The Obi Versus Ngige Case –Questions Arising
Dr Jim I Akhere
In a recent judgment rendered by the Court of Appeal sitting at Enugu in the election petition between Mr. Peter Obi and Dr.Chris Ngige that court ,comprising of five Court of Appeal judges, sitting as the apex court in state election petition matters, unanimously declared the purported election of Dr. Ngige as governor of Anambara state on the 19th of April 2003 null and void putting an end to Ngige’s unlawful circa 35 months tenure. That court declared Peter Obi duly elected governor of Anambara state with retrospective effect to 19th April 2003.From this judgment arise many more questions than answers
Before we go into the legal implications of this judgment, this writer wishes to quickly express concurrence with one of the orbiter dicta of the Court of Appeal about the desirability of concluding an election petition matter before the assumption of office by the court adjudged winner. This is what occurs in developed countries. The reasons are too glaring. Prime among them is preventing a situation in which a non wonner may be made to assume office as in the present case which has foisted on us what was stated by the legendary Lord Denning in the celebrated case of Mcfoy v. UAC. Clothing a truisim in legal garb in his dictum the learned law Lord said “You cannot not put something upon nothing and expect it to stand” This truism has a strong foundation in logic. and common sense. There is this latin saying which also is in perfect similacum with Lord Denning’s dictum ‘Ex nihilo nihil fit” Nothing can come out of nothing”
Appling this time honoured, logical and legally grounded principle to the affairs of. Anambara state for the last three years, a state which has been writhing under monumental nullities from the imposition on it of a governor who was not a governor de jure, whose election was void ab initio unearths many jurisprudential questions. Since nothing can come out of nothing, since nothing can be put on nothing and be expected to stand can it not be properly inferred that all the actions taken by Dr. Ngige in the last three years as a pretender to the governorship of Anambara state, amount to an avalanche of nullities? That is to say all the certificates of occupancy signed, all the executve council conclusions all the contracts awarded, all the chieftaincy titles gazetted ,all the scholarships awarded all the appointments made including appointment of judges, magistrates customary court judges, all the promotions made in fact all the executive actions taken by the governor that never was are in strictu sensu void ab initio as the tenure of office of Ngige was a nulity and thus lacked any legitimacy His tenure could not impart legitimacy for as we say in latin,” nemo dat quod non habet.”-nobody gives what he does not have.
What can be done to save all these actions? How can they be clothed with legality? This is a constitutional quagmire .Would it help if the State House Assembly makes a law retrospectively legalizing all the above illegalities? The question is can illegal acts be legalized? Can something be added to nothing and be expected to stand? Let us examine some contract matters wherein a similar situation as the Ngige/obi imbroglio has been handled positively. Under the Statute of Frauds for example, a contract for the sale of goods must be in writing if the value of the contract is 500 dollars and above failing which the contract is void, However if the goods have passed and payment made the contract is saved. Similarly ,in quasi contract, which strives to prevent unjust enrichment of a party to a contract in a situation in which the agreement between the parties does not qualify for a contract for non conformity to the essential ingredients of a valid contract, a party can recover the benefit he has conferred on the other party. These two instances underscore the determination of the law to protect the rights of citizens who intended to enter into legal relationships but never really did for failure to comply with the prerequisite procedure
The situations described above can not be said to be in perfect similarity with the Anambara state case . In the Anambara state case, the constitution of the Federal Republic of Nigeria 1999 and the Electoral law are the applicable documents Even though Dr. Ngige was not the winner of the election held on the 19th of April 2003 he was declared winner by INEC .The legal position is that his tenure was void ab initio,ie right from the 19th of April 2003.It was not the pronouncement of the Court of Appeal that voided Dr. Ngige.s election and brought it to an end for it had no beginning in the first place but that pronouncement was merely an announcement of what had been the situation since April 19th 22003-the nonexistence of a legitimate governor in Anambara state for the past three years Arising from that is the avalanche of nullities aforementioned the legalizing of which we have seen to be rather intractable
Perhaps one way to solve this problem is to have Peter Obi undertake the onerous duty of taking on redoing all the things purportedly done by the governor that never was. Another way to look at this monumental problem is to call in aid the equitable doctrine ;Equity takes as done that which ought to have been done” and give legitimacy to the plethora of void acts of the governor that never was. Another way to solve the constitutional problem is to have recourse to the almighty public policy which helps to iron out creases in knotty situations and allows the application of compromise measures, in maneuvering over the problem of legitimacy inherent in the Ngige/Obi matter. Who will apply the public policy panacea? The court? The legislature? It is clear that there are certainly more questions than answers flowing from this landmark a few of which are highlighted here to stimulate a debate.
In the judgment under discussion the Appeal Court came down heavily on INEC for exercising it’s constitutional right of appeal describing it’ conduct in that regard as shameful. It is this writer’s view that unless there is something known to the Court of Appeal that is not known to the public there is nothing wrong in INEC exercising it’ constitutional right of appeal
Two issues stare one in the face from this case. 1) There was an abysmal executive failure stemming from the fact that INEC an agency of government which was supposed to be an unbiased umpire in the conduct of the election was found to be biased 2) There was legislative failure in that the legislature failed to pass appropriate electoral laws to take care of the mischief that landed Anambara state in this imbroglio. This second failure demands more scrutiny as legislators stand a better chance at helping through legislation in enhancing the economic, political, social development of the country. They also are in a strong position to promote the unity of the various ethnic groups in the country through legislations discouraging ethnocentric prejudices .Oh what powers these elected representatives have. To whom much is given from him much is expected. It is expected that our legislators should use their sacrosanct power purely for the good of the people. It therefore beats one hollow that some of our legislators have decided to throw honour to the winds for a mess of pottage and are poised for tinkering with our constitution for ad hominem considerations to pave the way for the unconscionable, diabolical, abominable, condemnable and egregious intention of President Obasanjo and the present governors to have a third term in office. The consequences of so tinkering with our constitution will be calamitous as it does not sit well with the majority of Nigerians. Perhaps the one question we can easily answer in this article is “Fellow Nigerians do we have dearth of presidential and gubernatorial materials in our dear country inundated as it is with well trained and capable Nigerians? Answer me.