Ogah vs Ik­peazu: The aborted ju­di­cial coup in Abia State

Daily Trust - - LAW - Chief Mike Ozekhome, SAN,

The judg­ment of Jus­tice Okon Abang of the Fed­eral High Court, Abuja, sack­ing Dr. Okezie Ik­peazu as Gov­er­nor of Abia State is nothing but a ju­di­cial coup. With all hu­mil­ity, it was poorly re­searched. There are just too many things wrong with it. INEC did not help mat­ters by preem pto­rily handing over a cer­tifi­cate of re­turn to Dr. Uche Ogah, even when Ik­peazu had al­ready ap­pealed, filed a mo­tion for stay of ex­e­cu­tion and got INEC duly served. The last was un­nec­es­sary. It smacks of po­lit­i­cal un­der­tones, es­pe­cially since the news in the mar­ket place (not in­de­pen­dently con­firmed), is that the game plan is for Ogah to be sworn in im­me­di­ately on the plat­form of PDP, and then im­me­di­ately de­camp to APC. Thus, APC, it is said, would have at least one state in the S/E and S/S of the coun­try. If this was the ex­pec­ta­tion, then it is a le­gal il­lu­sion as the en­tire judg­ment is fun­da­men­tally flawed in law. Mat­ters are not helped by alleged im­mi­nent in­va­sion of Abia Gov­ern­ment House by Fed­eral troops. In a democ­racy?

Un­der the doc­trine of “Lis Pen­dens” (“suit pend­ing”), once a party is aware that a suit has been sub­mit­ted to a court of law, it should stay fur­ther ac­tion by not resorting to self help, “viet armis.

In GOV­ERN­MENT OF LA­GOS STATE V OJUKWU (1986) 2 NWLR (pt 18) 621, the Supreme Court held that once a party is aware of a pend­ing suit, he should not take fur­ther steps in the mat­ter, and if he does, it is at his risk. This, even if no in­junc­tion has been specif­i­cally granted. INEC on be­com­ing aware of Ik­peazu’s ap­peal and ser­vice of the mo­tion to stay ex­e­cu­tion of the judg­ment, ought to have ex­er­cised res­traint by not pre­sent­ing Ogah with a cer­tifi­cate of re­turn. By the pro­vi­sions of sec­tion 143 of the Electoral Act, a per­son whose elec­tion is nul­li­fied shall stay in of­fice pend­ing the de­ter­mi­na­tion of his ap­peal, so long as he has no­ti­fied INEC of his ap­peal. And he even has 21 days to do this! Un­der sec­tions 140 and 141, dis­putes over nom­i­na­tion and qual­i­fi­ca­tion within a po­lit­i­cal party can only lead to the hold­ing of a fresh elec­tion be­tween the two com­bat­ants (Ik­peazu and Ogah), where a court or tri­bunal nul­li­fies the elec­tion for any rea­son what­so­ever in­clud­ing that the per­son elected (Ik­peazu), was not qual­i­fied to con­test the elec­tion in the first place (as held by Abang).

It can never re­sult in the cer­tifi­cate of re­turn be­ing given to Ogah, a sit­u­a­tion that only oc­curs un­der sec­tion 142 where the is­sue is that the sit­ting Gov­er­nor did not have ma­jor­ity of votes over his op­po­nent. Sec­tion 140 (2) specif­i­cally states that the “elec­tion tri­bunal or court shall not de­clare the per­son with the sec­ond high­est votes or any other per­son as elected, but shall order for a fresh elec­tion”. It is so clear.

This was the ma­jor rea­son the Supreme Court af­firmed the de­ci­sion of the Court of Ap­peal and nul­li­fied that of the elec­tion pe­ti­tion tri­bunal in Fe­bru­ary, 2016, in the case of AISHA ALHASSAN VS DAR­IUS ISHAKU.

Jus­tice Abang’s judg­ment to the ef­fect that Ogah should be “sworn in im­me­di­ately” and the au­da­cious act of INEC in giv­ing cer­tifi­cate of re­turn to Ogah, all at­tempted to abort and fore­close com­pletely, Ik­peazu’s con­sti­tu­tional right of Ap­peal (see sec­tion 241 of the 1999 Con­sti­tu­tion and sec­tion 143 of Electoral Act).

See also EYESAN VS SANUSI (1984) 15 NSCC 271; THE STATE VS OLADOTUN (2011) LPELR 1961 (SC)

The judg­ment is there­fore dead on ar­rival, as dead as “dodo”

INEC that first de­nied ever re­ceiv­ing any no­tice of Ap­peal be­fore is­su­ing a cer­tifi­cate of re­turn to Ogah sud­denly sum­m­er­saulted upon pro­duc­tion of ev­i­dence, claim­ing it re­ceived only a no­tice of Ap­peal, but not a mo­tion for stay of ex­e­cu­tion. The sub­se­quent ev­i­dence pro­duced by Abia State At­tor­ney Gen­eral, Umeh Kalu, show that one Saleh Ibrahim, Se­nior cler­i­cal of­fi­cer in INEC Head­quar­ters Le­gal Depart­ment, re­ceived and stamped both No­tice of Ap­peal and mo­tion for in­junc­tion at 12:50 pm on June 29, 2016.

Un­der the Electoral Act, INEC has one full week to is­sue a cer­tifi­cate of re­turn. So, why the rush to do so within 24 hours? This raises se­ri­ous sus­pi­cion and con­cern of ex­ter­nal forces be­ing at play.

The char­ac­ter­i­za­tion of a dis­pute over a per­son’s qual­i­fi­ca­tion for elec­tion for any rea­son as a pre-elec­tion or post elec­tion is de­ter­mined by whether the dis­pute was pre­sented for ju­di­cial de­ter­mi­na­tion be­fore or after the gen­eral elec­tion. If it is brought be­fore the gen­eral elec­tion, it is a pre-elec­tion mat­ter. If it is brought after the gen­eral elec­tion and after the per­son whose qual­i­fi­ca­tion is dis­puted has been elected, it is a post elec­tion mat­ter. See CHUKWUEGBO v. AGU & ORS (2015) LPELR25578(CA). As a pre-elec­tion mat­ter, it can be pre­sented only in a High Court by Virtue of S.31(5) and (6) and S.87(9) of the Electoral Act 2010 as amended. As a post-elec­tion chal­lenge of an elected per­son’s qual­i­fi­ca­tion for elec­tion, it can be pre­sented only as an elec­tion pe­ti­tion in an elec­tion Tri­bunal. See SALIM V CPC (2013) LPELR19928(SC) in which the Supreme Court held that:

“it is my con­sid­ered opin­ion there­fore that the is­sues of qual­i­fi­ca­tion, dis­qual­i­fi­ca­tion or non­qual­i­fi­ca­tion of a can­di­date to con­test an elec­tion (in this case gov­er­nor­ship elec­tion) is a mat­ter which the High Courts and the Elec­tion Pe­ti­tion Tri­bunal that those griev­ances can be pre­sented after elec­tion has taken place. ..... In con­clu­sion it has to be stated that the is­sue of dis­qual­i­fi­ca­tion, nom­i­na­tion, sub­sti­tu­tion and spon­sor­ship of can­di­dates for an elec­tion pre­cede elec­tion and are there­fore pre-elec­tion mat­ter. The in­stant sit­u­a­tion where the ap­pel­lant as plain­tiff did not com­plain to court be­fore elec­tion and even then 38 days after the elec­tion to talk of pre-elec­tion mat­ter for the first time is a pill too dif­fi­cult to swal­low. He by his lack of con­scious­ness took his mat­ter out of the do­main of pre-elec­tion and can only go be­fore the elec­tion tri­bunal to try his luck since the sta­tus of the mat­ter was post-elec­tion clearly out­side the ambit of either the Fed­eral High Court State High Court or High Court of FCT”.

QUAL­I­FI­CA­TION AND DIS­QUAL­I­FI­CA­TION - DO THEY AF­FECT IK­PEAZU?

Sec­tion 177 of the Con­sti­tu­tion of the Fed­eral Repub­lic of Nige­ria, pro­vides that a per­son shall be qual­i­fied for elec­tion to the of­fice of Gov­er­nor of a State if he is a cit­i­zen of Nige­ria by birth; he has at­tained the age of thirty-five years; he is a mem­ber of a po­lit­i­cal party and is spon­sored by that po­lit­i­cal party; and he has been ed­u­cated up to at least School Cer­tifi­cate level or its equiv­a­lent. On the dis­qual­i­fy­ing fea­tures of a can­di­date for an elec­tion, Sec­tion 182 (1) of the 1999 Con­sti­tu­tion lists them as: vol­un­tary ac­qui­si­tion of cit­i­zen­ship of an­other coun­try be­ing elected to such of­fice at any two pre­vi­ous elec­tions; be­ing ad­judged a lu­natic, or a per­son of un­sound mind, be­ing un­der a sentence of death; or within 10 years be­fore the elec­tion he has been con­victed and sen­tenced for an of­fence in­volv­ing dishonesty; or hav­ing been found guilty of the con­tra­ven­tion of the code of Con­duct; be­ing an undis­charged bank­rupt; or he has not re­signed, with­drawn or re­tired from the employment of pub­lic ser­vice of the fed­er­a­tion or a state at least thirty days to the date of the elec­tion; be­long­ing to any secret so­ci­ety; or he has been in­dicted for em­bez­zle­ment or fraud by a Ju­di­cial Com­mis­sion of In­quiry or an Ad­min­is­tra­tive Panel of In­quiry or a Tri­bunal or if he has pre­sented a forged cer­tifi­cate to INEC. It is cleared that whether by way of qual­i­fi­ca­tion or dis­qual­i­fi­ca­tion, Dr. Ik­peazu suf­fers no such deficit.

Un­der Sec­tion 138 (1) (a) of the Electoral Act, an elec­tion may be ques­tioned on the grounds that a per­son whose elec­tion is ques­tioned was, at the time of the elec­tion, not qual­i­fied to con­test the elec­tion

In DANGANA V US­MAN (2013) 6 NWLR (pt 1349), 50 at 89 - 90, the Supreme Court held that qual­i­fi­ca­tion/ dis­qual­i­fi­ca­tion to con­text an elec­tion is both a pre - elec­tion and post - elec­tion mat­ter”, which both the High Court and the rel­e­vant Elec­tion Tri­bunals have ju­ris­dic­tion to hear and de­ter­mine. See also WAMBAI V DONA­TUS (Supra) and IKECHUKWU V NWOYE (Supra).

Chief Mike Ozekhome, SAN, Con­sti­tu­tional Lawyer and Hu­man Right Ac­tivist.

Mike Ozekhome (SAN)

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