THE tenure elongation judgment delivered by the Supreme Court last Friday has continued to raise concerns over what appears a radical paradigm shift of the Court from its well-laid principles of law. 'You cannot put something on nothing,' is a principle the courts continue to emphasise. Did the court jettison this principle by the unanimous decision of its seven-man panel'The Supreme Court 'abruptly' ended the tenure of five states governors, but opinions continue to be diverse on the verdict, the manner it was reached and the implications therein. While many lawyers have praised the verdict, some have expressed concern because according to them, the verdict turned law and logic on their heads and subverted the time honoured legal principles established by the Supreme Court in several cases that have until last Friday's decision become locus classicus.The task of making a final judicial pronouncement on the tenure elongation debate was not a stroll in the park. But it is such expectation that made it pretty irreconcilable that the court would end up unsettling legal principles, which it set out and indeed settled in several decided cases. For instance, the court put up for examination its established principle, 'you cannot put something on nothing' when it reached the decision that although the election of the governors in 2007, which qualified them to take the oath of office and allegiance on May 29, 2007, was a nullity, the oaths were valid.' The court seemed desperate to ensure that nobody stays a day beyond two terms of four years that it took it lost its path. Without doubt, the measure to make the tenure of the governors count from their first oath was to safeguard the intendment of the drafters of the 1999 Constitution. In this regard, the court sacrificed the well-ordered principle of law on the altar of judicial absurdities.The appeal before the Supreme Court was on a narrow legal compass ' when does the tenure of the governors end' The answer is provided by Sections 180(1) and (2) and 182(1) (b) of the 1999 Constitution.Section 180(1) states: '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 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 of Allegiance and Oath of Office or would but for his death, have taken that oaths.'Whereas it is clear that the tenure of governor begins from the day he takes the Oath of Office and Allegiance, it is unclear why the court seemed fixated that the 1999 Constitution did not permit a governor to spend more than four years from office when he was first elected.Ordinarily, when the wordings of a statute are clear and unambiguous, they should be given their ordinary and literal meaning. But in this case, the court sought to complicate simple wordings by introducing undue semantics vide the rule of constitutional interpretation. Justice Walter Onnonghen laboured with the words 'voidable' and 'voided.' He sought to hold that the said elections of the governors which were nullified were voidable, a clear attempt at turning off the curve of previous line of interpretation of a null and void act. It is a notorious fact that an action founded on a void act or transaction is null and void.Justice Onnonghen in interpreting the act of the tribunal nullifying the elections of the governors relied on Lord Denning, preferring to ignore the Court's well laid out consequence of a null and void or nullified act. The considered declarations of Justice Nnaemeka Agu, Justice Chukwudifu Oputa and recently Justice George Adeshola Oguntade, all former Justices of the Supreme Court have underlined the principles of the Court ab initio until last Friday's verdict on tenure of these governors. 'If a transaction is void, it is in law a nullity, not only bad, but incurably bad and nothing can be founded on it, for having no life of its own, it cannot vivify anything,' Justice Oputa held in Adejumo V Ayantegbe (1989) 3 NWLR (Pt110) 417. It was this same line of thought and principle that informed the judgment of the Supreme Court in Peter Obi vs INEC case which saw to the removal of Andy Uba from the office of governor of Anambra State. In that case, the apex court declared Uba's election 'null and void.' In reaching that decision, the court held that 'generally speaking, a void act is void and nothing can be put on it.' The same court had no squabbles in doing a policy summersault.Ononnghen's semantics is on a collision course with the provisions of Section 140 (1) of the Act which provides that, 'subject to subsection (2), if the tribunal or the court as the case may be, determines that a candidate who was returned as elected was not validly elected on any ground, the tribunal of the court shall nullify the election.'Onnoghen's suggested that, 'the provisions of section 180 of the 1999 Constitution did 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.' Lawyers who do not subscribe to the suggestion that a re-run election was not within constitutional contemplation, have wondered why the same constitution established Election Petition tribunals and even the courts'The decision by the court to pick and choose which of the oaths marked the beginning of the tenure of a governor was also not supported by law. The court also upturned its settled principle that the concurrent finding of a trial court and an Appeal Court should not be disturbed, except perverse. It appears that the decision of the Supreme Court was perverse as it sought to put something on nothing and has seemingly created more confusion by the judgment than there was before it. Unfortunately, the Supreme Court is final not because it is infallible; but it is infallible because it is final.Meanwhile, the National legal Adviser of the PDP, Chief Olusola Oke said that, 'it must be understood, going by section 180 of the 1999 Constitution, the governors of Adamawa, Sokoto, Bayelsa and Cross River states have the legal right to continue in office until the Independent National Electoral Commission (INEC) conduct another election and the winner emerged where after the affected governors will hand over according to the constitution.'He noted that the situation where Speakers of the House of Assembly in the four states have been sworn in as acting governors is contrary to the constitution. 'The only situation that could have warranted the swearing in of a Speaker as acting governor is when the governor resigns or dies, impeached, among others but that is not the case,' he said.Incidentally, Section 191 (2) of the Constitution states: 'Where any vacancy occurs in the circumstances mentioned in sub-section (1) of this section during a period when the Office of the Deputy Governor is also vacant, the Speaker of the House of Assembly of the state shall hold the office of Governor of the state for a period of not more than three months, during which there shall be an election for a new Governor of the state who shall hold office for the unexpired term of office of the last holder of the office.'On the situation in Kogi, Oke said, 'what is happening in Kogi is purely a PDP headache and the earlier the leadership of the party resolved the matter the better. It is out of place to swear in the Speaker as acting governor when a governor had been elected and declared the winner of legitimate election conducted by INEC. The inauguration of the elected governor remains authentic based on the constitution.'Sources however told The Guardian that at the truce meeting in Abuja at the weekend, in which Kogi Speaker, Capt Idris Wada, his deputy and the Attorney General of the Federation were in attendance, Bello Adoke, alongside top functionaries in the presidency, national leaders and stakeholders of PDP, attention was drawn to the failure of the lawyer, which represented Kogi in the matter, to file a supplementary plea to the jury with respect to the peculiarity of Kogi. And having noticed this lacuna, the AGF was expected to have interpreted the situation and prevented the impasse of the double inauguration. The meeting resolved to fast track legal and political procedures, which will ensure the assumption of Wada in a matter of days.Augustine Alegeh (SAN) said that the Supreme Court ruling was based on the fact that the tenures had expired and, 'there is no justification for the governors to remain in office. Otherwise it will amount to setting aside the Supreme Court ruling. What are they going to be doing if they remained in office' Section 180 sub-section 2 of the constitution, provides that a governor should vacate office at the end of his tenure and based on this there are no legal justifications for them to remain in office.On the peculiar scenario in Kogi, Alegeh said: 'My understanding is that there can be no lacuna in government. The situation is dicey in Kogi because the election of the governor-elect was conducted under the wrong belief that the governor's tenure was extended. Whether the election was valid or not is going to be subjected to judicial interpretation. And since there can be no lacuna, the Speaker of the House of Assembly can hold forth pending the resolution of the controversy.'Yusuf Ali (SAN) posits that said since the governor-elect came out by a process recognised by law, the swearing in of the Speaker is creating legal problem.
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