THE Independent National Electoral Commission (INEC) yesterday prayed the Court of Appeal, Abuja Division to set aside the judgment of the Federal High Court, Abuja Division, whereof it held that the tenure of five states governors would extend beyond May, 29, 2011.
Mr. Justice Adamu Bello of the Federal High Court had on February 23, 2011 while delivering his decision on the suit filed by Governor Ibrahim Idris of Kogi State and four others held that no election should be conducted for the governorship seats in those states until 2012.
The other beneficiaries include Governors: Aliyu Wamakko (Sokoto), Muritala Nyako (Adamawa), Liyel Imoke (Cross Rivers) and Timipre Sylva (Bayelsa).
Meanwhile, the House of Representatives has invited the INEC leadership for questioning over their alleged roles in the just concluded party primaries.
According to Justice Bello, Idris's tenure expires on April 5th, 2012, Wamakko vacates office on 28th May, 2012, Nyako leaves on 30the April 2012, Sylva will leave on 29th May 2012 while Imoke will leave on 28 August 2012.
But dissatisfied with the trial court's decision, the electoral umpire has beseeched the Appeal Court, praying it to upturn the said decision on the premise that it was an error of judgment on the Judge.
And determined to deprive the governors of the fruit of the victory, INEC has also filed an application at the Federal High Court for a stay of execution of its judgment pending the determination of the appeal at the appellate court.
In the Notice of Appeal filed on INEC's behalf by Carol Ajie, the commission catalogued several grounds of error, which it had grouse with.
Ajie said, "the Learned Trial Judge erred in law when he held at pages 39-40 of his Judgment that "in their written submissions, plaintiffs have placed relevance on the case of OBI vs. INEC (2007)11 NWLR (PT. 1046) P. 565, A.G. ANAMBRA STATE vs. A.G. FEDERATION (2007) 12 NWLR (PT. 1046) p.1; LADOJA vs. INEC & 2 ORS (2007) 12 NWLR (PT. 1047) p. 119 among others to the effect that these cases are relevant for the
determination of the suits.......having had the opportunity to read the above cases and others cited by the parties, I believe that the case of OBI vs. INEC (supra) in which the Supreme Court interpreted the provision of section 180(2) of the 1999 Constitution is relevant to the determination of the issues relating to the tenures of the Plaintiffs contrary to the position of the defendants except PDP." And then proceeded to consider the dictum in OBI vs. INEC (supra), when the dicta in OBI vs. INEC and LADOJA vs. INEC & 2 ORS (supra) both have significant bearing and relevance to the issues raised in the consolidated suits before him".
Citing the particular of error, INEC said "In OBI vs. INEC (supra) the Supreme Court per Aderemi JSC held that in applying the provisions of section 180(2) of the Constitution of the Federal Republic of Nigeria, 1999, the four-year term of office of Peter Obi, as Governor of Anambra State will run from 17th March, 2006 when he was first sworn-in to 17th March, 2010 because Dr Chris Ngige's election having been annulled, the period Chris Ngige was in office as the Governor of Anambra State could not count for the period a different person, who was a victim of electoral irregularities i.e. Peter Obi first assumed the office of Governor of his State, on 17th March 2006."
It said: "Whereas Plaintiffs/Respondents' case ought to have been
distinguished from Obi's because they had been in office as Governors before they were removed by the Court of Appeal for electoral irregularities and a re-run election having been conducted within 90 days, returned to the same office, re-sworn continued from where they had their tenures briefly interrupted."
INEC argued that "In LADOJA vs. INEC & 2 ORS (supra), the Supreme Court held that the period Ladoja was out of office as Governor of Oyo State (eleven months) which was a longer period than the period of interruption experienced by the Plaintiffs/Respondents in the consolidated suits, counted in computing Ladoja's four-year tenure who was removed by the Oyo State House of Assembly and subsequently re-instated by a court order that nullified the process of his removal and declared it illegal."
It submitted that "both the principle enunciated in the cases of OBI vs. INEC and LADOJA vs. INEC & 2 ORS do not support the erroneous conclusion reached by the Learned Trial Judge that the re-run tenures for the Governors of the five States would start afresh under section 180(2) of the 1999 Constitution."
The Notice of Appeal goes further to state that "the Learned Trial Judge erred in law in shutting his eyes to the circumstances of the
Plaintiffs/Respondents Governors' re-run elections when he relied on the case of PROGRESSIVE PEOPLE'S ALLIANCE (PPA) & ANOR vs. INEC & 3 ORS (2010) 12 NWLR (PT. 1207) p. 70 at 94 paragraphs E-H and other authorities in stating that whatever is nullified is invalid and of no legal force, whereas the Oaths of allegiance and offices first administered on the Governors were not capable of extinction in the circumstances of the consolidated suits."
In the particulars of error supporting that ground, INEC submitted that "When Governors have taken Oaths of allegiance and Oaths of office, the same one, same wording as the one taken before a re-run election in which they are the beneficiaries as distinct from the victims of electoral irregularities stricken down by a court of competent jurisdiction, and conversely returned as winner of the first election and again as winner of the re-run election, such Governors cannot seek to extend their tenures ad abundantiam meaning to abundance, so as not to make mockery of the cherished Latin maxim, ex turpi causa non oritur actio – from a dishonorable cause an action does not arise as no man or woman is to profit from his/her wrong."
"A Court is duty bound to always apply the rule fiat justitia ruat caelum that is to say justice be done, the sky will not fall; whenever a party to a dispute aim at taking advantage of imaginary lacunae in the Constitution to promote certain electoral injustices, as in the consolidated cases.
"Failure to reflect upon the admonition of the Court of Appeal per Saulawa JCA in UKPO vs. IMOKE (2009) 1 NWLR Pt. 1121 p. 90 on the role of the judiciary in nurturing and strengthening democracy in Nigeria, i.e. "......that the judiciary has a sacred, albeit arduous duty to salvage this nation. And as judges, we must strive to rise up to that challenge. For only then can we earn for ourselves the gratitude of the people and as priests in the temple of justice, the eternal blessings of the Almighty God (The Supreme Judge)" led to a miscarriage of electoral justice.
"Failure to take the advise of Ogbuagu JSC in SOKOTO STATE GOVERNMENT vs. KAMDEX NIGERIA LTD (2007) 7 NWLR (Pt. 1034) p. 466 at 503 on duty of the Court not to support an act which is an antithesis of justice, that runs parallel to justice."
In another ground of appeal, INEC said: "The Learned Trial Judge misdirected himself in law when he said that the taking of the Oath of allegiance and Oath of office, twice in each case, in which the
Plaintiffs/Respondents' Governors had indulged, is the basis for calculating the four-year term, and that a nullification of the previous elections of the plaintiffs/appellants Governors also nullified their previous Oath of allegiance and the Oath of office; when Oaths are solemn pledges designed to defend and preserve the Constitution pursuant to the seventh schedule of the Constitution of the Federal Republic of Nigeria, 1999 and when section 180(2) did not contemplate an extension."
It submitted that "a cursory reading of the seventh schedule to the Constitution of the Federal Republic of Nigeria, 1999 reveals that it is the same nature and character of Oaths that were taken by the
Respondents on the two occasions they were sworn-in as Governors, these being abundant indulgences.
INEC made the following pontifications:
"Oaths of allegiance and Oaths of office are acknowledgments of loyalty to Nigeria; it provides overarching guidance and a standard of conduct which binds unless the subscriber(s) renounce allegiance to the Country and to the Constitution.
"Oaths under the seventh schedule of the Constitution conclude with the concept of divine guidance to affirm the transcendence of
religious faith in our heritage and values and constantly strengthens the spiritual weapons upon which a Nation's most powerful tool is built at all times and for all good.
"Oaths are a welcome source of personal and national strengths for which even atheists have a moral obligation to uphold from a societal perspective, ends with the phrase: "So help me God." The integral part of the obligations imposed therein do not cease with the office. E.g. the subscribers do not stop defending or preserving the Constitution of Country Nigeria because they are no longer State Governors, neither do their allegiances to the Federal Republic of Nigeria, extinguish.
"The Plaintiffs/Respondents' Oath of allegiance and Oath of office on both occasions each being of similar nature and character and administered on the same personality, cannot be interpreted to
increase the four-year term of office of the subscribers contrary to section 180(2) of the Constitution, as the subscribers to the Oaths are the same Governors with the same identity and nationality as when they first took it."
It submitted also that "the Learned Trial Judge failed to follow the legal principle of stare decisis et non quiete movere (to abide by decisions of superior courts and not disturb settled matters) and misdirected himself in law when he misapplied the ratio enunciated by the Supreme Court in BALONWU & 5 ORS vs. GOVERNOR OF ANAMBRA STATE & 13 ORS (2009) 18 NWLR (PT. 1170) p.13 as cited by the Defendant/Appellant that as de facto Governors, the executive acts performed, being valid, the periods ought to have computed into their four-year tenures, and held instead that the Supreme Court failed to consider the consequences of annulled elections in those circumstances of re-run elections, and thereby directed that s.180(2) of the Constitution made reference to Oath of allegiance and Oath of office and nothing more, and in so doing extended the four-year tenures of office of the State Governors."
Upon the various grounds, the commission prayed the court for an order allowing the appeal and setting aside the judgment of the lower court.
Meanwhile in the application before the lower court, praying the judge to put on hold the execution of his verdict, Ajie said that an appeal had already been filed against the judgment and that the appeal raised substantial issues of law which might be resolved in favour of the appellant (INEC).
She argued that the stay is necessary to preserve the res and stop it from annihilation, destruction or damage.
She said that a greater damage would be caused if the application was refused and that the governors would lose nothing.
Ajie submitted thus: "But if this application is granted by this court, the Appellant would perform its statutory duties of conducting elections in the affected states as well others and the opportunity of a level playing ground afforded to other candidates."
Ajie further told the court that if the application was refused, any decision arrived at by the Court of Appeal would have been rendered nugatory.
She said that INEC would find itself in an awkward position if the appeal was decided in its favour since the time for holding election in the affected states would have passed before the appeal would be decided.
She asked the court to take notice of the fact that some of the elections were nullified on account of malpractices and irregularities and that to allow the governors to stay beyond May 29, would make them to benefit from their wrongs.
She said: "There are special and exceptional reasons why suspension of the judgment ought to be granted in this case, the Appellant/Applicant is a statutory body charged with the responsibility of regulating, scheduling and conducting elections into the offices occupied by the Respondents amongst others and should not be stopped from doing its statutory work."
Nevertheless, she admitted that the judge had a discretionary power on whether to grant a stay of execution of judgment or not.
Adopting a motion sponsored by Ehiogie West Idahosa, (PDP, Edo State), it directed its Committee on Electoral Matters to investigate alleged persistent failure of the commission to comply with court orders and judgments.
But for the massive amendments done to the motion, it would have been rejected as its original version which sought outright condemnation of INEC for its alleged partial role in the primaries, was unanimously condemned by the lawmakers.
Speaker Dimeji Bankole advised that it was better to allow the committee to investigate the allegations by inviting INEC leadership for questioning. The committee was asked to submit its report within one week.
Given an opportunity to defend his motion, which was titled 'INEC's Partial Role In The Recently Concluded Party Primaries', Idahosa claimed that INEC had been playing politics with court orders.
Source: INEC asks Appeal Court to upturn tenure elongation verdict (http://www.ngrguardiannews.com/index.php?option=com_content&view=article&id=41154:inec-asks-appeal-court-to-upturn-tenure-elongation-verdict&catid=1:national&Itemid=559)