primary election of the 2nd Respondent.

The lower court heard and determined the appeal and held in summary at pages 1446-1447 of the line 2 of the Record of Proceedings and concluded

“It is clear from the foregoing the 1st respondent as Minister of Mines and Steel, even though in the Public Service of the Federation was not an employee in the Public Service. Therefore Article 2 of the 2014 Guidelines was not applicable to him.”

The lower court further held that the prescription of Conviction of the 1st Respondent is not in conformity with the provisions of Sections 177 and 182 (i) of the 1999 Constitution, thus cannot be used as touchstone to determine the eligibility of 1st Respondent. See page 1469 of Volume 2 of the Record.

The case particularly touches the nerve of political office holders as the decision of the apex court may open the floodgate to public officers that may not bother to resign from their offices before contesting an election. It also put to test the anti-corruption mantra of the President Muhammadu Buhari administration, particularly for public officers that have been indicted by a court, or a judicial panel of inquiry.

It is now left to the panel of the Supreme Court justices to give the final verdict on the issues raised. Other Justices in the panel are Justices Aba Aaji, Amina Adamu Augie, Kumai Bayang Akaahs and John Inyang Okoro.

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