As the nation awaits the judgment on the tenure elongation of some governors by the Supreme Court, Tunde Oyesina writes on its implications for the polity.THE nation is, no doubt, eagerly waiting for the apex court to deliver its verdict which will invariably be a locus classicus in the nation's jurisprudence on the appeal filed by the Independent National Electoral Commission (INEC), challenging the concurrent judgment of two lower courts which extended the tenure of five state governors beyond 29 May, 2011.Many issues, which have generated a lot of controversies, have emanated from this instant case with a section in the legal hall supporting the decision of the lower courts while the other section wants the apex court to reverse the decision. Whichever way the decision falls, the apex court will definitely be saddled with the arduous task of reconciling practicability and legality.A seven-man panel of the apex court, headed by the Chief Justice of Nigeria, Justice Dahiru Musdapher, had, after hearing the argument of all parties in the appeal, including that of the three amicus curia, reserved judgement.The Kogi State governor, Alhaji Ibrahim Idris, had, in January 2011, initiated a suit before a federal High Court sitting in Abuja, seeking to stay in office beyond 29 May, 2011 and also asking the court to stop INEC from conducting gubernatorial election in the state on 5 April, 2011, claiming that his tenure in office will not expire until 29 May, 2012 .His argument was based on a fresh oath-of-office he took on 5 April, 2008, following his victory at the rerun gubernatorial election in the state ordered by the Court of Appeal, Abuja division which nullified the 14 April, 2007 gubernatorial election earlier won by him.The INEC had earlier said that tenure in office of governors who won rerun elections end on May 29, 2011. Other governors who were affected by the decision are Murtala Nyako (Adamawa), Timipre Sylva (Bayelsa), Aliyu Wamako (Sokoto) and Liyel Imoke (Cross River). The court later consolidated all the applications of the five governors.In the originating summons filed byIdris through his counsel, Lateef Fagbemi (SAN), he argued that 'since he (Idris) was elected to the office of governor of Kogi State in a fresh election conducted by INEC and took oath of Allegiance and oath of Office on 5 April, 2008, there would be no room for election until 2012'.Idris' action was commenced upon the expiration of an ultimatum issued to INEC in a letter written by his counsel, asking it to discontinue any step towards conducting an election for the gubernatorial seat in the state which it has scheduled for January 2011.Specifically, he cited the provision of Section 180 (2) of the 1999 Constitution, providing for a four-year tenure of office for a governor from the day he took the oath of office and oath of allegiance as the sacrosanct provision of the law which cannot be abridged or ignored.He is also prayed the court for 'an order of injunction restraining the PDP, whether by itself, its agents, servants or privies, or whosoever and howsoever defined or called from releasing guidelines/timetable and from conducting primaries or putting machinery into motion or from taking any decision on candidates(s) to contest gubernatorial election in Kogi State on the platform of PDP against January, 2011.'Justice Adamu Bello of a Federal High Court sitting in Abuja had, on 23 February, entered judgment in favour of the five governors who had approached him to extend their tenure beyond 2011. In his judgment, Bello held that that the tenure of the five governors will not end until different dates in 2012, premising his decision on the fact that the date an oath of office is taking marks the commencement of the tenure in office of any governor.He stated that, 'the nullification of the election by the court has nullified the initial oath of office because something cannot be built on something; the constitution cannot be made to function retroactively unless there is special provision for such. Consequently, the court held that the tenure of the governors will end thus: Kogi State, 4 April, 2012; Adamawa, 30 April, 2012; Bayelsa, 27 May, 2012; Sokoto, 28 May, 2012 and Cross-River for 27 August, 2012.Not satisfied by this judgment, the electoral body proceeded to the Court of Appeal with a prayer that it should be reversed. But, the appellate court in unanimous decision upheld the earlier judgment of Justice Adamu Bello on 14 April where a five-man panel of the justices of the court, headed by Justice Mohammed Garba, dismissed the consolidated appeal brought by INEC for lacking in merit. The court held that the tenure of the affected governors would legally expire in 2012,in view of the fact that fresh oath of office and oath of allegiance were administered on them in 2008, after their previous election of 14 April,2007 were nullified by the Election Petitions Tribunal.The court further declared that it would be unconstitutional for the electoral body to compel the five governors to vacate office before the expiration of their statutory four years tenure as stipulated by Section 180 of the 1999 Constitution.It added that the legal grounds adduced by the electoral body on why the five governors should go with their colleagues on 29 May, 2011 was practically meaningless in the face of Section 180(2) of the 1999 Constitution, noting that the grounds canvassed by INEC may be useful for the academic environment.Still not satisfied, INEC approached the Supreme Court to appeal the two judgment which favored the five governors. In the bid to ensure that justice is done, the apex court had invited three legal luminaries to address it on the issue. The trio are Chief Richard Akinjide, Dr. Itsay Sagay and G.O.K Ajayi, all Senior Advocates of Nigeria (SAN). The amicus curia took different positions in advising the court. While Akinjide advised the apex court to uphold the decision of the lower court, the duo of Sagay and Ajayi were of the opinion that the decision of the lower of the courts should be reversed.In driving his points home, Akinjide stated that the date an oath of office is taken determines when the tenure of s governor will start to run, adding that once an election is nullified by a court of competent jurisdiction, everything about the election will automatically go with it. He added that Section 180 of the amended constitution cannot take retroactive effect as that is not done anywhere in world.Opposing Akinjide's line of argument, Ajayi stated that the nullification of the election of the five governors did not perforce result in the nullity of the oaths of allegiance and oaths of office taken by them as governors of their respective states. He added that the date the governors' relevant period for the computation of tenure of the five governors was when they first took the oath of allegiance and oath of office as the governors of their respective state, and not when they took the second oath of allegiance and oath of office in 2008.He also submitted that the period which the five governors spent in office as governors of their respective states, prior to the nullification of the election which brought them to office, should be reckoned with in the computation of their term in office.Toeing along the same line, Sagay, in his submission, stated that an election is only nullified effectively with effect from the date of judicial pronouncement, adding that the decision of a court in an annulled election is constitutive of that nullity, and, therefore, cannot have a retrospective effect on the tenure and actions taken by the governor before the nullification order.He added that both the pre-nullification tenure and acts flowing from it are recognisable by law as the valid legal effect of the annulled election, meaning that the period spent in office as governor by the person concerned must count as part of his tenure. He further stated that the court will not lend its aid to an immoral or illegal act, neither will it allow a person to benefit from his own wrong or a wrong in his favour.He concluded by saying that, 'opening a 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.Earlier, counsel to one of the victims of the elongation who is also an appellant to the decision of the lower courts, Chief Wole Olanipekun SAN argued that within the ambit of Section 180(2) of the Constitution, the spirit and intention is that except the nation is at war, no elected governor shall spend more than eight years in office with a period of four years per term.He added that the second oath taken by the governor after a fresh election is subsidiary and not relevant, stating that such is of no effect. He further stated that the judgment of the lower court was based on oath of office, adding that oath taking is irrelevant. He, therefore, urged the court to resolve the appeal in favour of the appellant.All counsel to the five state governors supported the argument canvassed by Akinjide that the judgment of the lower court should be upheld, while counsel to INEC, Chief Adegboyega Awomolo SAN, and counsel to Buba Marwa, Olanipekun, associated themselves with the submissions of Sagay and Ajayi that the apex court should reverse the decisions of the lower court.As the legal battle awaits the final decision of the highest court in the land, one would certainly think about the reality of this instant matter, considering the fact that the governors concerned have already enjoyed the elongation granted them by the court by remaining in office beyond May 29, 2011. Moreover, the decision of the lower courts had been carried out by INEC, not conducting gubernatorial elections in the five states in April 2011 general election.There is no doubt, however, that either side of the divide has its own implications. If the Supreme Court upholds the decision of the lower courts, it means the governor will stay in office till the time the lower court calculated. But if it is on the contrary, the status quo before 29 May will be reversed to.But another legal war that will be envisaged if the apex court sends the governors packing is that when the tenure of any governor-elected will now start running. Will it then means that all official duties performed by the governors between 29 May till date will be rendered null and void' This will be an issue to be determined by the apex court.All eyes are on the apex court to save the country from the pollution in the country's judicial system. Also, the apex court will have a great task of reconciling what has existed in practical terms and what the legal terms is.
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