Alex Ter Adum
The removal of an officeholder does not automatically invalidate every act performed during his tenure: Nigerian jurisprudence and the doctrine of de facto authority provide an important answer.
There is a fundamental jurisprudential problem with Justice Lifu’s purported nullification of all actions taken by the David Mark-led National Working Committee (NWC) of the African Democratic Congress (ADC). It raises a question which the appellate court must confront: does the judicial invalidation of an officeholder’s title automatically extinguish every act performed during his occupation of that office?
Nigerian judicial history suggests otherwise.
Consider Amaechi v. INEC (2008) 5 NWLR (Pt. 1080) 227. The Supreme Court displaced Celestine Omehia and ordered the recognition and swearing-in of Rotimi Amaechi as Governor of Rivers State. Yet the legal consequences of Omehia’s administration were not treated as though the entire governmental machinery had never functioned. The preservation of official acts was supported by the statutory framework and the doctrine of necessity.
In Osunbor v. Oshiomhole (2009), Oserheimen Osunbor’s electoral return was nullified and Adams Oshiomhole recognised as Governor of Edo State. Similarly, in Aregbesola v. Oyinlola (2010), the Court of Appeal nullified Olagunsoye Oyinlola’s return and declared Rauf Aregbesola duly elected Governor of Osun State. Neither judicial displacement translated into an indiscriminate retrospective cancellation of every governmental act undertaken during the displaced governor’s tenure.
The Supreme Court’s decision in INEC v. Nyako (2011), involving the consolidated gubernatorial appeals, is particularly instructive. The Court recognised the statutory preservation of acts performed during the intervening period. Section 149 of the Electoral Act 2010, then applicable, expressly protected gubernatorial continuity following electoral nullification. The principle was reinforced by the reasoning in Balonwu v. Governor of Anambra State.
Consider another political example: Adams Oshiomhole’s suspension as APC National Chairman. In June 2020, the Court of Appeal affirmed the order restraining him from parading himself as National Chairman. His tenure as chairman was effectively brought to an end. Yet the judicial determination did not purport to invalidate every administrative decision and transaction undertaken by the APC National Working Committee during his chairmanship.
The distinction is elementary: removing an officeholder is one judicial exercise; invalidating the acts performed during his tenure is another.
The persuasive comparative jurisprudence is equally instructive. In Luna v. Rodriguez (1917), subsequently explained by the Supreme Court of the Philippines in G.R. No. 254394 (2022), the doctrine of the de facto officer was articulated to protect acts performed under colour of authority, particularly where public confidence and third-party interests are involved. The doctrine recognises that an officer may lack perfect legal title yet exercise authority under circumstances which reasonably induce others to recognise and rely upon that authority.
The Philippine Supreme Court identified three requirements: a legally constituted office, colour of authority or general acquiescence, and actual possession of the office in good faith. Its rationale is public policy, necessity and the protection of innocent third parties.
Nigeria’s own jurisprudence recognises the related doctrine of necessity or implied mandate. Indeed, in Oguebie v. Odunwoke (1979) LPELR-2677(SC), the Supreme Court examined its application and limitations.
Now consider the ADC. Following the Supreme Court’s intervention of 30 April 2026, the Mark-led leadership was restored to INEC’s official records. The subsequent judgment of Justice Musa Liman on 2 July 2026 further addressed the leadership controversy.
Even assuming that Justice Lifu found defects in the emergence of the NWC, what independent legal justification permitted him to retrospectively extinguish every administrative decision, appointment, transaction and institutional act undertaken under its authority?
The doctrine does not automatically validate every act. But neither does an alleged defect in title automatically invalidate everything.
A judgment is not a time machine. A court may determine who was entitled to occupy an office; it must separately justify any order purporting to erase the legal consequences of acts performed while that office was occupied.
That is a substantial question of law which the appellate court must resolve.
Alex Ter Adum, PhD
