Chief Timipre Sylva is barred by the Constitution of The Federal Republic Of Nigeria from contesting for the governorship of Bayelsa State a third time, an therefore should be prohibited from contesting the forth – coming December 5th 2015 Gubernatorial Election in Bayelsa State. This is the verdict of the TRUTH MOVEMENT OF NIGERIA (TMN). In a press release signed by it publicity secretary, Mr Fred O. Amakom II, the group compelling stated: "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: 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:”
Chief Timipre Sylva who, having already been elected twice and served for a cumulative period of about four years and seven months as the Governor of the State, is therefore not qualified to seek for re – 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 8 (Eight) years allowed by the Constitution. The full text of the press release is as follows
:
ALL PROGRESSIVES CONGRESS (APC) HAS NO
CANDIDATE IN THE DECEMBER 5TH 2015 GOVERNORSHIP ELECTION IN BAYELSA
STATE
Chief
Timipre Sylva has been nominated as the candidate of the All Progressives
Congress (APC) in the forth – coming December 5th 2015 Gubernatorial
Election in Bayelsa State. Chief Timipre
Sylva had previously been elected twice as Governor of Bayelsa State namely in
2007 & 2008. The 2007 election was
nullified by the Court of Appeal and Chief Timipre Sylva contested and won the
re – run election whereupon he was elected the second time and served for about
a cumulative period of four years and seven months as the Governor of Bayelsa
State. He now seeks to be elected a 3rd
time as the Governor of Bayelsa State in the said forthcoming elections.
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 –
(a) …….
(b) he has been elected to such office at any
two previous elections:”
It
is thus apposite to ask if Chief Timipre Sylva who, having already been elected
twice and served for a cumulative period of about four years and seven months
as the Governor of the State, is qualified to seek for re – 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 8 (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 (8) 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 at 275 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, Chief Timipre Sylva won both the first election that was nullified
and as well as the re – run election, thereby being elected twice as the
Governor of Bayelsa State.
Chief
Timipre Sylva was one of the parties to that case in the Supreme Court. It was infact that case that terminated the
tenure of Chief Timipre Sylva as the 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 recognized the earlier nullified election of
Governor Timipre 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 of
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 judgment, 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 Chief Timipre 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, Chief Timipre Sylva has been elected twice as Governor of
Bayelsa State and is therefore not qualified to contest the said election as
the candidate of the All Progressives Congress (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 All Progressives Congress (APC) does not therefore have a qualified
candidate in the said forthcoming Gubernatorial Elections.
Signed: Fred O. Amakom II
Publicity Secretary
TRUTH MOVEMENT OF NIGERIA(TMN]
ABUJA
09052814266
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