Monday, April 30, 2012

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 29th 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 29th 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 4th 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 25th 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.













No comments: