The Electoral Act 2022 and tenure elongation for FCT area councils — By Vincent Adodo
On the 12th day of February 2022, the Independent National Electoral Commission (INEC), pursuant to it’s powers under section 103 of the Electoral Act 2010 (As Amended and now repealed by the Electoral Act 2022) conducted elections into the six Area Councils of the Federal Capital Territory, a process which expectedly returned winners- Chairmen and Councillors-Elect who ought to be sworn in for a new term of four years as prescribed under the Electoral Act 2022.
However, following a judgment of the High Court of the Federal Capital Territory sitting in Kubwa, Abuja in Suit No: FCT/HC/W/910/2022 which had allowed the claims of the outgoing Chairmen and Councillors of the six Area Councils for tenure extension on the premise that section 108 of the Electoral Act 2022 has increased the tenure of Area Councils to four years, the Minister of the Federal Capital Territory has postponed the swearing-in of the newly elected Chairmen and Councillors whose four year tenure ought ordinarily to commence on the 20th May 2022.
Section 113 of the repealed Electoral Act 2010 under which the outgoing Chairmen and Councillors were elected and sworn-in enacts a three year tenure for Area Councils in the FCT. For ease of reference, the section is reproduced thus:
_(1) An Area Council shall stand dissolved at the expiration of 3 years commencing from the date-_
_(a) when the Chairman took the oath of office; or_
_(b) when the legislative arm of the Council was inaugurated whichever is earlier._
The above provision being clear and unambiguous admits of no interpretation but the literal or ordinary meaning of the words used therein which is to the effect that the tenure of the outgoing Chairmen and Councillors of the six Area Councils who were sworn in on 20th May 2019 would, by effluxion of time, expire on the 20th day of May 2022.
The fundamental issue here therefore is whether the tenure of the outgoing Chairmen and Councillors has been extended by the Electoral Act 2022 which in its section 108 increased the tenure of the Area Councils from three to four years?
In answering this million dollar question, regard must be had to the fact that the law in force as at the time the outgoing Chairmen and Councillors were elected and sworn into the Area Councils was the Electoral Act 2010 (As Amended) and the legal effect simply is that the rights and liabilities attaching to those offices were acquired by the outgoing Chairmen and Councillors under the repealed Act. The law is quite settled that the repeal of a law does not obliterate or render non-existent transactions past and closed before it’s repeal: _Ezeokafor v. Ezeilo_ (1999) LPELR – 1209 (SC) at 26 – 27 per Achike, JSC.
Thus, the rights and liabilities accruing to the outgoing Area Council officials under the repealed 2010 Electoral Act was and is still liable to be regulated by the provisions of the said Act notwithstanding its having been repealed by the 2022 Electoral Act. In other words, the Chairmen and Councillors elected under the Electoral Act 2010 (As Amended) for a term of three years would still retain all the incidents of their office, including the tenure thereof as stipulated under the repealed Act.
In this light, section 6 of the Interpretation Act 1964 (Cap I11 Laws of the Federation 2004) which remains extant and valid already provides for the situation at hand when it enacts thus:
_(1) The repeal of an enactment shall not -_
_(b) affect the previous Operation of the enactment anything duly done or sufferred under the enactment;_
_(c) affect any right, privilege, obligation or liability accrued or incurred under the enactment;_
_(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation or liability, penalty, forfeiture or punishment; any such investigation, legal proceeding or remedy be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the enactment has not been repealed.”_
This provision of the law has been interpreted in several judicial decisions including those of the Apex Court to the effect that the repeal of a law does not abrogate or extinguish the rights and liabilities acquired under it. The law on this point has been settled by the Apex Court of the land in numerous cases including _Are v. Attorney General of Western Nigeria_ (1960) NSCC 76 where it was held that an amendment made to the Public Land Acquisition Law of Western Nigeria 1958 when the action filed by the Appellant for compensation for land acquisition was already pending would not operate to put a stop to the proceedings as the effect of the amending law is ‘in futuro’ i.e. in the future.
The law is thus settled that unless expressly stated in the legislation, a law is presumed not to operate retroactively, for _lex prospicit, non respicit_ meaning that the law looks forward and not backward. In _University of Jos & Anor v. Aro (2019) LPELR – 46926 (CA)_, the Court of Appeal reiterated the law on this issue in holding that the Respondent cannot claim Contributory pension under the Pension Reform Act 2004, the Respondent having been dismissed from service before the enactment of the Act, said Ugo, JCA:
_”…there is a presumption against retrospective application of statute and a statute ought not to be interpreted to apply retrospectively unless it is clearly shown that a retrospective effect was intended: Afolabi v. Governor of Oyo State (1985) 2 NWLR (pt. 9) 734; Ojokolobo v. Salami (1987) LPELR – 2392 (SC) 12-15. The Pension Reform Act 2004 does not seem to have any such retrospective intendment. Besides clearly fixing its commencement date as 25th June 2004… Respondent who was dismissed from service three months earlier in March 2004 cannot seriously claim that he was any person ’employed’ in the public service of the Federation within the meaning of the Pension Reform Act 2004 and it’s commencement date of 25/06/2004. By the same token he cannot also seriously assert we he did in his summons that he had a right to draw from a Contributory Pension Scheme which was only established by a Statute enacted after his dismissal from service.”_
It may also be helpful to refer to the decision of the Supreme Court in _AG Abia State & Ors v. AG Federation (2002)LPELR – 611 (SC)_ wherein the Supreme Court held that by virtue of section 6 (1) of the Interpretation Act, Decree 36 of 1998 which had fixed the tenure of local government officials as three years remained intact despite having been repealed by the Electoral Act 2001 which was itself subsequently declared void for being ultra vires the National Assembly.
Thus, in the absence of any clear provision in the Electoral Act 2022 evincing an intention by the National Assembly to make the Electoral Act 2022 retrospective especially in relation to the tenure or FCT Area Councils, the Court will lack any jurisdiction to give the Act any such effect as it has done in extending the term of the Area Council officials beyond the statutorily stated period.
Vincent Adodo, Esq.