By Mike Ozekhome, SAN
THERE is widespread agitation over this newfound trend which manifests in the form of stand-in, place holder, surrogate or dummy mate nominees. This is related to the unrestrained and rampant use of this novel model in the present political contestation. Candidates employ this with muffled intention to subsequently substitute the dummy nominees.This has already led to intrigues, disorder, confusion,political hores-trading and nightmares on the part of political parties in this unusual selection of candidates,with a view to circumventing the position of the law. Today, we shall conclude our discourse on whether a shadowing, ghostly and non recognized “placeholder” or “dummy mate” was ever contemplated by the Electoral Act of 2022, as a juristic person such as to contest elections. Please read on.
CAN THERE BE A SURROGATE RUNNIMNG MATE?
Who is a “placeholder” in relation to a candidate? A placeholder is not a candidate for an election. He is an unknown person who has the seal of a political party to occupy the position of an unknown person; a mere faceless surrogate. His position creates uncertainty in a political party as his presence can mar or invalidate the nomination of his principal. This person is clearly unknown to law and the political party that submits such an unknown person to INEC is deemed to be aware of its potential wrongdoing and must ready to face the consequences of its gamble.
The APC Presidential candidate, Bola Tinubu, had nominated Ibrahim Masari, a Katsina politician, as the party’s place holder or dummy candidate, for his yet to be named running mate, so as to beat the INEC deadline.
Masari had served the APC as its National Welfare Secretary under the Adams Oshiomhole – led National Working Committee (NWC). It is believed that the issue of Tinubu having a Muslim-Muslim ticket (Prof Babangida Zulum of Borno State is said to be the preferred one) is tearing the party apart. Can they repeat the Abiola-Babagana “Hope 93” winning Muslim-Muslim joint ticket with the present state of the nation where religion is tearing us apart? Can Waziri Atiku Abubakar be put on the same wavelength with Alhaji Bashir Tofa who was roundly trounced across Nigeria,even in his Albasah Gyadi-Gyadi ward, near Zoo area of Kano State? Only time will tell.
Similarly, the Labour party’s Presidential candidate, Peter Obi, is reported to have also submitted the name of his campaign Director General, Dr Doyin Okupe, as his dummy/ place holding running mate.
Whereas section 29(1) of the 2022 Electoral Act, as amended, provides that political parties shall submit names of their candidates not later than 180 days before the date appointed for the general election, Section 31 of the Act also gives the political parties an opportunity to withdraw and substitute their candidates, not later than 90 days before the said election
Section 31 states that “A candidate may withdraw his candidature by notice in writing signed by the candidate to the political party that nominated him for such election and the political party shall covey such withdrawal to the Commission not later than 90 days to the election”.
The INEC had,as part of its administrative arrangement, given up till 6pm of Friday June 17, 2022, as deadline for the submission of names of candidates for the Presidential and National Assembly election. It also gave 15th July, 2022, for the Governorship and State Assembly candidates.
In fulfillment of Section 31 of the Electoral Act, the Commission gave July 15, 2022, as last day for withdrawal by candidates and replacement of withdrawn candidates by the political parties.
In the same vein, INEC also gave the parties up to August 12 for the withdrawal and replacement of withdrawn candidates by the political parties.
This means that the parties who are still facing crises over the choice of running mates still have until the July 15, 2022, to substitute the names being forwarded at the moment, with respect to the Presidential candidates. “Candidate” under the Electoral Act, 2022, has a fixed meaning. The law did not say a candidate “includes”. It says it means. The question that calls for dispassionate determination is whether a placeholder qualifies as a candidate who has secured the nomination of his political party to contest an election within the meaning of the Electoral Act. The answer is obviously in the negative. If a placeholder is not a real candidate, then he is not a person known to and envisaged by the law. The nomination and the subsequent submission of this non-existent being to INEC is not a mere misnormal that can be remedied by replacement or withdrawal under Section 31. Its nomination and submission to INEC seals the fate of the political party that submitted its name.
ANY ESCAPE ROUTE?
The political parties have already submitted names of candidates. Section 142(1) of the 1999 Constitution of the Federal Republic of Nigeria, as altered (the 1999 Constitution), clearly provides that a Presidential candidate must nominate his running mate from the same political party. While Chapter VIII of the PDP Constitution provides for the nomination of candidates for election into public office, Article 20 of the APC Constitution provides for elections into elective positions and appointments. These are clear enough to admit of any ambiguity.
Having established that the existence of a placeholder is unknown to law, can this non-existent entity be replaced or substituted by a candidate? I think not Some principles of law might be of help to us here. In the case of ANEGE & ORS v. ALANEME & ORS (2020) LPELR-50445(CA), the intermediate court, per Muhammed Lawal Shuaibu, JCA, considered at pages 19 – 22, whether the court can grant an amendment for the substitution of a non juristic person with a juristic person. He held thus:
“… I have right from the onset stated that after filing the notice of preliminary objection by the defendant at the lower Court, the claimants thereafter filed a motion on notice to substitute the unregistered “Ideato Welfare Association” with “The Registered Trustees of Ideato Cultural and Welfare Association, Calabar” or to amend the status of the 1st and 3rd defendants to show that they are principal officers of the Registered Trustees of Ideato Cultural and Welfare Association, Calabar. A misnomer when associated with issues of juristic personality and mis-description of names of parties simply means the “wrong use of a name or a mistake in naming a person, place or thing, especially in a legal instrument which should ordinarily not lead to a nullification of the proceedings. In other word, a misnomer in the context of litigation occurs where the entity suing or intended to be sued exists, but a wrong name is used to describe that entity. See Maersk Line Vs Adide Investment Ltd (supra). In Emespo J. Continental Ltd Vs Corona S. Mba & Co (2006) 11 NWLR (Prt 991) 365 at 378, it was held that a misnomer is said to occur in legal proceedings when the correct person comes or is brought to Court under a wrong name but not when the wrong person sues or is sued in an action. The test which has been applied by the Courts to ascertain if the title of a party shown on the writ of summons is a misnomer is well settled. One factor that operates on the mind of the recipient of the writ of summons is whether there is or is not another entity to which the description on the writ might refer. The test is usually the Reasonable Man’s test of some kind to wit: How will a reasonable man receiving the document take it? If in all circumstances of the case and looking at the document as a whole, he would say to himself, of course it must mean me, but they got my name wrong, then there is a case of misnomer. If, on the other hand, he would say “I cannot tell from the document whether they mean me or not and I shall have to make inquiries, this would have gone beyond the realm of a misnomer. See Dacies Vs Elsby Brothers Ltd (1960) 3 All ER 672 at 676, Mailafia Vs Berities Insurance (1986) 4 NWR (Prt 38) 802 at 812 and Nwabueze Vs Nipost (2006) 8 NWLR (Pt 983) 480 at 526-527. The appellants’ complaint is that the suit which was filed without a competent defendant was dead ab initio and liable to be struck out. And that the desperate attempt to give life to it was futile. The Supreme Court had recently restated the legal position in APGA Vs Ubah & Ors (2019) LPELR – 48132 (SC) held that if the entity intended to be sued exist but a wrong name is used to describe it, that is a misnomer. In the instant case and at the time of filing the suit at the lower Court, the 2nd appellant, “Ideato Welfare Association” was non-existent as it was an unincorporated association. Similarly, the “Registered Trustees of Ideato Cultural and Welfare Association” did not exist when the respondent cause of action for this suit arose between 2011-2014. In Obasi Vs Mikson Establishment Ltd (2016) LPELR-40704 (SC), the Supreme Court has inter alia held that naming a non-juristic person as a party is not a misnomer and amending same to substitute a juristic person is out of it. This is so because there cannot be a valid amendment of the title of a suit since there never was a legal person who was brought before the Court by the action. And since to be competent a suit must be instituted between legally juristic persons, failing which it is incompetent and a juristic party cannot subsequently be amended to take the place of a non-juristic party originally sued. The correction made by the lower Court by replacing a non-juristic person with one with legal capacity was done without jurisdiction….”.
Was a shadowing, ghost and non recognized “placeholder” or “dummy mate” ever contemplated by the Electoral Act of 2022, as a juristic person? I think not. Mr Sheriff Machina, a lawyer,has already introduced this dangerous step through his “Deus ex Machina”, by bluntly refusing to step down for Senate President, Ahmed Lawan. What happens if Kabiru Masari, Ahmed Tinubu’s “dummy mate”, proves stubborn and refuses to kowtow to the Jagaban? Assuming Dr Doyin Okupe, Peter Obi’s D-G and place holder,refuses to yield? What is INEC’s position on these? I see some legal fireworks in the offing in the next few days and weeks ahead. Hmmn, politrics and Politricians!!! (Concluded).
THOUGHT FOR THE WEEK
“Our government… teaches the whole people by its example. If the government becomes the lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.” (Louis D. Brandeis)
KNTags: Adams Oshiomhole Babangida Zulum Bola Tinubu Doyin Okupe Ibrahim Masari Mike Mike Ozekhome Peter Obi