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WHY SUPREME COURT SACKED FIVE GOVS

By NBF News
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BY CLIFFORD NDUJIHE, OKEY NDIRIBE, IKECHUKWU NNOCHIRI, HENRY UMORU,  DAPO AKINREFON, CHRIS OCHAYI

IN a landmark decision, the Supreme Court yesterday sacked five Peoples Democratic Party (PDP) governors, who won re-run elections in 2007

In an unanimous judgment delivered by its full panel, the apex court maintained that former governors Murtala Nyako (Adamawa), Timipre Sylva (Bayelsa), Liyel Imoke (Cross River), Ibrahim Idris (Kogi) and Aliyu Wammako (Sokoto) ought to have vacated their offices before May 29 last year, stressing that in-line with the provisions of section 180(2) of the 1999 constitution, their statutory four-year tenure had already elapsed.

The verdict elicited plaudits from many Nigerians as  the Attorney General of the Federation and Minister of Justice, Mohammed Bello Adoke (SAN), ordered that speakers of the affected states be sworn-in immediately as acting governors pending the conduct of fresh polls and it was obeyed

Timipre Sylva (Bayelsa), Murtala Nyako (Adamawa), Ibrahim Idris (Kogi), Liyel Imoke (Cross River) and Aliyu Wammako (Sokoto)

This was as Sylva urged his supporters to be calm, saying that he would bounce back as governor in spite of the running battles he is currently waging at the law courts with the hierarchy of the PDP over the party's guber ticket, which has been handed Hon Seriake Dickson.

Imoke also accepted the verdict and appealed for calm as the Independent National Electoral Commission (INEC) said that dates for guber polls in the affected states would be: Adamawa (February 4, 2012), Bayelsa (February 11, 2012), Sokoto (March 10, 2012), Cross River (April 14, 2012). The governorship poll in Kogi was conducted on December 3, 2011.

Among those, who reacted to the judgement yesterday were Professor Itse Sagay (SAN), Chief Richard Akinjide (SAN), Senate Leader, Ndoma Egba (SAN), Mr Bamidele Aturu and former Governor of Kogi State, Prince Abubakar Audu.

The former governors' ouster was sequel to consolidated appeals that challenged two lower court judgments that hitherto barred the Independent National Electoral Commission, INEC, from including their states in the governorship election it conducted across the federation on April 26, last year.

Although, the Chief Justice of Nigeria, CJN, Justice Dahiru Musdapher presided over the panel that heard and determined the appeal, Justice Walter Samuel Nkanu Onnoghen prepared and read the lead judgment yesterday. Other members of the Supreme Court Bench, who concurred with the judgment were Justices Mahmud Mohammed, Christopher M. Chukwuma-Eneh, Mahummad Saifullah Muntaka-Coomassie, Olufunlola Oyelola Adekeye and Mary Ukaego Peter-Odili.

The verdict
Pronouncing the sack of the governors' vis-à-vis the provision of Section 180 (2) of the Constitution, the apex court noted that the object of interpreting statute or the constitution by any court is to discover the intention of the legislature, adding that such intention was usually deduced from the language used.

It held: 'From the language used in section 180 of the 1999 constitution, it is very clear that the constitution intended that a governor of a state shall have a tenure of four years from the date he took the Oaths of Allegiance and of Office and nothing more, though he may spend less where he dies, resigns or is even impeached. In all, a governor has a maximum tenure of eight (8) years under the 1999 constitution.

'It has been argued that the tenure of four years envisaged in the 1999 constitution is a single unbroken tenure but that submission loses sight of the glaring fact that the provisions of Section 180 (2) supra does not expect or envisage an indefinite occupier of the office of governor of a state that is why the tenure is very definite: four years.

'It is clear from the provisions that in the case of commencement of tenure of a person first elected, it starts with the taking of the Oath of Allegiance and Oath of Office, in this case, the 29th day of May, 2007 when the 1st respondents took their Oaths of Allegiance and Oaths of Office.

'The most important thing to note having regards to the provisions dealing with tenure of governors reproduced supra is that looking closely at the provisions of section 180(2) (a), there is no room for the same person elected governor being elected again following a re-run election. A person elected following a re-run election cannot be said to have been 'first elected as governor under this constitution' except he was not the winner of the earlier or first election.

'The present problem arose from the fact that the very persons who won the 'first' election also participated and won the re-run elections.

'In consequence, the lower court held that while the actions of the governors during the period prior to the nullification are valid and legal, the same period cannot be taken into account in calculating the tenure of the said governors following the nullification of their election.  The issue/question of nullity and its legal consequences/effectiveness is usually traced to Lord Denning's obiter dictum in the case of Mcfoy vs UAC (1961) 3 ALLER, 1169 at 1172.  To say that the above principles are based on facts which are not material in this case is to state the very obvious.

'It is the case of the respondents that since their elections in 2007 where nullified it meant that in law the said election never took place and as such the Oaths of Allegiance and of office they took on 29th May, 2007 became non-existent and that the Oaths of Allegiance and of Office which is valid and relevant to the determination of the four year tenure is that which they took at various dates in 2008.

'It is very clear from the relevant provisions that no person elected under the 1999 constitution can remain in that office for a day longer than as provided otherwise the intention of the framers of the constitution would be defeated.

'If the interpretation favoured by the respondents is adopted and the four year tenure is to be calculated from the second oaths taken in 2008 while in fact and law the 1st respondents took Oaths of Allegiance and of Office on 29th May, 2007 and remained and functioned in office as governors of their various states, would their period not exceed the constitutionally provided tenure of four years?

'The answer is clearly in the positive hence the argument on the principles of null and void acts.

The argument that following the nullification of their elections the said elections were in the eyes of the law non-existent as they are regarded not to have taken place as well as the subsequent oaths they took to enable them function in the office of governors of their states is brilliant though it does not deny the fact that there was an election conducted and winners declared thereafter in accordance with existing laws and regulations: that the winners of that election subsequently took their Oaths of Allegiance and of Office as required by the constitution and did function in  that office for about one year effectively exercising the executive powers of the state such as signing Bills into law including appropriation Bills: appointing commissioners and numerous Advisers, awarding contracts, etc.

'The proponents of this contention agree that the acts performed by the affected governors remain valid and subsisting after the nullification of the elections but the oaths they took to function in that office went with the nullification of their election!

'I hold the considered view that since the acts performed during the period prior to the nullification of the election remains valid and subsisting and the same person contested and won the re-run election thereby taking another set of oaths and since what was nullified was the election, the oaths they took on 29th May, 2007 remains valid and the starting point in calculating their four years tenure of office as governors of their respective states particularly as the 1999 constitution does not envisage a tenure exceeding four years by the same person who took the first oaths following the election which kick started the tenure.

'To accede to the argument of the respondents is to bring uncertainty into the clear provisions of section 180(2) of the 1999 constitution which will render the tenure of governors indefinite as what it will take an elected governor whose election is nullified to remain in office almost indefinitely or for life is to continue to win the re-elections which would then be nullified to continue the cycle of impunity.

'I hold the considered view that to uphold the validity of the acts of the governors in office prior to the nullification of their election and reject the period they spent in office during which time they performed those acts in the determination of the period of their tenure is contrary to common sense and the clear intention of the framers of the constitution.

'The fact that there was an election in 2007 as a result of which the 1st respondents (governors), took their Oaths of Allegiance and of Office, are facts which cannot be wished away, just as the acts they performed while occupying the seat.

The said governors may not have been de-jure governors following the nullification of their elections, which is not supported by the acceptance of their acts in that office as legal and binding on all and sundry, they were certainly governors de-facto during the period they operated ostensibly in accordance with the provisions of the constitution and Electoral Act and as such the period they so operated has to be taken into consideration in determining the terminal date of their tenure following, what I may call, their second missionary journey vide a re-run election particularly as the constitution unequivocally grants a tenure of four years to a person  elected governor of a state calculated from the date he took the Oaths of Allegiance and of Office which was the 29th day of May, 2007.

'It is settled law that the time fixed by the constitution for the doing of anything cannot be extended. It is immutable, fixed like the rock of Gibraltar. It cannot be extended, elongated, expanded, or stretched beyond what it states.

To calculate the tenure of office of the governors from the date of their second Oaths of Allegiance and of Office while ignoring the period from 29th May, 2007 when they took the first oaths is to extend the four years tenure constitutionally granted the governors to occupy and act in that office which would be unconstitutional.

'It is therefore clear and I hereby hold that the second Oaths of allegiance and of Office taken in 2008, though necessary to enable them continue to function in that office, were clearly superfluous in the determination of the four years tenure under section 180(2) of the 1999 constitution.'

In conclusion, I resolve the issue against the respondents. In allow the appeals, which have been demonstrated, to be meritorious and set aside the judgments of the lower courts and in their place, it is hereby ordered that suit Nos. FHC/ABJ/CS/246/2010, FHC/ABJ/CS/648/2010, FHC/ABJ/CS/650/2010, FHC/ABJ/CS/651/2010 and FHC/ABJ/CS/665/2010 be and are hereby dismissed. In consequence, I hold that the tenure of the 1st respondents began on the 29th of May, 2007 and terminated on the 28th day of May, 2011 being four years allowed by the 1999 constitution.'

FG implements judgment
Reacting to the judgment, Adoke, said the Federal Government acknowledged the decision and called on the Speakers of the five affected states to, in line with the provisions of Section 191(2) of the 1999 Constitution of the Federal Republic of Nigeria as amended, take over the governance of their states till  elections are conducted.

Noting that the government was committed to the observance of rule of law, he directed the Inspector-General of Police and other law enforcement agencies to put in place, appropriate security measures to ensure orderly transition and to avoid any breach of the peace.

It's temporary setback - Sylva
Embattled, Sylva viewed the judgement as a temporary setback.

In a stament by his Spokesman, Doifie Ola, he said, as a democrat and firm believer in the rule of law he had taken the apex court verdict in good faith.

Enjoining his supporters to remain calm as they had always and shun taking laws into their hands, he said: 'What has happened is only a temporary setback. The implication of this judgment is that the January 2011 primary election, which Sylva won as candidate of the PDP subsists.' He expressed confidence that he would be re-elected and wished the acting governor the best of luck.

No U-turn on Dickson, others - PDP
However, the national leadership of the PDP maintained that the emergence of its four governorship candidates in the remaining four states including Hon. Henry Seriake Dickson, in Bayelsa would not be altered. The party had earlier picked the ousted governors apart from Sylva as its candidates for the scheduled polls.

National Legal Adviser of the party, Chief Olusola Oke, said though the party expected a contrary judgment, it had accepted the ruling because it the decision of the Supreme Court was not questionable.

Relatedly, Senate Leader, Chief Victor Ndoma-Egba (SAN), said that the apex court's judgment  was final and that the party accepted it in good faith. He said that as a politician, he had his reservations because it was believed that staggering election would reduce pressure on the INEC as well as ensure security.

It's a sound verdict - Aturu, Sagay
For Bamidele Aturu, 'the decision of the Supreme Court on tenure elongation is correct, sound, defensible, legal, morally justifiable and cannot be faulted. It can be supported on the well- known ground that a person cannot profit from his or her own wrong. I had held on to this position tenaciously and feel vindicated that the Supreme Court declined to follow the strict constructionism of the two lower courts.

It may even be viewed as laying down the principle that a beneficiary of a wrong even where not directly attributable to him, election rigging in the instant case, will not be allowed to profit from the wrong. In other words, the decision is not only of academic significance as some would want to argue as the relevant constitutional provision has since been amended. The decision will reverberate in other areas of our national life. I salute the courage of the Justices and hope that the politicians will abide by it without any undue rancor.'

Legal icon, Itse Sagay, also spoke in like manner, saying: 'Personally, I support the judgment. That was the line of my argument that I presented in my opinion before the Supreme Court judgment. I am in agreement with the judgment. It is my view that the judgment in the cases of nullification of elections takes effect from the very day they were given. They don't have retroactive effects, so, it follows from that logic that whatever has happened before the judgment which is irreversible will be accepted as valid. It is only from today (yesterday) onwards that the effects will be felt.'

Ruling long overdue - Audu
Relatedly, Prince Abubakar Audu applauded the judgement, saying that the outcome of the case was expected. 'The judgment is a victory for democracy. It has been long expected. We have been given judgment in Kogi State. it is long overdue, it is better to be late than never' he added.

How it started
The sacked governors initially dragged the electoral body to court shortly after their states were listed for election.

They argued that going by the provisions of section 180 (2) of the constitution, their four-year tenure commenced in 2008 when fresh Oath of Allegiance and of Office was administered to them following the nullification of their elections of 2007 by various election petition tribunals.

They insisted that with the nullification of their first election, the period they expended in office prior to the re-run elections they subsequently won amounted to a nullity in the eyes of the law.

Sequel to their consolidated suits, Justice Adamu Bello of a Federal High Court, Abuja on February 23 entered judgment in their favour, a decision that was upheld by the Abuja Division of the Court of Appeal on July 31, 2011.

Dissatisfied with the decision of the lower courts, INEC and the Governorship Candidate of the Congress for Progressive Change, CPC, in Adamawa State, Gen. Buba Marwa (Rtd), proceeded to the Supreme Court, urging it to sack the governors from office on the premise that their tenure expired on May 29, 2011.

The appellants argued that the tenure of the five governors started running from 2007 when they were firstly administered Oath of office and Oath of Allegiance, stressing that the nullification of their first election did not render the Oaths they took thereto nugatory.

The apex court granted Marwa and INEC's prayers.