Dual citizenship: Conflicting court decisions unsettle the polity

In this piece, Vanguard Law and Human Rights examines the facts and the law in two similar suits by the Peoples Democratic Party, PDP,  in two Federal High Courts, where the party had challenged the eligibility of two governorship candidates of All Progressive Congress, APC, in Rivers and Cross River states, the contradictory decisions entered by the two superior courts of record, which decided the two separate cases on November 24, 2022,  notwithstanding the availability of a case law on the constitutional issue and the significant place of stare decisis in Nigerian jurisprudence and argues that Nigerian judges should, at all times, endeavour to stand by earlier decisions of higher courts and not ignite unnecessary crisis by disturbing settled matters.

Background

ON November 24, 2022, two superior courts of records sitting at separate locations entered two contradictory decisions on a legal question bordering on the eligibility of Nigerians holding dual citizenship to vie for political offices in the country.

The decisions have not only thrown the polity into confusion but have also portrayed the Nigerian judiciary as unpredictable.

The affected two superior courts are the Federal High Court in Calabar, Cross River State presided over by Justice Rosemary Oghohorie and the Federal High Court, Port-Harcourt, Rivers State presided over by Justice Emmanuel Obile.

The Federal High Court, Calabar, gave its decision in a suit with Registration Number FHC/CA/CS//142/2022, filed by the PDP and its governorship candidate, Sandy Ojang Onor,  challenging the eligibility of Senator Prince Otu and Peter Odey as governorship and deputy governorship candidates of their political party, the APC, respectively.

Specifically, the PDP and Onor, in their suit, requested the court to compel  the Independent National Electoral Commission, INEC, to bar the duo of Senator Otu and Peter Odey from flying the flag of the APC in the forthcoming 2023 gubernatorial election in the state since Odey (the running mate of Otu) was purportedly not a duly registered member of the APC  and for holding  dual citizenship, having sworn to an oath of allegiance to the United Kingdom (UK).

Prominent lawyer, Chief Mike Ozekhome, SAN, settled the brief of the APC together with its gubernatorial candidate, Senator Otu and his running mate, Peter Odey.

After the court heard the case, the trial judge, Justice Oghohorie in the judgment held that the uncontroverted evidence before the court clearly showed that Peter Odey was duly registered in his ward as a member of the APC even as the court agreed with Ozekhome  on the second vexed issue of dual citizenship that Peter Odey, from the evidence before the court, is a citizen of Nigeria by birth and therefore, his citizenship of the UK could not vitiate his eligibility to contest for the office of the Deputy Governor of Cross River State.

The court, therefore, concluded that the suit of the plaintiffs was devoid of any merit whatsoever and accordingly dismissed same.

By the said judgment, Senator Otu and Odey remain the  validly nominated candidates of the APC to contest the high offices of governor and deputy governor respectively of the state in the impending 2023 governorship election.

The decision was handed down on November 24, 2022.

But in the second case with similar facts, the same PDP had filed a suit at the Federal High Court, Port Harcourt, asking it to direct INEC not to recognize a 1967-born businessman and governorship candidate of the APC, in the state, Mr. Tonye Cole, over dual citizenship and non-compliance with the Electoral Act by his party.

The case also went on trial while decision was entered on November 24, 2022.

In the ruling delivered in the matter, Justice Emmanuel Obile agreed with the state PDP that the APC gubernatorial candidate, Cole, who holds dual citizenship, was not eligible to contest governorship position on the account that he was so barred by the constitution.

Justice Obile also ruled that the APC primaries, where Cole emerged as the candidate was not monitored by the INEC.

Recall that the same judge while ruling on the preliminary objection in a suit by APC against PDP and its governorship candidate, SIM Fubara had held that no court had the right to interfere in another party’s affairs.

But in the instant case, Justice Obile in the judgment against APC held that the court had jurisdiction to hear the matter.

The judge, having resolved the two issues in the suit against Cole, directed  INEC to delist the name of APC gubernatorial candidate (Cole) from the electoral list for the 2023 general election.

According to one of the counsel to PDP, Dike Udenna, who spoke to journalists outside the courtroom after the judgment, he said the implication of the judgment was that the APC has no governorship candidate for the 2023 election in the state unless a higher court rules otherwise.

However, as far back as 2004, a similar case between Dr. Willie Ogebide and Mr. Arigbe Osula (2004) reported in 12 NWLR Part 886 page 138 paras C-E had travelled from the high court to the Court of Appeal, where the panel of justices led by Justice Walter Onnoghen held that a citizen of Nigeria by birth is not disqualified in law from seeking elective offices in the country even when such person has voluntarily acquired the citizenship of another country as done by Peter Odey in the Calabar case and Cole in the Port-Harcourt case.

Indeed, Justice Onnoghen in the judgment which remains the locus classicus on such matter held: “… it is clear and I, hereby, hold that the acquisition of dual citizenship by a Nigerian per se is not a ground for disqualification for election to the National Assembly particularly where the Nigerian citizen is a citizen by birth. That is the clear meaning of the provisions in sections 66(1) and 28 of the 1999 constitution when taken together.

“The only Nigerian citizen disqualified by the said sections is one who is a citizen of Nigeria by either registration or naturalization, who subsequently acquires the citizenship of another country in addition to his Nigerian citizenship…”

Justice Onnoghen (JCA) as he then was had further explained, “…When a Nigerian by Naturalisation or Registration acquires the citizenship of another country, he loses his right as a naturalized Nigeria. Such a person would not be able to contest any election into any elective office in Nigeria.”

From the facts of the three cases above, confusion appears to be brewing in the polity over the contradictory decisions entered by the judiciary on cases bearing similar facts and involving interpretation of the same constitutional provisions relating to dual citizenship.

The said primary section of the Constitution that relates to the dual citizenship is section 28 while six other sections make reference to Section 28 regarding disqualification for election.

According to a lawyer, Onyekachi Umah, the six sections of the 1999 Constitution that make reference to section 28 include Section 66 of the constitution which is on disqualification/requirement for election into National Assembly (the House of Representatives and the Senate); Section 107 of the constitution which is on disqualification/requirement for election into the House of Assembly in any state in Nigeria; Section 137 of the constitution which is on disqualification/requirement for election of the President of Nigeria and section 142 for Vice-President of Nigeria.

Others are Section 182 of the constitution which is on disqualification/requirement for election of the governors and section 187 for Deputy-Governors in states in Nigeria.

The Court of Appeal, had a couple of times, pronounced on the various constitutional provisions as they affect the eligibility of candidates with dual citizenship.

A renowned scholar of law, Prof. G. Okeke, in a seminal paper entitled “Judicial precedent in the Nigerian legal system and a case for its application under International law” argued that like cases should be decided alike.

According to him, “Judicial precedent is an age-long feature of municipal judicial systems of the common law including Nigeria. The review of the practice in Nigeria reveals that it serves the cause of justice and makes predictability of the outcome of legal suits possible.

“The term judicial precedent is in technical term known as ‘stare decisis. Stare decisis’ is a latin term which means ‘let the decision stand’.

“The principle maintains that cases with like facts should be decided alike.  In other words, a decision of a superior court should be followed as a guard by lower courts in a circumstance where the facts of the case decided by a superior court are similar to the facts of the case before a lower court.

“The decision of the superior court must stand and is binding on the lower court.”

Explaining further, Okeke said: “Precedent is mainly based on hierarchy of courts.

“The 1999 Constitution of the Federal Republic of Nigeria made provisions for the Supreme Court, Court of Appeal, the Federal High Court, the High Court of the Federal Capital Territory (FCT), the FCT Sharia Court of Appeal, the FCT Customary Court of Appeal and State High Courts.

“It is pertinent to note that Magistrate Courts and Customary Courts are created by the Laws of State Houses of Assembly.

“According to the principle of judicial precedent, a magistrate court is bound to follow the decision of a High Court in any case having similar facts with that of a case decided by the High Court; the High Court is also bound to follow the decision of the Court of Appeal where the facts of the case decided by the Court of Appeal are similar to a case pending before a High Court; while the Court of Appeal is bound to follow the decision of the Supreme Court on the same consideration of similar facts relating to the case before it and that of a case decided by the Supreme Court.

“The principle of precedent endeavours to control future decisions.

“In other words, decisions made by higher courts are supposedly believed to be better in quality and as a result are made binding on lower courts on the basis of judicial precedent.

“Lower courts are therefore, constrained and these constraints brought upon these courts cannot be removed except in situations where the facts of the decided case by a High Court and a pending case in a lower court differ substantially,” he had added.

Although the Court of Appeal, as far back as 2004, had decided a case on dual citizenship as it affects eligibility for election in Nigeria, it does not appear that Justice Obile in the suit he handled in the Port-Harcourt division of the Federal high Court is aware of the earlier decision by a higher court in the matter as he disqualified Cole from participating in the 2023 governorship election in Rivers State when the case law is clear on the matter.

But in a chat with Prof Awa Kalu, SAN, he admitted that though there has been an issue with the interpretation of certain provision of the constitution relating to dual citizenship as it affects eligibility for election, yet, the Court of Appeal has doused any tension created by the problems of interpretation of the said constitutional provisions.

According to him, “Irrefutably, the provisions of the Constitution as to qualification of candidates for general election in Nigeria is the same with regards to Presidential, Vice Presidential, Governorship, Deputy Governorship as well as Legislative Houses.

“For example, Section 177 of the Constitution clearly provides that a person shall be qualified to contest for the election to the office of governor of a State if he is a citizen of Nigeria by birth.

“What this means is that if you acquired a citizenship of Nigeria by means other than by birth, then you are not eligible for such a contest.

“Conversely, by virtue of Section 182(1)(a) of the Constitution, no person shall be qualified for election to the office of governor of a State if – subject to the provision of Section 28 of this Constitution, he has voluntarily acquired the citizenship of a country other than Nigeria or, except in such cases as may be prescribed by National Assembly, he has made a declaration of allegiance to such other country.

“There is no doubt that contrary to the clear terms of Section 177, Section 182 (1) has raised problems of interpretation particularly, at High Court levels.

“Happily, the Court of Appeal has established some stability in the determination of the question to the effect, that a person does not inexorably become ineligible to contest an election simply because he is a dual citizen, especially if he is a citizen of Nigeria by birth. See for example Peoples Democratic Party & Anor. vs Independent National Electoral Commission & 2 Ors. (2012) LPELR-8409 (CA) following Ogiede vs Osula (2004) 12 NWLR (Pt.886) Pg. 127.

However, there are few lawyers including SANs, who disagreed with the position of the Court of Appeal regarding the interpretation of the relevant provisions of the 1999 Constitution on the effect of dual citizenship on eligibility for elective offices in Nigeria.

According to a renowned scholar, Peter Anyebe, “the rule of judicial precedent otherwise known as stare decisis is well rooted in Nigerian jurisprudence. It is a well settled principle of judicial policy which must be strictly adhered to by all lower courts.

“While lower courts may depart from their own decisions reached per incuriam, they cannot refuse to be bound by decisions of higher courts even if those decisions were reached per incuriam,” Anyebe added.

Going by the principle of “stare decisis et non quieta movere” which translates as “to stand by decisions and not to disturb settled matters,” it is advised that Nigerian judges, for more reasons than one, should, at all times, endeavour to stand by earlier decisions of higher courts and not disturb settled matters.

(Vanguard)