By Akpo Mudiaga Odje

Indeed, like a volcanic eruption, the judgment of the apex Court delivered on Friday, 27th January 2012 has caused intense reverberation on both the political and legal spheres of our nation.

Whilst it was a blessing to some, it came as a major set back to others, with both sides of the divide attempting to rationalize their respective perspectives on the judgment. This discourse attempts to capture the essence of the judgment whilst also highlighting positions of the two divergent proponents. It however concludes that the judgment is a landmark, infallible and progressive resolution of the tenureship brouhaha in relation to the office of a Governor of a State in the Federal Republic of Nigeria.

•Constitutional Provisions Regulating Tenure of a Governor
The first port of call in examining this issue is Section 180 (2)(a) of the 1999 Constitution (before amendment) which was the provision interpreted by the exalted court. It provides as follows: 180 “Tenure of Office of Governor
(2)Subject to the provisions of subsection (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 Oath of Office;”

Upon a literal perception, this section provides no problem as long as the election that brought in the holder of that office is not subsequently nullified by a Court and/or Election Tribunal before the expiration of the four years stated above.

However, the problem arises in the event of a nullification of the election that produced the holder of that office, before the expiration of his four year tenure. It becomes even more problematic when after a Court ordered re-election is carried out, the same person who won the previously annulled election, wins the re-run election within his first four year tenure.

This is the issue that led  the Governors of Adamawa, Cross-Rivers, Bayelsa, Kogi and Sokoto State to institute a legal action before the Federal High Court Abuja, which eventually went on appeal to the Supreme Court and produced the said judgment.

The Trial Court and the Court of Appeal, interpreting the above Section 180(2) (a) of the said Constitution, held inter-alia, that the respective tenures of the aforesaid Governors, commenced from the date they were re-sworn in after the Court ordered re-run or re-election. Consequently, their four year tenure is to be calculated from the day they took the second Oath of office and Oath of Allegiance.

So in the case of Bayelsa State i.e from 2008 and not 2007, because the earlier election of 2007 was nullified including the Oath of Office and Oath of Allegiance taken therein. The lower Courts obviously placed much emphasis on the pontification of the Law Lord, Lord Denning in the locus classicus of Macfoy V UAC (1961) WLR 1405 wherein he had pungently enunciated the rule, that if a thing is a nullity, it is completely otiose. Afortiori, you cannot therefore build something on nothing, as it will collapse.

Accordingly, the Oath of Office and Oath of Allegiance subscribed to by the erstwhile Governor Timipre Silva in 2007 was a nullity. And that you cannot therefore start to calculate his tenure from a nullity. It is in the light of the above judgment, that the Independent National Electoral Commission (INEC) reluctantly appealed to the Supreme Court, after Brigadier Buba Marwa Rtd, had vigilantly applied and succeeded to be joined as an interested party in the appeal before the apex court. This resulted in the judgment of last Friday, 27th July 2012, that has now generated endemic panic in the political and legal spheres of our dear nation.

•Supreme Court Judgment in Focus
A careful examination of the judgment of the Supreme Court so far as is material to this discourse, reveals a Court that is interested in propagating justice and equity in the interpretation of our Constitution. And this accords with its traditional judicial pedigee as crystallized in the case of Nafiu Rabiu V State (1981) 2 NCLR 293 wherein the proficient Udo Udoma JSC at page 326 observed that:

“I do not conceive it to be the duty of this Court  to construe any of the provisions of the Constitution as to defeat the obvious ends the Constitution was designed to serve…” The apex Court in this matter has obviously prevented with judicial finality, the mischief and perhaps engine of injustice that a contrary decision or the judgments of the lower Courts would have unleashed on the nation, the Constitution and above all, our incipient democracy.

The germane question to be asked at this stage is what is the legal effect of the acts or actions including signing of Appropriation Bills into Law by a Governor whose first election was nullified before the re-run? Are they a nullity? Since the lower Courts had earlier held that you cannot build something or nothing, then the Oath of Office subscribed to by a Governor whose first election was nullified including all his acts must be a nullity as well thus reinforcing the Lord Denning proposition in Macfoy V  UAC (supra).

This line of reasoning could have surely wreaked judicial havoc on our nation and democracy. No wonder the House of Lords in Isaacs V Robertson 1984 3 All ELR 140  watered down the above Lord Denning proposition, as now applicable only to Courts of limited jurisdiction and not those of unlimited jurisdiction.

•Acts of Governors Done in the Period Before Nullification and Re-Run Remain Valid in Law.
The answer to the validity or otherwise of the acts of a sacked Governor before the nullification of his election and/or re-run is that they remain valid in the eyes of the law, notwithstanding the subsequent nullification of his election. This was the view of the apex Court in Balonwu Vs Governor of Anambra State 2009 18 NWLR  (pt 1172) 13 at pages 41-42 per Mohammed JSC.

In that case the apex court held that notwithstanding the nullification of Dr. Chris Ngige’s election after three years in office, all acts done by him during his three years of illegal occupation of that office remain valid. Consequently,  if we agree as decided above by the Supreme Court that the acts of a sacked Governor remain valid notwithstanding the subsequent nullification of his election, then why are we to exclude that same period in calculating his tenure, if he wins the subsequent re-run election?

We cannot pick and choose which of his acts are valid and those that are not. That will, with due respect not only lead to an abuse of the Constitution but indeed will be giving judicial stamp to electoral shenanigans. If for example we elect Mr. A as our Governor for four years commencing from 2007, he may play smart and take benefit of the judgment of the two lower Courts by “arranging” to set aside his election after about three years in office for either pre-election defect or otherwise.

If a re-run is conducted and he wins again and continues the same fraud, you will discover that he may even end up serving ten years still on one term! This is the mischief of electoral fraud and manipulation that the apex court’s judgment has truncated with pragmatic justice. The judgment is not only legally infallible and unimpeachable, it is also morally faultless. It is a landmark in judicial activism. It is purposeful and progressive. Whosoever questions the foundation of this judgment may have ulterior motives not in tandem with the wishes of our people.

•The Judgment And Amended Section 180 (2)(A) of the 1999 Constitution.
Interestingly, after the uproar that greeted the judgment of the lower courts on this issue, the National Assembly hurriedly amended that Section 180(2) (a) to now read as follows:-

(2A) “In the determination of the four year term, where a re-run election has taken place and the person earlier sworn in wins the re-run election, the time spent in office before the date the election was annulled shall be taken into account”. This provision at that time was seen as the final settlement of this troubled issue of tenure elongation.

However, with the benefit of hindsight the Supreme Court has now interpreted the “unamended” edition of Section 180(2) (A) as if it was the amended one! Consequently, the apex Court’s judgment has rendered the above amended provision superfluous if not otiose. Judicial vigilance and circumspection has apparently overtaken legislative docility and crass ambivalence in the drafting of Laws by Parliament as in this instance.

•Kogi State Scenario And Supreme Court Judgment
The effect of the judgment in Kogi State has been more dramatic. As a result of the conflicting interpretation of the judgment, the President of the Customary Court of Appeal in Kogi State, swore in the candidate of the Peoples Democratic Party (PDP) who won the election earlier conducted for Governorship of the state in December, 2011 before the said judgment.

Whilst the Chief Judge of the State on the other hand swore in the Speaker of Kogi State House of Assembly as the Acting Governor pursuant to the directive of the Attorney-General of the Federation, that the Speakers of the respective states be sworn in as Governors in an Acting Capacity pending the conduct of elections.

Indeed, the directive of the Attorney-General of the Federation, was to prevent a state of anarchy that may result if a vacuum is created following the implementation of the said judgment. Meanwhile, both sides of the divide have dug further into their trenches. The proponents argue that Capt. Wada Idris Rtd and his deputy who won the Governorship election, in December, 2011 be sworn in as substantive Governor of Kogi State, since the election had “technically” complied with the judgment of the apex court.

Whereas the opponents are of the view that since the Supreme Court had declared the continued stay in the office of the erstwhile Governor as illegal and unconstitutional, anything built on that illegality also goes with it including the said election held earlier by INEC, which produced Capt. Wada Idris Rts. As a matter of fact they claim that the time for conducting elections into that office by virtue of the 1999 Constitution as amended has elapsed and/or lapsed at the time INEC conducted the election in Kogi State.

On its part INEC has ordered for the swearing in of the Capt. Wada Idris Rtd as the substantive Governor of the State, having regard to his winning the election earlier conducted by it. Also INEC disclosed that it will only recognize candidates who emerged from primaries conducted after the Court of Appeal judgment of April 15, 2011.

•Way Forward For Kogi State: INEC Should Seek Clarification From the Apex Court
On the above two serious constitutional questions it is our humble view that INEC should urgently seek clarifications and/or directions from the Supreme Court as a party on record, in other to have a clearer picture of the judgment as it affects Kogi State. Now is the time to clarify and/or validate its action because in the event of litigation (which has already commenced at the Federal High Court, Abuja) it may stretch into another four years. And if the Court invalidates INEC’s position, we may have to go back to zero level after spending  so much time, money and resources.

Office of Attorney General and Minister of Justice: Need for Separation
This issue has assumed the front burner again in view of the directive of the Attorney-General and Minister of Justice vis a vis the said judgment. Indeed, I am of the opinion that the office should be made separate and distinct for the purpose of achieving an unbiased and politics free legal advice and protection for the citizenry.

The Minister of Justice may be a political appointee, whilst the office of the Attorney-General should be independent and appointed through the same process of appointing a judge. This will enhance good governance and entrench the Rule of Law in Nigeria. Information at our disposal as augmented by the terribly learned and irrepressible Chief Femi Falana, confirm that this practice is now in operation in some francophone countries in Africa.

Conclusion
In the light of the Supreme Court judgment, the electorate and the entire citizenry of this country are now judicially rest assured that “four years is four years” for a Governor, whether before a re-run or after a “re-win”. It is four years commencing from the date the elected Governor took his Oath of Office and Oath Allegiance in the first instance. The second Oath of Office and Oath of Allegiance is now at best merely symbolic and of no legal effect whatsoever. To this extent therefore, the judgment is wholeheartedly welcome as another significant milestone in our constitutional Democracy.

Dr. Akpo Mudiaga Odje, LLM, wrote in from Warri, Delta State.