Africa

UBA’s Controversial Governorship Mandate

I read with great interest the write-up of Mr. Nkemjika Nkemjika titled: “Uba’s Controversial Governorship Mandate”, published in This Day Newspaper on 19th September, 2009. Mr. Nkemjika was responding to opinion of one Mr. Olawale Olaleye’s article in “The Cicero” section of This ay Newspaper.
 
Let will start by saying that Mr. Nkemjika made a very powerful submission on this issue and was arguing passionately about what he believed was the position of the law. Anyone that is not conversant with the ruling of the Supreme Court or the intricacies thereby would be moved to give a second thought about the said ruling. His argument was well presented and forcefully argued. However, I strongly disagree with his postulations, with due respect, since he arrived at a wrong conclusion based on his losing site of the provisions of the constitution as regards the powers of the Supreme Court. I have to say that I do not know whether or not it was intended to confuse the uninitiated.
 
Mr. Nkemjika started off by saying: “To be sure, on the Governor Peter Obi tenure case, the Supreme Court held: “that the office of the Governor of Anambra State was not vacant as at 29th May, 2007, that the tenure of the office of the appellant (Mr. Peter Obi) as Anambra State, which is four years, will not expire until 17th March, 2010 for the reason of the fact that he, being a person first elected as Governor under the 1999 Constitution, took Oath of Allegiance and Oath of Office on the 17th March, 2006, that the 5th Respondent (now Applicant), Dr. Emmanuel Andy Uba, should vacate the office of the Governor of Anambra State with immediate effect to enable the Plaintiff/Appellant, Peter Obi, to exhaust his term of office.”
 
The above quotation is the premise of the whole argument about the unambiguous Supreme Court ruling, and every other conclusion reached on the above premise should be in line with this ruling. The conclusion must always be that the office of the Governor of Anambra state was not vacant as of 29th May, 2007, since Governor Obi’s tenure was still subsisting and does not end until 17th March, 2010. If the office of the Governor was not vacant as of the afore-mentioned date, it then follows that any election to the office of the Governor was an exercise in futility for it would be a clear violation of Section 178 (2) of the Constitution.
 
Section 178 (2) of the Constitution clearly stipulates that:
 
“An election to the office of Governor of a state shall be held on a date not earlier than sixty days and not later than thirty days before the expiration of the term of office of the last holder of that office”.
 
In order words, any election held before 17th January, 2010, which is over sixty days prior to the termination of the tenure of the occupant of the office of governor (in the case of the purported election that brought Andy Ubah to office) or after 17th February, 2010, (which would be less than thirty days prior to expiration of the tenure of an occupant of the seat of governor) is in violation of Section 178(2) of the Constitution and therefore null and void and of no effect whatsoever.
 
In his academic exercise, Mr. Nkemjika went further to say: “If there is any doubt about what the Supreme Court said about the Obi tenure case, all we need do is turn to Aderemi JSC who read the lead reasons for the Supreme Court judgment on the matter, for assistance. According to Aderemi JSC, “I have earlier in this judgement said that Sections 178(1) and (2), 184, and 285 of the 1999 Constitution relate to Electoral Matters, but the suit of the Appellant is far from being Electoral Matters; it is one inviting the court to declare by examining the provisions of Section 180(2) of the 1999 Constitution when the tenure of the office of the Appellant (Mr. Peter Obi) as Governor of Anambra State will come to an end having regard to the fact that he took his Oath of Allegiance and Oath of Office on the 17th of March, 2006. Section 180 deals specifically with tenure of the office of a Governor; it envisages that the elections are over; it now defines the period a successful candidate for the post of Governor will stay in office. That section is self-explanatory; it has nothing to do with Electoral Matters. I shall, therefore, not subscribe to a community reading of the aforementioned sections of the constitution as urged. They are irrelevant here. Suffice it to say that I have held that the present suit is not an Electoral Matter.”
 
Mr. Nkemjika further asked:
“Does it mean that the apex court never deliberated on or ruled on the validity or otherwise of the 2007 governorship election in Anambra State? Does it not mean that the Supreme Court never ruled on whether Uba was validly elected or not in 2007 as Governor of Anambra State? Does it not mean that the apex court never pronounced judgment on whether INEC ought not to have conducted the 2007 Governorship election in Anambra State?”
 
He concluded that the Supreme Court’s declaration on the Peter Obi’s case was made outside the Supreme Court’s jurisdiction and therefore the ruling on a case without jurisdiction, the said assumption of jurisdiction by the apex court by virtue of the fact that that it violated Section 233(2) (e) of the Constitution which stated:
 
“Section 233(2) (e) of the 1999 Constitution says, “An appeal shall lie from decisions of the Court of Appeal to the Supreme Court as of right in decisions on any question – whether any person has been validly elected to the office of President or Vice-President under this constitution, whether the term of office of President or Vice-President has ceased, and whether the office of President or Vice-President has become vacant.”
 
He then stated that: “As could be gleaned from the provisions of section 233(2)(e), the Supreme Court does not have the powers to have declared on June 14, 2007 that Obi’s tenure as Anambra State Governor must end on March 17, 2010. Similarly, the Supreme Court does not have the powers to have asked Uba to vacate Government House, Awka, so that Obi could exhaust his term of office.”
 
He also quoted Section 246(1) (b) of the constitution which says, “An appeal to the Court of Appeal shall lie as of right from – decisions of the… Governorship and Legislative Houses Election Tribunals on any question as to whether – any person has been validly elected to the office of Governor or Deputy Governor; or the term of office of any person has ceased; or the seat of any such person has become vacant.”
 
Mr. Nkemjika was right; the case of Obi Vs INEC was not about Election Matters. He was also right when he stated that the Court of Appeal has jurisdiction with regard to Election Petitions arising out of Gubernatorial and Houses of Assembly Elections in consonant with Section 246(1) (b), and that the Supreme Court has appellate jurisdiction over Presidential and Vice-Presidential Election matters. However, what Mr. Nkemjika did not put into consideration was that fact that the Supreme Court has an appellate jurisdiction to hear and determine appeal from Courts of Appeal in consonance with the constitution.
 
According to the Section 233(1) of the constitution,  
“The Supreme Court shall have jurisdiction, to the exclusion of any other court of law in Nigeria, to hear and determine appeals from the Court of Appeal”
 
Also sub-section (2) states that:
“An appeal shall lie from decisions of the Court of Appeal to the Supreme Court as of right in the following cases:-
 
(a) where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings before the court of Appeal;
 
(b) decisions in any civil or criminal proceedings on questions as to the interpretation or application of this Constitution….”
 
The Supreme Court assumed jurisdiction to interpret Section 180(2) of the Constitution in relation to Governor Peter Obi’s tenure of office. By this interpretation of the Constitution, the Supreme Court rightly decided that 17th March 2006 when Governor Obi took his Oath of Allegiance and Oath of Office, to 29th May, 2007 when Andy Uba was wrongly sworn in, did not amount to completion of Governor Obi’s tenure of four years as was stipulated by the Constitution.
 
What many people for some reasons did not put into account is the fact that Obi’s Case was instituted long before the April 2007 Election that purportedly brought Andy Uba to office. The case did not originate from the Supreme Court. It was in the Enugu Federal High Court that Obi instituted his action. He was denied by the Federal High Court and he appealed to the Court of Appeal, Enugu. It was after the Court of Appeal declined jurisdiction that Mr. Obi further appealed to the Supreme Court. The Independent National Election Commission (INEC), under Professor Maurice Iwu was aware of Mr. Obi’s court action to determine the latter’s tenure of office.
 
In fact, INEC was the first respondent in the matter. Also Andy Uba was the fifth respondent in the same matter. Even when INEC was in a haste to conduct the election when the case was still pending in the Supreme Court, Mr. Obi’s lawyer, Dr. Onyechi Ikpeazu, SAN, wrote INEC to formally protest its insistence on conducting an election when an appeal was pending in the apex court; an appeal that had a potential of making nonsense of the outcome of the election. However, INEC went ahead to hold the election. The only inference to be drawn from INEC’s action was to render mute the positive outcome of Obi case. Furthermore, after the purported election took place, Obi’s lawyer also applied to the Supreme Court to issue an injunction to stop Andy Uba from being sworn in as governor of Anambra State. The court did not issue the injunction as prayed, but allowed the said inauguration of Andy Uba to go ahead as scheduled. However, the court warned Andy Uba that if Obi’s appeal was found to have merit, that Uba would be ordered to vacate the office of governor immediately.
 
So like I earlier said, the Obi’s case was not an election matter, which the Supreme Court had not jurisdiction to entertain, and Mr. Nkemjika admitted that much. However, the judgment had overwhelming consequences on Andy Uba’s purported election. They are two different things. Also the injuries suffered by Andy Uba as a result of INEC’s actions were self-inflicted as both INEC and Mr. Uba were walking in locked steps as regards the election. They obviously miscalculated what the outcome of the case would be. It could safely be said that they were thinking that the Supreme Court would say “too bad, your time ran out” to Mr. Obi; or that the court would say that Obi’s case was “overtaken by events”, the events being the election of Andy Uba. In fact, the court chastised INEC for its action of not waiting for the outcome of the case before hurriedly organizing an election.
 
As for the issue of whether the judgment of the Supreme Court nailed the coffin on the so-called Andy Uba’s governorship mandate, Tabai JSC in the same case (Obi Vs INEC) held that “the decision that the appellant, Mr. Peter Obi, is still the governor and remains the governor until March 17, 2010 supersedes, cancels and nullifies the purported election or inauguration of the fifth defendant (Andy Uba) as the governor of Anambra State. The fifth respondent was therefore not the appellant’s successor in office to have taken the Oath of Office within the meaning of Section 180(1) (a) of the Constitution”. The Supreme Court, Per Tabai JSC did not leave anyone in doubt as to the whether or not Andy Uba is a Governor-in-Waiting, or not. The judgment of the Supreme Court was express as to the validity of Andy Uba’s purported election. By interpreting the constitution (Section 180(2)), the Supreme Court was not usurping the powers of the Court of Appeal who has a final say about cases arising out of Governorship Election.
 
Even though the consequence of the Supreme Court ruling was that Andy Uba should vacate the office of Governor since Mr. Obi has not completed his tenure, the Supreme Court was not usurping the powers of Court of Appeal. The Supreme Court was merely exercising its power to interpret the constitution. The case of Obi Vs INEC as Mr. Nkemjika rightly pointed out was not an Election Petition. That being the case, the Supreme Court was not assuming jurisdiction in that case to inquire about whether the election that brought Andy Uba to power was validly conducted. The apex court was only carrying out its constitutional duties as to whether or not Governor Obi has completed his tenure of office with regard to Section 180(2) of the Constitution. Many people always try to convolute the action of the Supreme Court to suit their argument.
 
Mr. Nkemjika finally stated that the Supreme Court having wrongly usurped the jurisdiction of the Court of Appeal, that the said ruling of the apex court is void, and a nullity. He quoted the case of Salatu Vs Shehu (1986) which maintained the quotation of Lord Denning in UAC Vs McFoy:
 
“If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of court to set it aside. It is automatically null and void without much ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”
 
I hope that Mr. Nkemjika was not advocating that the Court of Appeal rule against the Supreme Court’s decision or decide anything that would subvert the constitution with regard to the powers of the Supreme Court. There is what is called hierarchy of courts, and the Supreme Court, being the apex court can sit on appeal coming from lower courts including the Court of Appeal. Section 287 of the I999 Constitution stated clearly that:
 
“The decision of the Supreme Court shall be enforced in any part of the federation by all authorities and persons and by courts with subordinate jurisdiction to that of the Supreme Court”.
 
Any attempt by the Court of Appeal (which I learnt is currently hearing Andy Uba’s issue of whether or not he should succeed Obi) to issue any judgment that is at variance with that of the Supreme Court would amount to judicial rascality at best or judicial lawlessness/anarchy at worst. I also learnt as was reported in the news that Andy Uba wants to stop INEC from conducting the February 5, 2010 election. What an irony of history! This was the same thing that Andy Uba and his INEC refused to heed.
 
Let me also add that the said lack of jurisdiction by the Supreme Court to decide the matter had been canvassed not once, not twice, but three time before the Supreme Court and the apex court heard those failed arguments and dismissed same three times. The argument for the court to overrule itself since its decision in Obi’s case was reached per incuriam (in error) as it was made without jurisdiction failed woefully as the Supreme Court not only chastized Uba for bringing the same appeal two times over, but also the Supreme Court choice words for Uba’s attorneys.
 
The same argument is being recycled in the Court of Appeal. If the Court of Appeal capitulate to this subversion of the constitution and the age-long stare decisis (stand by what was decided) then there would be an outrage which the National Judicial Council would be coming out full force against. Even God the Son did not refuse to abide by the commands of God the Father eventhough the former had wished that the Father had taken the cup away; how much more the Court of Appeal Justices against the Supreme Court. The Court of Appeal has no choice in the matter. So what if the Supreme Court decision was in error? Every court surbordinate to it is still bound by the decision of the Supreme Court. This principle of law has been upheld in cases after cases. See Young Vs Bristol Airways
 
The consequences of not heeding the voice of reason by INEC in April 2007 by going ahead to conduct the election, had been dealt with by the Supreme Court, per Tabai JSC. By the order of the apex court, the 2007 election did not happen in law. It was an exercise in futility. So there was no mandate to be assumed by Uba. The so called election of 2007 never existed in law since it was conducted in violation of Section 178 (2) of the Constitution and therefore void ab initio. So there was nothing for the Court of Appeal to rule on, since the purported mandate of Andy Uba never existed in law. In the words of Lord Denning quoted above, there was no need for a Supreme Court order to set it aside. It was automatically null and void without much ado.
 
 
*Chukwudi Nwokoye writes from Maryland, USA. nwokoyeac@hotmail.com

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