Why five governors must face elections, by INEC

Sylva, Imoke, Nyako, Wamakko, Idris face legal battle

The Independent National Electoral Commission (INEC) yesterday urged the Federal High Court, Abuja to stop the execution of its judgment, which halted the conduct of the April governorship election in five states.

Besides, the electoral commission has filed eight grounds of appeal at the Court of Appeal, Abuja Division, against the judgment.

All the five governors were yesterday served the two court papers.

The High Court on February 23 stopped INEC from conducting governorship polls in five states – Bayelsa, Cross River , Kogi, Sokoto and Adamawa.

Justice Adamu Bello ruled that the tenure of Governors Timipre Sylva (Bayelsa); Liyel Imoke (Cross River); Ibrahim Idris (Kogi); Aliyu Wamakko (Sokoto) and Murtala Nyako (Adamawa) would end in 2012, instead of this year as previously assumed by INEC.

But, INEC yesterday returned to the court, pleading for a stay of execution of the judgment, pending the hearing and determination of the issues raised.

It claimed that the judgment would cause “hardship” for many governorship candidates.

In an application through its counsel, Dame Carol Ajie, INEC said it was in the interest of justice and fairness for the governorship poll to hold in the affected states.

Armed with a seven-paragraph affidavit deposed to by Kennedu Ajogi, INEC said: “In the case of the five Respondent Governors (Adamawa, Bayelsa, Cross River, Kogi and Sokoto) after their elections were nullified by the court on grounds of electoral misconduct and irregularities, a rerun election was ordered in which they contested and won again. Some won with larger margins amid wide protests.

“Conducting elections in their respective states along with others who came into office the same time as the Respondent Governors did (i.e. May 29, 2007) will not cause any of the participants any harm or prejudice but shutting out other contestants would cause a greater hardship.

“The point on the Respondents being sworn in a second time, following the rerun, is the subject of an appeal against the judgment of this court of 23/2/2011.

“That having obtained a certified True Copy of the judgment, she has filed a Notice and Eight Grounds of Appeal against it, on behalf of our client (INEC).

“That it will deepen our democracy to stay execution of the judgment of this court, pending the hearing and determination of the Notice and Grounds of Appeal filed.

“It is in the interest of justice to allow governorship elections hold in Adamawa, Bayelsa, Cross River , Kogi and Sokoto states. Some of these governors, Kogi for example, will exhaust his second term on the 29th of May 2011 and those who would not will have the opportunity of contest offered with other co-contenders from all the political parties.

“The rest will definitely be annihilated and destroyed as time is of the essence, unless a stay of execution of His Lordship’s judgment is granted.

“The grounds of appeal raise substantial issues in an area of law where the law is somewhat recondite. That the appeal is arguable, meritorious and might succeed.

“The balance of convenience is in favour of granting a stay. That a stay of execution would permit INEC’s schedule of governorship elections in those states affected to run freely, and fairly with others and would permit the Respondents and other co-contestants to come to a political level playing ground.

“A refusal of a stay will render the decision of the Court of Appeal nugatory; time being of the essence as April 16 is around the corner. The date should be preserved. Should election not hold as published by the Appellant and the Appellant finally wins the appeal, it would put INEC in an awkward position

“The local and international community is looking to see that INEC does not fail; that our nation’s democracy is sustained such that steps be not taken or restraining orders granted that stultify the conduct of all state-elections due to come up in April 2011.

“There are special and exceptional reasons why the 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 office occupied by the Respondents, among others, and should not be stopped from doing its statutory work.

“Also, special reasons exist where there is a ground of appeal as in the Appellant’s Ground six. See Yusuf vs. Edun(2005) 16 NWLR(pt. 950) p.34 at 49 and 53.

“The Supreme Court has held in Kigo(Nig) Ltd vs. Holman Bros(nig) Ltd(1980) 5-7 SC 60 that the categories of special or exceptional circumstances are not exhaustive and that the important question is whether the applicant has shown any special circumstances to warrant granting a stay in its favour, pending the determination of its appeal.”

In its application before the Court of Appeal, INEC raised eight grounds and sought two prayers – an order allowing the appeal and another setting aside the judgment of the lower court.

INEC said:

•Both the principles enunciated in the cases of Obi vs. INEC and Ladoja vs. INEC and 2 Others do not support the erroneous conclusion reached by the Learned Trial Judge that the rerun tenures for the governors of the five states would start afresh under Section 180(2) of the 1999 Constitution.

 •A period of interruption leading to a rerun election as a result of a previous election adjudged by a court of competent jurisdiction as fundamentally flawed and fraught with irregularities cannot be construed to benefit the same holder of the same public office.

• The ratio decidendi  in Obi vs. INEC(supra) was misunderstood and misapplied by the Learned Trial Judge.

•To count four years from when the Respondents won their rerun election and subsequently re-sworn was a strange importation into the clear wording and interpretation of Section 180(2) of the 1999 Constitution and amounts to tenure elongation, an act never contemplated by the draft persons.

    * When governors have taken Oaths of Allegiance and Oaths of Office, the same one, the same wording as the one taken before a rerun election in which they are beneficiaries, such governors cannot seek to extend their tenures ad abundantiam.

 •In all of the cases where the Court of Appeal nullified the election of the Respondents, nowhere throughout the judgments were the original Oaths taken nullified by orders of the Court of Appeal, the final adjudicator, neither any of all the Executive acts taken, the assets and loans taken, salaries and perquisites enjoyed and liabilities incurred whilst in office.

•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 aims at taking advantage of imaginary lacunae in the constitution to promote certain electoral injustices, as in the consolidated cases.