By Dayo Benson, Political Editor,Â & Ise-Oluwa Ige
Today the Court of Appeal is expected to deliver judgment in a suit filedÂ by Dr Andy Uba, seeking to revalidate his mandate as governor of Anambra State following the controversial April 14, 2007 election. Dr Uba, like other governors was sworn in May 29, 2007 as governor.
As at the time he was sworn in, Mr Peter Obi who had earlier won an appeal which made him governor following the 2003 election had barely spent one year in office. Obi actually claimed his mandate after three tedious years of legal battle. Acting on an assumption of efflusion of time, the Independent National Electoral Commission INEC had conducted the 2007 governorship poll in Anambra.
With the conclusion of the 2007 election which Uba won, Obi who came to office in 2006 had approached the Supreme Court to interpret Setion 180(2) of the 1999 Constitution which deals with tenure of governor. Obi got a reprieve from the apex court which sacked Uba as governor after barely 17 days in office
Before the Supreme Court pronouncement which reinstated Obi, the Anambra 2007 governorship election was already being contested before an election petition tribunal sitting in Awka. Citing the apex court verdict which ruled in favour of Obi that there was no vacancy in Anambra governorâ€™s office as at the time the 2007 election took place, the tribunal dismissed the petition before it saying that the election ought not to have taken place abinitio.
Not satisfied , Uba approached the Enugu Court of Appeal to upturn the lower tribunalâ€™s judgment.Â The Appeal Court which is the final abiter in governorship election petitions quashed the tribunalâ€™s judgment and held that Ubaâ€™s mandate was intact.
After three failed attempts to get the Supreme Court uphold the mandate, Uba went back to the Court of Appeal to seek a consequential order to the effect that he should assume office after Obi â€˜s tenure expired on March 17 2010.
A question then arises: Is the April 2007 governorship election in Anambra constitutional and of any effect? This question becomes pertinent because Section 178(2) of the 1999 Constitution states that an election to the office of Governor of a State shall be held on a date not earlier than sixty days and not later than thirty days before the expiration of the term of office of the last holder of that office.
Another question is : In its two major judgments relating to the Anambra governorship seat, did the apex court uphold or set aside Dr Andy Ubaâ€™s mandate? Below are the two verdicts of the apex court in 2007 and 2009.
Supreme Court decides on Peter Obi â€˜s tenure, 15 June 2007
According to the presiding justice of the apex court panel, Justice Aloysius Katsina Alu, after listening to arguments on the constitutional issue, he said:
â€œThis is an appeal challenging the judgment of the court below which affirmed the judgment of the Federal high court to the effect that it had no jurisdiction to pronounce on when the tenure of office of the plaintiff\appellant expires.
â€œThe high court had declined jurisdiction on the grounds that only the election tribunal had jurisdiction in the matter.
â€œThe matter moved from the high court to the court below. The court below had felt the judgment of the high court which declined jurisdiction was okay.
â€œIt is my firm view that what the appellant has sought is the interpretation of section 180 (2) (a) (b) of the 1999 constitution.
â€œThe 1999 constitution empowers high courts to give interpretation to provisions of the constitution or the law.
â€œIt is my view that the court below was wrong to have declined jurisdiction in this matter.
â€œIn the interest of justice and having regard to the fact that the relevant facts in this matter are not in dispute, the court will proceed to exercise its powers under section 22 of the Supreme Court Act to decide this case on its merit.
â€œThe provision sought to be interpreted reads: â€œsubject to the provision of subsection 1 of this section, the Governor shall vacate his office at the expiration of a period of four years commencing from the dates when:
(a)Â Â Â Â in the case of a person first elected as governor under this constitution, he took the oath of allegiance and the oath of officeâ€
â€œIt is not in dispute that the plaintiff\appellant (Peter Obi) was sworn into office on 17th March 2006. If it is so, his term of office will expire on March 17, 2010.
â€œIn his suit, the plaintiff applicant has sought an order that his four year term of office cannot expire; that it extends beyond the May 29, 2007
â€œIn spite of its awareness that the case was still going on in court, INEC went on to conduct election into the office of the Governor of Anambra State. This is against the principle of lis pendis.
â€œThis court and indeed any court will not allow its processes to be treated with disdain.
â€œIn order to ensure that the plaintiffâ€™s appeal is not rendered nugatory, I therefore make the following declarations:
That the office of the Governor of Anambra state is not vacant on the 29th of May 2007
That Dr Uba should immediately vacate the Office of the Governor of Anambra state with immediate effect to enable the plaintiff appellant complete his term of office.
â€œI make no order as to costs,â€ he added.
All other six justices of the apex court on the panel concurred and made their individual comments too.
First to concur with the leading judgment was Justice George Oguntade.
*His words: â€œI have had the advantage of reading in drafting the copy of the lead judgment just delivered by my learned brother, Justice Aloysius Katsina Alu. I entirely agree with it.
â€œThe facts leading to this appeal are very simple and straightforward. In addition, the relevant provisions of the 1999 constitution are very explicit in relation to the facts of this matter. The two courts below fell into error because they misunderstood and consequently misinterpreted the provision of section 184 and 285 of the 1999 Constitution.
â€œThis error led them to conclude that the appellant could only be heard by an election tribunal. This suit was filed at the trial court on 12th February 2007. At that time, the office of the Governor of Anambra State had not become vacant. Neither was there a dispute as to whether the term of office of the plaintiff appellant (Peter Obi) had ceased.
â€œThe plaintiff appellant brought a suit to invoke the powers of the high under section 251 (q),Â of the 1999 Constitution. There is clearly a jurisdiction of the high court to hear the case.
â€œAs for the merit of the plaintiffâ€™s suit, section 180 (2) of the 1999 Constitution is clear and unambiguous. The only conclusion to be arrived at from the provision of section 180,( 2) is that the four year term of the office of the governor commenced on 17th March 2006 when he took his oath of office and the oath allegiance.
â€œHis term shall not expire until March 17, 2010. To arrive at any contrary finds will amount to the subversion of the constitution.
â€œI am aware that the conclusion now reached will impose pain and hardship on those who have spent resources and time in quest for an office which was not vacant.
â€œBut the constitution of the land must be upheld. I intend to give my fuller judgment on 13th of July 2007.
â€œI agree with the leading judgment of my learned brother, Justice Katsina Alu. I subscribe to all the orders granted,â€ he added.
Supreme Court on Nicholas UkachukwuÂ suit September, 2009 Chief NicholasÂ Ukachukwu had approached the apex courtÂ to compel INEC not to abandon the on-going preparations for the 2010 gubernatorial poll in Anambra State in view of fresh developments.
He specifically told the Court that Chief Andy Uba had gone before the Court of Appeal sitting in Enugu with an application for a consequential order compelling INEC to swear him into office upon the expiration of the tenure of Governor Peter Obi in March 2010.
He said Uba, without doubt, was still believing that the verdict entered by the Enugu division of the Court of Appeal to the effect that Andy Ubaâ€™s election in 2007 is still valid.
He said that except the Supreme Court made the necessary clarification and issue an order compelling INEC to conduct fresh poll in the state, he has the fear that the Enugu division of the Court of Appeal might give a counter order stopping INEC from conducting a fresh poll in the state.
But instead of the Supreme Court to hear the special application, it said that it has no jurisdiction to entertain the suit. According to Justice Dahiru Musdapher who delivered the lead judgment, he said by nature of the parties that appeared before the court, the Supreme Court has no jurisdiction to entertain the case. He said that the issue raised by Ukachukwu in his application could only be addressed by a court of first instance like the high court and not the appellate court.
He advised him and any other person who is interested in seeking such relief to go to the high court and sue.
He added: â€œfor anybody that cares to know, in the appeal filed by Mr Peter Obi which came to this court, he asked for interpretation of section 180 (2) of the 1999 constitution and which we did interpret.
â€œWe said that at the time the election which produced Uba as governor held, we said there was no vacancy at the Government House.
â€œWe did not say anything beyond that.
â€œIf you want to pursue your relief as couched, you can file a fresh case but definitely not before the Supreme Court because we donâ€™t have jurisdiction to entertain such issue, being not a court of first instance,â€ he said.
In view of this explanation, it is our view that this application has no relevance of any sort by the prayer sought.
â€œWe are not the court of first instance . We have no jurisdiction to entertain this application. The application is hereby struck out,â€ he added.
The apex court, upon request, also granted N800,000 cost against Ukachukwu for bringing the frivolous application before the Supreme Court.The cost is for the eight respondents that were named in the case.