Politics-Nigeria - The Court of Appeal sitting in Abuja Friday affirmed the judgment of a Federal High Court which barred the Independent National Electoral Commission from holding governorship election in five states because the tenure of the governors had not yet come to an end. In a judgment that was read for close to two hours, five justices of the appeal court commended the trial judge, Justice Adamu Bello , for coming to the right conclusion when it held that the earlier oath of office taken by the governors had been nullified with the election.

The court said its duty was to apply the law as it was and not sentiment.

The affected governors are Alhaji Ibrahim Idris (Kogi), Aliyu Wammako (Sokoto), Murtala Nyako (Adamawa), Liyel Imoke (Cross Rivers) and Timipre Sylva (Bayelsa).

With the affirmation of the high court judgment , the tenure of the five governors will expire at various times other than May 29 this year.

By the judgment Idris will leave office on April 5th, 2012, Wamako will vacate office on 28th May, 2012, Nyako will leave on 30th April 2012, Sylva on 29th May 2012 while Imoke will vacate office on 28 August 2012. But INEC was dissatisfied and lodged an appeal at the Court of Appeal in Abuja.

In the lead judgment read by Justice Paul Galinje, he pointed out that the implication of the nullification of the governors' April 2007 election was that no election ever took place and that they were never governors for the purpose of determining when their tenure would expire.

He explained that when an election had been nullified, it meant that that election never took place and therefore did not exist. He then asked the question how the governors' tenure would be computed from an election that never took place in the eyes of the law.

He said: 'The earlier oath taken by the governors cannot be used a reference point when determining when the tenure of the governors will end. This is because the election upon which they took the oath was not held in accordance with law.'

According to him, nobody can be validly elected in an invalid election. He said prior to their re-election, the position of law was that the governors were not governors.

He said the interpretation of Section 180 (2) (a) given by the trial judge was correct in law and was in line with the interpretation given by the Supreme Court in Peter Obi Vs INEC.

'The judge should be commended for applying the law as expounded by the Supreme Court. He should not be condemned,' he added.

Justice Galinje rejected INEC's argument that the number of years already spent in office by the governors before their elections were nullified should be taken into account.

He said: 'In law, there were no elections in the five states in April 2007. In the eyes of the law, the governors were not elected governors in April , 2007.'

The court also said the case of former governor of Oyo State, Adewolu Ladoja did not apply because when his impeachment was nullified, he did not take a new oath and besides, his election was never nullified rather it was his impeachment that was nullified.

The court also said the amendment to the 1999 Constitution could not operate retroactively so as to deny the governors their right to complete their tenure.

'In conclusion, the appeal is hereby dismissed. The judgment of the lower court is hereby affirmed,' Justice Gallinge said.

In his judgment in the consolidated suits filed by the five governors, Justice Adamu Bello held that the tenure of the governors legally started in 2008 when they took fresh oath of office and allegiance following the nullification of their April 14, 2007 elections by the courts.

The court held that since the 2007 elections were nullified and set aside by competent courts, the oath of office and allegiance subscribed to by the five governors had all been nullified and set aside along with the elections.

Justice Bello held that in line with section 180 of the 1999 constitution, the tenure of the governors legally commenced in 2008 and not in 2007 since the 2007 election that brought them into office in the first instance had been declared a nullity.

The judge said the 2007 elections being used by INEC to determine the tenure of the governors did not exist in the eyes of the law having been legally declared null and void by competent courts of law. The Judge said nothing could stand on nothing.

However, Justice Bello said although, section 180 of the 1999 constitution was amended in 2010 by the National Assembly and signed into law by the President, the amendment had no effect on the five governors since their re-run election had taken place before the amendment.

Justice Bello said there was nowhere in the world where a constitution took retroactive effect as erroneously held by the INEC adding that the said amendment could not be used to determine the tenure of the governors who took oath of office in 2008.

Consequently, the court quashed the preparations by INEC and PDP to conduct elections in the affected states and ordered that elections would only take place in the states next year.

But INEC was dissatisfied with the decision and filed an appeal at the Court of Appeal in Abuja.

In the appeal, INEC said Justice Bello was wrong when it granted the governors' claim. The commission argued that the 1999 Constitution did not envisage a situation where a governor would spend more than for years on a single term.

Before the appellate court reserved the appeal for judgment, all the parties stated their respective positions.

While adopting his briefs, INEC's lawyer, A.B. Mahmud SAN asked the court to set aside the judgment of the high court.

He argued that the governors' tenure should be counted from the day they took the first oath of office.

According to him , the amendment of the 1999 constitution has affected the governors' terms in office since new elections would be conducted under the amended constitution.

He said the trial judge was wrong when he held that the first oath of office taken by the governors had been nullified with the election.

He submitted that the lower court was wrong in arriving at the conclusion that the first oath of office taken was irrelevant and that the amended constitution did not affect them.

Counsel to PDP, Chief Olusola Oke, urged the court to dismiss the appeal for lacking in merit.

He argued that once a court nullifies an election, everything including the oath of office taken would be deemed nullified.

Oke added that the calculation of the term of office started from the date of the second oath of office in as much as the first oath had been nullified by a competent court.

He further added that the amended constitution could not take retroactive effect.

Tobi Soniyi

This Day/15/04/2011