BY Ikechukwu Nnochiri
ABUJA—A five-man panel of justices of the Supreme Court will today commence hearing on an appeal that was lodged by the Independent National Electoral Commission, INEC, seeking an immediate removal of five sitting governors from office.

The electoral body went to the apex court with a view to getting a superior order, nullifying decisions of a Federal High Court and the Abuja Division of the Court of Appeal, which had in their separate judgments, barred INEC from conducting elections in the five states till next year.

It is praying the court to hold that the tenure of Governors Ibrahim Idris of Kogi State, Aliyu Wammako (Sokoto), Murtala Nyako (Adamawa), Liyel Imoke (Cross River) and Timipre Sylva (Bayelsa), ought to have expired on May 29 this year.

It would be recalled that the lower courts had in their separate judgments, relied on the provisions of section 180(2) of the 1999 constitution, to insist that it would be unconstitutional for INEC to compel the aforementioned governors to vacate their respective offices before the expiration of their statutory four-year tenure stipulated in the law.

Consequent on that judgment, only 26 states of the federation participated in the governorship election that held on April 26, as five other states, consisting of Anambra, Ekiti, Ondo, Osun and Edo, were ab-initio excluded from the polls, considering that the tenure of their sitting governors were yet to expire.

Though the initial judgment on the controversial matter was delivered by trial Justice Adamu Bello of the Federal High Court on February 23, however, a 5-man panel of justices of the appellate court on July 31, affirmed the decision, even as they dismissed an appeal that was filed against it by INEC.

Governor Idris of Kogi state was  the first to instruct his counsel, Chief Lateef Fagbemi, SAN, to sue INEC shortly after his state was listed among states where election was slated to hold this year.

Following his lead, the other four governors joined the foray, arguing that they still have one more year before the expiration of their tenure.

It was sequel to their consolidated suit that the trial court barred INEC from including their states in its electoral plans for this year.

The court went ahead to set dates for the expiration of their tenures as, Governor Idris, Kogi, April 5, 2012; Wammakko, Sokoto, May 8, 2012, Sylva, Bayelsa, May 29, 2012, Imoke, Cross River, August 28, 2012, and Nyako, Adamawa, April 30, 2012.

Dissatisfied with the verdict, INEC proceeded on appeal, insisting that the four year tenures of the governors started to run when they first took their oath of offices in May 2007.

INEC urged the court to allow the appeal and set aside the decision of the lower court which it said was entered in error. It maintained the governors were caught by the constitution of the Federal Republic of Nigeria, 2010, as amended, contending that the governors were exercising delegated powers of the electorates which were for a specific period of four years.

INEC’s position on the matter was vehemently opposed by counsels to the benefiting governors and the PDP, Chief Lateef Fagbemi, SAN, Ladi Williams, SAN, S.I Ameh, SAN, J. Akubo, SAN, Kanu Agabi, SAN, Paul Erukoro, SAN and Chief Olusola Oke.

However, in a unanimous judgment that was delivered by Justice Garba Mohammed Lawal, the appellate court maintained that the judgment of the trial court was unassailable, adding that the legal grounds adduced by the electoral body on why the 5 governors should be sacked from office on May 29, was practically meaningless in the face of section 180 (2) of the 1999 constitution.

The appellate court further held that the tenure of the affected governors will legally expire next year considering that fresh oath of office and oath of allegiance were separately administered to them in 2008, after their previous elections of April 14, 2007, were nullified by various divisions of the Appeal Court.

Before dismissing the appeal in its entirety, 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.

“The Federal High Court committed no wrong in placing reliance in judicial precedence in the case of Obi Vs INEC, that is the tenet of the principle of austeris-decisis; the lower court deserves commendation rather than condemnation.

“This appeal is left wanting in merit as it fails on all grounds and parties are to bear their own costs”, the court held.

Though INEC delayed in challenging the verdict, however, it has finally gone before the Supreme Court with a motion of appeal.

Counsel to the commission, Mr. A. B. Mahmoud, had at the last adjourned date applied to the apex court for a short adjournment to enable him to regularize the legal processes.

In one of the appeals to the Supreme Court, which was filed on behalf of INEC by Dr. Onyechi Ikpeazu (SAN), the commission argued that the justices of the Appeal Court were wrong when they held that the time already spent in office by the governors should not be contemplated when computing the period of four years which the governors were entitled to.

In the commission’s view, the judgment was given in disregard to section 180 (2) of the 1999 Constitution of the Federal Republic of Nigeria which stipulated that a governor should vacate office at the expiration of four years.

Ground two of the appeal reads: “The learned justices of the court of appeal erred in law and occasioned a gross miscarriage of justice when they held that the oaths subscribed to by the governors pursuant to their victory in the re-run elections conducted in the states were the oaths of office and of allegiance taken by them as persons first elected as governors under the constitution.”

The commission also stated that the Court of Appeal failed to determine the validity of the initial oath of office taken by the governors.

It claimed that the nullification of the election after the initial oath did not have the effect of nullifying the oath of office previously taken by them.

INEC also faulted the Appeal Court’s justices’ reliance on the case of Peter Obi vs. INEC (2007)11 NWLR Part 1046, saying that the case did not involve a governor who was re-elected  after his initial return was set aside.

Likewise, a former Lagos State Administrator, Buba Marwa, has equally secured the nod of the apex court to appeal the judgment of the Court of Appeal as an interested party.

Although, the Abuja Court of Appeal refused his application, the Supreme Court on July 5 granted his application and ordered him to file his briefs within the shortest time possible so that the appeal could be determined before the tenure of the governors expires.

Though Marwa’s lawyer, Chief Wole Olanipekun (SAN), appeared in court at the last sitting, however, hearing could not commence owing to plea by INEC and the Peoples Democratic Party (PDP) for a short adjournment.

Olanipekun who contended that the justice of the case required that the appeal be heard and determined timeously, noted that INEC issued a timetable for the election in a bid to foist a fait accompli on the court.

In his appeal, Marwa is contending that both the Federal High Court and the Court of Appeal in Abuja were wrong when they held that the affected governors were entitled to stay beyond May 29, 2011.

He told the court that he was interested in becoming governor of Adamawa State on the platform of the Congress for Progressive Change (CPC) and that the decision of the Court of Appeal had denied him that opportunity.

Before adjourning the case to October 13 for definite hearing, the apex court said because the appeal involved very weighty issues of constitutional importance, it would be better to afford the other parties a fair hearing.

In the meantime, the apex court has invited three Senior Advocates of Nigeria to appear in the matter today under the legal principle of ‘amicus curiae’ (friends of the court), to offer it legal advice on the best approach it should adopt in disposing off the matter without igniting constitutional crisis in the country.

Those asked to appear as friends of the court today are the Attorney General of the Federation and Minister of Justice, Mohammed Bello Adoke, SAN, Professor Itse Sagay, SAN, and former Justice Minister, Richard Akinjide, SAN.

They are expected to help the apex court to address some “thorny issues of law” regarding Section 180 of the 1999 Constitution.