ABSTRACT
Elections are indispensable in a democratic state because they keep the political pulse of the nation beating. When in such a well-planned democracy, certain loopholes are discovered, and are being manipulated by the eagle-eyed political overlords; it is the duty of the Courts to intervene. The Consolidated Five Governors’ Case was brought before the Federal High Court, Court of Appeal and the Supreme Court urging the Court to rule that a period that the governors of Kogi, Cross-River, Adamawa, Sokoto, and Bayelsa states stayed in office did not count in the determination of their 4-year tenure. After proceedings in both the Federal High Court and the Court of Appeal, judgments were made in favor of the five governors. However, on appeal to the Supreme Court, the judgments of the lower courts were overturned. It is without question that such a judgment made by the Supreme Court, even though it is final, still needs to be subjected to academic enquiries. The purpose of this review is to take the Nigerian public through an adventure of judicial and political cleansing, and confer on the readers a consciousness which shall polish their overall political culture. In more ways than can be written, we have tried to garner as much opinions from the public as possible in order to give this review a public and legitimate outlook.
1.1 INTRODUCTIONElections are indispensable in a democratic state because they keep the political pulse of the nation beating. When in such a well-planned democracy, certain loopholes are discovered, and are being manipulated by the eagle-eyed political overlords; it is the duty of the Courts to intervene. The Consolidated Five Governors’ Case was brought before the Federal High Court, Court of Appeal and the Supreme Court urging the Court to rule that a period that the governors of Kogi, Cross-River, Adamawa, Sokoto, and Bayelsa states stayed in office did not count in the determination of their 4-year tenure. After proceedings in both the Federal High Court and the Court of Appeal, judgments were made in favor of the five governors. However, on appeal to the Supreme Court, the judgments of the lower courts were overturned. It is without question that such a judgment made by the Supreme Court, even though it is final, still needs to be subjected to academic enquiries. The purpose of this review is to take the Nigerian public through an adventure of judicial and political cleansing, and confer on the readers a consciousness which shall polish their overall political culture. In more ways than can be written, we have tried to garner as much opinions from the public as possible in order to give this review a public and legitimate outlook.
In the United States of America, a specific date is given for the commencement or expiration of the tenure of a governor or president. A president-elect or governor-elect would not be referred to as ‘Governor’ until the clock strikes 12pm on that constitutional date. This provision was made to forestall any controversy concerning commencement or expiration of tenure. In Nigeria, the case is a little different, in that, by virtue of section 180 (2) (a) of the 1999 Constitution, a person’s tenure as governor begins when he takes his oath of office and oath of allegiance.
It has been said severally that the framers of the constitution even with all their precision are not aware of future changes or contrivances that may arise. For instance, it was never envisioned by the framers of the constitution that a winner of a nullified election will win the re-run. It is for this reason that the judiciary was set up, in order to clarify the intent of the legislature, and apply whatever skill as may be necessary to distill the impurities that may cloud the pen of the law, in order to reveal the inert state of mind of the legislature.
1.2 The Federal High Court Judgment
Regarding the issue of nullification as pertains to the consolidated suit; the trial judge relied on the case of Adefulu v. Okulaja cited by one of the parties and held that once an act has been declared null and void by a court of law, the effect is that the Act was never carried out. The Supreme Court Case of Labour Party v. INEC was also cited, where the Supreme Court held that:
1. A nullity is a void or an act that has no legal consequence. It is an act that is not only bad, but incurably bad. It is as if nothing happened.
2. A nullified election is a voided election leaving a complete void. In effect, a nullified election is completely void. The law regards whatever was purportedly done as not having taken place at all.
In the instant case, the re-run election ordered by the Court of Appeal after nullifying the election was in essence a general election. After due consideration of the effect of nullification on tenure interpretation, the trial judge relied on the case of Obi v. INEC and Ladoja v. INEC , and also Section 180 (2) of the 1999 Constitution. It was further held that their first elections have been nullified and that the tenure of office of the plaintiffs started when they took the office and oath of allegiance after the re-run election.
On whether the amended constitution affected the rights of the plaintiffs’ before the court, the trial judge held that the constitution does not take retrospective action. Relying on plethora of decided cases like A.G. Federation v. ANPP were the court held that:
“A constitution, like other statutes, operates prospectively and not retrospectively unless it is expressly provided to be otherwise. Such legislation affects only the rights which came in existence after is has been passed.”
1.3 The Court of Appeal Judgment
The Literal Rule of Interpretation was adopted by Justice Mohammed Garba Lawal in his leading judgment as he affirmed that even though the constitution cannot be said to be read disjointedly but organically as held in A. G. Bendel State v. A.G. Federation , it is in the opinion of the court that so far it is expressly stated in section 180 (2) that the office of a governor commences upon subscribing to the oath of allegiance and oath of office, which in this case, was taken in 2008.
On whether the nullification of the election of the respondents have the effect of nullifying their subscribed Oath of allegiance and oath of office, the learned dismissed the appellants stance on this, on the ground that once a thing is nullified it is held to have not existed ab initio and because nothing stands on nothing, the oath therefore goes with the nullification of the election. This was substantiated with the case of Adefulu v. Okulaja .
On whether the amended constitution affects the case, the judge affirmed that the issue of retrospectiveness has been dealt with extensively by our case laws and that the said amended constitution came with the commencement date 16/7/2010 which is an intention of the law makers to state when the law begins to operate. Finally, the learned judge dismissed the appeal and ruled in favor of the respondents; upholding the judgment of the trial court.
2.0 STATUTORY INTERPRETATION
Statutory interpretation is the process by which the judiciary interprets laws. The judiciary interprets how legislation should apply in a particular case as no legislation unambiguously and specifically addresses all matters. Legislation may contain uncertainties for a variety of reasons:
• Words are not perfect symbols to communicate intent. They are ambiguous and change in meaning over time.
• Unforeseen situations are inevitable, and new technologies and cultures make application of existing laws difficult.
• Uncertainties may be added to the statute in the course of enactment, such as the need for compromise or catering to special interest groups.
Therefore, it is the duty of the courts to clarify laws. This is where statutory construction is introduced. As a general rule, statutes must only be construed in such a way as to discover the intent of the legislature. The legislature remains the supreme maker of laws, and the judiciary must not usurp that power in the disguise of statutory construction. It is on this ground that many statutory interpretations are criticized.
THE SUPREME COURT JUDGMENT
3.1 Judgment of Walter Samuel Nkanu Onnoghen, JSC
In the leading judgment delivered by Justice Nkanu Walter, it was held by the Learned Justice that in the case of commencement of tenure of a person first elected, it starts with the taking of the Oath of Allegiance and Oath of office, in this case, the 29th day of May 2007 when the 1st respondents took their first Oaths of Allegiance and Oaths of office. It was pointed out that the provisions of section 180(2) (a) provides no room for the same person elected governor, being elected again following a re-run election. A person elected following a re-run election cannot be said to have been “first elected as governor under this constitution” except he was not the winner of the earlier or first election.
He further drew a line of distinction between the facts of Mcfoy v. UAC and this case, in order to set aside the principles propounded by Lord Denning.
“The court is in many cases/circumstances required to declare an act void before it becomes so, otherwise, it remains valid and binding as is evident in our laws relating to elections, where elections are presumed valid, until declared null and void by the courts. In such a situation, if you put something on the illegal act – the period prior to the nullification, it will surely stay put, contrary to the general dictum on nullity as propounded by Lord Denning in Mcfoy v. UAC.”
In the exercise of a liberal interpretation as stated in Nafiu Rabiu v. Kano State ; and Senate of the National Assembly v. Momoh , Justice Onnoghen held that from the language in section 180 of the 1999 Constitution, it is very clear that the constitution intended that a governor of a state shall have a tenure of four years from the date he took the oaths of Allegiance and of office, and nothing more, though he may spend less where he dies, resigns or is even impeached. In all, a governor has a maximum tenure of eight (8) years, under the 1999 Constitution.
The Learned Justice also set aside the argument that the tenure of four years envisaged in the 1999 Constitution is a single unbroken tenure, by stating that the submission lost sight of the glaring fact that the provisions of section 180(2) does not expect or envisage an indefinite tenure for a person who occupies of the office of governor of a state; that is why the tenure is very definite- four years. Citing the case of Inakoju v. Adeleke , Justice Onnoghen stressed that this court held that the impeachment and removal of Governor Ladoja of Oyo State from office was unconstitutional, null and void. Prior to that decision, Ladoja was not in office by way of impeachment for almost a year. He subsequently instituted an action in which he sought to regain the lost period of his four years tenure as guaranteed under section 180(2), in the case of Ladoja v INEC but this court held that his tenure cannot be extended to accommodate the period of time he lost, through the impeachment. Governor Ladoja’s tenure was broken by the impeachment in Oyo State, but he was asked to continue his tenure from when he returned to office.
Subsequently, he ruled that the provisions of section 180 of the 1999 Constitution do not envisage a re-run election, let alone a re-run election won by the same person who took the earlier Oaths of Allegiance and of office. No person elected under the 1999 Constitution can remain in that office for a day longer than as provided, otherwise the intention of the framers of the constitution would be defeated. The argument that, following the nullification of their elections, the said elections were in the eyes of the law non-existent, as they are regarded not to have taken place as well as the subsequent oaths they took to enable them function in the office of Governors of their states is brilliant, though it does not deny the fact that there was an election conducted and winners were declared thereafter in accordance with existing laws and regulations; that the winners of that election subsequently took their oaths of Allegiance and of office as required by the constitution and did function in that office the executive powers of the state, such as: Bills; appointing commissioners and numerous advisers, awarding contracts, etc.
The last straw that broke the Camel’s back was the fact that the respondents agree that the acts performed by the affected governors remain valid and subsisting, after the nullification of the elections but the oaths they took to function in that office went with the nullification of their elections as in Balonwu v. Governor of Anambra State .
Taking into consideration the absurdity doctrine, to accede to the argument of the respondent is to bring uncertainty into the clear provisions of section 180(2) of the 1999 constitution which will render the tenure of governors indefinite as what it will take an elected governor whose election is nullified to remain on office almost indefinitely or for life is to continue to win the re-run elections which would then be nullified to continue the cycle of impunity. The consequences of the annulled election is different from a null and void proceeding or act, which is usually described as being incurably bad and of no effect whatsoever. The nullity which allows the validity of the acts of the governors, prior to the nullification of the election is therefore much closer to the concept of a voidable act, which is usually valid until challenged and subsequently set aside.
The said governors may not have been de jure governors, following the nullification of their elections, which is not supported by the acceptance of their acts in that office as legal and binding on all and sundry, they were certainly governors de facto, during the period they operated ostensibly in accordance with the provisions of the constitution and electoral Act, and as such, the period they so operated has to be taken into consideration in determining the terminal date of their tenure.
As for the second issue, the learned Justice held that “the provisions of Section 180(2A) of the 1999 Constitution as amended is not relevant to the determination of the issue under consideration as the intention of the framers of the constitution of assigning four years tenure to the governors is clear from the language used in Sections 180(1) (2) & (3) and 182(1)(b) of the 1999 Constitution.”
3.2 Judgment Delivered by Dahiru Musotapher, CJN
In his opening, Justice Dahiru Mustapher, CJN observed that the issues in contention are issues of great public interest which deal with the application and the interpretation of the constitution which must be dealt with on the merits and not on the technicalities.
“It is clear that by section 180 of the Constitution, the intention is that a governor shall have tenure of 4 years from the date he took Oath of allegiance and Oath of Office and no more. In all, a governor shall have a maximum of eight years.”
Also deducible is the provision that the tenure of four years can only be reckoned, from “when the person is first elected” under the constitution, and takes the Oaths of office and allegiance.
Justice Dahiru set aside the contention that the period of 4 years should be a single and unbroken term, on the ground that this contention overlooks the definitive period of 4 years and the intendment of Section 180(2) which does not extend to any term of over 4 years.
The decision of the lower court seems to suggest that the nullification of the elections also nullifies the oaths and rendered void any action taken. However, Justice Dahiru called attention to the fact that the governors exercised full powers as governors under the constitution. In the case of Balonwu v. Governor of Anambra State, this court held that all acts of a governor whose election was nullified remained valid. Also was the view of the trial judge, Nweke J, in Bolonwu v. Governor of Anambra State.
“According to M. Mohammed JSC, in sections 138 and 149 of 1999 Constitution therein respectively, it was enacted that where the tribunal or court as the case may be, determines that a person returned as governor-elect was not validly elected, the person elected should remain in office, pending the determination of his appeal. These provisions are not inconsistent with section 105(3) of the 1999 Constitution.”
Therefore, the obiter dicta of Lord Denning in Mcfoy’s case cannot apply since the action of a governor while sitting, pending an appeal cannot be termed illegal or null and void. Akin to this is the recognition of a government as “De Jure” or “De facto”. It is now established that a de facto authority in a territory under its control is virtually identical with those of a de Jure authority. See Luther v. Sagor , Bance de Bilbao v. Sancha .
In the instant case, the key to determining the tenure is time. That is 4 years, no more. It could be less. The constitution goes to a great length to set a commencement time by use of words, rather than as in the case of the USA, a specific date and indeed time. It is this, that Section 180 of the 1999 Constitution seeks to do, and it is that intention that must be given to it.
Guided by the above propositions, Justice Dahiru held that Section 180(2) of the 1999 Constitution does not admit an interpretation of unbroken four years. In the case of Ladoja v. INEC , this Court held that the tenure of a governor cannot be extended to accommodate the period of time he lost through impeachment.
In the case of Obi v. INEC , Oguntade JSC stated:
“Section 180(2) above is to be read subject to the provisions of section 180(1) which itself is to be read, subject to other provisions of the constitution. There is no doubt that the intendment of the constitution is to grant a tenure of 4 years to all elective offices, under the constitution. However, a few occurrences may prematurely terminate the tenure. These include death while in office of an office holder, resignation …”
See also Musa v. INEC & Others . In his words, Justice Dahiru held: “To interpret section 180(2) differently will obviously create a brazen bizarre situation not envisaged by the constitution. If I may briefly explain, supposing like Dr. Chris Ngige, a person elected as governor holds office for 3 years before the election is nullified. He contests the re-run election and wins it and resumes office for another 2 years, when the electoral tribunals again nullified the election and again ordered a fresh election which he wins again, it would mean that the person would have spent 3, 2, plus another 4 years, thus making it 9 or to take it a step further, it may mean he could continue ad infinitum. Clearly, this is not the situation the constitution had intended. It has only created a tenure of 4 years and no more.”
In this case, it must not be forgotten that the person who won both elections is the same person; there was no handing over from any predecessor to a successor. Whatever has caused the election to be annulled, a party shall not be allowed to profit from an illegality.
3.3 Judgment Delivered by MAHUD MUHAMED, JSC
As far as the law is concerned, the sub issue can be resolved by the application of the presumption against retrospective legislation, unless it is expressly provided for. In Olanyi v. Aroyehin , Nnameke Agu JSC, stated the law, particularly with regard to the interpretation and application of the provisions of the constitution as follows:
“First, the constitution was not made to have retrospective effect. A constitution like other statutes operates prospectively and not retrospectively, unless it is expressly provided to be otherwise. Such legislation affects only rights which came into existence after it has been passed. See on this, Smith v. Callander ; also Re Snowdon Colliery Co. Ltd …”
In his judgment, the learned justice cited and relied on a number of cases including Adefulu v. Okulaja ; Labour Party v. INEC ; Progressive Peoples Alliance (PPA) & Anor, v. INEC & 3 Ors ; Obi v. INEC ; Attorney–General of Anambra State v. AG of the Federation and Ladoja v. INEC & 2 Ors , and the provision of section 180(2) of the 1999 Constitution. He held that what the lower courts failed to address is the fact that one of the cases cited and relied upon by the courts was directly on the point in issue that the effect of nullifying of an election is also to nullify the oath of allegiance and oath of office of any Governor elected under the nullified election. Section 143(1) of the Electoral Act 2010 states –
if the Election Tribunal or the Court, as the case may be, determined that a candidate returned as elected was not validly elected, then 7 notice of appeal against that decision is given within 21 days from the date of the decision, the candidate returned as elected shall, notwithstanding the contrary decision of the Election Tribunal or Court remain in office pending the determination of this.
It is not in dispute that the 1st Respondent whose election was nullified by the election tribunal and affirmed by the court of Appeal by the application of the law in section 143(1) of the Electoral Act, 2010, effectively remained in office from 29th May, 2007, up to 26th February, 2008 when his election was nullified. That period, having been clearly saved from any possible effect of the nullification of the election, leaves all acts of the 1st respondent performed within that period including the oath of allegiance and the oath of office are quite intact under the law.
3.4 Judgement Delivered by Olufunlola Oyelola Adekeye, JSC
According to Section 180 (2) of the 1999 Constitution, except the nation is at war, no elected governor shall spend more than four years per term and 8 years cumulatively. The issue of oath is subsidiary and of no moment. He cited: Manbury v. Madison , Labour Party v. INEC . Also, he held:
“The germane issue involved in this appeal and the crucial question to be resolved by this court in its constitutional role as the apex court, is complex and of constitutional importance particularly at this stage of our nascent democracy. It is my contention that the issue raised by this appeal is of vital constitutional importance in the running of a democratic system of government. It is a perplexity, not envisaged by the framers of the constitution. This can only be resolved through interpretation. This court shall be failing in its constitutional role if it allows this poser to be swept under the carpet under the guise of an academic or hypothetical question”.
Also, the learned justice posited that the Courts cannot plant their judicial mind or thoughts in place of the intention of the law makers as held in AG Lagos State v. Eko Hotels Ltd & Anor . In the case of AG Federation v. Abubakar , this court held on pg. 548 paragraphs C-E that:-
“It has come to stay like the rock of Gibraltar that judges in the exercise of their interpretative jurisdiction must only interpret the words of a statute or even constitutional provisions according to their literal meaning and the sentence therein, according to their grammatical meaning (literal egis). The courts are supposed to, out the intention of the legislature while interpreting the provisions of the law passed by them. But there is no magical wand in the supposed directive; it is that intention as expressed in the words used”.
This court has to adopt the broad and liberal approach to the interpretation of the constitution. Where the words used are clear and unambiguous, they ought to be given their ordinary meaning as there is nothing else to be construed or interpreted as in AG Bendel State v. AG Federation , Awolowo v. Shagari , Salami v. Chairman L.E.D.R , Egolun v. Obasanjo .
In interpreting these sections of the Constitution, they must be read against the background of other sections of the constitutions in order to achieve a consistent and harmonious whole. The principle of whole statute construction is important in the interpretation of a document as the constitution so as to give effect to it, as in Okegie v. A.G Federation , Anyah v. AG Borno State , AG Bendel State v. AG Federation .
The issue of tenure of office was considered by this court in the case of Balonwu v. Governor of Anambra State , where this court held that the provision of Section 105 of the 1999 Constitution is quite plain and clear. The sections mean exactly what it says; that is, a house of assembly shall stand dissolved at the expiration of a period of four years coming from the date of the first sitting of the house. Proclamation for the holding of the first session is not a condition precedent to the date of the first sitting of the House, under section 105(1) of the 1999 Constitution.
It was also held that section 180 (2) (b) applies to a situation where there is a change of baton and an entirely different person assumes the office of the governor. The section expects the respondents who are the persons first elected as governor under the constitution to keep to the oath of allegiance and oath of office sworn to when he was first elected Governor of the state on May 29, 2007 even after the re-run.
In conclusion, the erudite Justice Olufunlola Oyelola Adekeye held that the oath of allegiance and oath of office have nothing to do with the election of the governor. It is a ceremony to usher in his four year term of office. He also took judicial notice of the fact that the oaths under the 7th schedule of the 1999 Constitution are administered to all public officers like the president, vice president, governors, deputy governors, ministers, commissioners, judicial officers, special advisers, etc. They are mere ceremonies or formalities and therefore secondary to the tenure or functions of the office of any public office holder.
3.5 Judgment by Mary Ukaego Odili, JSC
Justice Mary Ukaego Odili recognized that in the interpretation of statutes, the courts cannot give a meaning contrary to that which was intended by the legislature. The learned Justice referred to A.G. Lagos v. Eko Hotels Ltd & Anor ; A.G. Federation v. Abubakar . Also, Section 22 of the Supreme Court Act and Order 8 Rule 12 of the Supreme Court Rules have adequately empowered and emboldened this court in the face of an obvious illegality and unconstitutionality to cure the defect or infirmity. Justice Mary Odili also highlighted the argument of Prof. Sagay that the new amendment corrected a mischief which by proper judicial application of the Mischief Rule of Statutory interpretation would have made the constitutional amendment unnecessary. It was also held that it is the judicial declaration that nullifies an election but does not nullify the period a governor had already spent as governor and so that period he had spent in that office is part of the computation of time within the 4 year period allowed by the constitution.
In the instant case, if the calculation of the tenure is taken from the date of the second oath taking, the implication would be that the state presided over by the governor had no governor for the period that governor sat and governed the people and the state.
Finally, the Learned Justice drew up an analogous circumstance with the case at hand. The analogy is where a decree nisi or absolute is pronounced on a marriage, if the products of the assumed valid marriage could be annulled from existence? Since the answer is in the negative, by the same token, acts of those who saw themselves as Governors acts are valid whatever has happened to their status thereafter. See Agidigbi v. Agidigbi ; Sanyinna v African International Bank Plc .
4.1 CRITICAL REVIEW
It is without doubt that the only way to appreciate the true intendment of the legislature and the Supreme Court ruling on this case is that the related provisions must be examined critically. Let us begin with the arguments made by the counsels first, because their various interpretation no matter how unworthy had a great bearing on the decision of the Supreme Court. It would be better appreciated, if we compare their arguments with relevant facts of law, and perhaps at some point advance some novel points and submissions.
4.2 Transcripts of Arguments
To begin, the People’s Democratic Party (PDP) which is the 2nd respondent in SC/141/2011; SC/282/2011; SC/356/2011; and 5th respondent in SC/267/2011/ argued preliminary objections on the grounds that:
1. The subject matter of the appeal has become mere academic issue
2. The appeal itself is unconstitutional
3. Issue 3 formulated for determination and ground 7 upon which it was based did not arise from the judgment of the lower courts.
The 2nd respondent relied on the case of A.G Federation v. ANPP to hold that anybody seeking in 2011 a pronouncement of this court to the effect that the tenure of the 1st respondent lapsed in May 2011 is an invidious invitation to engage in mere expression of opinion, most debate and academics which the courts are precluded from engaging in, as it would amount to an exercise in futility and a waste of precious judicial time, energy and resources. On the other side, Chief Olanipekun, learned Senior Counsel for the appellants – Brigadier General Mohammed Buba Marwa and Congress for Progressive Change submitted, based on paragraph 4.01 of the appellant’s brief field on 14/7/2011 that this appeal is of constitutional importance.
On the preliminary objection, Justice Walter Nkanu held that, not only is the issue in question of electoral importance, it is also of great constitutional importance and does not deserve to be trivialized as a mere academic exercise. In his words, he said:
“The issue in contention being of great constitutional importance in our democracy ought to be considered and resoled on the merit not to be truncated by technical argument nor support by the facts and circumstances of the case”. On this ground, the preliminary objection of the 2nd respondent was overruled.
4.2.1 The Contention of the Respondents
Kanu Agabi, Esq, SAN for 1st respondent submitted that a governor whose election has been annulled is not an elected governor as the operative word in the relevant sections in the constitution is “elected”. There is no second Oath. The reference to a second oath is a contrivance by the appellants. Once an election is annulled, the oath goes with it, as the oath comes after the election. Prior to the amendment, the time spent in office by a governor following invalid election did not count, but after the amendment that time now counts. The annulment of the election does not affect the legality of the actions of the governor, prior to the annulment.
Also for the 1st respondents was Paul Ekokoro who submitted that the four (4) years under section 180 of the 1999 constitution must be one period of four (4) joined end to end – an unbroken period. The oath must be taken by a governor whether elected in a general election or a re-run. Chief Akingide, SAN appearing as amicus curie referred to cases: Global Excellence Communication Ltd v. Duke , AG Lagos State v. Eko Hotels Ltd & Anor , AG Bendel State v. AG Federation , Obi v. INEC , FRN v. Dariye , Ladoja v. INEC , Ehirim v. I.S.I.E.C , Lokanmi v. AG (West) & Ors .
In concession, Chief Olusola Oke for 2nd respondent submitted that the actions taken by a governor whose election was annulled is not relevant in determining his tenure. According to Section 185(1) and Section 181 (2) (a) & (b) of the 1999 Constitution, oath taking is a condition precedent to the commencement of governors’ tenure of office. The tenure of four years cannot be predicated on two elections – one valid and the other invalid. The tenure started from the oath taking following the re-run election of 2008. The oath of office must be the point of reference. All the steps taken by the governor whose election has been annulled are not relevant factors to determine his tenure. There is no governor without an oath. Oath and election are like slames twins. The learned counsel cited cases like Ladoja v. INEC , Adewumi v. Government of Ekiti State .
On the sub-issue, he submitted that both the 2007 and 2008 elections took place before the amendment to the 1999 constitution in 2010 and that since the Act is not retrospective, the amendment does not apply to the case. On these grounds, the Supreme Court was urged to dismiss the appeal and affirm the concurrent judgment of the two lower courts.
4.2.2 The Contention of the Appellants
Learned Senior Counsel for the appellants in SC/141/2011, chief Wole Olanipekun, SAN submitted that within the scope of Section 180(2) of the 1999 Constitution, the spirit of the constitution is that except when the nation is at war, no elected governor shall spend more than eight (8) years of two (2) terms cumulative tenure. It was further submitted that the second oath was subsidiary as the parties who contested the first election also participated in the re-run as in Labour Party v. INEC .
On the sub-issue of the effect of the amendment to the 1999 constitution, the learned Senior Counsel submitted that the interpretation placed by the lower courts cannot hold water, as it was hinged on oath taking, which is secondary. He finally puts forward that the amendment was made, in the first place to cure a mischief by politicians.
4.3 Our Submission on the Instant Case
First of all, it appears to us that it would be best if Sections 180(1) and 180(2) of the 1999 Constitution are read together as the appeal has raised a matter of constitutional importance. The first question that confronts us is: If, as in Balonwu v. Governor of Anambra State , the action of a governor whose election is nullified is valid, why would it then be ruled that the oath of office and allegiance and the tenure of office be nullified? As a matter of fact and law, the election was valid, as at the time when a valid oath of office and allegiance, and tenure were made. Therefore, it cannot be said of a professional certainty that the oath of office or tenure built on the nullified election as at the time it was valid was null and void. In that case, the nullified election cannot be referred to as ‘nothing’ as was used in Lord Denning’s obiter in Mcfoy v. UAC . If, for instance, the oath of office was taken after the election was nullified, then, we may be tempted to concede that in this case, “you cannot put something on nothing and expect it to stand.” Moreover, it must be appreciated that in Ladoja v. INEC , a tenure that was built on nothing (a nullified impeachment) stood, let alone in this case where a valid tenure that was built on ‘something’ is in question.
At this point, we shall examine the relevant sections of the constitution, which are sections 180 (1) (a), 180 (2) (a) and section 180 (2) (b) of the 1999 Constitution.
Section 180 (2) (a) of the 1999 Constitution provides:
S. 180 (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.
(b) The person last elected to that office took the Oath of Allegiance and oath of office or would, but for his death, have taken such oaths.”
The first rule of interpretation states that where a statutory provision is clear and unambiguous, it must be given its literal meaning. This is in line with the literal rule of interpretation as espoused in R. v. Bangaza. In the above constitutional provision, we notice two ambiguities prima facie. We find it difficult understanding the import of “first” and “last” in these two subsections. At first, we may be tempted to disregard these two auxiliary words, however, we are barred from doing this by the rule of interpretation: ut res magiis valeat quam pereat, which means that the law must be given effect. In interpreting constitutional provisions, effect must be given to every single word or punctuation. To illustrate this, let us consider the punctuation in paragraph (a) of the above subsection. Here, we have:
(a) In the case of a person first elected as Governor under this constitution, he took the Oath of Allegiance and oath of office.
It must be appreciated that the comma after “constitution” would make the sentence have a different meaning if it were put after “Governor”. This illustration is to show the relevance of every single word or punctuation used in the constitution. Bearing this in mind, we shall now attempt to interpret the import of “first” and “last” in the above subsection. It is quite common to see many analysts interpret these two words differently, as is evident in the judgment of Justice Walter Onnoghen. However, these two words were made to be interpreted in the same light. For us to render an effective meaning to these two words, we would have to be permitted to adopt hypothetical comparisons. For instance, let us assume that Mr. A wins an election, and following a re-run, Mr. B wins the election. In this case, the “last person elected” to that position is Mr. B, while the “first person to be elected”, preceding the nullification is Mr. A. At this stage, it must be appreciated that the provisions of section 180(2) (a) provides no room for the same person elected governor being elected again, following a re-run election, because, if there was room for that, Mr. A would be both the “first elected” and “last elected”. However, when a situation like that has arisen, we would now be left with two valid oaths of office. In which case, we cannot apply the second oath of office, because if the framers of the constitution had wanted the Court to apply the second oath of office, they would have expressly stated that “the period of four years shall commence when the person elected as Governor under this constitution “retook” his oath of allegiance and oath of office”. In paragraph (a) of section 180 (2), “took” suggests “the first oath of office”, if it had been “retook”, it would have meant the second oath of office. The second oath of office only reaffirms the former. It is not entirely new on its own. This ambiguity might well have been remedied if the constitution expressly provided that the period of four years shall commence when the person elected as Governor under this constitution takes his “first” oath of allegiance and oath of office”. Notwithstanding, even though this provision is quite hazy at first sight, proper scrutiny would uncover its hidden meaning. In this case, we must apply the first oath of office, in order to give effect to the definite period of four years, provided for by this same subsection.
Building on the distinguishing made by the erudite Justice Walter Onnoghen, between the circumstances of Mcfoy v. UAC and the instant case, we shall submit that nullification of an election renders an election voidable, in that , it existed as valid but at the present time, it is invalid and of no legal force. Any argument that a nullified election never existed, in the eyes of the law, would be self-contradictory, because it cannot account for the validity of the actions of the governors. The said governors may not have been de jure governors, following the nullification of their elections, but, for the fact that their acts in office are accepted as legal and binding they were de facto governors. Moreover, a law that regards an election, following the nullification of a former election, a “re-run” recognizes that there at least “existed” an election preceding the “re-run”, because the import of “re-run” is not the same with a fresh election. Thus, Lord Denning’s Obiter that a nullified election never existed is defied.
Furthermore, a critical examination of the analogy given by Justice Mary Odili is of utmost essence.
“The analogy is where a decree nisi or absolute is pronounced on a marriage, if the products of the assumed valid marriage could be annulled from existence? Since the answer is in the negative, by the same token acts of those who saw themselves as Governors sat and performed functions as such those functions and acts are valid whatever has happened to their status thereafter.”
In the above analogy, Mary Odili, JSC did not take cognizance of the fact that the analogy would yield a more unfavorable meaning. Where a decree nisi or absolute is pronounced on a marriage, the products or children of the marriage would not be annulled from existence, but the oath of the marriage would be nullified. To illustrate further, the nullification of a marriage annuls (or renders ineffective) their oath to be married “for better for worse, forever”, however, it does not annul the children of the marriage. This is tantamount to saying that the nullification of an election would not nullify the actions of the governor, but would render invalid, the oath of allegiance. However, this ought not to be the case, because the standard used in determining the validity of a marriage is different from that which is used in determining the validity of an election. Unlike in marriage, a valid election conducted in accordance with the provisions of the constitution and the Electoral Act is NOT a condition precedent to the validity but sustenance of the oaths of Allegiance and of office of a governor. This assertion supports the fact that an election is an entirely different activity from an oath of office or allegiance. An oath of office qualifies a person to commence his tenure. However, an oath of office can be validly taken, even without an election. For instance, even military governors who were appointed and not elected took valid oaths of office. In recent times, Governor Chris Alli who was appointed interim to serve as Governor of Plateau state took an oath of office. Also, special advisers, ministers and some other public office holders take oaths of allegiance and office, even without elections. This goes to disprove the assertion by Chief Olusola Oke for 2nd respondent that “Oath and election are like slames twins.”
To crown it all, section 143(1) of the Electoral Act states that “if the Election Tribunal or the Court, as the case may be determined that a candidate returned as elected was not validly elected, then 7 notice of appeal against that decision is given within 21 days from the date of the decision, the candidate returned as elected shall, notwithstanding the contrary decision of the Election Tribunal or Court remain in office pending the determination of this.”
Pursuant to the provision of this subsection, any candidate returned as elected shall have the right to remain in office pending the determination of the decision of the electoral tribunal. The question in this case now is: Can a person remain in office without spending time? Clearly, the answer is in the negative. In that case, it is agreeable that the five governors spent tenure, which is “time in office”. Having been satisfied with that, we shall now ask, does that tenure count? The transcript of the decision of the Supreme Court clearly shows that the intention of the constitution framers is that their tenure count, since their actions count.
At this juncture, we shall employ a relevant constitutional provision. It is often too common to see the Justices of the Supreme Court put interest in section 180 (2) (a) which concerns the commencement of office. Let us draw attention to the provision of section 180 (1) of the 1999 Constitution, (which subsection (2) is subject to), which provides for expiration of the tenure.
Section 180 (1) states: Subject to the provisions of this constitution, a person shall hold the office of Governor of a State until-
(a) When his successor in office takes the oath of that office;
The import of this subsection is that any person holding the office of the governor of a state shall cease to hold that office when his successor in office takes the oath of that office. That is to say that, until the successor of a person (whether de facto or de jure) holding that office takes the oath of office, the tenure of that person is running. If the framers of the constitution had wanted this provision to be for only de jure governors, they would have stated so, as seen in subsequent sections where such words like “elected governor under this constitution” were used. However, in this subsection, it can be culled that both de jure and de facto governors have a tenure, which shall end when their successors take the oath of office. Without the swearing-in of the next successor, the person holding that office, whether in a de facto or de jure capacity shall continue to spend his tenure.
On the second issue, which is whether the new amendment of section 180 (2) (A) will apply to the case at hand; we are faced with the issue of retrospectiveness of laws. The relevant constitutional provision is section 4 (9) of the 1999 constitution, which provides that:
“Notwithstanding the foregoing provisions of this section, the National Assembly or a House of Assembly shall not, in relation to any criminal offence whatsoever, have power to make any law which shall have retrospective effect.”
In interpreting this subsection, we shall apply the rule of interpretation that states: Expressio unius est exclusio alterius (“the express mention of one thing excludes all others”). Here, the express mention of “Criminal law” excludes “civil law”. This suggests that, put another way, the provision of section 4 (9) can be:
“Notwithstanding the foregoing provisions of this section, the National Assembly shall, in relation to “any civil wrong” whatsoever, have power to make any law which shall have retrospective effect.”
Even though this may appear to be the literal meaning of this provision, we must not forget to interpret this provision alongside other provisions in the constitution, especially the constitutional separation of powers. If all civil laws were retrospective, then the importance of separation of powers would be undermined, in that it would lead to the usurpation of the powers of the judiciary. For example, in the instant case, if section 180 (2) (A) as amended were to apply, then it would mean that the legislature has given an indirect judgment in this case. That is what is referred to as legislative judgment. It was argued by Prof. Itse Sagay that even though section 180 (2) (A) should be set aside in this case; it did not change the law but merely clarified it. It is germane at this juncture to point out that by virtue of the powers conferred on the judiciary by section 6 of the 1999 Constitution, only the Courts of law have the constitutional right to clarify the law, by means of interpretation. Several case laws have reaffirmed the fact that except expressly provided for, by the legislature, a civil law cannot have retrospective effect. In Adesanoye v Adewole, and as Owoade JCA stated in A.G Plateau v Goyol, the constitution was not meant to have a retroactive effect. Also, in A.G. Federation v. ANPP, the court held that:
“A constitution, like other statutes, operates prospectively and not retrospectively unless it is expressly provided to be otherwise. Such legislation affects only the rights which came in existence after is has been passed.”
It is with these in mind that we submit that the new amended section of the Constitution be set aside, in the determination of this matter.
More so, since the constitution does not talk of nullification of election while the electoral Act does not talk of nullification of oaths of office, it is wrong for the court to read into the constitution or the Electoral Act provisions which are not there. The nullification of the election has no effect whatsoever on the validity of the oaths taken on assumption of office on 29th May, 2007.
Notwithstanding all, the constitution provides that the tenure of a governor cannot be extended except in times of war. In fact, to further indicate the reluctance of the legislature in adding any single day to the 4 years defined, even in times of war, it is provided in section 180 (3) of the 1999 Constitution that no such extension of tenure shall exceed a period of six months at any one time. An addition of nearly two years to the tenure of the five governors would be contrary to the spirit of the constitution.
Finally, the Supreme Court further cured the mischief of politicians who might want to engineer nullification of elections and re-runs for themselves, in order to remain in office in perpetuity. Not only is such a mischief, it is also an absurdity which the decision of the Supreme Court has adequately remedied. No person should be allowed to benefit from an illegality. No person can put something on a wrong, and expect it to stand as valid. With these and much more in mind, we solidly support the unanimous ruling of the Supreme Court on this matter.
5.0 Conclusion
Where the Supreme Court judgment ends, academic enquiries begin. Justice Oputa has posited that the Supreme Court is not final because it is infallible, but is infallible because it is final. It is important that we appreciate this huge step taken by the judiciary to save our polity from an adverse disruption of the electoral calendar, and possible deprivation of the rights of the electorate. Opening the constitutional gate to an indefinite tenure in office by governors is not only contrary to the provisions of the constitution and public policy but will lead to gross abuse in the Nigerian type of society. Tenure elongation is an aberration which must not be encouraged. However, there remain loopholes which should be filled by the legislature. For example, how about, where a governor spends two years in office, but then his election gets nullified, and another person wins the re-run. If in future, that former governor gets elected, would we count his tenure from the present oath of office, or the former? For example, if Dr. Ngige runs for election in 2014 in Anambra, would the election be termed a “re-run election” for him and fresh election for others or would it be termed fresh election for all? Should Dr. Ngige win, shall the time he had already spent in office be added to make up for his four-year one term? Questions like these require prompt legislative attention. We suggest that these loopholes and possibly other lacuna that might still be lurking somewhere even in the new amendment.
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