CONTRACTS OF VOTES FOR A FEE AT OUR ELECTIONS: LEGALITY AND ENFORCEABILITY
The build up to the 2023 general elections is on the high gear and a lot of political horse trading are going on. We are in a period of political bazaar where the highest bidder carries the day.
But, what happens when a delegate in a party primary election collects money from a candidate and refuses, fails or neglects to vote for him? Can the delegate ask for a refund? What if the delegate voted on ‘’credit’’, can he ask the candidate for his fee? What if the candidate advanced part payment, can the delegate ask for balance after voting for the candidate? These are few questions that will be answered hereunder in a short while.
Ordinarily, by the simple principles of law of contract, when parties engage in a contractual relationship, having fulfilled the basic ingredients of offer, acceptance, consideration, intention to create legal relations, the parties are bound by the terms of the contract. Any party who defaults in the performance of his duty in the contract is deemed to be in breach of the contract and the law will insist that the same party pays for the breach. This payment can be either by way of damages, specific performance or any of the equitable remedies to breach of contract.
There are instances when a party may have performed his own side of the contract, yet the law will not enforce the terms of such a contract because it is tainted with illegality. Agreed that, the duty of the courts in contract cases is to interpret the terms of the contract for the parties and nothing more.
‘’Parties are bound by the terms of their contract and a court is not at liberty to re-write a contract for the parties but rather the duty of the court is to give life to the terms of the contract as agreed by the parties ‘’
Generally, courts leave the terms of any contract to the parties making the contracts. Going by this, it is the parties that determine the terms of their contract, but when a contract is tainted with illegality, the hands of the court are tied from enforcing same.
What is an illegal contract? A contract is illegal when a the consideration or the promise involves doing something illegal or contrary to public policy or if the intention of the parties in making the contract is thereby to promote something which is illegal or contrary to public policy; an illegal contract is void and cannot be the foundation of any legal right.
What then is consideration? Consideration under the law of contract is defined as ‘’some right, interest, profit or benefit accruing to one party or some forbearance, detriment, loss or responsibility given, suffered or undertaken by the other.
On 25th May, 2022, just few days to the Presidential Primary election of the People’s Democratic Party, Peter Obi, a presidential aspirant left the party. It was believed by many that his exit from the party may not be unconnected with the high volume of delegates’ vote buying by the candidates. On 28th May, 2022(the exact day for PDP Presidential Primaries) while the pot of this articles is still seething on fire, the news broke out that Hayatu-Deen, another PDP aspirant in the PDP Presidential Primaries left the party. His reason for exit was that the whole process has been ‘’obscenely monetised’’. This lends credence in no small measure to the subject matter in this article that votes for money contracts has become a norm in Nigeria.
From the position of the law on illegal contracts discussed hereinbefore, vis a vis the current trend of political parties bribing delegates in order to vote for them at the party primaries, the pertinent question to ask is’ ‘What happens if a delegate advances some 5 or hundreds of thousands of naira or dollar to delegates and the delegates after accepting the bribe refuses, fails or neglects to vote for the candidate” Ordinarily, as aforesaid, the candidate who doled cash deserves a refund since the delegate did not fulfil his part of the contract, i.e. to vote for the particular candidate.
There was a recent case of the son of Arc. Namadi Sambo, the former vice president of Nigeria, who allegedly paid the delegates the sum of N2m each to vote for him at the House of Representatives Primary election for Peoples Democratic Party in Kaduna State. It was widely reported that he demanded for the refund of his money from the delegates having spent about N70 Million Naira, since they could not deliver him at the polls. Can he recover such a money? Can he approach the court for breach of contract even if he signed an agreement with them and can exhibit the evidence of bank transfer to their respective accounts? The answer is definitely in the negative. Bribery is an offence under our criminal laws. Section 121 of the Electoral Act, 2022 criminalises bribery and conspiracy. In fact, the punishment for such an offence upon conviction is fine of N500,000 or imprisonment for 12 months or both. Any person who pays another some money for votes or agrees to vote at a fee, has entered into an illegal contract and enforcement is impossible.
It follows that while the whole electoral process is going on, both for the primary general elections, a person who enters into any contract to give or receive any financial inducement from another party in order to vote for or be voted for commits a crime under our laws, and any contract based on such terms is absolutely unenforceable. If a delegate collects half of his money and after election, the candidate refuses to pay, that’s the end. The same thing applies to a situation where the candidate pays the delegate and the delegate after collecting the money refuses to fulfil his terms of the contract. The game is over. Both parties should bear their pains. To shout aloud, may mean giving EFCC, ICPC or Police a clear signal to arrest you and cogent evidence to nail you in court. To run to court under the guise to enforce the contract, will definitely hit the bricks. When a contract is illegal, the hands of the courts are tied. Parties are to lick their wounds. This is the position of the law and the change cannot be too soon.
Hyginus Ibega, Esq.
Principal Partner, Sure Path Attorneys,
Abuja. He can be reached through email@example.com