Brig. Gen. Mohammed Buba Marwa & Ors. V. Admiral Murtala Nyako & Ors (2012)
LAWGLOBAL HUB Lead Judgment Report
WALTER SAMUEL NKANU ONNOGHEN, J.S.C
The consolidated appeals arose from the decision of the Court of Appeal, Holden at Abuja, delivered on the 15th day of April, 2011, in which the Court dismissed the consolidated appeal nos. CA/A/113/2011; CA/A/117/2011; CA/A/118/2011; CA/A/119/2011 and CA/A/128/2011 and affirmed the decision of the Federal High Court Holden at Abuja, delivered on 23rd February, 2011.
The facts relevant to the appeals are a fall out of the general election conducted in Nigeria in 2007. The elections included governorship election into the office of governor of the 36 (thirty-six) states of the Federation. The victory of some of the state governors was challenged by other candidates on various grounds ranging from unlawful disqualification, electoral malpractices, to total absence of elections, which, however produced winners.
The following were among the successful governorship candidates whose electoral victories were challenged successfully by their rival candidates:
(i) Admiral Murtala Nyako of Adamawa State.
(ii) Mr. Timipre Sylva of Bayelsa State.
(iii) Mr. Liyel Imoke of Cross River State.
(iv) Alh. Aliyu Wamako of Sokoto State.
(v) Alh. Ibrahim Idris of Kogi State.
Meanwhile and following their electoral victories each of the above candidates were duly installed as Governor of their respective states on the 29th day of May, 2007, after taking the Oaths of Allegiance and of Office.
The election petitions against their declaration as winners of the elections went on up to the Court of Appeal where the elections of the five governors, supra, were nullified after they had each spent more than a year in the office as Governors.
The Independent National Electoral Commission (INEC) was ordered to conduct a re-run election in all these states within ninety (90) days as required by law.
The re-run elections were duly conducted in the various states at various dates in 2008, which the candidates again won resulting in their taking another set of Oaths of Allegiance and Office and were installed as Governors on the following various dates:-
(a) Admiral M. Nyako of Adamawa State – 30/4/2008,
(b) Timipre Sylva of Bayelsa State – 29/5/2008,
(c) Ibrahim Idris of Kogi state – 5/4/2008,
(d) Aliyu Wamako of Sokoto State – 28/5/2008, and
(e) Mr. Liyel Imoke of Cross Rivers State – 28/8/2008
The question arising from the above stated events revolves around the two (2) sets of Oaths of Allegiance and of Office and installation in office of Governor and is simply put: Whether the term of office of each of these Governors expired at the end of four (4) years calculated from 29th May, 2007, or whether they are entitled to a tenure of four (4) years calculated from the date of the second taking of the Oaths of Allegiance and of Office following the re-run elections of 2008.
The lower Courts held that the relevant point at which the four (4) year tenure of the Governors is to be calculated is the date they took their second Oaths of Allegiance and of Office in 2008.
The instant consolidated appeals are against the above decision of the lower Courts.
It should be noted that the appellants in SC/141/2011, Brigadier-General Mohammed Buba Marwa and Congress for Progressive Change (CPC) appealed as interested persons upon leave granted them on the 8th day of July, 2011. The appeal of the above appellants increased the number of appeals from the original five (5) to the present consolidated six (6).
Having gone through the various briefs of argument including those filed by the Amicus Curiae, the main issue for determination in the appeals remain the following:-
Whether having regards to the provisions of the constitution of the Federal Republic of Nigeria, 1999 (hereafter referred to as the 1999 Constitution), particularly Sections 180(1) and (2) and 182(1) (b) thereof the lower Court was right in holding that the tenure of office of the 1st respondents commenced from the date they took their second Oaths of Allegiance and of Office in 2008 as against the 29th day of May, 2007, when they took their first oaths of Office and Allegiance.
There is however, a sub-issue which is whether Section 180 (2A) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) is applicable to the facts of this case. To assist the Court in resolving the issue and due to the national importance the Court attaches to the issue in question, the Court invited the following learned Senior Advocates of Nigeria (SAN) to file briefs and also appear and present their arguments, as amicus curiae.
They are CHIEF RICHARD AKINJIDE, SAN; OLUKONYINSOLA AJAYI, SAN AND PROF. ITSE SAGAY, SAN.
It is important to note that the Peoples Democratic Party (PDP) which is the 2nd respondent in SC/141/2011; SC/282/2011; SC/356/2011 and SC/357/2011 and 5th respondent in SC/267/2011 filed and argued preliminary objections against the said appeals in its respective brief of argument.
The 1st respondent in SC/357/2011 – Alh Ibrahim Idris – also objected to the appeal.
The grounds of objection by PDP in the various appeals are very similar being as follows:-
- The subject matter of the appeal has become mere academic issue.
- The appeal itself is unconstitutional.
- Issue 3 formulated for determination and ground 7 upon which it was based did not arise from the judgment of the lower Court.
It is the contention of the 2nd respondent that the appeals had become academic and as such this Court has no jurisdiction to hear and determine same; that the gravamen of the case is whether or not elections to the Governorship seats of the states concerned should be conducted in April, 2011, since their tenure are said to have expired by 29th May, 2011; that courts are to determine live issues.
It should be noted that the main issue for determination from the trial Court to this Court remains when does the four year tenure granted by the Constitution to state governors particularly the 1st respondents in the appeals start to run: Is it from the 29th day of May, 2007, when they took their first Oaths of Allegiance and Office following the 2007 general elections which they were declared winners or the dates in 2008, when they took their second Oaths of Allegiance and Office following their winning the re-run election ordered by the Courts as a result of the nullification of their earlier election.
The above issue is of great constitutional importance and does not deserve to be trivialized. It remains alive and to say that it has become spent or hypothesized or academic is to say the least, a grave misconception.
In short, I have carefully considered the argument of counsel for both parties on the preliminary objection and have come to the irresistible conclusion that they have no merit whatsoever. The issue in contention being of great constitutional importance in our democracy ought to be considered and resolved on the merit, not to be truncated by technical arguments not supported by the facts and circumstances of the case. The objection is really an attempt to waste the precious time of this Court and is consequently overruled as lacking in merit.
In arguing the appeal, learned Senior Counsel for the appellants in SC/141/2011, Chief Wole Olanipekun, SAN relied on the briefs of argument filed in the appeal and submitted that within the ambit of Section 180(2) of the 1999 Constitution, the spirit and tenure 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. Referring to the case of Labour Party vs INEC (2009) 6 NWLR (Pt. 1137) 315 at 339, learned Senior Counsel submitted that the issue of second oath is subsidiary and not relevant as the same parties who contested the first election also participated in the re-run as no primaries would be conducted before the re-run.
On the sub-issue of the effect of the amendment to the 1999 Constitution on tenure of governors, learned Senior Counsel submitted that the amendment was to cure a mischief caused by politicians in interpreting the constitution; that the constitution does not make reference to Oath taking which means that oath taking is not important; that the interpretation placed on the relevant sections of the 1999 Constitution by the lower Courts is very dangerous as the same is based on oath taking, which is secondary and urges the court to allow the appeal.
Kanu Agabi, Esq, SAN for the 1st respondent in SC/141/2011 submitted that a governor whose election has been annulled is not an elected governor as the operative word in the relevant section of the constitution is “elected”; that there is no second oath and that the reference to a second oath is a contrivance by the appellants. It is the contention of learned Senior Advocate of Nigeria that once an election is annulled, the oath goes with it as the oath comes after the election and not the other way round; that 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; that the annulment of the election does not affect the legality of the actions of the governor prior to the annulment and urged the Court to dismiss the appeal.
On his part, Chief Olusola Oke for the 2nd respondent submitted that all parties are agreed that the starting point in determining the tenure of office of a governor is taking of the oath of office and as such the actions taken by a governor whose election was annulled is not relevant in determining his tenure; that by the provisions of Section 185(1) of the 1999 Constitution oath taking is a condition precedent to the commencement of governors’ tenure of office; that the tenure of four (4) years cannot be predicated on two elections – one valid and the other invalid; that the tenure started from the oath taken following the re-run election of 2008.
On the sub-issue, learned Counsel 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 and urged the Court to dismiss the appeal.
Chief Richard Akinjide SAN as Amicus Curiae, submitted that the earlier oaths cannot be the starting point in the calculation of the four (4) years term of office but the later oaths taken in 2008 following a re-run election and that sub-section 2A of Section 180 of the 1999 Constitution as amended does not apply as it has no retrospective effect and urged the court to determine the appeal accordingly.
On his part Ajayi, SAN, also as amicus curiae, referred to Sections 180(1) and (2) and submitted that the constitution focuses on a date, not on oath of office; that on 29th May, 2007, the 1st respondent took the Oaths of Allegiance and Office; that the constitution does not talk of nullification of an election or oath.
Referring to the case of Balonwu vs Governor of Anambra state (2009) 18 NWLR (Pt. 1172) 13 at 43, learned Counsel submitted that the second oath is superfluous.
On the sub-issue learned senior counsel submitted that the amended provisions of the 1999 Constitution are irrelevant to the appeal.
In the alternative, learned Senior Counsel submitted that the governor has no vested rights as he is a trustee of the people of the state; that the cause of action arose in September, 2010 and the amendment came into force in July, 2010 and that the alteration did not change the law but merely clarified the law.
On his part, Prof. Sagay, SAN, the third amicus curiae, submitted that where the actions of a governor remains valid after nullification it means the election was voidable, not null and void; that an election cannot be said to be void ab initio since it is a Court order that creates a nullity; that we have de facto and de jure governments depending on how the government came into being; that a governor whose election is annulled is a de facto governor as recognized in the Balonwu’s case, that the period between when the governor is elected into office and the nullification constitutes valid stewardship.
It is the further contention of the learned Senior Counsel that tenure elongation is an aberration arising from the long time taken to dispose of election petition matters which the respondents now intend to make a permanent feature of our constitution and urged the court to hold that no tenure can exceed four (4) years regardless of a re-run election.
The above summary is a complete reflection of the arguments put forward by all the parties to the appeals depending on which side of the divide they fall and it will serve no useful purpose to continue to reproduce them per appeal.
Suffice it, however to say that learned Senior Counsel for the 1st respondent in SC/266/2011, PAUL EROKORO, SAN, submitted that the four (4) years under Section 180 of the 1999 Constitution must be one period of four (4) years joined end to end – an unbroken period, and that the oath must be taken by a governor whether elected in a general election or in a re-run.
What does the law say or Provide
Section 180(1)(2)&(3) of the 1999 Constitution deal with the tenure of office of governors and relevant to the issue under consideration. They provide as follows:-
“180 (1) Subject to the provisions of the 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; or
(b) He dies whilst holding such office; or
(c) The date when his resignation from office takes effect; or
(d) He otherwise ceases to hold office in accordance with the provisions of this constitution.
(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 (4) 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, and
(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 that oaths.
(3) If the Federation is at war in which the territory of Nigeria is physically involved and the President considers it is not practicable to hold elections, the National Assembly may by resolution extend the period of four (4) years mentioned in subsection (2) of this section from time to time, but no such extension shall exceed a period of six (6) months at any one time”.
The above provisions are similar to those relating to the Office of President under Sections 135(1) and (2) of the 1999 Constitution.
However, section 180(2) of the 1999 Constitution simply provides that subject to the provisions of Section 180(1) of the 1999 Constitution the tenure of a Governor of a State shall be for four (4) years calculated from the date:
(a) In the case of a person first elected as governor under this constitution, he took the Oath of Allegiance and Oath of Office; and
(b) The person last elected to that office took the Oath of Allegiance and Oath of Office or would have done so but for his death.
It is clear from the provisions 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 is also important to note that the provisions of paragraph (a) of Section 180(2) is clearly an alternative to paragraph (b) of Section 180(2) irrespective of the use of the word “and” which, in reality is disjunctive and means “or” in the con in which it appears, and that both Sections 180(1) and (2) are subject to the whole of the 1999 Constitution.
The most important thing to note having regards to the provisions dealing with tenure of office of governors reproduced supra is that looking closely at the provisions of Section 180(2) (a), there is 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. The present problem arose from the fact that the very persons who won the “first” election also participated and won the re-run elections.
When then does the tenure of four (4) years of the 1st respondents begin to run Is it from the 29th day of May, 2007, when they took their first Oaths of Allegiance and Oaths of Office following their “first election under this constitution” or the various dates when they took the said oaths following the re-run elections in 2008
The main ratio of the lower Court in respect of the issues in this appeal are as stated by that Court at pages 711 -713 of the record, where the Court stated thus:-
“The salient point that should be noted in the provisions of the subsection is that a person must have first been chosen as governor in the process of an election which complies with and satisfies the provisions of the constitution before the provisions would be applicable to the tenure provided therein.
Consequently, the provisions would not apply to a person chosen by the process of an election which was not conducted or held in compliance or accordance with the provisions of the constitution.
The constitutional provisions cannot be said to contemplate or envisage application to any election which did not comply with or was conducted or held not in accordance with the relevant provisions of the constitution. Put another way, if it is not within the preview of the provisions that the election to which they were applicable would be one or the process of which was not conducted in obedience to the relevant provisions of the constitution. Election conducted and held in compliance or accordance with the provisions of the constitution is therefore the foundation, the basis and the platform upon which the application of the provisions of the subsection can be premised. Being the grund norm, it would be preposterous to suggest that its provisions would envisage that they are applications to any other type of election other than the one conducted or held in compliance with its provisions.
In this regard, only the Oaths of Allegiance and Office taken by a person chosen in the process of an election which complies with or was in accordance with the provisions of the constitution would be relevant for the purpose of computing the tenure of office of a governor under the provisions of Section 180(2). Oaths of Allegiance and of Office taken in respect of an election which was conducted or held not in accordance with the provisions of the constitution would not be oaths taken by a person first elected as governor under the constitution.
In this con, the learned counsel for the 2nd respondent is right where he said that a valid election conducted in accordance with the provisions of the constitution and the Electoral Act, is a condition precedent to the validity of the Oaths of Allegiance and of the Office of a governor.
This brings me to the effect of the nullification of an election on the oaths taken by a person first elected as governor in the said election. I would start a consideration of the point, by saying that the law is now beyond argument that the effect of a nullification of a thing is to completely wipe out, obliterate, remove, undo, erase or render it ineffective, useless as if it had never been in the first place. In judicial and legal terms and con, the nullification of any action or order by a court is to render such action or order void from the very beginning, ab initio, as if it had never taken place, happened or made or issued as the case may be.
Once an action or order is nullified by a competent Court, then in law and all practical purposes to which it applies, the action had been erased, wiped out and had never, ever happened or taken place originally”.
The above forms the basis on which the lower Court held that all the years enjoyed in office by the affected governors before the nullification of their first election are not to be taken into consideration in calculating the four year tenure constitutionally assigned them. However, the judgment picked and chose which aspects of the illegal tenure resulting from the nullification of the election endures or remains valid and subsisting or legal in law and which aspects is/are to be treated as “completely wiped out, obliterate, remove, undo, erase or render it ineffective, useless as if it had neither been in the first place…”
In consequence, the lower Court held that while the actions of the governors during the period prior to the nullification are valid and legal, the same period cannot be taken into account in calculating the tenure of office of the said governors following the nullification of their election.
The issue/question of nullity and its legal consequences/effectiveness is usually traced to LORD DENNING’S obiter dictum in the case of Mcfoy vs UAC (1961) 3 ALL ER 1169 at 1172 where he stated thus:-
“If an act is void, then it is in law a nullity. If is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so.
And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse”.
To say that the above principles are based on facts which are not material in this case is to state the very obvious. Secondly 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 supra.
Over the years the Supreme Court has deviced guidelines to the interpretation of not only statutes but most importantly our constitutional provisions, including the now famous twelve (12) point rule of constitutional interpretation propounded by OBASEKI, JSC in the case of Attorney-General of Bendel State vs Attorney-General of the Federation (1981) 10 SC. 1; (1981) 1 FNLR 179 as follows:-
“(1) Effect should be given to every word used in the constitution.
(2) A constitution nullifying a specific clause in the constitution shall not be tolerated, unless where absolutely necessary.
(3) A constitutional power should not be used to attain an unconstitutional result.
(4) The language of the constitution, where clear and unambiguous must be given its plain and evident meaning.
(5) The constitution of the Federal Republic of Nigeria is an organic scheme of government to be dealt with as an entirety hence a particular provision should not he severed from the rest of the constitution.
(6) White the language of the constitution does not change the changing-circumstances of a progressive society for which it was designed, it can yield new and further import of its meaning.
(7) A constitutional provision should not be construed in such a way as to defeat its evident purpose.
(8) Under the constitution granting specific powers, a particular power must be granted before it can be exercised.
(9) Declaration by the National Assembly of its essential legislative functions is precluded by the constitution.
(10) Words are the common signs that men make use of to declare their intentions one to another, and when the words of a man express his intentions plainly, there is no need to have recourse to other means of interpretation of such words.
(11) The principles upon which the constitution was established rather than the direct operation or literal meaning of the words used should measure the purpose and scope of its provisions.
(12) Words of the constitution are, therefore, not to be read with “stultifying narrowness”.
However, in Ishola v. Ajiboye (1994) 7 – 8 SCNJ (Pt.1) 1 at 35. OGUNDARE, JSC after adopting the twelve (12) point rule supra gave his own four (4) point rule as follows:-
- Constitutional language is to be given a reasonable construction, and absurd consequences are to be avoided;
- Constitutional provisions dealing with the same subject matter are to be construed together;
- Seemingly conflicting parts are to be harmonized, if possible, so that effect can be given to all parts of the constitution.
- The position of an article or clause in the constitution influences its construction.
It is settled law that the object of interpreting statute or the constitution is to discover the intention of the legislature, which intention is usually deduced from the language used.
The golden rule of interpretation of constitutional provisions is therefore that words of the constitution must, prima facie, be given their ordinary meaning which means I must look closely at the words used in the provisions and assign them their ordinary meanings if the words are not ambiguous. I must also give the words a liberal interpretation as stated in Nafiu Rabiu vs Kano State (1980) 8 – 11 SC 130 at 149; Senate of the National Assembly vs Momoh (1983) 4 NCLR 269 at 236.
In Rabiu vs Kano State supra at 149, SIR UDO UDOMA, JSC stated, inter alia thus:-
“My Lords, it is my view that the approach of this Court to the construction of the constitution should be, and so it has been, one of liberalism probably a variation on the theme of the general maxim ut re magis valeat quam pereat. I do not conceive it to be the duty of this Court so to construe any of the provisions of the constitution as to defeat the obvious ends the constitution was designed to serve where another construction equally in accord and consistent with the words sense of such provisions will serve to enforce and protect such ends”.
From the language used 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.
From the language of Section 180(2) of the 1999 Constitution “the tenure of a governor shall be four years from the date…” When the person first elected under this constitution takes the Oaths of Allegiance and of Office which took place on the 29th day of May, 2007.
It has been argued that the tenure of four years envisaged in the 1999 Constitution is a single unbroken tenure but that submission loses sight of the glaring fact that the provisions of Section 180(2) supra does not expect or envisage an indefinite occupier of the office of governor of a state that is why the tenure is very definite: four years.
In Ugwu vs Ararume (2007) 12 NWLR (Pt. 1048) 367 at 498 this Court stated thus:-
“A statute, it is always said, is “the will of the legislature” and any document which is presented to it as a statute is an authentic expression of the legislative will. The function of the Court is to interpret that document according to the intent of those who made it. Thus, the Court declares the intention of the legislature”.
I am also guided by the principles of interpretation of the provisions of the constitution which enjoins the Court to interpret the constitution as a whole taking into consideration, related sections as stated in A.T Ltd vs A. D. H Ltd (2007) 15 NWLR (Pt. 1056) 1 18 at 166 – 167 thus:
“It is settled law that when a court is faced with the interpretation of a constitutional provision, the entire provision must be read together as a whole so as to determine the object of that provision. Secondly, it is settled principle of law that where a Court is faced with alternatives in the course of interpreting the constitution or statute, the alternative construction that is consistent with smooth running of the system shall prevail as held in Tukur vs Government of Gongola State (1989) 4 NWLR (Pt.117) 517 at 579; I must remember that this Court has said it several times that the provisions of the constitution ought to be read and interpreted as a whole in that related sections must be construed together….
Finally, I must approach from the view point that since the decision of this Court in Rabiu vs Ogun State (1981) 2 NCLR 293. this Court has opted for the principle of construction often expressed in the maxim: ut res magis valeat quam pereat. This means that even if alternative construction are equally open, I shall opt for that alternative which is to be consistent with the constitution read as a whole as set out to regulate, and so the alternative which will disrupt the smooth development of the system is to be rejected.”
I am, in addition, persuaded by the principles of interpretation stated by the then Federal Court of Appeal in Arch. Bishop Okojie vs A-G Lagos State (1981) 2 NCLR 332 at 340 – 350 and which I hereby adopt as mine:
“When interpreting the constitution the Court must bear in mind that it is dealing with an instrument which controls and regulates the powers and functions of government, controls the rights and obligations of the citizen and controls the peace and order of the society upon which the constitution is supposed to operate.
While in an ordinary statute the normal rule is that the terms used must be given the meaning they bore at the passing of the statute (see Trustees of Clyde Navigation vs Laird 8 App. Cases 673) a constitution is intended to be permanent and must be interpreted by looking at the past and according to present conditions in order to fulfil the object and true intent of the constitution. A constitution must therefore be interpreted and applied liberally. A constitution must always be considered in such a way that it protects what it sets out to protect or guides what if set out to guide. By its very nature and by necessity a constitution document must be interpreted broadly in order not to defeat the clear intention of its framers.”
Guided by the above principles and many others not stated herein, can it be said that Section 180(2) supra admits of no unbroken tenure of four years In the case of Inakoju vs Adeleke (2007) 4 NWLR (Pt. 1025) 423, this Court held that the impeachment and removal from office of Governor Ladoja of Oyo State was unconstitutional, null and void. Prior to that decision Ladoja was out of 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) supra, in the case of Ladoja vs INEC (2007) 12 NWLR (Pt. 1025) 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 saga in Oyo State; but he was asked to continue his tenure from when he returned to office.
It is the case of the respondents that since their elections in 2007, where nullified it meant that in law the said election never took place and as such the Oaths of Allegiance and of Office they took on 29th May, 2007, became non-existent and that the Oaths of Allegiance and of Office which is valid and relevant to the determination of the four years tenure is that which they took at various dates in 2008.
I had earlier found and held 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.
I have also found and held that from the totality of the relevant provisions of the 1999 Constitution including Section 180(1)(2)&(3) and 182(1)(b), a person first elected as governor of a state shall vacate his office at the expiration of a period of four years commencing from the date he took the Oath of Allegiance and Oath of Office though he could be re-elected for another term of four years giving him a maxim two tenures of eight years. It is very clear from the relevant provisions that 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.
If the interpretation favoured by the respondents is adopted and the four years tenure is to be calculated from the second oaths taken in 2008, while in fact and law the 1st respondents took Oaths of Allegiance and of Office on 29th May, 2007 and remained and functioned in office as governors of their various states would their period not exceed the constitutionally provided tenure of four years The answer is clearly in the positive hence the argument on the principles of null and void acts. In assigning four years to the tenure of State Governors – and the President too – did the 1999 Constitution envisage a nullified election affecting the four years tenure assigned by it. I think not.
The argument that following the nullification of their elections the said elections were in the eyes of the law nonexistent 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 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 for about one year effectively exercising the executive powers of the state such as signing Bills into law including appropriation Bills; appointing commissioners and numerous Advisers, awarding contracts, etc.
The proponents of this contention 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 election!
It is not in doubt that the lower Court was the final Court on governorship election petition matters and that its decision on such matters bind the election tribunals and courts below it in the hierarchy of Courts. The above notwithstanding this Court, the Supreme Court of Nigeria, is not bound by decisions of the lower Court in matters, where that Court is the final Court of appeal as this court is the highest Court in the land whose decisions are binding on all and sundry.
It is with the above in mind that I consider the wide nature of the decision of the lower Court as to the voidity of the elections that resulted in the swearing in of 29th May, 2007.
Generally speaking, a void act is void and nothing can be put on it. However, when you consider the nature and consequences of an election which produced a winner who was sworn in on the presumption that the election that produced him was regular and legally valid then when that election is set aside or nullified, the nullification is only limited to the election and does not affect acts done while the person occupied that office. In effect, what it all means is that the election that was later nullified was only voidable, not void, because if it is to be taken literally as void ab initio as is being contended by some of the parties, it means the country would be plunged into chaos as all acts done by the governors must of necessity be null and void and of no effect whatsoever. So, when we have a situation where the acts of the governor whose election is nullified are saved, then the only legal explanation or meaning to be attached to the use of the words “null and void” in describing the said election by the Court, is “voidable”, ab initio.
It is therefore my considered view that what the lower Court meant by saying that the elections were null and void is simply that they were voidable as a result of which they proceeded to annul same.
I hold the considered view that since the acts performed during the period prior to the nullification of the election remains valid and subsisting and the same person contested and won the re-run election thereby taking another set of oaths and since what was nullified was the election, the oaths they took on 29th May, 2007, remains valid and the starting point in calculating their four years tenure of office as governors of their respective states particularly as the 1999 Constitution does not envisage a tenure exceeding four years by the same person who took the first oaths following the election which kick started the tenure.
To accede to the argument of the respondents 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 in 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.
From what I have been saying so far, it is clear that I am of the view 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. At best the said Section 180(2A) can be described as a classification of what is, by the deployment of the tools of constitutional interpretation, obvious and attainable as demonstrated in this judgment. The 1999 Constitution has no room for self succession for a cumulative tenure exceeding eight years.
On nullity of the elections as declared by the courts/tribunals, it is beyond dispute that by our laws there is a presumption that an election is valid until the courts/tribunals declare it a nullity. When the tribunal/courts so declare the election, the declaration does not affect the validity of the oaths the governor took so as to function in that office as required by the constitution neither would it affect the Bills he signed into law, contracts awarded, budgets etc, etc see Balonwu vs Governor Anambra State (2009) 18 NWLR (Pt.1172) 13 at 49.
It therefore means that 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 legally valid until challenged and subsequently set aside.
I hold the considered view that to uphold the validity of the acts of the governors in office prior to the nullification of their election and reject the period they spent in office during which time they performed those acts in the determination of the period of their tenure is contrary to common sense and the clear intention of the framers of the constitution.
The fact that there was an election in 2007 as a result of which the 1st respondents (Governors) took their Oaths of Allegiance and of Office are facts which cannot be wished away, just as the acts they performed while occupying the seat.
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 following, what I may call, their second missionary journey vide a re-run election particularly as the constitution unequivocally grants a tenure of four years to a person elected governor of a state calculated from the date he took the Oaths of Allegiance and of Office which was the 29th day of May, 2007.
It is settled law that the time fixed by the constitution for the doing of anything cannot be extended. It is immutable, fixed like the rock of Gibraltar. It cannot be extended, elongated, expanded, or stretched beyond what it states. To calculate the tenure of office of the governors from the date of their second Oaths of Allegiance and of Office while ignoring the period from 29th May, 2007, when they took the first oaths is to extend the four years tenure constitutionally granted the governors to occupy and act in that office which would be unconstitutional. It is therefore clear and I hereby hold that the second Oaths of Allegiance and of Office taken in 2008, though necessary to enable them continue to function in that office, were clearly superfluous in the determination of the four years tenure under Section 180(2) of the 1999 Constitution.
In conclusion, I resolve the issue against the respondents.
I however take this opportunity to thank the legal luminaries who accepted the invitation of this court to act as Amicus Curiae and availed the court of their views which have, in no small way, helped to resolve the thorny constitutional issue which had heated up the polity for quite some time now. I allow the appeals which have been demonstrated to be meritorious and set aside the judgments of the lower courts and in their place, it is hereby ordered that suit Nos: FHC/ABJ/CS/246/2010; FHC/ABJ/CS/648/2010; FHC/ABJ/CS/650/2010; FHC/ABJ/CS/651/2010 and FHC/ABJ/CS/665/2010; be and are hereby dismissed.
In consequence, I hold that the tenure of the 1st respondents began on the 29th day of May, 2007 and terminated on the 28th day of May, 2011 being four years allowed by the 1999 Constitution.
Appeal Nos. SC/141/2011
SC/266/2011
SC/267/2011
SC/282/2011
SC/356/2011 and
SC/357/2011
are hereby allowed.
It is further ordered that parties bear their costs.
Appeals allowed.
SC.141/2011 (CON)
