The judgment of the Supreme Court delivered on Friday, the 27th day of January has attracted the attention of the general public has it cumulatively determined the stay in office of Governors of five states in one swoop. The said judgment has further thrown up legal issues, particularly in Kogi State.
The peculiarity of Kogi State in relation to the said Judgment lies in the fact the election into the office of Governor of Kogi State was conducted on 3rd day of December, 2011. The said election produced the duo of Captain Idris Wada and Architect Yomi Awoniyi as Governor-elect and Deputy-Governor (elect) respectively.
Prior to the conduct of the election of 3rd December, 2011, INEC had called for nominations from political parties and each political party presented its candidates to INEC vides the conduct of party primaries. The Peoples Democratic Party (PDP), being a contender to the office of Governor of Kogi State equally conducted its Primaries on 22/9/2011 which primaries produced Captain Idris Wada as the PDP flag bearer and Architect Yomi Awoniyi as his running mate. The conduct of the PDP primaries was however challenged by Alhaji Jibrin Isah (Echocho) who contended that there was no need for the PDP to conduct fresh governorship primaries.
Consequent upon the Judgment delivered by the Supreme Court on 27/01/2012, the duo of Captain Idris Wada and Architect Yomi Awoniyi were sworn in by the President, Customary Court of Appeal, Kogi State. However, upon a directive from the Attorney-General of the Federation, the Chief Judge of the High Court of Kogi State administered the oath of office on the Speaker, Kogi State House of Assembly.
Several legal issues have been raised by the judgment of the Supreme Court which determined the election of former Governor of Kogi State, Alhaji Ibrahim Idris. Sympathisers in the camp of Alhaji Jibrin Isa have raised the issue of his mandate. Sympathisers in the camp of Captain Idris Wada have however canvassed the position that an election having been conducted, their man ought to have been sworn in as Governor.
Issues:
This paper seeks to address some of the legal issues generated by the said judgment, albeit, in summary. The issues identified are as follows:
i. Whether upon a proper construction of Section 178 (2) of the 1999 Constitution, a fall back can be had to the primary election conducted by political parties prior to the Court of Appeal Judgment extending the tenure of the sacked Governors.
ii. Whether upon a proper construction of Section 178 (2) of the 1999 Constitution, INEC could validly conduct election into the office of Governor of Kogi State on 3rd Day of December, 2011.
iii. Whether upon a consideration of the judgment of the Supreme Court delivered on 27th day of January, 2012, INEC could validly order the swearing in of Captain Idris Wada as the validly elected Governor of Kogi State.
Issue 1:
Whether upon a proper construction of Section 178 (2) of the 1999 Constitution, a fall back can be had to the primary election conducted by political parties prior to the Court of Appeal Judgment extending the tenure of the sacked Governors.
1) While preparing to conduct election into the office of Governor in each of the 36 States of the Federal Republic of Nigeria in the general elections conducted in 2011, the Independent National Electoral Commission (INEC) had indicated that election shall be conducted into the office of Governor of Kogi State amongst others.
2) INEC’s decision to conduct election into the office of Governor of Kogi State was challenged by the former Governor, Alhaji Ibrahim Idris (Ibro) at the Federal High Court, which held that Ibro was right in insisting that time was not due for the conduct of election into the said office of Governor.
3) INEC filed an appeal at the Court of Appeal and went ahead with preparations to conduct the said election. Upon this plan by INEC to go ahead with the governorship election, political parties conducted primaries to select representatives to fly the flag of their respective parties and to meet the deadline for submission of party candidates to INEC.
4) However, the Court of Appeal, in its wisdom upheld the verdict of the Federal High Court to the effect that time was not yet due for the conduct of election into the office of Governor of Kogi State.
5) It is imperative to note that prior to the said verdict of the Court of Appeal, parties had submitted names of flag bearers for the purpose of the said election. The Peoples Democratic Party submitted the name of Alhaji Jibrin Isa (Echocho) as its nominated flag bearer and nominated Chief Clarence Obafemi to run with him for the office of Deputy Governor. The All Nigeria Peoples Party nominated Prince Abubakar Audu as its flag bearer and nominated Dr. Moses Wokili to run with him for the office of Deputy Governor. Other political parties did likewise.
6) It is instructive to note that upon the said verdict of the Court of Appeal, INEC brought preparations for the conduct of election into the office of Governor of Kogi State and 4 other States to an abrupt end but went ahead to file an appeal against the decision of the Court of Appeal at the Supreme Court.
7) The Supreme Court in its far reaching judgment delivered on 27/01/2012 has however reversed the decision of the Court of Appeal and has gone ahead to hold that the tenure of Alhaji Ibrahim Idris did lapsed on 28/05/2011. Sequel to this development, there has been call in certain quarters that fresh election be conducted into the office of Governor of Kogi State on the basis of party primaries conducted prior to the Judgment of the Court of Appeal which has since been reversed.
8) It is clear that the Supreme Court, having held that the tenure of Alhaji Ibrahim Idris lapsed on 28/5/2011 has returned the Kogi electorate, so to speak to the days prior to the Judgment of the Court of Appeal. It is however instructive to note that the said finding of the Supreme Court cannot be said to ipso facto confer validity on the party primaries conducted prior to the said Judgment of the Court of Appeal. An insight to the relevant provisions of the 1999 Constitution is requisite.
9) Section 178(2) of the 1999 Constitution (as amended) provides that:
“An election into 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 terms of office of a last holder of that office.”
10) A proper construction of the constitutional provision referred to in the immediately preceding paragraph of the Constitution reveals that INEC shall conduct the election into the office of Governor of Kogi State 60 days and not later than 30 days prior to the expiration of the tenure of office of Alhaji Ibrahim Idris.
11) It thus follows that where the Court of Law declares that the tenure of Alhaji Ibrahim Idris lapsed on 28/5/2011, election into the office of Governor of Kogi State ought to have been conducted 60 days prior to 28/5/2011 and where not practicable, 30 days prior to 28/5/2011.
12) It is our contention that, the party primaries conducted prior to Court of Appeal Judgment recently reversed cannot be said to remain valid, the election into the office of Governor of Kogi State, having been not been conducted at least 30 days prior to 28/5/2011. The said nomination made therein fails and is invalidated by the reason of failure on the part of INEC to conduct the said lection within the time stipulated by the Constitution.
Issue 2:
Whether upon a proper construction of Section 178 (2) of the 1999 Constitution, INEC could validly conduct election into the office of Governor of Kogi State on 3rd Day of December, 2011.
1) For ease of reference, the provision of Section 178(2) of the 1999 Constitution is reproduced hereunder:
“An election into 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 terms of office of a last holder of that office.”
2) In construing the provision of Section 178(2) of the Constitution (supra), the dictum of Onnoghen, J.S.C. in the lead Judgment of the Supreme Court decided on Friday, 27/01/2012 is needful.
“It is settled in law that the time fixed by the constitution for doing anything cannot be extended. It is immutable, fixed like the rock of Gibraltar. It cannot be extended, elongated, expanded, or stretched beyond what it states.”
3) In the case of ALHAJI KASHIM SHETTIMA & 1OR. V. ALHAJI MOHAMMED GONI & 4 ORS. (Unreported) Consolidated APPEAL NOS. SC. 332/2011, SC. 333/2011 AND SC. 352/2011 decided by the Supreme Court on 31st October, 2011.
“It is my considered view that the three provisions quoted supra are clear and unambiguous and by the principles of interpretation of statute are clear and unambiguous, they must be given their ordinary meaning unless this would lead to absurdity or be in conflict with other provisions of the constitution or statute, effect must be given to those provisions without recourse to any other consideration, they ought to be so treated.”
4) It is our contention that the Supreme Court, having consistently held in recent times that time fixed for the doing of an act by the Constitution cannot be extended, the position then is where the Constitution fixes a time for doing an act, such an act cannot be validly executed before the time so fixed.
5) It is our contention that where the Constitution, as is provided for by Section 178(2) of the 1999 Constitution provides that election into the office of Governor of Kogi State shall not be conducted earlier than 60 days prior to or in the least 30 days prior to the terminal date of office of the last occupier of the said office, INEC cannot validly conduct the said election.
6) The election conducted into the office of Governor of Kogi State on 3/12/2011 was conducted on the basis of the Court of Appeal judgment which decided that Alhaji Ibrahim Idris’ tenure will lapse in April. Thus, in computing time within which INEC may validly conduct election into the office of Governor of Kogi State, regard must be had to 60 days before the April date which the said Judgment determined as an end to the said tenure of Alhaji Ibrahim Idris.
7) A proper computation of time within which INEC may validly conduct election into the office of Governor of Kogi State would fix the proper time sometime in February or March, 2012. It is submitted that INEC can only exercise its powers in Section 178(1) within the ambit of Section 178(2), both of the Constitution (supra).
8) The election conducted into the office of Governor of Kogi State by INEC on 3/12/2011 on the belief that the tenure of Alhaji Ibrahim Idris extinguishes in April, 2012 was done at a time when INEC had no constitutional power to so do as INEC can only be clothed with power to conduct election into the office of Governor of Kogi State in February or March, 2012.
9) An argument may be canvassed that having participated in the said election, parties will be had to have waived Section 178(2) of the Constitution (supra). It is however contended that parties cannot by agreement waive constitutional provision.
10) It is further contended that the judgment of the Supreme Court of 27/01/2012 cannot be latched on to like a life saving talisman to now hold that the said election was conducted at least 30 days prior to the determination of the tenure of office of Alhaji Ibrahim Idris. The said judgment held that Ibrahim Idris’ tenure lapsed on 27/05/2011 and the election of 3/12/2011 was not and cannot be said to have been conducted at least 30 days prior to 27/05/2011.
11) We submit that INEC is wrong to have ordered that Alhaji Ibrahim Wada, be sworn in as Governor of Kogi State as:
i. at the time INEC conducted the said election, it lacked requisite constitutional powers to have so held
ii. the election of 3/12/2011 was not and cannot be said to have been conducted at least 30 days prior to 27/5/2011.
Issue 3:
Whether upon a consideration of the judgment of the Supreme Court delivered on 27th day of January, 2012, INEC could validly order the swearing in of Captain Idris Wada as the validly elected Governor of Kogi State.
1) The Supreme Court, vides its judgment delivered on 27/01/2012 decided that:
a) the tenure of Alhaji Ibrahim Idris as Governor of Kogi State did extinguished on 28/5/2011
b) the oath of office taken by the Alhaji Ibrahim Idris on 29/05/2007 was not nullified by the Court of Appeal judgment which nullified the governorship election conducted in April, 2007 as his acts in office prior to the re-run election into the office of Governor of Kogi State in 2008 was equally not nullified.
c) the period between May, 2007 and the nullification of the April, 2007 election by the Court of Appeal, it is deemed in law that Alhaji Ibrahim Idris was in fact the de facto Governor of Kogi State, that is , a Governor in fact as opposed to being a Governor in the eyes of the law.
2) Upon an understanding of the principles flowing from the said judgment of the Supreme Court, it is clear that though the tenure of Alhaji Ibrahim Idris as Governor of Kogi State lapsed on 28/5/2011, he remained the de facto Governor of Kogi State between 29/5/2011 till 27/01/2012.
3) We submit that in determining when the office of Governor of Kogi State became vacant, the temptation is to draw a conclusion that the office became vacant on 27/01/2012.
4) Yielding to the temptation that the office of Governor of Kogi State became vacant on 27/01/2012 will lead to the belief that election into the office of Governor of Kogi State can be conducted at least 30 days prior to 27/01/2012. That will make the date of 3/12/2011, sufficient for the conduct of election into the said office. It is probable that INEC yielded to this temptation in making its order that Alhaji Idris Wada be sworn in as Governor of Kogi State.
5) It is trite that the Judgment of a Court, once dated the date of delivery, takes effect from the date it is dated safe upon an Order of Court.
6) The Judgment of the Supreme Court in issue is such that no Order was made for the Judgment to take effect from a date other than 27/1/2012. The Judgment of the Supreme Court, directing INEC to conduct election in the 5 States affected, Kogi State inclusive can only take effect from 27/1/2012.
7) It is thus our contention that the Judgment of the Supreme Court cannot be made to retroactively confer power on INEC to conduct an election that had been concluded without requisite constitutional powers. To so do would amount to acting on a decision of Court to clothe an act past done illegally with a toga of legality. May such a day never come that such calamitous iniquity will be foisted on the much sought for democracy. What is more, such constitutes a brazen rape of the hallowed provisions of section 178(2) of the Constitution (supra).
8) We contend that being the de facto Governor of Kogi State between 28/5/2011 and 27/1/2012 does not ipso facto vest in Alhaji Ibrahim Idris the legal right to occupy the said office. The mere fact that he was not Governor de jure, that is, he was not Governor in the eyes of the law implies that Kogi State, in the eyes of the Constitution (supra) had no Governor between 28/5/2011 and 27/1/2012. The fact that the said clothe stolen by a man remained with him for eight months does not by any stretch of imagination vest in him, ownership of the stolen clothe.
9) The fact that Ibrahim Idris remained as de facto Governor of Kogi State till 27/1/2012 does rob light out of the fact in law that the office of Governor of Kogi State became vacant on 28/5/2011.
10) It is further trite that, INEC having not conducted election into the office of Governor of Kogi State 60 days prior to or at least 30 days prior to 28/5/2011 cannot now validly conduct the said election safe upon the Order of a competent Court of law.
11) The power to now conduct election into the office of Governor of Kogi State lies in the Order of the Supreme Court made on 27/1/2012. INEC cannot be said to be seised with such powers as at 3/12/2011 when it conducted the election by which it returned Alhaji Idris Wada as Governor-elect.
12) It thus follows that Order made by INEC to administer oath of Office of Alhaji Idris Wada is such that was made in error of law as it only became seised with power to conduct election into the office of Governor of Kogi State on 27/1/2012 and not before then.
Kogi Lawyers in Diaspora
