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Tenure extension/re-election as a compensatory remedy for illegal interruption of a governor’s tenure

By Sylva Ogwemoh (SAN) and Uboho Inyang   |   30 May 2017   |   2:00 am  

Justice Walter Onnoghen


Recently, Governor Ayodele Fayose made headline news with a statement credited to him, which signalled his intention to seek for a tenure elongation or re-election for a compensatory tenure to make up for the unexhausted part of his truncated first tenure.

It would be recalled that sometime in 2006, Governor Fayose, then in his first tenure as Governor of Ekiti State, was removed from office in a questionable manner through an impeachment process which was later declared unlawful by the Supreme Court – the harm having already been done to him after he had lost about seven months of his tenure.

As expected, the said statement has thrown up a heated debate amongst legal luminaries, political pundits, and a cross section of the Nigerian society, with the main thrust of the argument anchored on what constitutional fate awaits Governor Fayose. Interestingly, on one side of the divide are those in support of Governor Fayose’s alleged ambition and on the other end are those who view same as untenable.

Whilst we await the pronouncement of the Supreme Court on this issue, hoping that Governor Fayose makes good his promise to first approach the Apex Court for interpretation of Section 180(2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), with respect to the constitutionality of a tenure extension/re-election of an illegally impeached Governor – before throwing his hat into the ring, it appears that this issue has hitherto been addressed by the Apex Court in its previous decisions, albeit not so expressly highlighted. This article thus seeks as its major objective, to unearth the position of the law on the issue at hand through a holistic interpretation and proper application of relevant statutory/decided authorities.

For reference purpose, the said section 180(2) of the Constitution which is the subject of interpretative contest, states as follows: “180(2) Subject to the provisions of subsection (1) of this section, the Governor shall vacate his office at the expiration of 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 Oath of Allegiance and oath of office or would, but for his death, have taken such oaths.”
POINTS IDENTIFIED

The following points are apparent from the provision of section 180(2) of the Constitution and the controversy now raised by the statement credited to Governor Ayodele Fayose: 1. Whether the duration of the four-year tenure of a state governor as constitutionally envisaged, ought to be uninterrupted. 11. Whether an unexhausted part of a four-year tenure of a state governor illegally impeached in the course of his/her term, ought to be discountenanced in the computation of his/her full tenure. 111. Whether the tenure of office of Governor of a State can be extended to compensate for period out of office due to unlawful impeachment.

We shall now proceed in this discourse to examine briefly the points raised above before arriving at a conclusion on whether the position now sought to be taken by Governor Fayose would find support in law.Whether the duration of the four year tenure of a state governor as constitutionally envisaged, ought to be uninterrupted

It is clear, that Section 180 (2) of the Constitution makes provision for a four-year period as a single tenure for a governor in office. However, the Constitution does not expressly state whether or not such duration ought to be uninterrupted. This prompted the Supreme Court’s pronouncement on this point in LADOJA V. INEC & Ors. Per Aderemi, J.S.C., where the Court faced with a similar circumstance as applicable in the case of Governor Fayose, stated as follows:“…he (1st respondent/cross-appellant) took his oath of allegiance and oath of offices as Governor of Oyo State on the 29th of May, 2003. The wordings of section 180(2)(a) and (b) are very clear and unambiguous. Being a person first elected as Governor, his four-year tenure would start to run from the 29th of May 2003. It is true that by the impeachment foisted on him by the State House of Assembly whose impeachment was later declared null and void by court, he was kept out of office for a period of eleven months that he is praying the court to declare that he is entitled to a term of four uninterrupted years in office as Governor of Oyo State commencing from the 29th of May, 2003 and consequently, to hold that by virtue of the provisions of section 180(2)(a) of the Constitution applicable, he is entitled to remain in office until 29th April, 2008 when, according to him, what he described as his term of four uninterrupted years as Governor of Oyo State would expire. I have again carefully read the aforesaid provisions of the Constitution; the word uninterrupted was not used to qualify the four-year tenure to which the plaintiff/appellant was entitled as Governor of Oyo State (underlining mine)”

By virtue of the above dictum, the Supreme Court passed the message that the Constitution does not give room for any interruption in the computation of the four-year duration of a Governor’s tenure. The law therefore requires that once a Governor takes the oath of office, the clock of his/her tenure mandatorily programmed by the Constitution to function for four years, starts ticking and not even an illegal impeachment can pause its functioning, nor hold its hands from ticking.

Whether an unexhausted part of a four-year tenure of a state governor illegally impeached in the course of his/her term, ought to be discountenanced in the computation of his/her full tenure.

In addressing this point, the Supreme Court’s decision in Ladoja’s case (supra) again comes to the rescue. In that case wherein the then Governor of Oyo State (Senator Rashidi Ladoja) was impeached from office on 12/1/06 – a process, which the Supreme court later declared unconstitutional on 11/12/06. Unfortunately, that unconstitutional occurrence kept him out of office for eleven months and upon his re-instatement, he asked for an extension of his tenure by eleven months so as to make up for the unused period of his four-year term.

The Supreme Court whilst declaring that there is no constitutional provision protecting a Governor improperly impeached, stated inter alia that the unexhausted period of an illegally interrupted tenure still cannot be discountenanced from the computation of the entire tenure. The following dictum is apposite herein: “…Chief Robert Clarke, SAN for the plaintiff/appellant, in his very persuasive argument before us referred to the judgment of the Court of Appeal in A.G., Federation v. A.N.P.P. & Ors. (2003) 15 NWLR (Pt. 844) 600. He contended that once the event, which interrupted the tenure of the plaintiff/appellant was pronounced illegal, the court ought to compensate the plaintiff/appellant by granting him an extension of tenure for the period of 11 months, which the improper impeachment denied him. It is settled law, that when an act is declared null and void, the position is that from the angle of the law, the act never took place. It is completely wiped off and considered as extinct and deemed never to have existed…

It is in the light of this legal position that plaintiff/appellant’s counsel wanted this court to discountenance the period of 11 months when he was illegally impeached in the computation of the 4-year tenure granted him under the section 180(2) of the Constitution. Much as one may be in sympathy with the plaintiff/appellant’s cause, it seems to me that to accede to his request will occasion much violence to the Constitution. This court can interpret the Constitution but it cannot rewrite it. In awareness of the possibility that an occurrence may prevent a Governor from being sworn in on the same date as his counterparts in the country, section 180(2) states that tenure be computed from the date the oath of allegiance and oath of office is taken. There is no similar provision to protect a Governor improperly impeached. I am therefore, unable to perform a duty, which the Constitution has not vested in the court.

As can be observed, the above dictum draws life from the logical reasoning that since the Constitution does not accommodate any interruption in the tenure of a governor, it naturally flows that no part of that period can be discountenanced in its computation, whether exhausted or unexhausted.Whether the tenure of office of governor of a state can be extended to compensate for period out of office due to unlawful impeachment –

As a follow-up to the points already discussed, is the crucial need to determine whether or not an extension of a tenure of a Governor is tenable.
From the wordings of section 180(2) the oath of office taken by a person as Governor remains sacrosanct and it determines from which point a four-year tenure begins and when it elapses after completion of the cycle, thereby leaving no room for extension by any external force or body or arm of government- not even the Supreme Court, as rightly held by the Court in LADOJA v. INEC & ORS. (supra) thus: “Neither the Supreme Court nor any other court has power to extend the period of four years prescribed for a Governor of a Stage beyond the terminal date calculated from the date he took the oath of office.”

Again in the recently decided case of NYAKO V. ADAMAWA STATE HOUSE OF ASSEMBLY & ORS1, the same Court per Justice Mary Odili, JSC, reasoned as follows: “This Court in a recent case involving Marwa v. Nyako (2012) 6 NWLR (Pt. 1296) 199 at 387 stated that section 180(1) and 2(a) of the 1999 Constitution of the Federal Republic of Nigeria has prescribed a single term of 4 years and if a second term, another period of 4 years and not a day longer. Therefore, no court in the land has the power to extend that period of either the 4 years’ single term or the second term of another 4 years and so if peradventure something such as an illegal impeachment eroded into that 4 years’ term, it is too bad as that period of infraction cannot be brought back or an extension of time to add up to what was lost…”

On the stand point of the above decisions, it suffices that by constitution/legal standards, the extension of a Governor’s four-year tenure (even when he/she is illegally impeached), can be likened to an attempt to pass a bull’s head through the head of a sewing needle- surely, in the simplest and clearest of terms, this only amounts to an impossibility.
Distinguishing the instant case from the case of peter Obi v. INEC:

Before bringing the discourse to a close, it is pertinent at this point to distinguish this case herein from the case of PETER OBI v. INEC & ORS, which has been erroneously likened to the case at hand. It is interesting to note that though Peter Obi’s case generally as with the instant case, has to do with the computation of a Governor’s tenure, it is different from the case of Governor Fayose in terms of specific application and interpretation. This is so because Peter Obi’s case applies specifically to ensure the completion of the tenure a person whose lawful mandate – having been earlier illegally seized by another person not legally elected – is later reclaimed by him/her, pursuant to which he is sworn in; whereas, the instant case deals with the remedies available to a person who having already taken his oath of office and launched into his/her tenure, there occurs an unlawful interruption of his/her tenure. Thus, the decision in Obi’s case, which made it possible for extension of his tenure does not apply to Governor Fayose’s case

CONCLUSION:
Having applied the law in its proper perspective in the argument so far, it is left no doubting the fact that a person whose tenure is interrupted (albeit illegally), has no right to seek for tenure extension or re-elected to make up for the unexhausted part of his/her four-year tenure.

However, it can be gleaned from constitutional understanding that the only situation wherein the Constitution would allow tenure extension for a State Governor, is the case where one who having been lawfully elected was ab initio prevented from being sworn in, but would later upon the reclaiming his mandate be sworn into office as Governor as was the scenario in Peter Obi’s case. Notably as earlier said, this exception is of exclusive application- hence, as captured in section 18 to the First Alteration to the 1999 Constitution, a person already sworn in as Governor, whose election was later upturned by the Court/Tribunal, and who having re-contested and won the election and again sworn in, will have his/her tenure computed to include both the period he/she held forth illegally and the period he was out of office during which the subsequent election was conducted.

As strict as the position of the law is on tenure elongation, can then be said that such victim is helpless in the face of the wrong done to him? The answer to this poser would certainly be in the negative, flowing from the backdrop of the principle that law/equity does not suffer an injury without a remedy9. It is on this relieving note that there is no better way to bring this discourse to a close than identifying such available remedy and this leads us to the following question:

What is the remedy available to an unlawfully impeached person?
Considering that an illegal impeachment carries no force of law, the person illegally impeached from office as Governor, is deemed in law not to have left office in the first place. Hence, though he cannot gain back the lost period, but as compensation, he is no doubt entitled to benefits that accrued to him within the said period.

In effect, the only available remedy to a victim of illegal impeachment like Governor Fayose, in our considered opinion in this article, is not tenure extension or re-election for compensatory tenure, but as put directly by Musa Datttijo Muhammad, J.S.C. in NYAKO V. ADAMAWA STATE HOUSE OF ASSEMBLY & ORS is that he “…at best could be paid his salary and other entitlements for the residue of his tenure he otherwise would have served but for his removal…”

However, it must be further noted that such financial claim can only succeed if maintained against the occupant of the office within the period the illegally impeached Governor stayed out of office during the pendency of his/her four-year tenure and not against the State.
Ogwemoh (SAN) and Uboho Inyang are of the law firm of Kevin Martin Ogwemoh Legal.



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