By Chief Mike Ozekhome, SAN
Nigeria is a country with one major news item per day. The issue in the polity currently generating national ruckus, hoopla and bedlam is the presumed intention of Dr Goodluck Ebele Jonathan to run for the 2023 presidency.
It does not matter that he has never confirmed to anyone, the rumour of his planned defection from his opposition PDP party under which he was once elected President, to the ruling APC party. They are prepared, as ever, to shave his hair in his absence.
I have carefully read the arguments of those who believe that Dr Goodluck Ebele Jonathan is disqualified from contesting the 2023 presidential election because according to them, he had already done two terms and will thus be ineligible to contest for a third term.
They cite the Fourth Alteration (No 16) Act, which was signed into an Act by President Muhammadu Buhari on the 11th of June 2018. The section they are relying on is section 137(3) of the said Fourth Alteration to the 1999 Constitution, which provides that “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”.
THE ANTAGONISTS ARE DEAD WRONG IN THEIR LEGAL POSTULATIONS
The truth of the matter is that the antagonists of Jonathan running in 2023, in their strange line of argument, are mainly relying on the above section 137(3). They have probably not adverted their minds to sections 141 of the Electoral Act, 2010, as amended, and section 285(13) of the same Fourth Alteration to the 1999 Constitution, as amended, which they are relying on.
More revealing is that these antagonists are probably not aware of an extant and subsisting Court of Appeal decision where Jonathan was frontally confronted and challenged before the 2015 presidential election, on the same ground of being ineligible to contest the said 2015 election, having allegedly been elected for two previous terms of office.
Section 137(3) being relied upon by the antagonists was signed into law in 2018, three years after Jonathan had left office. Can he be caught in its web retrospectively? We shall see that anon.
The case in question is CYRIACUS NJOKU V GOODLUCK EBELE JONATHAN (2015) LPELR-244496 (CA). In that case, the Court of Appeal, Abuja Division, held that President Goodluck Jonathan had only taken the oath of office once and therefore upheld his eligibility to contest the then Nigeria’s presidential election slated for March 28, 2015.
The intermediate court held that the oath of office President Jonathan took in 2010 was merely to complete the “unexpired tenure” of late President Umar Yar’Adua, who died while in office as President.
The appeal had been brought before the court by one Cyriacus Njoku, who was challenging the ruling of the High Court of Federal Capital Territory, Abuja, which on March 1, 2013, had dismissed the suit he filed to stop President Jonathan from contesting the 2015 polls.
In a lead judgement delivered by Justice Abubakar Yahaya, the full panel of the court unanimously held that President Jonathan had only spent one term in office as President, going by the provisions of the 1999 Constitution.
President Jonathan had been empowered as acting President on February 9, 2010, following a motion for the operation of the “doctrine of necessity” by the Senate, owing to the protracted stay of late President Umaru Yar’Adua in Saudi Arabia on medical grounds.
When President Yar’Adua eventually died on May 5, 2010, Jonathan was sworn in as president to serve the unexpired residue of office of Yar’Adua. Jonathan was later elected President in 2011 for the first time, on his merit.
Mr Njoku had contended that Jonathan had already sworn to the oath of office and allegiance twice and therefore, should be disqualified from contesting the 2015 election, as any victory he secured would amount to being sworn in thrice.
However, the court ruled that the oath that Jonathan took in 2010 was merely to complete the unexpired tenure of late Yar’Adua; adding that by virtue of section 135 (2)(b) of the 1999 Constitution, Jonathan only took his first oath in May 2011. The Court of Appeal further held that disqualification is through an election, not oath-taking.
The intermediate court’s judgement read in part: “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 37(1)(b) disqualifies a person from contesting for president if he had been elected twice. Disqualification is through an election and not oath-taking. An election is a process of choosing a person to occupy a position by voting.
“When an 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 VP 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 S130 (1)(2) of the 1999 constitution. It was not an election that produced the first respondent 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-taking by the first respondent as an elected President having fulfilled all the processes of an 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.
“It is a mode of assumption to the office of the demised President, an ‘appointment’ by the Constitution, as it were, as no letter of appointment is necessary from anybody.
“The Vice-President automatically becomes the President, by virtue of his being the Vice-President. An example can be found in section 130(1) and (2) of the 1999 Constitution.” Per ABUBAKAR DATTI YAHAYA, JCA (Pp 40 – 41 Paras E – D)
The Court of Appeal further upheld the decision of the lower court which had dismissed Mr Njoku’s suit for lack of locus standi. It noted that “it is fundamental that where a party lacks locus, the court cannot assume jurisdiction. We agree with the lower court that the appellant has no locus to sue”.
On the question of the cause of action, the court held that the case of the appellant was “speculative and imaginary as none of the reliefs he sought accrued to him any benefit”.
Indeed, the Court of Appeal had awarded the sum of N50,000 each as cost to the defendant, President Jonathan.
RETROSPECTIVITY OF LEGISLATION
Aside Jonathan being completely cleansed of the virus of ineligibility to contest the 2023 presidential election by the Court of Appeal decision in Njoku’s case, as Naaman the leper was, after dipping himself in the River Jordan seven times, Jonathan is also aided by the golden canon of interpretation to the effect that an enactment does not operate retrospectively or retroactively to take away from citizens enured rights.
We may now ask: What is the effect of Buhari signing into law section 137(3) of the Fourth Alteration to the 1999 Constitution in 2018? The answer is found in section 2 of the Interpretation Act which provides that:
“1. An Act is passed when the President assents to the Bill for the Act, whether or not the Act then comes into force;
2. Where no other provision is made as to the time when a particular enactment is to come into force, it shall, subject to the following subsection, came into force –
a. In the case of an enactment contained in an Act of the National Assembly, on the day when the Act is passed;
b. In any other case, on the day when the enactment is made.”
It is therefore clear that section 137(3) of the Fourth Alteration to the Constitution took effect on 11th June 2018, when President Muhammadu Buhari assented to it. Section 137(3) is subject to section 318(4) of the 1999 Constitution which provides that, “the Interpretation Act shall apply for interpreting (its) provisions”.
Section 137(3) is one piece of legislation that can be termed retrospective or retroactive legislation.
On retrospectivity of legislation, the apex court, coram Justice Kekere-Ekun, J.S.C, held in the case of SPDC V. ANARO & ORS (2015) LPELR-24750(SC) at (Pp. 64 paras. B), thus:
“There is a general presumption against retrospective legislation. It is presumed that the legislature does not intend injustice or absurdity. Courts, therefore, lean against giving certain statutes retrospective operation.
“Generally, statutes are construed as operating only in cases or on facts, which come into existence after the statutes were passed unless a retrospective effect is intended. It was held inter alia, in Ojokolobo Vs Alamu (1987) 3 NWLR (Pt.61) 377 @ 402 F-H that it is a fundamental rule of Nigerian law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act or Law; or arises by necessary and distinct implication. See also: Udoh Vs O.H.M.B. (1993) 7 NWLR (Pt.304) 39 @ 149 F – G; Adegbenro Vs Akintola (1963) All NLR 305 @ 308.”
Similarly, in ALEWA V. SOKOTO STATE INEC (2007) LPELR-8388(CA) (PP. 32 PARAS. A), the Court of Appeal, per Ariwoola JCA (as he then was), held thus:
“It is however settled law that, unless the lawmakers expressly state otherwise, a statute operates prospectively but not retrospectively. It is a cardinal principle of English Law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act, or arises by necessary and distinct implications. The position is the same in this Country. In Olaniyi vs. Aroyehun (1991) 5 NWLR (pt 194) 652, the Supreme Court held that:- “A construction like other statutes operates prospectively and not retrospectively unless it is expressly provided to be otherwise. Such legislation affects only rights which came into existence after it has been passed.” See also; Chief C. Odumegwu Ojukwu vs. Chief Olusegun Obasanjo & Ors. (2004) 7 SCM 53 at 93, Afolabi & Ors. v. Governor of Oyo State (1985) 2 NWLR (pt 9) 734, Ojokolobo vs. Aremu (supra).”
Hear my Lord Kekere-Ekun JCA, (as he then was) in ALEWA V. SOKOTO STATE INEC (2007) LPELR-8388(CA) (PP. 21-22 PARAS. D):
“There is a presumption that the legislature does not intend what is unjust. Thus, although under our legal system, the Legislature is competent to make retrospective laws, the Courts generally lean against giving a statute retrospective effect unless the terms of the statute, so state in clear and unequivocal language. In Afolabi v. Governor of Oyo State (1985) 2 NWLR (9) 734 at 752 E, Aniagolu, JSC stated thus, “The Courts have always leaned against giving statutes a retrospective effect and usually regard them as applying to facts or matters which came into existence after the statutes were passed unless it is clearly shown that a retrospective effect was intended by the Legislature.” Underlining supplied. See alsoAdesanoye v. Adewole (supra) at 147 B-C & D-E; West v. Gwyne (1911) 2 CH 1; A.G. Federation v. A.N.P.P. (2003) 15 NWLR (844) 600 at 648 G -H; Sa’ad v. Nyame (2004) All FWLR (201)1678.”
His Lordship Muhammad, J.S.C, in EGUNJOBI V. FRN (2012) LPELR-15537(SC), (PP. 34-35 PARAS. F), held that:
“…It is trite law that the Courts frown at retrospective and retroactive legislations. Ojokolobo v. Alamu (1987) 3 NWLR (Pt.61) 377 at 34 406; Afolabi v. Governor of Oyo State (1985) 2 NWLR (Pt 9) 734.
“Although under Nigeria Law, there is a presumption against retrospectivity, where a retrospective operation is clearly spelt out, that legislation must not be declared incompetent; Adegbenro v. Akintola (1963) 2 SCNLR 216; Adeshina v. Lemonu (1965) 1 All NLR 233; The Swiss Air Transport Co. Ltd v. African Continental Bank Ltd (1971) 1 All NLR 37; Attorney General East Central State v. Ugwuh (1975) 5 SC 13…”
Indeed, section 4(9) of the Constitution denies the NASS “in relation to any criminal offence”, the power to “make any law which shall have retrospective effect”.
Though this section specifically deals with criminal offences, judicial decisions clearly show that it operates with equal force to civil matters.
Thus, the court held in the case of the ATTORNEY GENERAL OF THE FEDERATION V. ALL NIGERIAN PEOPLES PARTY (ANPP) & 2 ORS. (2003) 15 NWLR (Pt. 844) 600 @ pages 648-649, paras. E-B, that:
“A statute is deemed to be retrospective where it takes away any vested right acquired under existing laws or creates a new obligation or imposes a new duty or attaches a new disability in respect of transactions or considerations already past. Based on the presumption that a legislature does not intend what is unjust, the courts have always leaned against giving statutes a retrospective effect and usually regard them as applying to facts or matters which came into existence after the statutes were passed unless it is clearly shown that a retrospective effect was intended by the legislature.
“In the instant case, the constitution came into being on 29th May 1999 and all rights, liabilities and privileges as contemplated by the circumstance of the arose as of that day. Consequently, its provisions can only be read prospectively.”
Furthermore, the court held at page 649, paras. C-D; 661-662, paras. F-C; 665, paras. A-B as follows:
“One of the cardinal principles of interpretation of statutes is that no rule of construction is that a retrospective operation is not to be given to a statute to impair an existing right or obligation otherwise that as regards matters of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment.”
The court nailed it when it held at page 667, paras. C-D that:
“A constitution, like other statutes, operates prospectively and not retrospectively unless it is expressly provided to be otherwise. Such legislations affect only rights which came into existence after it has been passed.”
A cursory examination of the various provisions of the constitution and all the appellate court decisions cited above make it crystal clear that the purported disqualification of Dr Goodluck Ebele Jonathan is grossly misconceived by the antagonists, as the Constitution must be progressively and not retrogressively construed.
More significantly, the Alteration Act itself does not make any express provision that the said inserted subsection 137(3) would operate retrospectively.
The principle of expressio unius est exclusio alterius (the express mention of one thing is the exclusion of others) applies here. See MADUMERE & ANOR V. OKWARA & ANOR (2013) LPELR-20752(SC).
It is clear that those deliberately misinterpreting the clear position of the law may be baying for Jonathan’s blood, possibly as a potential candidate who may subvert the chances of their preferred candidates.
I do not view issues from such a narrow ad homine prism and blurred binoculars. It will be grossly unfair, unconstitutional, unconscionable and inequitable to deny Jonathan of the right to contest the 2023 presidential election when our extant laws and appellate court decisions permit him to.
The question of whether Jonathan really needs to subject his glittering and internationally acclaimed reputation and credentials to the muddy waters of a fresh competition with persons, some of whom were his personal appointees as president, is another matter altogether.
Only him, and not the present state of the laws in Nigeria, can answer that question and decide his own fate. But, as regards his eligibility to contest, Dr Goodluck Ebele Azikiwe Jonathan is pre-eminently constitutionally, morally and legally qualified to contest the 2023 presidential election.
Chief Mike Ozekhome, an Abuja and Lagos-based senior Nigerian lawyer for several decades, holds the following qualifications and honours: SAN, OFR, FCIARB, LL.M, Ph.D, LL.D.
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