Last Friday, the Supreme Court of Nigeria belatedly delivered its judgment in the tenure elongation case involving five governors. Led by the Chief Justice of Nigeria, Dahiru Musdapher the seven justices who heard the case unanimously held that the concept of tenure extension is alien to the Constitution of Nigeria as the maximum term for an elected governor is eight years.
Accordingly, the apex court set aside the concurrent judgements of the two lower courts and dismissed the originating summons filed by the ex-governors in the federal high court. It is therefore illegal on the part of the INEC to have based any primary on the illegal judgement of the Court of Appeal.
However, it is pertinent to point out that the governors were specifically ordered to vacate office forthwith by the supreme court. Since the leading judgment of the honourable Justice Walter Onnoghen did not contain consequential orders it was the belief in some legal and political circles that has arisen a constitutional crisis in the country.
In the circumstances, the attorney-general of the federation and minister of justice, Mr. Mohammed Adoke (SAN) rightly directed that the speakers of the houses of assembly of the affected states be sworn in as acting governors pursuant to section 191(2) of the Constitution. Mr. Kanu Agabi (SAN), a former Attorney-General of the Federation vehemently criticized the stand of Mr Adoke and contended, rather curiously, that the former governors should have been allowed to remain in office.
Even when the Supreme Court had ordered them to vacate office!
Having carefully digested the leading judgment and the contributions of other members of the constitutional court the interpretation of the judgment by the Attorney-General cannot be impeached on any legal ground.
This submission derives succour in the said judgment. Thus, in her contribution to the historic verdict of the court in the main appeal of Brig-Gen Buba Marwa v Admiral Murtala Nyako (SC 141/2011) the honourable justice Olufunlola said inter alia: “Consequently, with the outcome of these appeals; the 1st respondent in suit no S.C 141/2011 is ordered to vacate office immediately while the Speaker of the Adamawa House of Assembly shall be sworn in as Acting Governor of Adamawa State in line with section 191 (2) of the Constitution .
The Independent National Electoral Commission shall conduct an election within three months to fill the vacancy in the office of the Governor of Adamawa State now created”. The above orders applied mutatis mutandi to the four other cases.
Going by the decisions of the apex court a supporting judgment edifies and strengthens the leading judgment. The authority for this submission is the case of Nwana v FCDA (2004) 13 NWLR (pt 889) 128 at 146 where the supreme court (per Tobi JSC) held:
” A concurring judgment in my humble view, has equal weight with or as a leading judgment. A concurring judgment complements, edifies or adds to the leading judgement. It could at times be an improvement of the leading judgement when the justices add to its certain aspects which the writer of the leading judgment did not remember to deal with.
“In so far as a concurring judgment performs some or all the above functions, it has equal force with or as the leading judgment in so far as the principle of stare decisis are concerned.”
To the extent that the additional order of Adekeye JSC constitutes an integral part of the decision it is very dangerous to give the misleading impression that the Supreme Court did not make any consequential orders.
Therefore, the “order” of INEC that the swearing in of the so called Governor-elect was proper is a gross subversion of the rule of law. It is a contempt that should not go unchallenged in any democratic society. More so, that no institution or individual has ever been allowed to treat the judgment of the supreme court with such reckless disdain.