It was former President Umaru Musa Yarâ€™ Adua who first triggered the legal controversy as to the terminal date of the term of re-run governors when he said during the re-run electioneeringÂ campaign of Governor Segun Oni of Ekiti State that, â€œOni would be the first Governor in Nigeria that would spend six years in his first term.â€
Governor Oni of Ekiti State himself, after taking his second oath of allegiance and oath of office, was quoted to have said, â€œI will be your Governor for the next four years.â€
No doubt, the above views follow the Supreme Court decision in the case of Obi v.
INEC (2007) 9 MJSC 1 at 40-42 where the Supreme Court, in interpreting Section 180(2) of the 1999 Constitution, held that the four years tenure of Mr. Peter Obi begins from 17th March, 2006 when Mr. Peter Obi took the Oath of Allegiance and Oath of Office as Governor of Anambra State.
In Obi v. INEC, supra, the Supreme Court declared: â€œSection 180(2) of the 1999 Constitution is the foundation of the first question posted by the Plaintiff/Appellant in his summons. The suit of the Appellant is far from being an electoral matter.
It is one inviting the Court to declare, by examiningÂ the provisions of Section 180(2) of the 1999 Constitution, when the tenure of the office of the Appellant as Governor of Anambra State, will come to an end having regard to the facts that he took his Oath of Allegiance and Oath of Office on the 17th of March 2006. Section 180 deals specifically with the tenure of the Office of a Governor.
It envisages that the electionsÂ are over and it now defines the period the successful candidate for the post of Governor will stay in office. That Section is self-explanatory; it has nothing to do with electoral matters. Section 180(1) and (2) of the 1999 Constitution provides: Section 180(1) â€œSubject to the provision of this Constitution, a person shall hold the office of Governor of a State until:
(a) When his successor in office takes the Oath of that office, or (b) He dies while holding such office; or (c) The date when his resignation from office takes effects, or (d) He otherwise ceases to hold office in accordance with the provisions of this Constitution.â€
Section 180(2) â€œSubject to the provisions of sub-section (1) of this Section the Governor shall vacate his office at the expiration of a 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 the 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 oathsâ€.
â€œIt was after the judgment of the Court of appeal on the 16th of March 2006, and by force of law, that the Appellant (Peter Obi) took his Oath of Allegiance and oath of Office on the 17th of March 2006.
Applying the provision of Section 180(2)(a) of the Constitution to facts of this case, which are not in dispute, the four-years term of office of Peter Obi, as Governor of Anambra State would start running from the 17th of March 2006 only to terminate on the 17thÂ of March 2010.
To interpret the provisions of Section 180(2)(a) otherwise will be to read into that sub-section what the legislator never intended. The duty of a judex is to expound the law and not to expand it.â€
The case of Obi v. INEC, supra, however, is no authority for elongation of the tenure of re-run governors. The facts in Obiâ€™s case are not on all fours with the facts in the cases of the re-run Governors of Ibrahim Idris (Kogi State), Aliyu Wamako (Sokoto State), Murtala Nyako (Adamawa State), Timpre Sylva (Bayalsa State), Liyel Imoke (Cross River State) and Segun Oni (Ekiti State).
I submit that the case of Obi v. INEC supra does not avail the re-run governors for the following reasons: (i) Mr. Peter Obi was not a re-run governor. (ii) Mr. Peter Obi had not subscribed to the Oath of Office and Oath of Allegiance once before. Unlike the re-run governors.
(iii) In the case of re-run governors, the government of the ruling Party in the State remained functional through the acting governor who was, more often than not, of the same ruling party, as the substantive governor. (iv) But in the case of outright declaration as in Obiâ€™s case, there was a total evacuation of the government and was replaced by a different government constituted by a different Political Party.
The correct position of the Law had been succinctly stated by the Supreme Court of Nigeria beyond any equivocation when it said in the case of Ladoja v. INEC (2007) 10 MJSC 1 at 16 ; 19-20
The Appellant whose tenure of office commenced on 29th May, 2003 when he took his oath of allegiance and oath of office to serve his first term of four years as Governor of Oyo State, has not shown anything on record by which the fixed period of four years under Section 180(2)(a) of the 1999 Constitution can be extended beyond 29th May, 2007.
As neither the Supreme Court nor any other Court for that matter has power to extend this period of four years for the Appellant beyond the terminal date of 29th May, 2007.
All that the Plaintiff claimed was an interpretation of Section 180(2)(a) of the 1999 Constitution as it affects hisÂ tenure of office. And it is crystal clear that the Federal High Court has the jurisdiction to interpret the provisions of the Constitution and to make declaratory and injunctive reliefs as conferred upon it by Section 251(1)(q) and (r) of the Constitution.
One does not require a soothsayer to see that the Federal High Court has the jurisdiction to hear and determine the present claim.
The Constitution of the Federal Republic of Nigeria, 1999 did not grant this Court the power to grant an extension of tenure to a Governor who has been improperly impeached. To hold otherwise would amount to reading into the Constitution provisions that are not there.
The case of Ladoja was even a case in which it was held that the governor was improperly impeached as a result of which he lost some period of time in his four years tenure of office as governor.
I submit that if the Supreme Court had held that a governor who lost some time as a result of impeachment that had been adjudged improper, wrongful, null and void is not entitled to tenure extension, the case of re_run governors, whose elections were nullified having been held culpable for corrupt practices and non_compliance during their elections, is even worse; legally and morally.
This is because, it is a long settled principle of law, that a wrong doer would not be allowed to benefit from his own wrong: See Solanke v. Abed (1962) 1 ALL NLR 230, where the Federal Supreme Court said:
A person who, as occupier of lands subject to the Land and Native Rights Act, permits another to enter upon the lands as Tenant under a Tenancy Agreement, and who accepts rent therefor, but who fails to obtain the requisite statutory consent to the transfer of possession, cannot, as against the Tenant in an action for Trespass brought by the Tenant, rely on his own wrongful act and contend that the agreement was void and unenforceable because he himself had failed to get the necessary consent.
Also, in the election petition case of Buhari v. Obasanjo (2005) 19 WRN 1 at 92 lines 35_40, the Court of Appeal said:
â€œIt is settled law that a party should not be allowed to derive benefits from his own wrongs, lest the law becomes an instrument of injustice.â€
To allow re_run governors, a fresh four years term in office as governors, after the nullification of their elections, is to endorse rigging and make it profitable to riggers.
This would be contrary to Public Policy, Natural Justice, Equity and Good Conscience. It is certainly not the intendmentÂ of Section 180(2)(a) of the 1999 Constitution as interpreted by the Supreme Court in Obi v. INEC, supra, that it should be used by riggers as instrument of injustice or political fraud.
Recently, the Federal High Court in Jos had ruled that the tenure of Governor Oni of Ekiti State would end on May 29, 2011. Justice Allagoa who delivered the said Ruling had predicated his decision on the fact that the re_run election ordered in Ekiti State was not a Fresh Poll but a â€œSupplementary Pollâ€. According to His Lordship:
â€œThe whole exercise forms part of one election. The court did not annul the whole election but only in 10 out of the 16 Local government areas of the State, and so, there should not be a second tenureâ€
With due respect to His Lordship, I submit that the above decision and the reasoning upon which it was predicated are specious. The implication of that decision is that in cases where the re_run was in the entire State; where there was a fresh poll, there would be a second tenure. I submit that that decision does not accord with the proper construction of Section 180(2) of the 1999 Constitution as already adumbrated by the Supreme Court in Ladoja v. INEC; supra.
I submit that the issue of the second taking of the Oath of Allegiance and Oath of Office by the re_run governors as the basis for the computation of the time or commencement date of what constitutes the four years term of office for the governors is of no legal moment and is a mere surplusage: See 1. Section 3(1) of the Oaths Act CAP. 01 Laws of the Federation of Nigeria 2004 which provides as follows:_ â€œ3. Unnecessary Repetition of Oath. (1) Except in the case of the President, no person who has duly taken the Oath of Allegiance or the Judicial Oath in Nigeria as provided in this Act shall be required again to take that oath on appointment to any other office or on any other occasion.
2. Balonwu v. Governor of Anambra State (2008) 16 NWLR (PT. 1113) 236 at 273 where the Court of Appeal stated categorically thus: â€œI am of the view that after the election of Dr. Ngige was nullified by the court and Mr. Peter Obi was declared as the new elected Governor there ought not to be a fresh proclamation orderÂ by the new Governor. The election of a new Governor during the unexpired tenure of yet another distinct arm of the Government has no effect on the status of the members of the House of Assembly.
There is no vacuum in Government. It should be borne in mind that the period Dr. Ngige served as Governor of Anambra State was not and could not have been declared illegal. Therefore, government activities and functions being a continuous process, all the official duties of the Governor carried out from the time Dr. Ngige was legally sworn in as Governor and the time the Court of Appeal, being the final court on the matter ordered that he should vacate the sit (sic) would be considered as official duties of Governor of Anambra State.
Those on members of the State House of Assembly e.t.c., remain legal, valid and irreversible. He only ceased to be Governor when the court said so. In other words, the term of four years of the other arm of Government, that is, the legislature, is not affected, bearing in mind the constitutional limitation of the term. Section 105(1) of the 1999 Constitution under which the members of the House of Assembly took oath states thus:â€œ105(1)Â A House of Assembly shall stand dissolved at the expiration of a period of four years commencing from the date of the first sitting of the House….â€