Category: Law

Can a person who has taken the oath of office twice as president or governor (in acting and later substantive capacities) take it for a third time? Can a governor whose tenure was interrupted twice contest/be sworn in again? Assistant Editor ERIC IKHILAE’s deep dive into the constitutional provisions and court decisions, along with the views of legal giants, provides the answers.

Ahead of the 2023 presidential election, it was speculated that former President Goodluck Jonathan may join the fray.

But the question was: having taken the oath of office twice, could he have validly contested had he sought and obtained a party’s nomination? Can he run for President in 2027?

Former Bayelsa State Governor Timipre Sylva finds himself in a similar situation. It will also apply to Ondo governor Lucky Aiyedatiwa should he win in November and wish to contest again after four years.

To address the question of whether a deputy governor or Vice President, who inherited the unexpired term of a dead, incapacitated or impeached governor or President can enjoy the right to two terms as allowed under sections 137(1)(b) and 182(1)(b) of the 1999 Constitution, the National Assembly altered the Constitution in 2018.

The amendment, now referred to as the Fourth Alteration Act, which became effective on June 7, 2018, included sub-section 3 to sections 137 and 182 as a disqualifying factor.

Section 137(3) provides: “A person, who was sworn in to complete the term for which another person was elected as President, shall not be elected to such office for more than a single term.”

Section 182(3) states: “A person, who was sworn in to complete the term for which another person was elected as Governor, shall not be elected to such office for more than a single term.”

The provisions ignited huge debates when it was rumoured in 2022 that Dr. Jonathan would contest the 2023 presidential election.

The legal community was divided with lawyers like Femi Falana (SAN), Prof. Mike Ozekhome (SAN), Prof. Yemi Akinseye-George (SAN) and Dr. Reuben Atabo (SAN)  arguing for and against the effect of the amendment to Jonathan’s legibility to further contest a presidential election.

While Falana and Akinseye-George were of the view that Jonathan could no longer contest any presidential election having completed the unexpired term of the late President Umar Yar’Adua and concluded another term in 2015, Ozekhome and Atabo argued otherwise.

Ozekhome and Atabo did not fault the amendment to the constitution. They contended that the new provisions could not be applied retrospectively to bar Jonathan, who entered his tenure before the law took effect.

What the court said in Jonathan’s case

The position held by Ozekhome, Atabo and others was upheld in a judgment rendered on May 27, 2022, by a Federal High Court in Yenagoa, Bayelsa State.

The judgment was given by Justice Isa Hamma Dashen on a suit, marked: FHC/YNG/CS/86/2022 filed by Andy Solomon and Idibiye Abraham (who claimed to be members of the APC). Defendants in the suit were Jonathan, the APC and the Independent National Electoral Commission (INEC).

Solomon and Abraham had argued that by the provisions in Section 137(1)(b) and (3) of the constitution, the former president was no longer eligible to vie for the office of the president because he had taken an oath to that office on two previous occasions.

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Justice Dashen held, among others, that Section 137(3) of the constitution did not bar Jonathan from contesting the 2023 presidential election because the provision could not be applied retroactively.

The judge held that the oath taken by Jonathan on May 6, 2010, after the death of President Umaru Musa Yar’Adua, complied with a constitutional provision and not because he contested and won the election.

He noted that the 2007 general election produced the late Musa Yar’Adua as the President and not Jonathan, adding that Section 137(3) could not have a retroactive effect to stop him from contesting the 2023 presidential election.

The judge held that Section 137(3), which came into effect on June 7, 2018 “cannot apply retrospectively, except the Legislature, in clear terms, expressly stated their intention for it to be so.”

Justice Dashen noted that had Jonathan won his re-election bid in 2015, he would have been inaugurated as president without any legal impediment.

The judge said: “In my opinion, the position being propounded by the first defendant (Jonathan) that he is eligible to contest, is tenable.

“It is the duty of the plaintiffs to direct this court to where the Legislature stated that the provisions of Section 137(3) of the constitution are to apply.

“I, therefore, find the arguments of the first defendant, that he has only been elected into the office of President once in 2011, not only irresistible but established, and I so hold.

“In law, he who asserts must prove. I find that the plaintiffs have not discharged the burden of proof placed on them by law.

“I, therefore, find merit in the argument of the first defendant that the introduction of Section 137(3) to the constitution does not affect his right to contest for the office of President of the Federal Republic of Nigeria in the 2023 general elections.”

The judge added: “I declare that the provision of 137(3) of the constitution acquired the force of law with effect from 7th June 2018, and as such does not have retrospective application.”

Justice Dashen dismissed all the reliefs sought by the plaintiffs in their originating summons dated 16 May 2022.

What the Court of Appeal said

The judge also referenced an earlier judgment by the Court of Appeal in Abuja delivered on March 3, 2015, in an appeal by Cyriacus Njoku, who said he was a member of the PDP. The judgment resolved the question about Jonathan’s eligibility in the face of the provision of Section 137(1)(b) of the constitution.

Section 137(1)(b) provides that: “A person shall not be qualified for election to the office of President if he has been elected to such office at any two previous elections.”

Njoku first filed the suit at the High Court of the Federal Capital Territory (FCT) in 2012, with Jonathan, the PDP and the Independent National Electoral Commission (INEC) as defendants.

Njoku contended among others that, having taken the oath of office twice as a president (2010 and 2011) Jonathan was barred by sections 135(2) and 137(1)(b) of the Constitution from contesting in 2015 for the post of president.

In a judgment on March 1, 2013, Justice Mudashiru Oniyangi held in favour of Jonathan, a decision Njoku appealed at the Court of Appeal in Abuja in 2013.

He raised two issues for determination:

• Whether Section 135(2) of the Constitution which specifies a period of four years in office for the President is only available or applicable to a person elected on the basis of an actual election or includes one in which a person assumes the position of President by operation of law as in the case of Dr. Goodluck Jonathan.

• Whether Section 137(1) (b) of the Constitution of the Federal Republic of Nigeria 1999, which provides that a person shall not be qualified for election to the office of President if he has been elected to such office at any two previous elections applies to the first defendant who first took an Oath of Office as substantive President on May 6, 2010, and took a second Oath of Office as President on May 29, 2011.

In its judgment on March 3, 2015, a five-member panel of the Court of Appeal unanimously held that the oath Jonathan took in 2010 was merely to complete the unexpired tenure of the late President Yar’Adua.

It further held that by virtue of Section 135 (2)(b) of the 1999 Constitution, Jonathan only took his first oath as a president in May 2011, adding that disqualification is through election, not oath-taking.

In the lead judgment, Justice Abubakar Yahaya held: ”In this appeal, it is not controverted by the appellant that the first oath taken by the first defendant (Jonathan) was the oath he took as the Vice President and not as President… But he took the oath in May 2010 to complete the unexpired tenure of the late Umaru Musa Yar’Adua.

“Section 137(1)(b) disqualifies a person from contesting for president if he had been elected twice. Disqualification is through election and not oath-taking. Election is the process of choosing a person to occupy a position by voting.

“When election is given its literal meaning, it connotes when voting is employed to choose a person for political office. This did not take place when Jonathan stepped into the shoes of his principal who went to the great beyond.

“To say these things were done is to import words not used by the constitution.

“Section 146(1) of the constitution cannot be deemed an election for a VP to step into the office of a President. Election involves conducting primaries by party, nomination, election and announcement of results. All these processes were not done.

“If a Vice President succeeds a President that dies, that cannot be challenged. It is a mode of stepping into the vacant office provided for by the constitution. “When a President dies, the Vice President automatically becomes President as provided for by Section 130 (1)(2) of the 1999 Constitution…

“It was not the election that produced the first respondent (Jonathan) in May 2010. The oath he took then was not an oath of the elected President as provided for by Section 180 of the Constitution.

“The process of election was followed in 2011. The oath of office taken in 2011 was the first oath taken by the first respondent as an elected President having fulfilled all the process of election.… Again, the succession of a Vice-President to the office of a President, who died, in accordance with Section 146(1) of the 1999 Constitution, cannot be “deemed an election”, especially for the purpose of taking away a right that has been vested.

“As stated earlier, an election under the 1999 Constitution involves primaries, nominations, voting and declaration of results. That is the mode prescribed in electing a President, and once it is so prescribed, it must be followed, and no other method can be employed.

“All these processes can be challenged in a Court of law and if successful, the election would be annulled. But if a Vice-President succeeds a President who died, that cannot be challenged because it is a Constitutional provision, and the succession cannot be annulled.”

The Sylva case

Other similar cases include those of Sylva and Aiyedatiwa.

While Sylva has been argued to have taken the oath of office as a governor twice, Aiyedatiwa has only done so once, with the possibility of a second time should he win the governorship election on November 16.

Sylva had contested and won the governorship election in Bayelsa State in 2007 as a candidate of the PDP.

His victory was, however, changed by  Ebitimi Amgbare of the defunct Action Congress (AC) before the Bayelsa State Election Petitions Tribunal.

The tribunal upheld Sylva’s election, a decision Amgbare appealed before the Appeal Court in Port Harcourt, Rivers State.

The Court of Appeal, in a judgment on April 15, 2008, set aside the tribunal’s decision and nullified Sylva’s election.

The Court of Appeal ordered that the then Speaker, Werinipre Seibarugo, be inaugurated to replace Sylva as acting Governor, pending when a new election would be held within 90 days.

When a new election was held on 24 May 2008, Sylva was again elected and was sworn in.

Sylva was, however, sacked on January 27, 2012, when the Supreme Court terminated his tenure along with other four governors – Ibrahim Idris of Kogi State, Aliyu Wammako of Sokoto State, Murtala Nyako of Adamawa State, Liyel Imoke of Cross River State.

What the Court of Appeal said in the Sylva case

In a judgment on October 31, 2023, the Court of Appeal in Abuja set aside the October 9, 2023 judgment given by Justice Donatus Okorowo of the Federal High Court, Abuja, which had voided the nomination of Timipre Sylva as the candidate of the APC in the Bayelsa State governorship election scheduled for November 11, 2023.

Justice Okorowo’s judgment was on the suit by Demesuoyefa Kolomo, who claimed to be a registered voter and a member of the APC.

Kolomo sought Sylva’s disqualification on the grounds that he had been sworn in as governor in 2007 and 2008.

The plaintiff asked the court to determine “Whether having regard to the indisputable fact that Sylva occupied the office of governor of Bayelsa May 29, 2007, to April 15, 2008, and May 27, 2008, to January 27, 2012, he is qualified to contest and be elected to the office of governor of Bayelsa for another four years term in view of Section 180(2)(a) of the 1999 Constitution (as amended).”

Kolomo prayed the court to among others, declare that, by virtue of Section 182(1)(b) of the 1999 Constitution (as amended), Sylva was not qualified to contest the election to the office of the Governor of Bayelsa on the APC platform or on any other political party’s platform in the election.

In his October 9 judgment, Justice Okorowo upheld Kolomo’s case. He held that Sylva, having been sworn in twice and served for five years as governor of Bayelsa, would breach the  Constitution should he be allowed to contest again.

Justice Okorowo declared that Sylva was not qualified to contest the November election because if he won and was sworn in, he would spend more than eight years in office as governor.

Relying on the Supreme Court’s decision in the case of Marwa vs Nyako, the judge held that the drafters of the constitution stated that nobody should be voted for as governor more than twice and that the parties to the suit agreed that Sylva had been voted into office two times.

Appeal Court speaks on Sylva

But, in its October 31, 2023 judgment on the appeal, marked: CA/ABJ/CV/1061/2023 filed by Sylva, a three-member panel of the Court of Appeal held that the Federal High Court, Abuja lacked the jurisdiction to have heard and determined the case filed by Demesuoyefa Kolomo, who described himself as a registered voter and a member of the APC.

The court held that having not been an aspirant, who participated in APC’s governorship primary, Kolomo lacked the locus standi to approach the court to challenge the nomination of the party’s candidate.

In the judgment read by Justice Binta Zubairu, the court held that since Kolomo was not an aspirant and did not participate in the primary from which Sylva emerged as APC’s candidate, he cannot be clothed with the requisite locus standi as provided under sections 285(14) of the Constitution and 29(5) of the Electoral Act 2022.

The court added that from  the provision of the law, one must be an aspirant, who participated in a primary before he can challenge the conduct or outcome of the primary.

It found that Kolomo failed to establish he was an aspirant in the APC primary and, as such, clothed with the requisite locus standi to institute the action on which the judgment disqualifying Sylva was given.

She said: “Having held that the first respondent is not an aspirant, he lacked the locus standi to have instituted the matter under whatever guise before the lower court.

“Where a party lacked the locus standi to institute a case, the court has no jurisdiction to entertain and determine it, Justice Zubairu said and proceeded to hold that the Federal High Court in Abuja was without jurisdiction to have heard the case.”

She proceeded to set aside the Federal High Court judgment, allowed the appeal filed by Sylva and granted all the reliefs sought.

The court also awarded N1million cost in favour of Sylva.

The Court of Appeal, however, did not determine the question as to whether in view of the provisions of sections 180(2)(a) and 182(1)(b) Sylva was still eligible to contest the governorship election having been sworn into that office twice.

Sylva’s lawyer, Wale Balogun had, while arguing the appeal, faulted the decision of Justice Okorowo, to the effect the Sylva took oath of office twice as Governor of Bayelsa State.

Balogun said: “In 2007, he (Sylva)  was elected the Governor of Bayelsa State, but within eight months, the Court of Appeal (which was then the final court for governorship election petition) sacked him.

“He contested again in 2008 and won. The eight months that he earlier spent in office was nullified, so he could not have said to have spent that with months because it was voided by the court,” Balogun said.

The sack of five governors

Then Governors Idris, Wammako, Nyako, Imoke and Sylva, who were elected in 2007, had their election nullified, but won re-election in 2008 had approached the Federal High Court in Abuja in 2010 seeking the elongation of their tenure.

They claimed that their tenure began to run from when they assumed office upon winning the rerun election. They had also contended, among others, that Section 180(2)(a) which came into effect in 2010 did not apply to them.

Section 180(2)(a) reads: “In the determination of the four-year term, where a re-run election has taken place and the person earlier sworn in wins the re-run election, the time spent in office before the date the election was annulled shall be taken into account.”

The cases were numbered FHC/ABJ/CS/246/2010, FHC/ABJ/CS/648/2010, FHC/ABJ/CS/650/2010, FHC/ABJ/CS/651/2010 and FHC/ABJ/CS/665/2010.

Justice Adamu Bello, in a judgment on February 24, 2011, held that the governors’ tenure would not expire until 2012.

He held that the tenure of the governors legally started in 2008 when they took fresh oaths of office and allegiance following the nullification of their April 14, 2007 elections by the courts.

The judge 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 Constitution, the tenure of the governors legally commenced in 2008 and not in 2007.

He added that the 2007 elections, on which INEC relied 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 as nothing can stand on nothing.

He held that although section 180 of the 1999 Constitution was amended in 2010 by the National Assembly and signed into law by President Goodluck Jonathan, the amendment did not affect the five governors since their rerun elections were conducted in 2008.

Justice Bello held: “There is nowhere in the world where a constitution takes retroactive effect as erroneously held by INEC.

“The said amendment cannot be used to determine the tenure of the governors who took oath of office in 2008.”

He ordered  INEC to put on hold the governorship election in the states and held that elections would only take place in the states in 2012.

He said: “INEC cannot validly conduct elections in the five states until 60 days to the expiration of the tenures of the present occupants.

“The notice of elections, received nominations, and timetable issued by INEC for the April 2011 elections are unlawful, illegal and contrary to Section 180 of the constitution.”

The Supreme Court’s decision

INEC appealed the judgment at the Court of Appeal in Abuja and lost, prompting it to appeal to the Supreme Court.

The Supreme Court, in its judgment on January 27, 2012, set aside the concurrent decisions of the two lower courts and ordered the five governors to vacate office on the grounds that their tenure could not be extended beyond the four years allowed by the constitution.

In the lead judgment of a seven-member panel of the apex court, Justice Walter Onnoghen (as he then was) said: “From the language used in section 180 of the 1999 Constitution, it is very clear that the Constitution intended that a governor of a state shall have a tenure of four years from the date he took the Oaths of Allegiance and of Office and nothing more, though he may spend less where he dies, resigns or is even impeached. In all, a governor has a maximum tenure of eight years under the 1999 Constitution…

“I hold the considered view that since the acts performed during the period prior to the nullification of the election remain valid and subsisting and the same person contested and won the re-run election thereby taking another set of oaths and since what was nullified was the election, the oaths they took on May 29, 2007 remains valid.

“The starting point in calculating their four years tenure of office as governors of their respective states particularly as the 1999 Constitution does not envisage a tenure exceeding four years by the same person who took the first oaths following the election which kick-started the tenure.

“To accede to the argument of the respondents is to bring uncertainty into the clear provisions of section 180(2) of the 1999 Constitution which will render the tenure of governors indefinite as what it will take an elected governor whose election is nullified to remain in office almost indefinitely or for life is to continue to win the re-elections which would then be nullified to continue the cycle of impunity.

“I hold the considered view that to uphold the validity of the acts of the governors in office prior to the nullification of their election and reject the period they spent in office during which time they performed those acts in the determination of the period of their tenure is contrary to common sense and the clear intention of the framers of the constitution.

“The fact that there was an election in 2007 as a result of which the respondents (governors), took their Oaths of Allegiance and of Office, are facts which cannot be wished away, just as the acts they performed while occupying the seat.”

The Justice added: “It is settled law that the time fixed by the constitution for the doing of 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.

“To calculate the tenure of office of the governors from the date of their second Oaths of Allegiance and Office while ignoring the period from 29th May 2007, when they took the first oaths, is to extend the four years tenure constitutionally granted the governors to occupy and act in that office which would be unconstitutional.

“It is, therefore, clear and I hereby hold that the second Oaths of allegiance and of Office taken in 2008, though necessary to enable them to continue to function in that office, were superfluous in the determination of the four-year tenure under section 180(2) of the 1999 constitution.

“In conclusion, I resolve the issue against the respondents. In allowing the appeals, which have been demonstrated, to be meritorious and set aside the judgments of the lower courts…”

The case of Aiyedatiwa

Governor Aiyedatiwa took his first oath of office on December 27, 2023, following the death of Governor Oluwarotimi Akeredolu.

He has secured the ticket of the APC to contest the governorship election scheduled for November 16 in Ondo State.

If Aiyedatiwa wins and serves out the term, will he be eligible to run for the same office again given the provision of section 182(3)?

Lawyers’ perspectives

Lawyers, including Dr. Joseph Nwobike (SAN), Akinlolu Kehinde (SAN), Otunba Tunde Falola and Babs Akinwumi are of the view that with provisions 180(2)(a) 182(3), Aiyedatiwa and others in a similar situation may be unable to stand for election twice.

Nwobike said: “In my view and following the provisions of sections 137(3) and 182(3) of the constitution of FRN (as altered), any person, who assumes office of the President or Governor of a state in Nigeria under the circumstances enumerated in those subsections cannot insist on the two terms of four years each as provided under sections 137(1)(b) and 182(1)(b) of the Constitution of the Federal Republic of Nigeria (as altered).

“The right to two terms of four years each provided under sections 137(1)(b) and 182(1)(b) was qualified by the addition of subsections (3) in those sections.

“Although there appear to be some significant conflicts between the rights donated under subsections 1(b) of sections 137 and 182, those conflicts cannot dwarf the legislative objective and impetus of the amendments contained in subsections 3 of sections 137 and 182 respectively.

“Some constitutional scholars have argued that since the word elected was used in subsections 1(b) of sections 137 and 182, the circumstances enumerated in the subsequent amendments cannot be interpreted and applied in any manner as to take away the rights conferred under subsections 1(b) respectively.

“In my view, the correct interpretation of the constitution in other to give effect to the clear and intentional provisions of subsections 3 in the two sections should be imperative,” he said.

Nwobike said any person about to assume office of a governor or president under the circumstances contemplated in subsection 3 of sections 137 or 182 can decline the office if he or she intends to exercise the rights provided in subsections 1(b) of sections 137 and 182 respectively.

“In the end, once the right to assume office is exercised, the person becomes bound by the provisions of subsections 3 of sections 137 and 182 respectively. The Rule has always been not to have to eat your cake and still have it,” Nwobike said.

Kehinde shared Nwobike’s position and said given the provision in Section 182(3), Aiyedatiwa may not be able to contest any other governorship election after the coming one.

According to Falola, the sections are clear.

The Abuja-based lawyer said: “There has not been any judicial pronouncement in respect of sections 137(3) and 182(3) of the Constitution. However, the provisions of the sections are unambiguous.

“The provisions do not require external aid in interpreting them. In other words, the words used in those sections by themselves, declare the intentions of the draftsmen of the Constitution.

“The law is well settled in a plethora of cases that where the words used in an enactment are clear and unambiguous, effect must be given to it.

“In a clear term, the point being made here is that since the provisions of Sections 182(3) and 137(3) of the 1999 Constitution are clear and unambiguous to the extent that a person who was sworn in as a governor or president as the case may be, to complete the term for which another person was elected as such, shall not be elected to such office for more than a single term.

“There should be no other interpretation to be given to those provisions other than those express and unambiguous words.

“Therefore, once a person was sworn in as governor or President to complete the term for which another person was elected as the case may be, the person stands disqualified after the expiration of a single term in office excluding the tenure he completed.

“The law is also trite that if a statute covers a situation, it will be an impermissible exercise to go beyond the statutory and by extension, constitutional provision,” Falola said.

Akinwumi noted that the Fourth Alteration was meant to cure the specific ills of perpetuation in power by initial inheritance which could be up to four years in itself.

He cited Section 137(3), which states: “A person who was sworn in to complete the term for which another person was elected as President shall not be elected to such office for more than a single term.”

Akinwumi added: “That section(sub) uses ‘shall’. On several occasions, the courts have interpreted ‘shall’ to be mandatory (not as always anyway), but most times.

“Thus, an insistence in that direction would amount to an attempt to breach the constitution which the person has sworn to uphold.”