From the CourtPilot Law

Re: Purported removal of Bolarinwa as Kwara APC Caretaker Chairman: Matters Arising

By Tunde Falola
Let me make it clear and unambiguous that the intent of this write up is purely to state the position of the law as far as the subject matter of discourse is concerned, I don’t intend to dabble into the politics of the leadership tussle in the State. Again, the purpose of this article is to offer an advice to all the stake holders within the All Progressives Party in the State. Having said that, the next question to be asked is what are the allegations against the ousted Chairman?
1.01 Let me state from the outset that I am privileged to read the press release by some concerned but aggrieved party men from the state. This press release has been widely circulated on social media; therefore, it is no longer a news. From the press release the summary of all the allegations against the Chairman bordered on anti- party activities. There is no doubt therefore, that if those allegations are proved, they constitute gross misconduct which attract sanctions as provided by the Party constitution. This then leads us to the next issue
Like any other political party, the All Progressives Congress (APC) has its own set of rules codified in what is regarded as its own Constitution, (herein after called the Constitution). Of utmost importance to this write up is the provisions relating to discipline of erring members of the party.
ARTICLE 21 of the All Progressives Congress (APC) deals with discipline of party members whether elected or otherwise, it provides thus:
“Subject to the provisions of this ARTICLE and the right to Fair Hearing, the PARTY shall have power to discipline party members The power shall be exercised on behalf of the party by the respective Executive Committee of the party at all levels ”
The operative phrase here is:
“……. Subject to the provisions of this ARTICLE and the right to Fair Hearing….”
ARTICLE 21 A of the same Constitution defines offences as follows:
I. A breach of any provision of this Constitution
II. Anti-party activities or any Conduct on the party or that can bring the party into hatred, contempt, ridicule or disrespect”
III. ………………………………………….
IV. ………………………………………….
V. ………………………………………….
2-1 There is no doubt that the allegations levied against the ousted chairman if proven, fall under the category of ARTICLE 21 a (ii) quoted above. The next question is what are the procedures for the hearing and determination of complaints or allegations against an erring member as it were in this case?
ARTICLE 21 B (1) of the same Constitution Provides as follows:
I. “A Complaint by any Member of the party against a public office holder, elected or appointed or another member against a party organ or officer of the party shall be submitted to the Executive Committee of the party at all level Concerned which shall NOT BE LATER THAN 7 days of the receipt of the Complaint appoint a fact-finding or Disciplinary Committee to examine the matter”
2-2 In the case of Hon Bashiru Bolarinwa’s removal, the germane questions are:
i. Was there any Complaint against him Submitted to the Executive Committee at National Level or Zonal Committee as the case may be?
ii. Did the National Executive Committee or Zonal Committee appoint a fact – finding or Disciplinary Committee to examine such complaint as provided for by ARTICLE 21 B (1) above?
Part of the functions of the National Executive Committee under ARTICLE 13.3 v) is:
“Exercise control and take disciplinary actions on all organisations, officers and members of the party and determine appeals brought before it by any member or organisations of the party”
2-3 Again, did the Removal of Hon. Bolarinwa Bashiru meet the minimum standard of the above Constitutional provisions?
ARTICLE21 B (vi) (C) of the Constitution provides that for the purpose of ARTICLE21 of the Constitution, the Zonal Committee shall be the adjudicatory body over complaints and allegation from the state chapter from the zone. In other words, complaints such as the allegations against Hon. Bashiru Omolaja Bolarinwa being the Chairman of the Caretaker Committee from Kwara state ought to have been handled by the Zonal Committee who shall, pursuant to ARTICLE 21 B (I) AND (II) earlier mentioned appoint a fact finding or Disciplinary Committee to examine such allegations.
2-4 The question again is, did this Zonal Committee receive any complaint let alone set up or appoint a fact finding or Disciplinary Committee to examine the allegations? If no, then the removal of the chairman would be illegal and unconstitutional.
2-5 Assuming without conceding that there is no Zonal Committee as envisage by ARTICLE 21 B (C) of the Constitution, the question then is, were such allegations (if any) refer to any National organ of the party at all?
2-6 Closely related to ARTICLE 27 B is ARTICLE 27 C which makes provision for an appeal for an aggrieved Member of the party. The paragraph states:
“Where a member is not satisfied with the decision of any adjudicatory organisations of the party, he or she shall have the right of appeal within 7 days of the decision to the immediate appellate body in the party as presented in this Constitution”
2-7 We also come to the germane question which is, was Hon. Bashiru Omolaja Bolarinwa given this opportunity of appealing against the decision of any adjudicatory body if any at all? If the answer is the negative, then definitely his removal cannot be justified given the surrounding circumstances of this case. This will then lead us to the implications of failure of the party to observe the Constitutional Stipulated Procedures for the discipline of any erring member of the party.
Even though, the removal from office is part of the punishments prescribed against any erring member of the Party in paragraph D of ARTICLE 27 of the Constitution, failure to follow the provisions of the Constitution before such removal is carried out is against the Principle of fair hearing and natural Justice as such, any decision based on such non observance of the principle will amount to a nullity.
3-1 The 1999 Constitution of the Federal Republic of Nigeria (as amended) in Section 36 (I) provides thus:
“In the determination of his Civil rights and obligations including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other tribunal established by law and Constituted in such as to secure its independence and impartiality”
3-2 The attribute and basic criteria for fair hearing have long been settled in plathoral of case laws. In other words, a long line of Judicial authorities has settled the law that the test for the observance of the rule of natural Justice in every proceeding/exercise is not based on technicality but on the substance of the proceedings/exercise and the objective view or opinion of a fair minded person who was present throughout the proceedings/exercise whether in his opinion, Justice has been done to the affected person. See NEPA V AROBIEKE (2006) 7 NWLR (PT 979) 245; FAGBULE V RODRIGUES (2002) 7 NWLR (PT 765) 188: MUHAMMED V KANO N.A (1968) ALL NLR 124.
3-3 IN ADIGUN V A.G OYO STATE (1987) 1 NWLR (PT 53) 678 ESO JSC (as he then was) reiterated the position of the law in these eloquent terms:
“Natural Justice demands that a party must be heard before the case against him is determined. Even God gave Adam an oral hearing despite of evidence supplied by his act of covering his nakedness before the case against his continued stay in the garden of Eden was determined against him”
3-4 Similarly, the law is well settled that if the principles of natural Justice are violated in respect of any decision, it is indeed immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principle of Justice. The decision must be declared to be no decision.
In the same ADIGUN VA.G OYO STATE (Supra) the Supreme Court of Nigeria at page 678 finally settled the issue as follows:
“If the Principle of natural Justice are violated in respect of any decision, it is indeed immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principle of Justice. The decision must be declared to be no decision”
3-5 In view of the above, it is my humble view that if it is established that Hon. Bolarinwa Omolaja Bashiru was not given fair hearing before he was removed based on allegations against him, his removal will not stand a test of time and can be challenged in a law Court.
3-6 Closely related to the above is the principle that every political party or authority must obey its rules and constitution. Therefore, where disciplinary action is to be taken pursuant to its Constitution, such authority must ensure full compliance with its rule and the Constitution. The foregoing submission finds its approval in the popular case of ATTORNEY GENERAL KWARA STATE V MR. A.A ABOLAJI (2009) 7 NWLR (PT 1139)199,THE COURT OF APPEAL while rebuking the then Government of Kwara State, Nweze JCA (as he then was) reinstated the position of the law at page 212 as follows:
“Where disciplinary action is to be taken pursuant to any statue, law or rule, there must be full compliance with the law governing such before such disciplinary action can be properly Justified. Any purported substantial compliance with the rules would have the effect of compromising the right of a citizen to a fair hearing and would be unlawful”
3-7 Finally, some third Columnist may tend to argue that issues bordering on internal or domestics affairs of a political party is not Justiciable in a Court of law, it is my humble submission that though generally, Court would not interfere in a domestic affair of a political Party, however, there is exception to this rule. The exception is that the Court will not allow a political party to breach its own rules and constitution.
In LAU VS PDD & OTHERS (2017) LPELR 42800 SC the Supreme Court stated the law as follows:
“Political parties must do all that is possible to ensure adherence to the provision of their Constitution so as to encourage Nigerians to be confident in entrusting the protection and enforcement of the provisions of the Nigerian Constitution into their hands. Where a political party refuses or neglects to abide by the provision of its Constitution in its relationship with its member, we have the beginning of the culture of impunity and withit, chaos, uncertainty and indiscipline which should not be encouraged”
3-8 Similarly, In SHERIFF & ANOR VS PDP (2017) LPELR – 41805 CA, relying on the Supreme Court’s decision in UZODINMA VS IZUNASO (NO 2) (2011) 17 NW.LR (pt 1275) P. 30 the Court held as follows:
“Political parties must avoid arbitrariness, impunity and illegality and must obey their Constitution because; “There is a golden thread in the fabric that represents the Constitution of a political party in a democracy anchored on the well understood principles of rule of law. This fabric wraps around it to give it shape, life, warmth, Succor and security e.t.c and even in the worst of darkness this thread shines like a million stars”
See also APC VS KARFI (2018) 6 NWLR (PT 1616) 47 at 526
With the above cited Judicial authorities vice a vis the provisions of the All Progressives Congress (APC) Constitution, it is my humble position that if it is established that all the laid down disciplinary measures as provided by the party’s constitution were not followed in the removal of Hon. Bashiru Omolaja Bolarinwa, such removal will definitely amount to a nullity and same can be challenged in a Court of Competent Jurisdiction.
CAVEAT: This write up is strictly my personal opinion aimed at educating the members of the public within the political space and should not be interpreted to mean personal advertisement.
*Falola is a Kwara-born legal practitioner based in Abuja.

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