By Sylvester Udemezue
In my humble opinion, Governor Nyesome Wike of Rivers State is doing fantastically well in governance, especially with respect to delivering dividends of democracy in terms of infrastructure and basic amenities, improving the security of lives and properties, and the living conditions of the people and residents of Rivers State.
Governor Wike is a performing Governor properly so called; a visit to Rivers State will convince you. He has made Rivers enviable. No wonder he has and has continued to enjoy, the massive support of his people.
However, … why would Nyesome Wike, a lawyer, support a directive to an ex-Governor of Rivers State, to refund the money the ex-Governor had earned as salaries and allowances while he held sway as Governor (even if you say he was only a DE FACTO Governor)?
▪️Does the Rivers State Government not understand the legal implications of the maxim horror vacui, (commonly stated as “nature abhors a vacuum”)?
▪️Did Celestine Omehia not work as the Governor of Rivers State for about one year?
▪️Was the installation and subsequent removal of Celestine Omehia as the Governor of Rivers State, due to any fault of Mr. Omehia himself?
▪️If you ask Mr. Omehia to return his salaries and allowances for the period, how would he be paid for the work he did legitimately?
▪️By the way, by deleting his name as an ex-Governor of Rivers State for the period, would you also nullify, reverse, erase, and destroy all the contracts he awarded during the period, all the papers he signed, all the roads, houses, infrastructure he built, all the judges he appointed, all the workers he employed, the food he ate as governor, the fuel he bought, and every single step he took then, legitimately, as the then (even if de facto) Governor of Rivers State, until the Supreme Court sacked him?
▪️ Even the Supreme Court in Amaechi`s case had wisely refrained from issuing any further consequential order to compel then ousted Governor Celestine Omehia to refund salaries and allowances he had earned within the short period he was in office, even though the court had agreed, and rightly so, that Mr. Omehia was only an impostor who was unlawfully occupying a position rightfully belonging to Hon Amaechi. The Supreme had thus allowed Mr. Omehia to go home with his earned emoluments as a reward for the work he must have done while in office as Governor. This is the right and sensible thing to do.
Gentlemen and ladies, let’s endeavour to take care of rule of law, so that rule of law will take care of our society. Faithfulness to rule of law is an essential path to progress and sanity and stability for our country.
Here is a March 14, 2017 article I wrote on this subject.
Understanding the impropriety of compelling a deposed officeholder to refund his earned emoluments: An inquest into the decision in Bassey Etim versus Senator Bassey Albert Akpan – By Sylvester C. Udemezue
Breaking news in Nigeria`s news media[ii] on 27 February 2017 came under the caption, “Court sacks Senator Bassey Akpan, orders refund of salary allowances received.” Several media houses carried the news report that a Federal High Court sitting in Uyo, Akwa Ibom State, Nigeria, had on the same day ordered the senator representing Akwa-Ibom North-East Senatorial Zone in the upper chambers of Nigeria`s National Assembly, Senator Bassey Akpan, to vacate his seat immediately.
The court presided over by Justice Fatun Riman also made the following additional orders – (a) the Independent National Electoral Commission (INEC) should immediately withdraw the Certificate of Return INEC had earlier issued to Senator Akpan; (b) INEC should issue a new Certificate of Return to the plaintiff in the case, Mr. Bassey Etim; (c) the President of the Senate of the National Assembly should swear-in Mr. Bassey Etim as the senator representing Akwa-Ibom North-East Zone in the National Assembly; and (d) Senator Bassey Akpan must within 90 days from the date of the judgment refund to the Federal Government of Nigeria all the salaries and allowances he (Senator Akpan) had received since he was sworn in as a Senator in the current dispensation.
Mr. Bassey Etim (as the plaintiff in that case) had approached the Court[iii] after the 2015 general elections alleging that Senator Akpan did not contest the PDP primary election as a senatorial candidate into the Akwa-Ibom North-East senatorial district. The Court agreed with Mr. Bassey Etim`s arguments, declaring that Senator Akpan was not duly elected in the primary election of the People’s Democratic Party held on December 7, 2014, and as such was not eligible to continue to occupy the district`s seat in the Red Chamber.[iv]
Ordinarily, it is left for Nigeria`s appellate courts to look further into the matter with a view to affirming or setting aside the judgment of the court in the matter, that is, if the matter goes on appeal. I am thus not concerned in this humble analysis with the Federal High Court order nullifying the primary election that had produced Senator Bassey Akpan as the senatorial Candidate of the Peoples` Democratic Party (PDP) neither am I bothered by the other consequential orders, instructing the INEC to issue a Certificate of Return to Mr. Bassey Etim and directing the Senate President to swear him in as the Senator representing the affected district, in place of the incumbent Senator, Bassey Albert Akpan.
What evokes or provokes a cause for urgent concern in my mind is the further decree of His Lordship, the presiding Judge, additionally directing Senator Bassey Akpan to “within 90 days from the date of the judgment, refund to the Federal Government of Nigeria all the salaries and allowances he (Senator Akpan) had received since he was sworn in as a Senator in the current dispensation.” It is the legality and justness of this particular order, and nothing more, that I propose to critically, but humbly, examine with a view to ascertaining whether or not there exist any foundations, legal or otherwise, upon which such order could rest for validity in a country founded on, and governed by, rule of law and fairness.
There is no doubt that some schools of thought would applaud this particular order as a sort of “victory for democracy and rule of law,” while some others would readily agree that such was necessary to serve as a deterrent to future (primary or general) election riggers.
Indeed, a very close friend of mine wasted no time in praising what he described as the courage of the presiding judge in having upheld the rule of law and in disapproving fraud and unjust enrichment. According to my said friend, since the court had found that the sacked Senator (Bassey Akpan) was “illegally” occupying a senatorial seat in the Red Chamber, and as such did not deserve any salaries and allowances he had received in that capacity, it was only apposite to compel him to make a recompense in regard to such “illegal” emoluments, especially as he had “rigged” the elections in his own favour.
The emoluments, my friend further argues, represents benefit of his fraudulent and corrupts acts. Some other persons might no doubt have several other bases for arguing in favour of a refund of what in their view are unmerited salaries and allowances. But there is one other side of the coin the various lines of argument have failed to address, and to which my humble attention now turns.
An easier way to approach this matter is first, to ascertain all probable questions thrown up by what I have chosen to humbly identify and refer to as the “refund order” (that is, the court order directing Senator AKpan to refund his emoluments). Such questions include, but may not be limited to: (1) to what extent does the refund order take into account the universally acclaimed Latin maxim, “horror vacui,” commonly stated in the English Language as “Nature abhors a vacuum?”
(2) Is this refund order not unfair to Hon Senator Bassey Akpan himself? Is it not tantamount to punishing Senator Akpan for the wrongs perpetrated by PDP and or INEC? (3) Has the court not acted outside its powers in issuing such a refund order? (4) How does the refund order impact on the constitutional rights of the people of Akwa-Ibom North-East Senatorial District to be represented in the Red Chamber for a period of FOUR years?
On the first challenge, it was the ancient philosopher, Aristotle, that once declared that “Nature abhors a vacuum.” Aristotle`s conclusion was based on his observation that nature requires every space to be filled with something, even if that something is colorless, odorless air. In physics, this is known as “horror vacui.” It is a postulate that nature contains no vacuums because the denser surrounding material continuum would immediately fill the rarity of an incipient void. This theory was later criticized by the atomism of Epicurus and Lucretius. Another vicious opposition to Aristotle`s theory came from the Hero of Alexandria who challenged the theory in the first century CE, by attempting to create an artificial vacuum, but this failed.[v]
Just as it is in the law of nature, so also it is and ought to be in positive laws,[vi] it is humbly submitted. Thus, the mere fact that Senator Akpan`s victory is voided does not, and should not, render invalid or ineffective all and any actions taken by him within the period he held sway as the senator representing his constituency. It is true, in law, that when a thing is quashed or voided by a court of law, the effect is that the same is deemed to never have existed in the very first place. However, where a person`s occupation of an office is voided on grounds of illegality or non-compliance with the law, the invalidation order does not, and ought to not, affect actions already taken by the affected office-holder prior to the voiding of his occupation of the office, neither should it affect any benefits or rewards he had received as a result of his occupation of the office and discharge of the tasks and duties of the office.
The same should hold true for the invalidation of the electoral victory of Senator Bassey Akpan in both the party primaries held by the PDP for the Akwa-Ibom north-east senatorial district and the April 2015 general elections. Thus, in the case of Balonwu v Gov. of Anambra State,[vii] the Supreme Court emphasized that all actions already taken in Anambra State by the then Governor Chris Ngige within the almost three years he was in power were valid notwithstanding the subsequent annulment of his election by the Nigerian Court of Appeal.
This supports the principle stated above that nature abhors a vacuum; if the period after the annulment and all actions taken within the period should be adversely affected, then it would necessarily follow that the affected State had no Governor within that period, which would create a vacuum, and consequently throw the State into inconceivable turmoil. Similarly, if, following the cancellation of his occupation of the senate seat, Senator Akpan is made to refund all his earned remunerations on the basis only that all his actions in that capacity were illegal, void and amount to nothing, it then follows that Senator Akpan would be taken to never have represented that zone in the upper legislative chamber, with the added result that the people of Akwa-Ibom North-East senatorial zone did not have any representative in the National assembly during the period June 2015 to February 2017 – the same period Senator Bassey Akpan had held sway as their Distinguished Senator. I respectfully hold the view that this position is not, and cannot, be true as the same amounts to attempting to deny the obvious, which, more often than not, is an exercise in futility.
Throughout history, and in all aspects of law, the rule has been that where a leader, manager or other office holder is made or ordered to vacate his office, for whatever reasons, the period such a leader or manager has spent in office prior to the annulment order is usually not adversely affected by such non-confirmation of his appointment nor by cancellation of his appointment, selection or election. Examples abound to buttress this position! For purposes of Corporate Governance, as an example, section 256 (1) of the Companies & Allied Matters Act (CAMA), 1990[viii] (as amended) provides that a person disqualified under section 254 of CAMA is not qualified to be a Director. Section 254 (1) (a)[ix] is concerned with a person who has been convicted by a High Court of any offence in connection with the promotion, formation or management of a company.
Then, section 257, dealing with vacation of office of a director, stipulates that where a person who has already been appointed a director thereafter becomes disqualified or prohibited from being, or continuing in office as, a director by reason of any such order made pursuant to section 254 (say, he is convicted of any offence in connection with fraud he may have committed in relation to the management, promotion or formation of a company) such a person shall immediately cease to hold office as a director. Interestingly and in recognition that “nature abhors a vacuum,” there is no provision in the CAMA that in any such instance, where a director who has held office or has been in office for some time before being removed or terminated (on account of his conviction for fraud), the affected director shall refund or be made to refund all or any part of the salaries and allowances he was paid while in office, that is, prior to his vacating his office.
Similarly, where a person earlier appointed as a director by the Board of Directors of a Company to fill a vacancy in the office of director is thereafter removed from office by the general meeting of the company, the same person shall immediately cease to hold such office, but removal in such a case, on whatever grounds, shall not and does not affect any previous acts of such a director, neither would such removal adversely affect any salaries and allowances earned by him prior to his removal[x]. It is submitted that the same ought to have applied in the present case involving Senator Bassey Akpan.
Indeed, it makes a mockery of the entire spirit of justice to direct a legislator whose election is voided on whatever ground to refund all his earned emoluments. If this is allowed to stand, it then means that where for instance a public office-holder who has been in office, say for ten years, is later discovered to not be qualified for appointment to such an office and is accordingly removed from such office, then following the nullification of his appointment, he would be directed to refund to his employers all salaries and allowances he has earned within the ten years held the office. In a similar vein, a university lecturer who is removed from his position on grounds of non-qualification would be asked to return to the University all of his remunerations for the period. If this be the case, the question may be raised, what about all the “work” such former officer-holder (lecturer, legislator, clerk, or whoever) had done while in occupation of such office? What about the effort, energy and time he had invested in promoting and supporting his employers, prior to his removal? To what extent is this fair and reasonable on such former employee?
Still on the hypothetical example of the sacked lecturer who is asked to refund his wages and allowances, would his employers (the university), in a reciprocal manner, “refund” or return to the affected Lecturer all the “knowledge,” “ideas,”etc., the Lecturer has imparted into the heads and brains of his students over the years, while he was still in such office, albeit illegally? What happens to the certificates already awarded to his students on accounts of the lecturer`s teaching and assessment of the students; would his former students be compelled to return their certificates and relinquish the knowledge in their heads to the Lecturer, since such knowledge, the examinations questions set and the assessments done by the affected Lecturer were all illegally done, based on the argument that the lecturer was illegally occupying his office?
What is more? Assuming the President of the Senate of the Federation is removed from office after two years in office and, as in the case of Senator Bassey Albert Akpan, is additionally ordered to refund all his earned salaries and allowances, the query is, if he is made to refund his salaries because perhaps “he did not deserve them in the first instance,” who then would be said or recorded in the history books as the President of the Senate for the affected two years? Would asking him to return his pay not foist an impossible confusion-laden situation; would it then not follow that all the Bills and resolutions passed and any other actions taken by the Senate during the period that the deposed Senate President was in office as such would have to be, consequently, rendered void and of no effect, following which even all the annual and or supplementary appropriation Bills or budgets passed and implemented during the material period would also be taken to have been illegally passed and implemented?
Accordingly, as an after-effect, all projects executed from the illegally passed budget, and all monies disbursed therefrom would have to be reversed, cancelled and restored and refunded to the affected government`s treasuries. Even road projects already awarded and executed with monies from the illegally passed budget would have to be reversed, and the coal-tar would be excavated while the contractor must return the exact sum of money he received from the government on account of such project. Easier said than done! How possible would all these be, because one cannot order me to refund the wages I have collected for work I have done, and yet not also order a reversal of the services I have rendered? The Latin maxim, which Herbert Broom has describe as a “fundamental legal principle” is ‘lex non cogit ad impossibilia.“[xi] This principle has been translated variously as “the law must not be interpreted to command the doing of what is practically impossible,” “the law does not compel the doing of impossibilities,”[xii] “the law requires nothing impossible,”[xiii] or “the law does not compel a person to do that which he or she cannot possibly perform.”[xiv]
Accordingly, if we agree that Senator Bassey Albert Akpan`s name must be recorded as having occupied that office for the affected period, and that he had (diligently and faithfully) discharged the powers and functions of that office, even though, he was later found to be not qualified, then, for his having occupied the office and for the work he had done in that capacity, he is no doubt entitled to keep his earned wages. This is the only reasonable thing to do. To argue or hold otherwise is to stand justice and law in on their heads and interpret both upside-down! This is exactly what the learned trial judge (Hon Justice Fatum Riman) of the Federal High Court, Uyo, Akwa-Ibom State, Nigeria, has done in Senator Bassey Albert Akpan`s case, and to that extent, with utmost respect to the learned judge, the judgment is highly condemnable, because whenever the question is asked as to who was the Chairman of the Senate Committee on Gas from 2015 to early 2017, and as to who represented the Akwa-Ibom State North-East senatorial district in the Nigerian Senate, only the name Bassey Albert Akpan would be mentioned.
Interestingly, the Constitution of the Federal Republic of Nigeria, 1999 (as amended) expressly provides that[xv] “a member of the Senate shall receive such salary and other allowances as the Revenue Mobilization Allocation and Fiscal Commission may determine.” Neither the Constitution nor any other law authorizes, under any circumstance, a refund of salaries already collected, not even where the affected senator is later removed from office. The Court in the present case knew all these and nevertheless went ahead and asked Senator Akpan to refund all his earned salaries and entitlements. What the court has thus done, and which is most unfortunate, is, perhaps having acknowledged in one breath that a particular senator represented a certain constituency for about two years in the upper legislative chamber before being kicked out, to proceed in another breath, to deny such a former senator the right to keep his emoluments during the period. I most respectfully disagree this reasoning of the court, and so should every reasonable mind
Furthermore, is the refund order not tantamount to punishing Senator Akpan for the wrongs perpetrated by PDP and or INEC? Senator Bassey Akpan was only a candidate in the general elections held for the Akwa-Ibom North-East senatorial district in April 2015. The independent National Electoral Commission (INEC) had declared Senator Bassey Akpan winner of the said elections and consequently issued him the official Certificate of Return, following which the Senate President had sworn him in as the Senator representing the Akwa-Ibom North-East Senatorial District in the Red Chamber. First, if the Court found the primary election that had produced Seantor Bassey Akpan as the candidate of the People`s Democratic Party (PDP) as faulty, for whatever reasons, was it or would it not be sufficient for His Lordship of the Federal High Court, Uyo Divison, to have simply set aside the affected primaries and also reprimanded the PDP for its having submitted Senator Akpan`s name, instead of that of Mr. Bassey Edet, as the candidate of the PDP?
What exactly is the justification for the refund order? Would Senator Akpan have participated in the general elections as a candidate if the PDP had not submitted his name? Would he have been sworn in as a Senator had INEC not declared him winner of the election? Would he ever have acted in the capacity of a senator had he not been sworn in by the Senate President? Is Senator Bassey Albert Akpan the owner, controller or director of the PDP, the INEC or the Senate? Were these three bodies that had facilitated his ascendance to the position of a Senator not independent bodies and free from Senator Bassey Akpan`s control and influence? It is therefore respectfully suggested that, based on the aforesaid, the maxim that “one should not be permitted to benefit from one`s own wrong” does not apply in this instance. Also, not applicable, for the same reasons, is the principle that “one should not be allowed to use the provisions of a statute as an engine of fraud.” Finally on this point, the Electoral Act, 2010 (as amended) is crystal clear on the only order or orders a court of law should make in such scenario: “if the tribunal or the court as the case may be determines that a candidate who was returned as elected was not validly elected on any ground, the tribunal or court shall nullify the election.”[xvi]
Following directly from the aforesaid is a further question as to whether the order directing the sacked legislator to refund his earned benefits is not ultra vires the powers of the Court. Rightly or wrongly, the court annulled Senator Bassey Akpan`s nomination, ordered a withdrawal of his certificate of return and commanded the issuance of a new Certificate to his rival, the plaintiff in the case under review, Mr. Bassey Edet, and also directed INEC to swear in Mr. Edet as a Senator, in place of Bassey Akpan. Were these not sufficient remedies in the circumstances of the case? Was the refund order among the Plaintiff`s claims in the suit? So far, there has been no reported proof that such was one of the prayers or claims of the Plaintiff/Claimant in that case. One then wonders in what way such a strange order does contribute to meeting the justice of this matter or in assuaging the feeling of Mr. Bassey Edet? Has the court of law not turned itself into a Father Christmas, dishing and doling out unexpected relief and handing out orders in the form of unsolicited gifts? That a court cannot give or award in a suit before it that which is not specifically claimed by any party to the suit is already settled in law. In AMAECHI v. INEC,[xvii] the Supreme Court of Nigeria (per Oguntade, JSC) declared that “The fundamental duty of the court is to expound the law and not to expand it. It must decide what the law IS and not what it MIGHT be.” Similarly, in Ogunsola v. Ibiyemi,[xviii] the Court of Appeal (per Fabiyi, JCA) held that a judge has no power to award that which was not claimed by a party. This is because he is not a Father Christmas. And the court is not a charitable organization. In Etim Ekpeyong v. Effiong Nyong,[xix] the Supreme Court stated thus:
“The court is without the power to award to a claimant that which he did not claim. A court of law may award less and not more than what the parties have claimed. A fortiori, the court should never award that which was never claimed or pleaded by either party. It should always be borne in mind that a court of law is not a charitable institution. Its duty in civil cases is to render unto everyone according to his proven claim.”
Speaking at the valedictory court session held in honour of a retiring Justice of the Supreme Court, Justice Muhammad Muntaka-Coomassie, at the Supreme Court complex on 10 February 2016, the then Chief Justice of Nigeria, Hon Justice Mahmood Mohammed made the following observations:[xx]
“The Nigerian Judiciary, though constantly striving to redress wrongs and tilt the balance of that which is right, has recently had to face the backlash of misguided opinions fashioned without due consideration of the law and rationale for the system of government that we operate. The Judiciary is duty bound to act in accordance with the dictates of the law as it stands and not as critics would like it to be. In this sense, naïve idealism is but a pale imitation of legal certainty…’’
It is no longer in question that a court of law has no power to turn itself into a father Christmas. Nonetheless, there is a related issue which I believe deserves some examination, here, and it is this: to what extent is the court striped of powers to make unsolicited orders? I think for purposes of giving a just answer to this question, some look at the Supreme Court judgement in the case of CHIBUIKE AMAECHI v. INEC[xxi] is useful. In that case, while offering reasons for its earlier judgement (given on 25/10/2007, the apex court in the lead judgment/reason delivered by Oguntade, JSC (on 18/01/2008), stated thus:
“This court and indeed all courts in Nigeria have a duty which flows from a power granted by the constitution of Nigeria to ensure that citizens of Nigeria, high and low get the justice which their case deserves. The powers of the court are derived from the constitution not at the sufferance or generosity of any other arm of the Government of Nigeria. The judiciary like all citizens of this Country cannot be a passive on-looker when any person attempts to subvert the administration of justice and will not hesitate to use the powers available to it to do justice in the cases before it. Section 6(6) (a) of the 1999 Constitution provides: ‘(6) The judicial powers vested in accordance with the foregoing provisions of this section – (a) shall extend, notwithstanding anything contrary in this Constitution to all inherent powers and sanctions of a court of law.’ And Section 22 of the Supreme Court Act provides: ‘The Supreme Court may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, … and may make an interim order or grant any injunction which the court below is authorized to make or grant … or may give such other directions as to the manner in which the court below shall deal with the case in accordance with the powers of that court.’
In view of the above provisions, there can be no doubt that there is a plenitude of power available to this Court to do which the justice of the case deserves. It enables a court to grant consequential reliefs in the interest of justice even where such have not been specifically claimed. Having held as I did that the name of Amaechi was not substituted as provided by law, the consequence is that he was the candidate of the P.D.P. for whom the party campaigned in the April 2007 elections not Omehia and since P.D.P. was declared to have won the said elections, Amaechi must be deemed the candidate that won the election for the P.D.P. In the eyes of the law, Omehia was never a candidate in the election much less the winner. It is for this reason that 1 on 25/10/2007 allowed Amaechi’s appeal and dismissed the cross-appeals. I accordingly declared Amaechi the person entitled to be the Governor of Rivers State. I did not nullify the election of 14/04/2007 as I never had cause to do so for the reasons earlier given in this judgment”
It is clear from Amaechi v. INEC that a court is permitted for certain purposes, to grant certain consequential order or orders, even though such order or orders are unsought. However, it is submitted that, flowing directly from the same decision, three conditions precedents must be confirmed to exist before a court can consider whether or not to exercise its inherent powers in this respect:
- such consequential order must flow directly and equitably from the facts and reliefs in the substantive case;
- such order must be targeted at realising or accomplishing the justice and justness of the case at hand; the order must be a consequential relief made in the best interest of justice, notwithstanding that such have not been specifically claimed. The order must be strictly and solely for purposes of ensuring that interested litigants get the justice which their case deserves; the scenario must be such that to do otherwise would permit or promote rather than avoid injustice; and
- the circumstances in which the unsought order is proposed to be made must be extremely exceptional. It is not as a matter of the rule.
These conditions ought to necessarily co-exist in order to justify such sweeping departure from the time-honored rule. Thus, where the three conditions are, or any one of them is, absent, the court would be in error to make any order or grant any relief save that which is specifically sought by litigants. In his supporting judgment (reasons for his earlier judgment) in the same Amaechi v. INEC, KATSINA-ALU, JSC has this to say:
“This case is not an election matter. It is clearly a pre-election matter. The court was called upon to decide who of the two candidates was PDP’s nominated candidate for the April election. As I have already held it is the Appellant that was the PDP’ s candidate for the Governorship election. As for the order that I ought to make, I must say that this court has wide jurisdiction to make consequential orders and to grant reliefs which the circumstances and justice of a case dictate. On the principle of Ubi jus ibi remedium if the court is satisfied that a person has suffered a legal injury, it will surely provide a remedy irrespective of the fact that no remedy is provided either at common law or by statute.”[xxii]
In Amaechi`s case, the supreme court, having decided that (1) indictment of any person by a Panel or Tribunal of inquiry amounts to a mere “allegation” and does not, without more, translate to conviction so as to warrant his disqualification as a candidate in an election; (2) that PDP`s substitution of Omehia for Amaechi as the party`s governorship candidate for the 2007 gubernatorial elections in Rivers State was void and of no effect; and (3) that, consequently, that Hon Chibuike Amaechi remained in the eyes of the law PDP`s candidate for that election, such that it was Amaechi, and not Omehia, that was voted into the office on the date of the election, the apex Court was then faced with the very difficult task of how to ensure that Hon Amaechi reaped the fruits of this victory, since Omehia had already been declared winner of the elections and duly sworn-in as, and was already discharging the duties of, the Governor of the State. Besides, there was no relief (in the Plaintiff`s originating processes) specifically praying the court to remove the then sitting Governor Omehia and declare Amaechi the Governor. There could not have been any such relief since the suit had begun before the date of the election itself.
The appellant counsel had thus prayed the apex court to (by way of a consequential order, in the interest of justice) go ahead and sack Governor Omehia and declare Amaechi the lawful Governor of Rivers State, even though such relief was not specifically sought by the appellant. In response, the respondents (INEC, Omehia and PDP) urged the court to reject this oral prayer by the appellant, on two grounds: (1) the court is not a father Christmas, and as such must not grant unsolicited reliefs, and (2) Governor Omehia was protected (from civil suits) by the immunity provisions in section 308 of the Constitution of the Federal Republic of Nigeria, 1999. In its ruling, the apex court reasoned thus (per Katsina-Alu, JSC):
“Section 308 of the 1999 Constitution is not meant to deny a citizen of this country his right of access to the court. It is a provision put in place to enable a Governor, while in office, to conduct the affairs of governance free from hindrance, embarrassment and the difficulty which may arise if he is being constantly pursued and harassed with court processes of a civil or criminal nature while in office. It is a provision designed to protect the dignity of the office. However, the proviso under section 308 ensures that the period when a governor enjoys immunity shall not be taken into account in computing the time limit for initiating an action under the Statute of limitation. Section 308 cannot be relied upon where the nature of the suit is such that the res in dispute will be destroyed permanently with the effluxion of time.
“To hold that section 308 can be invoked in a matter relating to the eligibility for a political office where the tenure of such office has been set out in the Constitution will translate into denying to a plaintiff his right of access to the court. It is only in a case where a deferment of plaintiff’s right of action is not likely to destroy the res in the suit that section 308 can be invoked. In this case, to ask Amaechi to wait till the end of Omehia’s tenure of office as Governor before pursuing his suit is to destroy forever his right of action.”
Furthermore, the court (per Musdapher, JSC[xxiii]) declared:
“Section 308 of the 1999 Constitution does not protect a governor from legal proceedings in a matter of his election per se or in a matter connected with the election even when he,as a contestant has been declared duly elected or returned as governor. Election petitions and election related proceedings are special proceedings divorced and separated from civil or criminal proceedings within the intendment and context of section 308 of the Constitution. The processes leading to the election are not only justiciable at the instance of any party aggrieved in the process but the immunity under section 308 of the Constitution cannot avail a governor since the immunity is not within the contemplation of such proceedings. [Onitiri v. Benson (1960) SCNLR 314; Oyekan v.Akinjide (1965) 381.]” Per Musdapher, JSC
It is my humble opinion that the consequential order the Supreme Court made in Amaechi`s case is clearly justified and justifiable, strictly for purposes of attaining the justice of the case. Had the court acted otherwise, Hon Amaechi`s victory would have been a mere pyrrhic victory, being absolutely nugatory and of no use whatsoever since there was no way he could reap the benefits of his so-called success. But for that very consequential order, then, Amaechi`s success in court would have been akin to a mere paper tiger — seemingly powerful, yet too weak to be of any assistance to the triumphant party!
On the other hand, one may ask, by way of an analogy, which justice was His Lordship, the trial judge, trying to aid in the present case of Edet v. Akpan when the court ordered the defendant, Senator Bassey Akpan, to refund his salaries? How does the refund order in the circumstances promote justice? What pains or injustice would Mr. Bassey Edet, the plaintiff, have suffered had the court refrained from making such a frivolous refund order? How would not making such order detract from Mr. Edet`s victory in the case? In my opinion, there was nothing that rendered the refund order absolutely necessary in this case. If anything, the order only undermined the justice of the case, since justice itself is a two-way sword, a double-edged sword. While adding nothing to help the case of Mr. Edet, the refund order did everything to foist brash but needless injustice on Senator Bassey Akpan, by denying him the wages of his labour for the almost two years he has been in office as the Senator representing the Akwa-Ibom North-East Senatorial Zone in Akwa-Ibom State. The order runs against section 70 of the Nigerian Costitution[xxiv]
Conversely, the Supreme Court in Amaechi`s case had wisely refrained from issuing any further consequential order to compel then ousted Governor Celestine Omehia to refund salaries and allowances he had earned within the short period he was in office, even though the court had agreed, and rightly so, that Mr. Omehia was only an impostor who was unlawfully occupying a position rightfully belonging to Hon Amaechi. The Supreme had thus allowed Mr. Omehia to go home with his earned emoluments as just reward for the work he must have done while in office as Governor. This is the right and sensible thing to do! As Hon Justice Benjamin Cardoso once said,[xxv] “justice, though due to the complainant or claimant and the society, is due also to the defendant. The concept of fairness cannot be strained till it is narrowed down to a filament; we are to keep our balance true.” And in the words of C.M Myers, “if we wish to maintain our quality of life, it is important to not only to maintain the rule of law but also to apply it with respectfulness and compassion.”[xxvi] Justice cannot be for one side alone, but must be for both.
In conclusion, not only that the refund order is unfair to Senator Bassey Akpan; it also is a gross abnormality which was most uncalled-for in the circumstances. The order is an undefended and inexcusable violation of the constitutionally guaranteed and indisputable right of people of the Akwa-Ibom North-East Senatorial District who are entitled to be represented in the Red Chamber by one of their own, for a period of FOUR years, in any dispensation, and whom Senator Akpan had represented in the National Assembly for almost two years.[xxvii] Ordering the deposed senator to refund all his salaries is tantamount to an indirect denial of the fact that Senator Akpan did actually represent his people for the period in question.
It is therefore obvious, from this, and other discussions above that the refund order has set a dangerous precedent, which our appellate courts need to urgently dethrone in the best interest of continued good-health of our legal system and judicature the principal aim of which is to, not only do justice, but to also ensure that justice is seen at all times to be done in a most evenhanded and rational manner? The English locus classicus, R v Sussex Justices, Ex parte McCarthy[xxviii] is a leading case on impartiality and recusal of judges. The case is especially famous for its precedence in establishing the principle that the mere appearance of bias is sufficient to overturn a judicial decision. But of special note is the aphorism the court in that case brought into common parlance: “Not only must Justice be done; it must also be seen to be done.” The Nigerian Supreme Court has since adopted this dictum and has insisted that such must be observed in all processes of adjudication in the country.
The case of Aroyewun v. Osolani[xxix] is a classic example in this respect. Nothing can better or more reasonable because as the ancient Greek philosopher and writer, Epicurus, once declared that, “just as nothing is straighter than that which is straight, so also is nothing juster than that which is just.”[xxx] Potter Stewart,[xxxi] American Judge and Associate Justice of the United States Supreme Court,[xxxii] summed it all up in his legendary and immutable pronouncement: “fairness is what justice really is.”[xxxiii]
https://legalresearchersnigeria.wordpress.com/2017/03/14/understanding-the-impropriety-of-compelling-a-deposed-office-holder-to-refund-his-earned-emoluments-an-inquest-into-the-decision-in-bassey-etim-versus-senator-bassey-albert-akpan-by-sylvester-c-ude/)
ENDNOTES
[i] Sylvester C. Udemezue (UDEMS) is a Lawyer and Lecturer at Nigerian Law School, Victoria Island, Lagos, Nigeria; [email protected] +234 (0) 802 136 5545, http://www.udemsyl.worpress.com/
[iii] Under section 31 (5) and (6) of the Electoral Act, 2010 (as amended), if a court determines that the nomination (or submission of the name) of a candidate by a political does not comply with the Act, the court shall issue an order disqualifying the candidate from contesting the election.
[vi] The term “positive law” is has been defined to mean statutory man-made law, as opposed to “natural law,” which is purportedly based on universally accepted moral principles, ‘God’s law,’ and/or derived from nature and reason. The term “positive law” was first used by Thomas Hobbes in Leviathan (1651). See http://dictionary.law.com/Default.aspx?selected=1552. In the strictest sense, “positive law” is law made by human beings, that is, “Law actually and specifically enacted or adopted by proper authority for the government of an organized jural society. See http://www.positivelaw.com/?page_id=20.
[vii] (2009) 18 NWLR (PT 1172) 13 SC
[viii] Cap C20, Laws of the Federation of Nigeria, 2004.
[x] See CAMA, section 249
[xii] Per Justice Owens in Hughey v. JMS Development Corporation, Court of Appeals for the Eleventh Circuit, Case No. 94-402 docket://gov.uscourts.ca11.94-8402, or 78 F. 3d 1523 (1996)
[xiv] Per Hon Justice Frankel of the British Columbia Court of Appeal in 2008 BCSC 369 or 2010 BCCA 347.
[xv] Section 70
[xvi] The Electoral Act, 2010 (as amended), section 140 (1).
[xvii] 2008, 5 NWLR, (Part 1080), 227 at 437
[xviii] (2008) 41 WRN, 96 at 113 lines 15-20. See also Egonu v. Egonu (1978) NSCC 575; (1978) 11-12 S.C. 111, 113, Babatunde Ajayi v. Texaco (Nig.) Ltd. (1978) 9-10 S.C.1; (1987) 3 NWLR (Pt. 62) 577 at 27, Etim Ekpenyong v. Inyang Nyong (2003) 51 WRN 44; (1975) 2 S.C. 71 at 80.”
[xix] (1975) 2 SC, 65; see also Agu v. Odofin (1992) 3 SCNJ; AG, Cross River State v. AG, Federation (2005) All NLR 144
[xxiii] supra, at page 343
[xxiv] already cited
[xxv] in Snyder v. Massachusetts, 291 U.S. 97, 122 (1934)
[xxvii] under Chapter V Part I of the Constitution of the Federal republic of Nigeria, 1999 (as amended)
[xxviii] [1924] 1 KB 256; [1923] All ER Rep 233
[xxix] (1985) 2 NSCC 827
[xxxi] January 23, 1915 to December 7, 1985
