THE COURT THE EYES OF THE STORM (1)

These are trying times for the courts the much acclaimed last hope of the common man. First was a most embarrassing face off between two of the nation’s most highly placed jurist, the Chief Justice of Nigeria, Justice A. Katsina-Alu CJN and the president of the Court of Appeal PCA over the elevation or otherwise of the PCA.

A dispute as to the propriety or otherwise of elevation a serving PCA to the Supreme Court soon developed a life of its own with the PCA not only rejecting the CREEK GIFT of the elevation but asserting that he was being ousted by the CJN from the Court of Appeal for the CJN’s STOOGES AND CRONIES. So certain justices of the Court of Appeal and STOOGES AND CRONIES OF THE CJN?

That is of course hardly surprising now that we know thanks to the PCA that 50 OUT OF 60 JUSTICE of the Court of Appeal cannot be TRUSTED with election cases. Particulars have not been supplied till date of this untrustworthiness? Is it that their lordships are corrupt or that they cannot be trusted to arrive at pre-determined decisions? This is a very serious allegation about the vast majority of justices of the nation’s second highest court!!!

However, most serious of all is the deposition on Oath that the CJN asked the PCA to compromise the Sokoto state gubernatorial election Tribunal. This is one allegation that must be investigated without prejudice to the present moves to make peace between the too warring jurists. Section 127 of our most maligned but still operative criminal code still makes it an offence for any one to compound a felony and we know the leading lights of our profession will not want to be party to any form of criminality. But beyond the issue of crass legalism is the integrity of our whole system of administration of justice whose continued claim to the citizen’s respect relies heavily on the truth or otherwise of this most damaging allegation against the nation’s number one judex by no less a personality than the PCA head of the nation’s second highest court. So there is no end in sight for this matter, re-conciliation or not.

TENURE ELONGATION

While the nation was still grapping with this most disturbing crisis in the nation’s judiciary yet another controversy emerged from the court again, this time in the form of a court decision which has the effect of elongating the tenure of governors whose mandate had earlier been nullified by election tribunals but who won re-run elections and as the popular view goes took a second oath of office. The Governors who specifically sought this order which Justice Adamu Bello of the Fedral High Court sitting in Abuja granted were Gov. Ibrahim Idris of Kogi, Gov. Murtala Nyako of Adamawa, Gov. Trimpreye Sylva of Bayelsa and Gov. Wammakko of Sokoto State.

It is instructive to note that all these governors are members of the nation’s ruling party, the Peoples Democratic Party, (PDP). This decision coming literally on the eve of the general elections is generating great uproar in the nation and practically every segment of society is affected by this decision and is either up in arms against the decision or is saluting the courage of the judge and praising the ruling as a victory for the rule of law. To the nation’s electoral body, the Independent National Electoral Commission (INEC) that has spent several billions of Naira to prepare for elections in about 30 or 31 states of the Federation, it is a most confusing judgement that it has vowed to appeal. To the political opponents of the said governors even within the same party, the judgement is bad to the extent that it scuttles their political ambition. For the opposition, this is yet another example of how the judiciary can be used to frustrate the course of democracy. Already there are insinuations of corruption against the judge. But as far as the PDP is concerned, a Daniel has finally come to judgment. For a long time judgement after judgment has always tended to favour the opposition now there is a decision benefiting the ruling party and the opposition is raging. Is rule of law only for the opposition? There is even some insinuations in recent times that some of the landmark decisions of the court have been influenced by considerations other those of justice and equity.

All of the above of course have no place in a strict legal discourse. Now to go back to the tenure elongation decision. In a consolidated suit brought by governors:- Ibrahim Idris of Kogi State, Muritala Nyako of Adamawa State, Liyel Imoke of Cross River State, Timpreye Sylva of Bayelsa State and Wammakko of Sokoto State, whose elections had been nullified of one point or the other by the election tribunal but had won the re-run elections in their states whereupon they took a second Oath of office had argued that the nullification of elections meant that all that transpired under their first Oaths of office was a nullity and that their terms of office started after their second Oath of office and that their 4 year term of office commenced from the second Oath of office.

They had argued that their cases fail under the situation in the Peter Obi’s case and the new amendment of Electoral Act and the constitution which had limited a governor’s tenure of 4 years to the first swearing irrespective of later nullification and re-run did not apply to them since the amendment could not apply retrospectively to their tenure having only been recently passed after they had won their re-runs and took a second Oath of Office.

In a judgement which remains shocking to a cross-section of the Nigeria society particularly lawyers. Justice Adamu Bello of the Federal High Court Abuja had been persuaded by these ingenious arguments and had granted these governors a 4 year tenure starting from their second Oath of Office, declaring the first swearing a nullity since it was nullified by the tribunal after all nothing can be built and be expected to stand. It must collapse. His lordship also held that the new Amendment did not apply to these governors as it could not apply retrospectively in accordance, with the trite presumption of law that a law could not apply retrospectively. The result of this decision is that there will be no gubernatorial elections in Sokoto, Adamawa, Cross River, Bayelsa and Kogi States.

The decision understandably has generated a lot of controversy, with INEC vowing to appeal because its election timetable has been thrown into chaos, others particularly the opposition whose political ambition has been truncated have also vowed to fight the ruling on appeal. Yet some have taken the political path of least resistance accusing the judge of partisanship, even corruption.

From a strictly legal view, the judgement might in fact be wrong as this columnist in fact believes but until the contrary in proved, is not suggestive of foul play or corruption. The point must in fact be made that a situation where unfavourable court decisions are attributed to extraneous considerations other than of judicial efforts leave much to be desired and portends great danger to the polity. As a time will come when Nigerians will begin to pick and choose what decisions to obey which is contrary to the foundations of our jurisprudence – all court decision are valid until set aside and must be obeyed whether favourable and convenient or otherwise.

The point must also made that it must be conceded that Justice Bello as a court of first instance has the right (you might even call it a constitutional right) to be wrong. That is why there is the appellate system to challenge faulty judgments. In one case, when a trial judge who noticed an error in his judgement sought to rectify the same by issuing and personally serving hearing notice of counsel to re-open the issue leading to his error. His attempt at infallibility as a trial judge was roundly deprecated by the Supreme Court. Bakare vs Apena (1987) 4 NWLR (pt 33)1.

So it must be conceded to all courts of first instance, that the judge is entitled to be sincerely or genuinely wrong. And the present situation where opponents read political coloration or corruption into unfavourable judgements must be discouraged.

Returning to the case at hand, while it is obvious that the learned trial judge relied heavily on the Peter Obi vs INEC (2007) 7 S.C 268 in extending the tenure of the 5 judgments, it is submitted that his lordship should have relied on the Ladoja vs INEC (2007) 7 S.C. 99 case where Gov. Ladoja was illegally ousted for 11 months but could not get an extension as the court firmly held that it has no jurisdiction to extend the governor’s tenure.

The case was decided by the same panel that decided the Peter Obi’s case on the same day. What is more, the Supreme Court clearly limited the application of the Peter Obi’s case by saying that “for the avoidance of any doubt, this judgment affects the governor of Anambra state alone” at page 319 (supra).

This column has repeatedly made this point but several scholars disagree and have been quick to apply Peter Obi’s case in several sates without seeking court interpretation such as in Ondo, Edo, Ekiti and Osun State. Well, they are right and this column is wrong, but then why are they now agitated that the reasoning has now been applied by a court to PDP states. What is good for the gander is no longer good for the goose? Or is the Peter Obi’s decision only for the “progressive states”?

Yet another aspect of the decision that is erroneous, is the second Oath of office reasoning. This is a very popular view but which is erroneous in the face of the decision in the Supreme Court case of Balonwu vs Governor of Anambra State (2009) 12 S.C. 31 where some Anambra state legislators heed sought to continue with Gov. Obi on his being sworn on the 17^th March 2006 when Chris Ngige was removed as governor. They had argued that a second proclamation by Gov. Obi the bonafide Governor was the valid proclamation that gave legality to their tenure and not the first proclamation issued by the ousted Chris Ngige. The Supreme Court said “no”, that the first proclamation by the ousted governor was the valid one under the doctrine of necessity and the second proclamation by bonafide Gov. Obi was mere surplus age. Had his lordship adverted his mind to this decision, his lordship would have not been swayed by the popular but erroneous second oath of office argument.

The result of the judgment which will allow persons to benefit from their wrongdoing should also have bothered his lordship, a politician wins a fraudulent election, which is eventually set aside, years into 4 year term and then wins the re-run, and he is now allowed to start a fresh 4 year term.

This is absurd and it is a trite principle of law that the law does not allow or recognize an absurdity. Lex non cogit ad absurdum. In fact the question that should be asked is, whether the Delta State Governor, Emmanuel Uduaghan almost three and half years into 4 year term, should not be given a fresh 4 year term. Thus spending seven and half years for a 4 year tenure based on his wrongdoing. Can any situation be more absurd?

Perhaps, it is for the danger inherent in the Peter Obi’s case that the late Chief Gani Fawehinmi SAN and Justice Uwaifo (retired) Justice of the Supreme Court did not share the general euphoria of the Peter Obi’s case even though they were roundly condemned by so called progressive scholars. Gani must be having a good laugh in his grave!!

The solution to the present problem is for the Attorney General of the Federaion, the Chief Law officer of the Federation to rise to this great occasion by eschewing partisanship and appeal as a party interested to the Court of Appeal under the constitution and raise a constitutional issue for reference under section 298 (1) of the 1999 constitution from the Court of Appeal to the Supreme Court and have the matter determined in a few weeks by the Supreme Court (excluding the CJN) as a matter of constitutional importance before the April elections. Gamioba vs Esezi II (1961) 1 ANLR 588 OLAWOYIN VS C.D.P (No2) (1961) ANLR 625 Bamaiyi vs A.G. Federation (2001) 7 S.C. (pt 1) 62.

This is not as difficult as it seems. What is crucial here is the political will to act can the AGF step up to the challenge? And if that is done, the argument of the late sage Gani, that the issue of tenure elongation is under section 285(1) of the constitution can only to be determined by an election tribunal should be raised for adjudication by the Supreme Court.

It is most desirable that these urgent steps be taken to stem the tide of chaos and anarchy which seem to loom over the nation as the 2011 General Election approaches.

A stitch in time will save not only nine but prevent the Federal Republic of Nigeria from going up in flames ala Tunisia, Egypt and Libya!!

Supreme Court Again to the Rescue: Tenure Elongation by Ademola Adewale

For what is literally the umpteenth time the Supreme Court has once again come to the rescue of a troubled nation with its recent decision on tenure elongation in 5 states in the Federation namely Bayelsa, Cross River, Adamawa, Kogi and Sokoto States.                       

The decision which pegged the tenure of State Governors at 4 years certain has sent shock waves to several sections of the nation the legal community inclusive. Although the point must be made that some of us are not at all surprised at the outcome of the case; this column has consistently canvassed the view, that on the authority of Ladoja V. INEC [2007] 7 S.C. 99 and Balonwu V. Gov. Anambra State [2009] 12 S.C. (Pt 1)31 the tenure of a Governor whose mandate was truncated for any reason but who subsequently was re-elected and re-instated could not be extended beyond the years provided in the constitution. This view was for a long time an unpopular minority view submerged by the din of the very popular Obi V. INEC [2007] 7 S.C. 268 which many legal scholars touted as being the Carte blance for extending the tenure of a Governor whose tenure is disrupted in any way. It was tenaciously argued that the period served before the disruption is a nullity at law, since nothing can be built on nothing. And the valid tenure only starts to run upon the second and valid Oath of office! This ingenious argument will be examined in greater detail in this essay.

The facts leading to this recent epochal decision, of the Supreme Court are that in almost identical situations, the Governors of the 5 states earlier mentioned, had their elections annulled several months into their tenure in office which situation led to a re-run elections which these Governors won overwhelmingly. As a result of which they were sworn in afresh as Governors. So the big question then arose when did the tenure commence and expire?

The camp of the 5 Governors and their supported argued that their former tenure in office became nullified by reason of tribunal/court judgments which nullified their election. Thus they argued that since nothing can be built on nothing, such a nullified period was nullity including the Oath of office. And that their terms of office - dejure (legally) as opposed defacto (factually) started to run when they were  sworn into office, the second time following their respective re-runs victories, So this was when the 4 year term started to run. For this submission the celebrated case of Peter Obi V. INEC [2007] 7 S.C. 268 was cited in support. This was the case where Dr. Chris Ngige was in the office of Governor of Anambra State for almost 3 years before his election was nullified and Peter Obi was declared the winner and subsequently sworn in. It was held interalia that Peter Obi's tenure started to run from when he was eventually sworn in as Governor and not the 29^th May 2003 when his tenure was deemed to have commenced. The opposition would have none of this tenure elongation argument. They submitted that the tenure of a Governor is 4 years certain from the period when his tenure is presumed to have started which is the 29^th May of every election year. They further argued that in the case of the 5 Governors, they cannot or should not be allowed to benefit from their own wrongs; these were Governors whose elections were tainted by electoral fraud and irregularity which led to the nullification of their initial elections. Thus to allow tenure elongation for them under any guise was simply unconscionable and against any form of decency. The second Oath of office argument was also debunked as being self-serving; as they argued that government was a continuum, and that the first Oath of office was the valid one, as there can be no vacuum in office of a governor, thus to all intents and purposes all the acts of the Governor at his first coming prior to nullification were valid. Reliance was placed on Balonwu V. Gov. of Anambra State (Supra) where the attempt of certain members of the Anambra State House of Assembly to extend their tenure on the basis that the first proclamation that was done by Gov. Ngige became a nullity upon the nullification of his mandate, and that their tenure validly commenced when the bonafide Governor Obi proclaimed the inauguration and that her tenure thus stated from the said proclamation which event had the potential of extending the tenure of the said legislators.  The Supreme Court flatly refused the submission particularly that based on the second swearing in ceremony holding interalia that the first proclamation by Ousted Gov. Ngige was valid for the 4 year legislative term and that the second proclamation was mere surplussage.

On the certainty of the 4 years term the celebrated case of Ladoja V. INEC (Supra) was cited and relied upon in the famous case the Supreme Court had refused the prayer of Governor Ladoja for the extension of his tenure by the 11 months he was illegally removed by a faulty impeachment process. The Supreme Court had said in very clear terms that no Court in Nigeria had the powers to extend the tenure of a sitting Governor.

This was the summary of the arguments canvassed for and against the 5 Governors at the Federal High Court, the Court of Appeal and the Supreme Court Tenure elongation found favour at both the Federal High Court and the Court of Appeal.   At the Supreme Court leading constitutional lawyers, Chief R.A. Akinjide SAN, Second Republic Attorney General of the Federation, the inimitable Chief G.O.K Ajayi SAN, and Prof. Itse Sagay SAN, renowned legal scholar and prolific writer were invited as Amici curaie assist the Court with their wealth of legal knowledge and learning. In line with the complexity of the occasion, the highly revered jurists were divided in their opinions on the issue of tenure elongation. Chief Akinjide SAN favoured tenure elongation for the 5 while both Chief Ajayi SAN and Prof Sagay SAN were strongly against any form of tenure elongation.

The controversy surrounding the case was further deepened when the Supreme Court did not deliver judgment on the dispute as scheduled but chose to adjourn the judgment indefinitely. The rumour mills were rife with all kinds of insinuations, legal and political permutations.  Some suggested that the Court could not come to a decision because sharp conflicting views, some uncharitable persons even claimed that the justices were being wooed by politicians to compromise their views. But in a unanimous 7man decision the Supreme Court put paid to all these rumours by sacking all 5 embattled Governors.

The decision as expected is sending shocking waves throughout the length and breadth of the country but certain issues remain unresolved.

·     Salaries and Emoluments earned while in office

A collateral debate has arisen in some quarters as to the need for the sacked Governors to refund salaries and emoluments earned while in office illegally.  This is a very ingenious argument but cannot succeed jurisprudentially: The Governors while in office had taken several decisions while in office; approved appropriation laws, inaugurated State House of Assemblies, signed various Bills into Laws, appointed commissioners, undertaken various projects, some might have issued Death warrants for those convicted of capital offences; will all these acts of the State be declared illegal merely because the Court has now held that the Governors were not legally in office at the material time? The answer is a big No. Thus while the Governors were not legally dejure in office at the material time, there were defacto (in fact) in office and so these acts are legally saved and ipso facto their earnings, salaries and other emoluments of office.

Conversely, if there first term in office is held to be invalid and thus a nullity, then their term of office will only start to run after they were sworn into office the second time and by which consideration they will still be in office until 4 years after the second Oath of office collecting salaries and emoluments.

I submit that the court faced with the difficult choice of nullifying the first Oath of office and tenure in office, while allowing the Governors to continue in office under the second oath of office and asking the Governors to refund monies for the ill-fated first period while still continuing in office; chose the option of cutting short the tenure of the embattled Governors even if the impression persists in certain quarters that the said Governors are "escaping with their loot"

·        Acting Governors and fresh elections

By virtue of section 191(2) of the 1999 constitution as amended; when a Governor and his Deputy vacate office in circumstances similar to which these Governors were removed, the Speaker of the concerned State House of Assembly is entitled to be sworn into act as Governor pending the holding of elections into the office of Governor. For 4 out of the 5 states, namely Adamawa/ Bayelsa, Cross Rivers and Sokoto States complying with these constitutional provision did not present much of a problem inspite of the reluctance of one or two of ousted Governors. However in Kogi State a unique situation played itself out. A few weeks to the celebrated judgment, fresh elections were held by the Independent National Electoral Commission, INEC into the office of Governor of Kogi State, at which election Captain Idris Wada emerged winner as Governor-Elect, Thus upon the aforesaid decision, Captain Wada made a claim to be sworn in as Governor, while the Speaker of Kogi State House of Assembly relying on the aforementioned provisions of the constitution also made a claim to be sworn in as Governor. The situation was further complicated by the actions of the States, Senior Judges. The Chief Judge of the State who was approached by Wada for swearing as Governor, declined citing constitutional provisions which make no provision for Governor-Elect upon this judicial rebuff, Wada promptly approached the President of Kogi State Customary Court of Appeal who immediately sworn him Wada as Governor. The Chief Judge perhaps to prevent what he considered as a Constitutional Harakiri quickly swore in the Speaker as the Acting Governor. Thus immediately after the aforesaid decision of the Supreme Court, there were two Governors in Kogi State, the State's Speaker of House of Assembly and the Governor-Elect, a situation which gave rise to much confusion.

However, INEC acted swiftly to check any descent to anarchy, by calling a Press Conference chaired by the INEC's helmsman himself Prof Attahiru Jega directing that Wada be immediately sworn in as Governor of Kogi State. Thus further confusion was averted. Yet all is far from being well in the 5 States even though INEC has announced election dates for 3 States and elections will in fact hold in Adamawa on the 4^th of February 2012. In Bayelsa elections may be shifted until further notice due to the sudden death of one of the contestants. In Cross Rivers State where elections have been slated for 25^th February 2012, the Action congress of Nigeria CAN, is already up in arms over what it calls the unholy haste of INEC to conduct elections into the office of Governor. The party is suggesting April 4 as the Ideal date for the election. The party has threatened to boycott, the scheduled election. Even in the other 4 States events are still unfolding and it might still be premature to make categorica! assertions.

·        The tenure of the Governors of Ekiti, Ondo, Osun and Edo States

What these Governors have in common is not that they were sworn in a second time but that some people stole their mandates and were wrongly declared winners by INEC and thus stayed in office for some time before the said Governors could retrieve their mandates. So the critical issue whether Peter Obi V. INEC is the applicable law or the decision in Ladoja V. INEC. This is a moot point but this writer pitches his tent with the latter decision until the Supreme Court decides otherwise.