By Utum Eteng

The ongoing constitutional amendment to the 1999 constitution of the Federal Republic of Nigeria by the National Assembly, particularly the proposed amendment of section 180(2) of the constitution by inserting a new paragraph “C” has ruffled the legal beehive with the provision that provide that “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 the office before the date the election was annulled shall be taken into account”.

Though this amendment of section 180(2) and other sections as amended in the Bill for an act to amend the 1999 constitution are yet to acquire the force of law, by Presidential assent the section generated much controversy during the debate in some State Houses of Assembly in Nigeria . The general public was not left out. However, fresh dimension was introduced to the confusion by the recent Jos, Federal High Court judgment in the originating summons case involving the interpretative jurisdiction of the court to decide whether Governor Segun Oni of Ekiti State was entitled to a fresh 4 year term after a re-run which he won.

The court held that his re-election after the re-run was a continuation of his earlier mandate and must continue from where he stopped before the re-run.

It is important to note that, the facts that gave rise to Segun Oni’s re-run election are materially and factually different from those that gave rise to the Governor Liyel Imoke re-run in Cross River and are legally distinguishable.

Whilst the re-run in the case of Segun Oni was as a result of part cancellation of the April 14, 2007 election in some local governments areas and wards in Ekiti State , in the case of Governor Liyel Imoke, it was an outright cancellation of the entire governorship election in the State. This in legal parlance tantamount to nullification and voiding of the entire mandate freely given to Imoke in the annulled April 2007general election. Infact the election was nullified without any part spared.

The Governor Segun Oni judgment applies to him alone and therefore is a judgment in personam. It is not a judgment in rem as to be of general application to cover all situation of re_run election for the seat of a State Governor. It is settle law that the fact of every case determines the expected judgment.

A judgment bind only those who are parties to the suit and sometimes those proximate to the parties, It is worthy to note that, because the cancellation of the Ekiti election is partial not total, both Governor Oni and his challenger, Dr. Kayode Fayemi had already to their individual credit some numbers of the votes cast in the 14th April, 2007 election which were not nullified by the election tribunal. The facts and circumstances of the Ekiti re-run election are therefore from all intents and purposes peculiar to the state and to the parties involved.

By the 2006 Electoral Act, when an entire governorship election is nullified or voided, as was the Imoke case the proper order to make by the tribunal is to order for a fresh election. This is what the court of appeal did in the Liyel Imoke’s case.

In recent times however, perhaps based more on the misunderstanding of the fact of the Ekiti case and the purport of the judgment or perhaps on the proposed amendment to section 180(2) of the 1999 constitution, speculations are rife, that, Senator Liyel Imoke’s present mandate is counted as a continuation of the annulled April 14, 2007 mandate. Hence, the conclusion is that he shall along with other state  governors with similar fact contest the state governorship come 2011 instead of 2012. Assuming for purposes of argument that the proposed amendment of section 180(2) of 1999 constitution is conclusive and Mr. President signed the amendment bill into law, Senator Liyel Imoke can not be affected as to be subjected to governorship election contest in 2011 instead of 2012 when his tenure ought to have terminated.

It is trite in our constitutional jurisprudence that once an act is declared null through a proper judicial pronouncement as was done in Imoke’s case, the annulled act in law is therefore void and invalid and is assumed never to have existed at all. There is therefore in the eyes of the law no unexpired term to be continued or counted against governor Imoke. It is also trite, that, a void act “abinitio” leaves no legal effect of binding force. See Blacks Law Dictionary, 9th edition pages 1177 and 1178.

This legal and factual impossibility is also navigated within the legal compass of an outstanding ancient legal pronouncement by late Lord Denning, master of Rolls (MR) as he then was in the Locus Classcus case of Savage V Macfoy, that “when an act is void it is void for all purposes, one cannot add something to nothing and expect that something to stand. Certainly, like a park of cards it will fall. This legal postulate has support in Nigerian case law and also in the sciences, particularly in Newton ’s famous law of gravity and gravitation.

It is also a known and acceptable legal postulate that, the law in force particularly in a democracy at a time when a transaction is entered into is the law that should bind the parties and regulate all the ensuring transactions and not by a law that subsequently came into existence after the act had taken place such as the proposed section 180 (2) (C) of the amendment.

Even where section 180 is finally amended to become part of the Nigerian constitution, governor Imoke’s renewed mandate is strictly regimented by the 1999 constitution as it was before the proposed amendment. This is in line with the legal requirements of a good law, that is, a good law must not only be certain but must be predictable to guide against mischief. It is not an act of legislative wisdom to change the rules of the game mid way.

However, one should not here be understood to be saying or challenging the law making powers of the National Assembly. After all, by section 4(1) and (2) of the 1999 constitution, the legislative powers to make laws for the peace, order and good government of the Federation or any part thereof are vested in the National Assembly. However, like every given constitutional power, limitations are imposed here and there to check abuse.

This is so because power when given absolutely corrupts absolutely. There must be checks and balances. This is the hallmark of separation powers in a constitutional democracy. The power vested in the National Assembly to make laws is not at large. It exclude power to make laws with retrospective effect to divest vested right. True retroactivity consists the application of a new rule of law to an act or transaction which was completed before the rule was made. It should be emphasized that retroactive legislation is not unconstitutional unless it (1) is in the nature of an ex post facto law or a bill attainder or divests vested rights. If the amendment of section 180 is premised in such a way that it guides only future and subsequent elections coming after the amendment has acquired the force of law, no quarrels about that. The whole world have been put on notice and no surprise. As a general principle of statutory interpretation, the effective date an amendment to a legislation in a democracy becomes law or ta
ke effect as law, is the date when it is signed into law by the authorized authority not even on the day it was passed by the law making body as the National Assembly wants Nigerians to believe.

The long and short understanding of the issues herein canvassed is that the tenure of Governor Liyel Imoke is regulated by the un-amended 1999 constitution not by the section 180 (2) (c) of the 1999 constitution as amended.

A few had gone ahead to argue that taking oath of office to the same office cannot be done twice by a governor who came back to office vide a re-run. This argument finds no space in good logic and appears not to be the law. An elected state governor whose entire initial mandate was annulled and who is re-elected to the same office fresh from a re-run election is under an obligation to subscribe to the oath of office before commencing the functions of that office. This is a constitutional requirement. To say otherwise is to miss the understanding of section 185(1) of the constitution.

The qualification for one to be sworn_in as governor is for one to have taken part in an election, like governor Imoke did and be declared winner as he was. The emphasis here is taking part and winning the election as contemplated by the section, before the oath. Taking part and winning are the conditions precedent for oath taking.

It may be argued that where a governor had from the  initial election he won taken oath of office and part of the  election was subsequently cancelled, and subjected to contest in a few wards of his state, if he wins, it may  not be necessary to take a fresh oath since  his initial oath is subsisting. This scenario is like when a case starts denovo before a new judge, fresh oath is administered to the same person in the same case, but where the case was only adjourned to await a witness who gave evidence before his ill-health to continue his testimony, he may not go on a fresh oath but continue in his initial oath.

It follows logically and perhaps naturally that if governor Imoke’s entire election was annulled, then the oath taken on May, 29th 2007 go with that annulment. The two cannot be separated, the death of one means the burial of the other. To reason other-wise means a governor whose initial mandate is annulled could go ahead to perform the functions of that office since the oath first taken subsists.

Governor Liyel Imoke not withstanding the mischief read into section 180(2) of the proposed amendment to the 1999 constitution has a date in 2012 to seek for a second term to govern Cross River State and not in 2011 as speculated in error.

* Utum Eteng is a Calabar based lawyer.