Supreme Court sacks 5 govs

ven though the judgment of the apex court was the result of an appeal filed by INEC against the tenures of the governors whose earlier elections were annulled but who later won re-run elections. The commission’s spokesperson, Emmanuel Umenger told Weekly Trust: “INEC has not yet taken a position on the matter and will probably […]

The decision of the Supreme Court is coming after a long drawn out legal battle that went from the Federal High Court to the Appeal Court and finally to the Supreme Court. The Supreme Court in a unanimous decision yesterday morning sacked Governors Aliyu Wammakko of Sokoto State, Murtala Nyako of Adamawa State, Ibrahim Idris of Kogi State, Liyel Imoke of Cross River State and Timipre Sylvia of Bayelsa State.

The seven-man panel of the Supreme Court held that the tenures of the governors started to count from the time they took their oath of office after emerging winners in their respective state governorship elections in 2007 and not from the period they took their second oaths of office after emerging winners of the re-run elections when their initial elections were nullified.

Meanwhile, the Attorney-General of the Federation and Minister of Justice, Mohammed Adoke, has asked all five state governors sacked by Friday’s supreme Court ruling to immediately hand over to speakers of their various state assemblies. The Attorney-General gave the orders in a statement issued Friday after the Supreme Court delivered judgment in the appeal emanating from the judgment of the Court of Appeal in respect of the tenure of the five governors, ruling that their tenures expired in May last year.

“The Federal Government acknowledges the judgment of the Supreme Court and in line with the provisions of Section 191(2) of the 1999 Constitution of the Federal Republic of Nigeria as amended,” Mr. Adoke said. The Attorney General’s statement is apparently a reaction to the development in Kogi State where the President of the Customary Court of Appeal was railroaded into swearing in Governor-elect Idris Wada as successor to ousted Governor Ibrahim Idris, and in the other four states where some of the governors showed initial reluctance to leave office.

Mr. Adoke directed, “the Honourable Speakers of the State Houses of Assembly of the affected states to take over the governance of their respective states pending the conduct of fresh governorship elections by the Independent National Electoral Commission (INEC).”

In Kogi, the ousted governor, Ibrahim Idris, brought in the President of the Customary Court to swear in Mr. Wada, the governor-elect. The Kogi State chief judge had refused to swear in Mr. Wada but the state government quickly brought in the President of the Customary Court of Appeal to administer oath on Mr. Wada and his deputy. The Chief Judge later swore in the Speaker of the state House of Assembly as acting governor, which in essence means the state have two governors sworn on the same day. Earlier, a Federal High Court had held that the five governors’ tenures of office started to run from their later oaths of office and oath of allegiance which they took upon their emergence as winners of their respective re-run elections.

The Supreme Court held that the trial court as well as the Court of Appeal erred in law when they considered the actions taken by the respective governors before their elections were nullified by the various Election Petition Tribunals as valid on one hand while discounting the time they spent doing those valid actions from their constitutionally prescribed tenure of office.

In reaching their decision, the Supreme Court relied on section 180 (2) of the Constitution wherein the tenure of office of governors were prescribed and held that that section did not envisage any form of elongation of occupants of the office of the governor of the state as well as that of the president.

The section reads:

180 (2) Subject to the provisions of subsection (1) of this section, the Governor shall vacate his office at the expiration of period of four years commencing from the date when –

(a) in the case of a person first elected as Governor under this Constitution, he took the Oath of Allegiance and oath of office; and

(b) the person last elected to that office took the Oath of Allegiance and oath of office or would, but for his death, have taken such oaths.

The court held that the provisions of that section of the Constitution will stand violated if the tenure of office of the governors is calculated from their second taking of Oath of Office and the Oath of Allegiance and stated that their tenure started counting from their first Oath of office which they all took after they were declared winners of the April 2007 elections and that they are entitled to four year terms from that date.

In countering the decisions of the Federal High Court and that of the Court of Appeal, the Supreme Court asserted that the provision of the law did not envisage an indefinite occupation of office by a governor and did not also envisage re-run elections, left alone one to be won by the same person.

The Supreme Court held that since actions of these governors, like contracts awarded by them, Commissioners and Special Assistants appointed by them as well as Budgets and Bills signed into law by them remained valid and subsisting when their election were annulled, that it followed that upon emerging winners of their respective re-run elections, and having to take another Oaths of Office and Allegiance which is a standard procedure before they can function as governors, that their tenure begins to count from that first oaths they took in 2007 and not the second ones they took in 2008 after their victories in the re-run elections.

Earlier, the PDP had filed preliminary objections attempting to abort hearing of the matter, arguing that the subject matter of the appeal have become academic and should be dismissed. The apex court maintained that the matter is of grave constitutional importance whose subject matter is still alive and cannot be truncated on the grounds of mere technicalities.

It would be recalled that the lower courts had in their separate judgments, relied on the provisions of section 180(2) of the 1999 constitution, to insist that it would be unconstitutional for INEC to compel the five governors to vacate their respective offices before the expiration of their statutory four-year tenure stipulated in the law.

Consequent on that judgment, only 26 states of the federation participated in the governorship election that held on April 26, as five other states, consisting of Anambra, Ekiti, Ondo, Osun and Edo, were excluded from the polls, considering that the tenure of their sitting governors were yet to expire.

Though the initial judgment on the controversial matter was delivered by trial Justice Adamu Bello of the Federal High Court on February 23, 2011, however, a  5-man panel of justices of the appellate court on July 31, affirmed the decision, even as they dismissed an appeal that was filed against it by INEC.

Shortly after his state was listed among states where election was slated to hold that year, Governor Idris of Kogi State was the first to instruct his counsel, Chief Lateef Fagbemi, SAN, to sue INEC. This prompted the other four governors to also go to court, all of them arguing that they still have a year to the expiration of their tenure. The court later barred INEC from including the five states among the states where elections will be held in 2011.

The court came out with new dates for the expiration of the tenures of the five governors: Governor Idris, Kogi, April 5, 2012; Wammakko, Sokoto, May 8, 2012, Sylva, Bayelsa, May 29, 2012, Imoke, Cross River, August 28, 2012, and Nyako, Adamawa, April 30, 2012.  INEC protested the verdict and went to the Appeal Court, insisting that the four year tenures of the governors started to run when they first took their oath of offices in May 2007.

INEC urged the court to set aside the decision of the lower court which it said was entered in error. It maintained the governors were caught by the constitution of the Federal Republic of Nigeria, 2010, as amended, contending that the governors were exercising delegated powers of the electorates which were for a specific period of four years.

INEC’s position on the matter was vehemently opposed by counsels to the benefiting governors. However, in a unanimous judgment that was delivered by Justice Garba Mohammed Lawal, the appellate court maintained that the judgment of the trial court was unassailable, adding that the legal grounds adduced by the electoral body on why the five governors should be sacked from office on May 29, was practically meaningless in the face of section 180 (2) of the 1999 constitution.

The appellate court further held that the tenure of the affected governors will legally expire next year considering that fresh oath of office and oath of allegiance were separately administered to them in 2008, after their previous elections of April 14, 2007, were nullified by various divisions of the Appeal Court.

Before dismissing the appeal in its entirety, the appellate court noted that “It is also settled law that the provision of the constitution should be interpreted literally in the absence of ambiguity. The provision of section 180 (2) is simple and crystal clear, it says that a governor shall leave or vacate office at the expiration of a 4-year term starting from when such a person swore to an oath of office and oath of allegiance.

“There is no doubt that a person must have been chosen as a governor in accordance with the constitution and the Electoral Act before the issue of tenure can be determined, but when such election did not follow the due process of the law, it will be preposterous to place reliance on the provision of section 180(2) to insist that the oath of office firstly administered on the person that was not validly chosen, remained valid.

“Once an action is nullified by a competent court, the action has been erased and is deemed not to have ever arisen in the first place. When a thing is a nullity it is as if it never existed in the eyes of the law and is therefore null, void and of no legal consequence.

“Since when a thing is void it never existed, in the same vein, if election is void ab-initio and a fresh election conducted, it appears that the first election never happened before. A voided act is incurably bad as one cannot put something on nothing and expect it to stand.

“Tenure commences from the day a validly elected person takes a valid oath of office. The constitution operates prospectively and not retrospectively.

Though INEC delayed in challenging the verdict of the Appeal Court, it finally went before the Supreme Court with a motion of appeal. The Supreme Court nullified the verdict of the Appeal Court and sacked the five governors.

The apex court held that the trial court as well as the Court of Appeal erred in law when the considered the actions taken by the respective governors before their elections were nullified by the various Election Petition Tribunals as valid on one hand while discounting the time they spent doing those valid actions from their constitutionally prescribed tenure of office.

Sebastian Hon, SAN, in his swift reaction to the Supreme Court decision said, “I believe the Supreme Court may have to revisit that decision someday. It was the same Supreme Court that held in 2009 in the case of Labour Party vs. INEC that when an election is annulled and a rerun ordered, both the election and the oath taken are gone. There cannot be two oaths in one tenure. But since the Supreme Court is the conscience of the nation, which has jurisprudential powers to give even policy decisions, we are bound by this very decision.”