Chief Timipre Sylva has been nominated as the candidate of the All Progressives Congress in the December 5 governorship election in Bayelsa State. But Sylva had been elected twice as governor of Bayelsa State in 2007 and 2008. The 2007 election was nullified by the Court of Appeal and Sylva contested and won the re-run election whereupon he was elected the second time and served for a cumulative period of about four years and seven months as governor of Bayelsa State. He now seeks to be elected a third time as governor of the state in the forthcoming election.
The relevant constitutional provision is Section 182(1)(b) of the Constitution of the Federal Republic of Nigeria 1999, as amended, which states as follows:
S 182(1), “No person shall be qualified for election to the office of Governor of a State if –
“he has been elected to such office at any two previous elections.”
It is, thus, apposite to ask if Sylva who, having already been elected twice and served for a cumulative period of about four years and seven months as governor of Bayelsa State, is qualified to seek election a third time for a fresh term of four years and thereby seek to serve as governor of the state for more than the maximum period of eight years allowed by the constitution.
On the issue of the maximum tenure of eight years that a person can serve as governor of a state, the Supreme Court in Marwa vs Nyako (2012) 6 NWLR PART 1296, page 199 at 280F – G, held as follows:
“From the language used in Section 180 of the 1999 Constitution, it is very clear that the constitution intended that the 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.”
When the election of a governor is nullified and he participates in a subsequent re-run election ordered by the court and wins, such a governor whose election was nullified, cannot be said to be elected only once. Such a governor, notwithstanding the nullification of the first election, has been elected twice. It was for that reason that the Supreme Court held that such a governor cannot be said to have been “first elected as governor under the constitution.”
The Supreme Court settled this issue with finality in the said case of Marwa vs Nyako when the court held as follows:
“A person elected following a re-run election cannot be said to have been ‘first elected as governor under this constitution,’ except he was not the winner of the earlier election or first election.”
In this case, Sylva won both the first election that was nullified and the re-run election, thereby being elected twice as governor of Bayelsa State.
Sylva was one of the parties to that case in the Supreme Court. It was, in fact, that case that terminated the tenure of Sylva as governor of Bayelsa State. He is, thus, bound by the said decision of the Supreme Court in that case, especially, as he was the one that won the nullified election and the subsequent re-run election.
The Supreme Court, therefore, clearly recognised the earlier nullified election of Sylva as having led to his first election. Thus, his success in the re-run election was, obviously, his second election and incidentally the above quoted provision, section 182(1)(b) of the constitution, has barred him from contesting again, having been previously elected twice.
The Supreme Court also in the above case, whilst considering the effect of the nullified election, clearly rejected the doctrine of nullity and its consequences usually traced to Lord Denning in the case of UAC VS MCFOY where Lord Denning stated as follows:
“If an act is void then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”
The Supreme Court in rejecting the said principle, held at page 278 of the said case as follows:
“To say that the above principles are based on facts which are not material in this case is to state the very obvious. Secondly, the court is in many cases/circumstances required to declare an act void before it becomes so, otherwise it remains valid and binding as is evident in our laws relating to elections where elections are presumed valid until declared null and void by the courts. In such a situation, if you put something on the illegal act – the period prior to the nullification – it will surely stay put contrary to the general dictum on nullity as propounded by Lord Denning.”
The Supreme Court at page 286B – F of the said judegment, in acknowledging the reality of the annulled election as an election that actually took place further held as follows:
“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 1st Respondents (Governors) took their oaths of allegiance and of office are facts which cannot be wished away, just as the acts which they performed while occupying the seat. The said governors may not have been de jure governors following the nullification of their elections, which is not supported by the acceptance of their acts in that office as legal and binding on all and sundry, they were certainly governors de facto during the period they operated ostensibly in accordance with the provisions of the constitution and Electoral Act and as such, the period they so operated has to be taken into consideration in determining the terminal date of their tenure following, what I may call, their second missionary journey vide a re-run election, particularly, as the constitution unequivocally grants a tenure of four years to a person elected governor of a state calculated from the date he took the oaths of allegiance and of office, which was the 29th day of May, 2007.”
The Supreme Court also in rejecting the contention that the earlier nullified election of the governors, including that of Sylva, be ignored in the computation of their tenure of office held that such a situation would create governors that would perpetually serve as governors forever. The Supreme Court at page 285C – D held as follows:
“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 would render the tenure of governors indefinite as what it would take an elected governor whose election in (sic) nullified to remain in office almost indefinitely or for life is to continue to win the re-run elections which would then be nullified to continue the cycle of impunity.”
Thus, on the state of the law, as contained in the constitution and interpreted by the Supreme Court, Sylva has been elected twice as governor of Bayelsa State and is, therefore, not qualified to contest the said election as the candidate of APC as otherwise he would be seeking to serve as governor of Bayelsa State for more than the maximum period of eight years allowed by the constitution. The APC does not, therefore, have a qualified candidate in the forthcoming governorship elections.
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