By Ikechukwu Nnochiri, Johnbosco Agbakwuru, Sam Oyadongha
The Court of Appeal Friday upheld the verdict of a Federal High Court barring the Independent National Electoral Commission, INEC, from conducting governorship election in Kogi, Cross River, Sokoto, Adamawa and Bayelsa next week.
The appellate court which dismissed the consolidated appeal lodged before it by the Independent National Electoral Commission, INEC, as substantially lacking in merit. It held that the tenure of the affected governors would legally expire in 2012, in view of the fact that fresh oath of office and oath of allegiance were administered on them in 2008, after their previous elections of April 14, 2007, were nullified by election petition tribunals.
The court declared that it would be unconstitutional for the electoral body to compel Governors Ibrahim Idris (Kogi); Aliyu Wammakko (Sokoto); Muritala Nyako (Adamawa); Liyel Imoke (Cross River); and Timipre Sylva (Bayelsa State) to vacate office before the expiration of their statutory four years tenure as stipulated in section 180 of the 1999 Constitution.
In effect, only 26 states of the federation will participate in the governorship election billed for April 26. Five other states – Anambra, Ekiti, Ondo, Osun and Edo – had earlier been excluded because the one tenure of the governorship is yet to expire.
In a unanimous ruling delivered yesterday by Justice Garba Mohammed Lawal, the 5_man panel of justices of the appellate court maintained that the February 23, 20121 judgement of Justice Adamu Bello was unassailable, stressing that the legal grounds adduced by the electoral body on why the five plaintiffs should be sacked from office this month, was practically meaningless in the face of section 180 (2) of the 1999 constitution.
The appellate court noted that the reasons canvassed by the electoral body in opposition to the judgment of the lower court, “may be useful for the academic environment where theories are propounded, but not in the practical interpretation of the clear provisions of the constitution for the adjudication of disputes”.
“The duty of the court is to interpret the law as it is, that which is not explicitly intended by the lawmakers, should be accordingly excluded by the judiciary.
“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.
“This clear and unambiguous provision should be given its ordinary grammatical meaning. The submissions made by the appellant revolved around the issue of an oath of office administered to a person firstly elected as a governor.
“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.
“The Federal High Court was right when it held that the nullification of the previous elections of the respondents in 2007 have a direct legal impact on the previous Oath of Office and Allegiance they took, it will be ridiculous for the appellant to rely on that former Oaths to insist that their tenure commenced in 2007.
“No body can be said to be validly elected in an invalid election, a person not validly elected under the constitution and Electoral Act could not validly subscribe to the oath in the first place, such oath would be invalid and of no legal effect whatsoever and cannot mark the commencement of the tenure of such person.
“Tenure commences from the day a validly elected person takes a valid oath of office. The constitution operates prospectively and not retrospectively.
“The decision of the Federal High Court is unassailable. I found no merit in the appellant’s submissions; consequently, the issue is hereby resolved against the appellant.
*CRSG hails judgement
The Cross River State Government expressed delight at the judgement, but the opposition CPC dismissed it as a judicial endorsement of rigging.
The Commissioner for Information and Orientation, Mr. Patrick Ugbe said the judgement had renewed the fourth of the people in the judiciary.
I’ve been vindicated — Sylva Governor Timpre Sylva of Bayelsa State said the judgement has vindicated him. The Government House, Yenagoa was besieged by supporters of the Governor who went to congratulate him.