By IKECHUKWU NNOCHIRI
ABUJA – THE Independent National Electoral Commission, INEC, yesterday, asked an Abuja division of the Court of Appeal to set aside the Federal High Court judgment that stopped the commission from conducting governorship elections in five states of the federation next month.
Listed as respondents in the appeal are Governor Timipre Sylva of Bayelsa State; Attorney General of Bayelsa State, Mienyobofa Fafa Stephen Gow; Governor Alhaji Ibrahim Idris of Kogi State, Governor Aliyu Magatakarda Wammako of Sokoto State, Governor Murtala Nyako of Adamawa State and Governor Senator Liyel Imoke of Cross River State.
It will be recalled that Justice Bello had barred INEC from holding election in the affected states until 2012 following fresh oath of office they took after they won the re-run elections conducted when their 2007 elections were nullified by the appellate court.
Stay of execution
However, INEC through its lawyer, Ms Carol Ajie, is seeking a stay of execution of the said judgment pending the hearing and determination of its request for it to be set-aside.
Adducing reasons why the judgment should be discarded, INEC argued that contrary to the decision of the trial Judge, the oaths of allegiance and oaths of office which the governors took before their elections were nullified still subsists in view of the fact that they were subsequently returned as winners of the re-run elections in their various states.
INEC argued: “There is nowhere throughout the seventh schedule of the 1999 Constitution of the Federal Republic of Nigeria and section 185 thereof, where the oath of allegiance and oath of office being administered by the Chief Judge of a State, on a Governor, is distinguished or distinguishable from the oath of allegiance and oath of office being administered also by the same Chief Judge on the same Governor who won a re-run election.
“The learned trial Judge erred in law in holding that the suit was competent when he lacked the jurisdiction to entertain the Plaintiffs’ claim which sought to interfere with the statutory functions of the Appellant to conduct, schedule and regulate elections into political offices, and thereby occasioned a grave miscarriage of justice.”
INEC faulted the trial Judge for placing reliance on the Supreme Court decided case-law of Obi vs. INEC (supra), insisting that in the said case, the apex Court presided by Justice Aderemi, held that in applying provisions of section 180(2) of the Constitution of the Federal Republic of Nigeria, 1999, the four-year term of office of Peter Obi, as Governor of Anambra State will run from March 17, 2006 when he was first sworn in to March 17, 2010 because Dr. Chris Ngige’s election having been annulled, the period Chris Ngige was in office as the Governor of Anambra State could not count for the period a different person, who was a victim of electoral irregularities, i.e., Peter Obi, first assumed the office of Governor of his State, on March 17, 2006.
INEC further argued that “whereas the Plaintiffs/Respondents’ case ought to have been distinguished from Obi’s because they had been in office as Governors before they were removed by the Court of Appeal for electoral irregularities and a re-run election having been conducted within 90 days, returned to the same office, re-sworn, continued from where they had their tenures briefly interrupted.
“In Ladoja vs. INEC & 2 Ors (supra), the Supreme Court held that the period Ladoja was out of office as Governor of Oyo State (eleven months) which was a longer period than the period of interruption experienced by the Plaintiffs/Respondents in the consolidated suits, counted in computing Ladoja’s four-year tenure who was removed by the Oyo State House of Assembly and subsequently re-instated by a court order that nullified the process of his removal and declared it illegal.
“Both the principle enunciated in the cases of Obi vs INEC and Ladoja vs. INEC & 2 Ors do not support the erroneous conclusion reached by the Learned Trial Judge that the re-run tenures for the Governors of the five States would start afresh under section 180(2) of the 1999 Constitution.
“A period of interruption leading to a re-run election as a result of a previous election adjudged by a court of competent jurisdiction as fundamentally flawed and fraught with irregularities cannot be construed to benefit the same Holder of the same public office. The ratio decidendi in Obi vs. INEC (supra) was misunderstood and misapplied by the Learned Trial Judge.”
INEC contended that “a Court is duty bound to always apply the rule fiat justitia ruat caelum, that is to say, justice be done, the sky will not fall; whenever a party to a dispute aim at taking advantage of imaginary lacunae in the Constitution to promote certain electoral injustices, as in the consolidated cases.
“The Plaintiffs/Respondents’ Oath of allegiance and Oath of office on both occasions each being of similar nature and character and administered on the same personality, cannot be interpreted to increase the four-year term of office of the subscribers contrary to section 180(2) of the Constitution, as the subscribers to the oaths are the same Governors with the same identity and nationality as when they first took it.
“The Learned Trial Judge misdirected himself in law when he said that the taking of the oath of allegiance and oath of office, twice in each case, in which the Plaintiffs/Respondents’ Governors had indulged, is the basis for calculating the four-year term, and that a nullification of the previous elections of the plaintiffs/appellants Governors also nullified their previous oath of allegiance and the oath of office; when oaths are solemn pledges designed to defend and preserve the Constitution pursuant to the seventh schedule of the Constitution of the Federal Republic of Nigeria, 1999 and when section 180(2) did not contemplate an extension.
“With a view to promoting Nigeria’s democratic culture and values and bringing out the intention of the Legislators in the drafting of section 180(2) of the Constitution of the Federal Republic of Nigeria, 1999, the National Assembly having passed the Constitution of the Federal Republic of Nigeria (First Alteration) Act, 2010 signed by Mr. President on January 10, 2011 has thereby put the construction to be given to the new section 180(2) beyond the slightest doubt, or question.
“In exercising its interpretative jurisdiction, the Court ought to have brought out the intention of the Legislature as stated by Aderemi JSC in Ladoja vs. INEC (supra) when the Supreme Court refused Ladoja, whose four-year tenure was interrupted by eleven months, tenure elongation and refused to push his tenure from May 29, 2007 to April 29, 2008, as sought by him, bearing in mind that he was first sworn-in on May 29, 2003 before he was removed by the Oyo State House of Assembly.
“The National Assembly having made further clear the intention of the Draftspersons in 2010, it does not lie in the hands of the Respondents’ Governors to take any step to upturn it.
“The Learned Trial Judge erred in law when he failed to interpret the word “shall” used in section 180 (2) of the Constitution of the Federal Republic of Nigeria, 1999 to connote compulsion on the Respondents Governors to vacate their offices under a constitutional duty to do so at the expiration of their four years term from when they first took the oath of allegiance and the oath of office, as propounded by Niki Tobi JSC in Sokoto State Government vs. Kadex Nigeria Ltd (Supra).
“In all of the cases where the Court of Appeal nullified the election of the Respondents, nowhere throughout the judgments were the original oaths taken nullified by Orders of the Court of Appeal, the final adjudicator, neither any of all the executive acts taken, the assets and loans taken, salaries and perquisites enjoyed and liabilities incurred whilst in office.
“Nullification of election is on one hand, and nullification of oath of allegiance to one’s country and or oath of office of the subscriber to serve his/her country faithfully, to the best of his/her ability, is another; the latter not being capable of nullification to avoid acts of betrayal of a nation’s trust or a violation of allegiance to one’s sovereign.
“To count four years from when the Respondents won their re-run election and subsequently re-sworn, was a strange importation into the clear wording and interpretation of section 180(2) of the 1999 Constitution, and amounts to tenure elongation, an act never contemplated by the draftspersons. Words in a Constitution should be interpreted to remove ambiguities, to demote rather than promote the mischief rule.
“The learned trial Judge erred in law in holding that the suit was competent when he lacked the jurisdiction to entertain the Plaintiffs’ claim which sought to interfere with the statutory functions of the Appellant to conduct, schedule and regulate elections into political offices, and thereby occasioned a grave miscarriage of justice.
The Judgment is against the weight of evidence and inconsistent with decisions of the Appellate Courts in respect of the issues canvassed.”