By Itse Sagay, SAN

What the judgments of the Federal High Court and the Court of Appeal in the “tenure elongation” case of five State Governors, failed to appreciate, probably due to lack of awareness, is that unlawful or illegal acts do have juridical consequences which the law recognizes. In other words, there is close relationship between nullity and legal effectiveness. Illegal acts can produce legal effects.

Nigerian Lawyers, even non-lawyers in recent times, have been brought up on the glib diet fed them by Lord Denning’s over quoted obiter dictum in UAC V. Mcfoy, namely that: “If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”

Apart from its being obiter, (a statement of law based on facts not material to the case) this statement like all widely couched principles is not absolutely true. There are many exceptions. The Court is in many cases required to declare an act void before it becomes so. In reality, there is hardly a situation in which an act is automatically void. It only becomes void when the courts say so. For example in Nigeria, until the courts declare an election a nullity, there is a presumption of law that it is valid. There is no election that is “automatically void, without more ado”. So to are marriages. A couple cannot declare their marriage null and void until it is dissolved by law court. This equally applies to other types of contracts. Clearly Lord Denning over stated the case.

As we shall see later, you can put something an illegal act or an act of nullity and “it will stay there”.

In his article entitled “Nullity and Effectiveness in International Law”, Professor R.Y. Jennings identified three connotations of nullity. The first two need not detain us here. The third connotation is of direct relevance to annulled elections, including governorship elections in Nigeria. According to Professor Jennings: “Thirdly, there is the case to be found in most municipal laws, that, whilst the act is not a nullity ab initio, it may be subject to annulment by a court or other proper authority; it is true that the nullity will then usually be pronounced ex tunc, i.e., with retrospective effect, but of course there will usually in the meantime have been certain legal effects flowing from the act whilst it was so to speak legally alive, which results, if they were incurred in good faith, may have to be preserved in being.”

As the learned Professor further observed, in any society, it has frequently been recognized the even illicit acts produce consequences that the law must recognize and accommodate. “In a society where the maxim ex factis jus oritur [out of facts comes law] has become almost accepted as a principle of law, it may be impossible to hold as non-existent in the intendment of the law that which is not only done in fact, but may be permanent in its effects”. Law is a product of reality, it cannot lag for long behind facts.

It is often necessary in law, to distinguish between an original illegality or act of nullity, which ought not to be regarded as a source of title, power or authority for the wrong doer and the consequences precipitated by the illegality which may themselves have resulted in the creation of legal rights and obligations.

Applying these principles to governorship elections that have been nullified by courts, what do we find?

The five Governors were all declared elected in April 2007 and took the Oaths of Office and Allegiance on 29th May 2007. Therefore they proceeded to exercise the full powers of governors under the Constitution. These included, but were obviously not limited to the following: (i) Signing bills into law.

(ii) Awarding contracts on behalf of their States. (iii) Making appointments to various boards and offices.

(iv) Presenting the State Budget and implementing it after approval by the State Houses of Assembly.

In the Court of Appeal judgment and in the Federal High Court one preceding it, none of the consequences and outcomes of the above exercises of power was declared null and void, even though the courts held that the elections leading to the assumption of office and the assumption of office itself by these Governors were null and void.

In other words, in the eye of the Law, they were never Governors. And yet this nullity of office produced legal effectiveness in all the four areas listed above and in every other action of the legally non-existent Governor.

How then did nullity, produce valid acts? The answer lies in the maxim ex factis jus oritur. The law is pragmatic. It will adapt itself to a reality on the ground. By section 134 of the Electoral Act, 2010, an election petition shall be filed within 21 days after the date of the declaration of results of the election (formerly 30 days under section 141 of the 2006 Electoral Act).