The court cannot grant extension of tenure to a President or Governor that was illegally impeached from office.

Nyako v. Adamawa State House of Assembly & Ors. [2017] 6 NWLR (Pt. 1562) 347 at 412, paras. D-G, per Peter Odili, JSC:

“This Court in a recent case involving Marwa v. Nyako (2012) 6 NWLR (Pt. 1296) 199 at 387 stated that section 180(1) and 2(a) of the 1999 Constitution of the Federal Republic of Nigeria has prescribed a single term of 4 years and if a second term, another period of 4 years and not a day longer. Therefore, no court in the land has the power to extend that period of either the 4 years single term or the second term of another 4 years and so if peradventure something such as an illegal impeachment eroded into that 4 years term, it is too bad as that period of infraction cannot be brought back or an extension of time to add up to what was lost…”

Former Gov Nyako Adamawa

Photo Credit: InformationNG

Blogger’s Note:

The Appellant was elected Governor of Adamawa State on 5/2/2012. On 15/7/2014, he was impeached. The Appellant challenged his impeachment by way of fundamental rights action as a result of which the Federal High Court struck out the case. On appeal, the Court of Appeal allowed the appeal in part, invoked its statutory powers and determined the merits of the Appellant’s Originating Motion whereupon it found and declared the Appellant’s impeachment illegal.  On the prompting and  concession of the Appellant’s Counsel that the Appellant’s tenure had expired, the Court of Appeal struck out the Appellant’s prayer for reinstatement. Surprisingly, the Appellant appealed to the Supreme Court arguing that the Appellant ought to be reinstated to the office of the Governor by the Court of Appeal since his impeachment was declared illegal and unconstitutional. The Supreme Court said no, and dismissed the Appeal on the ground that the Court lacks the power to extend an expired tenure of office for a governor.

Notably, the Supreme Court left no one in doubt as to whether the above position applies to the President or other public office holders. The Court, per Sanusi, JSC (at page 424, para. E), held that no court has the power to elongate the tenure of any public office holder such as the President or Governor of a state.

The reasons furnished by the learned Justices of the Supreme Court are that: the court cannot add or subtract from what the Constitution has provided; the courts are to give effect to the clear, plain and unambiguous stipulations in the Constitution; any attempt to elongate the period is unconstitutional and will lead to a chaotic situation and cause gross injustice or may lead to political unrest or uproar (especially where there is a successor in office as in the instant case).

Aside the above reasons given by the Court, the Supreme Court was further strengthened in its decision in view of the fact that Counsel to the Appellant had at the Court of Appeal conceded that the Appellant’s claim for reinstatement had been overtaken by effluxion of time and consequently, the relief for reinstatement had become spent. The Court of Appeal accordingly struck out the relief upon the withdrawal of same by the Appellant’s Counsel. Interestingly, at the Supreme Court, the Appellant abandoned its earlier concession at the Court of Appeal and argued that the Court of Appeal was in error to have relied on the Appellant’s or his Counsel’s concession or mere averments that the Appellant’s tenure had ended since the issue of tenure of office was governed by the Constitution. The Appellant’s Counsel also submitted that having found the impeachment illegal, a consequential order of reinstatement ought to have been made. The Supreme Court was not persuaded. M. D, Muhammad, JSC rightly held that the relief for reinstatement having been withdrawn and struck out could not be revisited at this stage. See pages 378-379 of the report.

The Supreme Court made a heavy weather of Appellant’s Counsel’s concession. Indeed, it was unfortunate that learned Senior Counsel would blow hot and cold. Counsel ought to always assist the Court in the determination of disputes. However, with respect, the earlier concession made by the Appellant’s Counsel should not form the basis for holding that the Appellant could not be reinstated. The provision of the Constitution is what is material and Counsel’s concession in the instant case, to my mind, is inconsequential. The proper finding should be that despite the concession, the Appellant cannot be reinstated as the courts lack the power to elongate time and so cannot make any consequential orders to that effect. All the reasons identified above are compelling and remains the main basis of the decision of the Supreme Court which is supported.

As confirmed by the apex Court, there is no provision in the Constitution to cover illegal impeachment and there is nothing in the Constitution to protect a Governor wrongly impeached.  Sadly, in the instant case, the Supreme Court held that the courts are under a constitutional duty to reinstate the Appellant to office after it found that he was illegally removed from office; but it however held that this cannot be done due to the fact that his term of 4 years in office has since expired. See Rhodes-Vivour, JSC at page 404, para. H of the report.

Although the above position is clearly in line with the Constitution, what is left to be said is that there exists a gap in the Constitution for mischievous politicians to tap through in executing illegal motives. Our lawmakers need to look closely at the issue to see about a possible constitutional amendment that will close the gap. More so, the courts should ensure that such cases affecting political office holders are always treated with the urgency they deserve.

Stephen Azubuike
Author: Stephen Azubuike
Stephen is a lawyer with expertise in Commercial Dispute Resolution and Technology Law practice. He is a Partner at Infusion Lawyers. He has successfully argued cases from the High Courts of various jurisdictions to the Appellate Courts on behalf of financial institutions, other corporate bodies and multinationals. He has worked with a number of startup tech companies. He tweets @siazubuike.
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