Sir Celestine Omehia was in office as Governor of Rivers State between May 29 and October 25, 2007, before his election was nullified by the Supreme Court and he was sacked from office. Despite the apex court’s decision, however, he was treated as a former governor of the state and consequently allegedly earned N695m in entitlements. But the Rivers State House of Assembly recently declared that it had ‘stripped’ Omehia of recognition as a former governor, while incumbent Governor Nyesom Wike not only stopped the entitlements but also gave Omehia a seven-day ultimatum to refund the N695m reportedly paid him over the period of his recognition. In this interview with GODFREY GEORGE, a Senior Advocate of Nigeria, Chief Yomi Aliyu, shares legal perspectives on the appropriateness of the demand for a refund being made by Wike from Omehia
As a legal luminary, what do you make of the ‘stripping’ of Sir Celestine Omehia of recognition as a former governor of Rivers State and the demand being made on him to refund N695m earned as entitlement as an ex-governor?
Mr Celestine Omehia was made the Governor of Rivers State in May, 2007 and later on, around October 27 or thereabouts the same year, he was removed by the Supreme Court. If somebody was purportedly elected as a governor and the Supreme Court said that person was not properly elected, it means ab initio that person was never a governor. Now, when Governor Nyesom Wike came in, the Rivers State House of Assembly ‘donated’ advisedly governorship title to Omehia. The question here is: Does the House of Assembly have the power to make such a donation? With all due respect, according to the stance of the law, they don’t have such power.
Firstly, a governor is only elected under the Electoral Act and the Constitution of the country. There is nowhere in the 1999 Constitution (as amended), where it is stated that the House of Assembly could make somebody a governor; more so, when that person has been declared not to be properly elected by the Supreme Court, which is the highest court in the country and whose decisions and ruling cannot be appealed. How the House of Assembly got the power to do such is known only to them. If you look at it very well, the House of Assembly’s role does not conform with the Electoral Act. Now that they have donated this power to Omehia as governor, it is as though he was not given anything at all. This is because, according to law, you cannot put something on nothing. That is the law. So far, so good, Omehia was never a governor in the face of the law. Now that the House of Assembly has said again that they are removing the title of ‘former governor’ from him, I don’t understand what that means. How do you remove something that does not exist? That one is another power they don’t have. They cannot pretend to possess a power they don’t have. They don’t have the power to install somebody as a governor; neither do they have the right to remove someone who was a governor from bearing the title of ‘former governor’. That is the position of the law.
What about the demand for him to refund the N965m entitlements he allegedly earned?
The problem is that he was given money when he was purportedly elected as a governor. Was he doing anything for the state in those five months? I don’t see why someone is now asking him to go and pay back the money given him for the work he did then under the belief that he was the governor. He did not steal it. He was working as a governor; he believed he was a governor; he was sworn in as governor. So, for that period, he cannot be asked to make any refund because he was working and he was sworn in. It was not like he made himself a governor. The Independent National Electoral Commission declared him governor. He was given a Certificate of Return and he was acting under the belief that he was properly elected. So, he has not stolen any money. He worked. What he got at that time was what he worked for, and nobody can ask him for a refund.
There are those who argue that Omehia should have, after the decision of the Supreme Court in October, 2007, declaring his tenure as null and void, refunded all the money he earned rather than waiting to be asked to make these refunds now in 2022. Is that argument faulty?
What refund will he make? For that period, did he work as a governor? Are you now saying that everything he did in that period should be declared null and void? Any traditional ruler he empowered that period would be null and void? Will all the laws he signed become null and void? There is law and there is public policy, public interest and equity. He did some things then and some things were done in his name then. Are we now going to declare all those things null and void? It is not limited to him being a governor or not being a governor at that time. He performed some actions. The fact that he was not properly elected is different from not being a governor at that time. He was a ‘governor’; he was sworn in and pronounced Governor of Rivers State. But in law, since the Supreme Court said his election is null and void, then, it means he was not a governor at that time although he was acting as one. That does not change the fact that he performed as governor in the office of the governor. He made some decisions; he signed some laws, possibly and awarded some contracts. If he had built a bridge then, are we now going to demolish the bridge because the person who awarded the contract was not a governor so the bridge should go? He worked and what he earned in labour law is what is termed as consumerist. What he got was what was proportionate to his salary.
Governor Wike dared Omehia to go to court to challenge the demand for refund being made on him. Is it your prediction that the court will rule in Omehia’s favour if he goes to court?
Omehia acted under the belief that he was a governor. He collected the salary in good faith as the Governor of Rivers State and he worked for that period. If he goes to court, I don’t see any court asking him to make any refund? Did he work? Was he sworn in? Was he given a Certificate of Return? If the answers to these questions are yes, then, there is no case. You know the House of Assembly is a legislative house and they have their own immunity, too. They can do whatever they like, say whatever they like. But doing what they like or saying what they like may not have the backing of the law, and this particular case does not have the backing of any law. Omehia was actually sworn in as a governor by those who should do it. Why ask him to make any refund again? I don’t see him doing that.
What about the money he earned as ex-governor’s entitlements after the Supreme Court had sacked him? Is he not liable to making a refund of that?
If after that period, he collected any other money, he would have to return that. I learnt that they said he collected pensions, gratuities, appendages, paraphernalia of offices (like cars from the Rivers State Government) and others, knowing full well that he was not a governor, he would have to refund and return those ones. At that time, he knew he was not a governor, and in law, he was not a governor.
Will you say the Rivers State Government and the state House of Assembly have any blame for still recognising Omehia as ex-governor and treating him as one, despite being aware that the Supreme Court had invalidated his election and removed him from office?
What the House of Assembly did was a donation. They donated the ex-governorship power to him. Whatever the House gave to him would amount to misappropriation of public funds. So, if a public officer stole money and gave it to me and I knew that the money was stolen money and that I am not entitled to that money, I am as guilty as that officer who gave it to me. We both misappropriated public funds. The House, the governor (Wike) and Omehia himself are all guilty of the same offence. So, he has to refund the money and benefits he collected after the judgment of the Supreme Court, whether done by the HoA or not. This is because the House has no right to even do that in the first place since the powers of the governor are in the Electoral Act and Constitution of the Federal Republic of Nigeria. What the House of Assembly did was even contempt of court.
The case is seen as political witch-hunt in some quarters, given the timing and the circumstances surrounding the sudden decision by the Rivers House of Assembly to ‘strip’ Omehia of the ex-governor title they ‘donated’ to him and Governor Wike asking for a refund. Do you think this politics and witch-hunt angle will count for something in court?
If I am a hangman and my wife’s concubine commits murder and was sentenced to death by a court and in my capacity as the hangman, I hanged the man, will I be guilty in law? One can carry out a legal act maliciously as long as it is legal. A man is sentenced to imprisonment; can he complain that he was locked in a prison and the padlock used for him was a different padlock different from other persons? There is no limitation to criminal act? It is misappropriation. This is an offence in the purview of the Economic and Financial Crimes Commission and other anti-graft agencies. If one misappropriates funds, even if Wike is going today or tomorrow, he can ask that person to refund the money. If he/she doesn’t, Wike can take you to court and vacate the office the next day. But it will be on record that he took you to court. Nobody will say anything about that. Wike has performed maliciously a duty bestowed on him legally. Why was Omehia collecting money when he knew he was not an ex-governor? It was like collecting money from a bank manager for an account one doesn’t have. How do you find N100m in your account and you know it wasn’t you who kept it there and you are spending it? Is it not theft? Wike has a right to do what he is doing, and he can do it maliciously.
How about the number of days given to Omehia to refund over N965m? Is it feasible? Is it fair?
I have taken it to the realm of criminality. It is misappropriation of public funds. Do they need to give him any day at all? If he were arrested immediately, wouldn’t he be liable to pay or go to jail? He could be jailed for, at least, seven years in prison. If it is not the Criminal Code, he could earn himself life (imprisonment). The only thing that we minimise is confusion. He didn’t beg for the money. A House of Assembly donated it to him. So, that is the only difference. That will not help him in any way than to reduce the jail term. So, they can ask him to pay immediately. Giving him seven days is because they still honour him. There is no limitation to criminal liability. If someone steals your money and you find out that your money has been stolen, will you now give him seven days to refund your money or you report to the police immediately? Those who gave him and himself that took it are both criminals. This includes Wike himself, the House of Assembly and Omehia are liable to the Rivers State Government over the money they took from the state treasury. More so, Wike is a lawyer and knows the right thing to do.
Omehia is liable to pay, and if he doesn’t pay, he is liable to be imprisoned. This would be different for him if he didn’t know, and this was between May and October, 2007. After he knew and was collecting money, he was defrauding the state. Wike is not above the law. It is not a criminal act that Wike can pardon him. He cannot be pardoned for not being a governor. By not being a governor, he has not committed any criminal act that a governor can pardon. He was declared not to be properly elected by the Supreme Court. So, who can now say he is a governor? They are all liable for misappropriating public funds.
What is your advice to both parties as a SAN?
I believe that, to clear his name, Omehia should just go and clear the debts and refund all the money and steer clear of the House of Assembly or anybody deeming him as an ex-governor in future. They cannot donate that power to him. He should pay the money and do the restitution. If it does not happen today, it will happen tomorrow. Someone would have asked him to do this refund. That Wike is the one doing it now is immaterial. He should even be happy that they are not asking for interest.
