Supreme Court Explains Removal Of Kogi, Adamawa, Bayelsa, Sokoto,C/River Governors …Says It’s Illegal For Them To Stay In Office Beyond Eight Years

Nigeria’s apex court, the Supreme Court today explained that governors Ibrahim Idris (Kogi), Murtala Nyako (Adamawa), Timipre Sylva (Bayelsa), Aliyu Wamako (Sokoto) and Liyel Imoke (Cross River) whose tenure were earlier extended by a Federal High Court and the Court of Appeal beyond May 29, 2011 were sacked because it was unconstitutional and illegal for their tenure to exceed the stipulated period of eight years.

The apex court in a unanimous decision read by Justice Walter Onoghen held that it was the election of the governors that was annulled by the tribunal and not their oath of office, adding that the 1999 Constitution does not recognize a governor staying in office beyond eight years.

He further held that the framers of the constitution did not envisage a re-run election stating that no person elected under the 1999 Constitution can remain in office beyond the time provided by it.The court also held that the 1999 constitution did not envisage nullification adding that even if the first election was annulled it cannot affect the oath of office and allegiance taken.

According to the apex court, “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 pressumption that the election that prduced him was regular and legally valid then when that election is set aside or nullified, the nullification is only limited to the eloection 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 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 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 to the nullification of the election remains valid and subsiting 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 May 29, 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.

“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 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 whici was May 29, 2007.

“It is setled 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 May 29, 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.”

The court had earlier dismissed the objections raised by the respondents saying that it was just an exercise to waste the time of the court.

Both the Congress for Progressive Change, CPC governorship candidate in Adamawa state, Dr Mohammed Buba Marwa and the Independent National Electoral Commission (INEC) had approached the apex court to challenge the decision of the Court of Appeal which upheld the decision of a Federal High Court sitting in Abuja which had earlier elongated the tenure of five governors.

A full panel of the apex court had on November 21, 2011 heard the argument of all counsel in the suit alongside with the three amicus curia invited to address it on the issue.They include the trio of Chief Richard Akinjide, Professor Itse Sagay and Chief G.O.K Ajayi all Senior Advocates of Nigeria, SANs.

While Akinjide advised the apex court to uphold the decision of the lower court, the duo of Sagay and Ajayi urged it to reverse the decision.