Abia stalemate: One state, two governors

 

The recent judgment by a Federal High Court in Abuja sacking Governor Okezie Ikpeazu of Abia State and the issuance of a Certificate of Return to Dr. Uche Ogah have thrown up a lot of political calculations in the state, GBENRO ADEOYE writes

Governor Okezie Ikpeazu sits atop the affairs of Abia State but technically, he does not seem to be the only governor in the state. The recent issuance of a Certificate of Return to Dr. Uche Ogah by the Independent National Electoral Commission means that it has automatically nullified Ikpeazu’s right as governor.

That is speaking legally, but the story has taken a much more complex dimension than the simple legal implication considering other legal actions that have followed the issuance of a Certificate of Return to Ogah.

As a matter of fact, there have been more than enough suits and countersuits for the residents of Abia State to keep up with and this have left many of them and some other Nigerians more confused than they were before June 27, 2016. This is more so because while a judgment is sacking Ikpeazu, another is affirming his position.

It was on June 27 that a Federal High Court in Abuja ordered Ikpeazu to vacate office immediately for submitting forged tax documents to his party, the Peoples Democratic Party, for the party’s governorship primary in December 2014.

Justice Okon Abang, had in his judgment, ordered INEC to immediately issue a Certificate of Return to Ogar, the plaintiff, who polled the second highest number of votes in the primary.

The court’s argument is that based on its findings, Ikpeazu was not qualified to be his party’s candidate for the state governorship election.

But the judgment and the subsequent actions taken by the players in relation to the matter have been subjected to critical public review.

For instance, some persons have accused INEC of having an ulterior intent because of its swift issuance of a Certificate of Return to Ogah.

But the INEC Commissioner in charge of the South-East, Mr. Lawrence Nwuruku, who had presented Ogah with the certificate, described the action of the commission as being in line with the court ruling, which had specified that its judgment should be carried out immediately.

He had told journalists, “The situation is (that) we are simply obeying the court order. The court said with immediate effect, we should issue him a Certificate of Return, and that is what we have done. If the court issues (another) order tomorrow we will obey the same.”

Even though, Ikpeazu’s legal counsel filed an appeal at an appellate court against the judgment, some lawyers said it lacked the power to stop INEC from issuing Ogah with the certificate because an appeal in itself could not substitute an order for stay of execution.

However, Ikpeazu was able to get an order from an Abia State High Court in Osisioma stopping the Chief Judge or any other judge in the state from swearing Ogah in as governor. Two days declared as public holidays in the state to mourn a former Minister of Foreign Affairs, Chief Ojo Maduekwe, also ensured that no judge would be able to swear Ogah in till Ikpeazu’s moves were perfected.

But a former Chairman of the Ikeja Branch of the Nigerian Bar Association, Mr. Onyekachi Ubani, said Ikpeazu’s appeal before the Court of Appeal did not operate as a stay of execution over the judgment of the Abuja Federal High Court.

 “Note also that the appeal of Dr. Okezie Ikpeazu before the Court of Appeal does not operate as a stay over the judgment of Justice Okon Abang,” he had said.

“In the absence of any express order of the High Court or the Court of Appeal, ordering a stay of execution, the judgment of the Federal High Court should be obeyed by all the parties.”

Also, the Abia court ruling has received its share of backlashes from lawyers, who have described the Federal High Court, Abuja, and the Abia High Court ,as courts of concurrent jurisdiction.

Ubani, who criticised the order of the Abia State High Court restricting the Chief Judge or any other judge in the state from swearing in Orga as the governor, described the court’s ruling as invalid, being of coordinate jurisdiction with the Federal High Court that had sacked Ikpeazu.

He said, “The point must be made that this order cannot stand as it is invalid in law.

The order did not emanate from a higher court, but from a court of coordinate jurisdiction and does not in any way vitiate or invalidate the earlier judgment of the Federal High Court in which the Chief Judge of Abia State was ordered to swear in Dr. Samson Ogah.

“Only a higher court, in this case, the Court of Appeal, has the jurisdiction to reverse the judgment of the Federal High Court.”

Another lawyer, Mr. Wahab Shittu, said the fact that the judgment of the Federal High Court, Abuja, had come first before that of the Abia High Court and that both are of coordinate jurisdiction, makes the order of the latter unconstitutional.

“It is clear that we have hierarchy of court system and that the Federal High Court and the Abia High Court are both courts of concurrent jurisdiction,” he said, adding, “One of the questions to ask is whether the High Court in Abia State can sit on appeal over the judgment of the Federal High Court in Abuja. If the answer is in favour of the Federal High Court, Abuja, then it will be very clear that the order or judgment of the Federal High Court, Abuja, can only be set aside or overturned by the Court of Appeal.

“The Court of Appeal has not handed down a contrary judgment from the one that was delivered by the Federal High Court, Abuja, so the order of the High Court in Abia State is ultra vires, unconstitutional and cannot stand because the High Court in Abia and the Federal High Court, Abuja, are courts of coordinate jurisdiction.”

However, a legal practitioner, Mr. Ebun-Olu Adegboruwa, faulted the judgment of the Federal High Court, Abuja, which had sacked Ikpeazu. He described it as an attempt to thwart the wish of the people of Abia State.

In Adegboruwa’s opinion, “The courts should not be imposing leaders on the people, to annul their mandate, through judgments that have no bearing with and cannot be traced to the votes cast.”

Also according to Adegboruwa, an issue related to the payment or nonpayment of tax does not qualify as a basis for which a valid election can be invalidated going by the provisions of the 1999 Constitution.

He identified the grounds on which a candidate seeking to become a governor can be disqualified as stipulated by the 1999 Constitution to be:  “Dual Citizenship; two previous terms in office; a person adjudged to be a lunatic or of unsound mind; conviction by court or tribunal for death or an offence involving dishonesty or fraud; conviction within ten years of contest for dishonesty or contravention of the Code of Conduct; failure to retire from public service; membership of a secret society; indictment for embezzlement or fraud; or has presented a forged certificate to INEC.

“Clearly therefore, the issue of payment or nonpayment of tax, cannot invalidate an otherwise valid election.”

Meanwhile, Justice Abang of the Federal High Court, Abuja, has validated the Certificate of Return issued to Ogah by INEC, saying it was done in compliance with the court’s judgments.

Responding to Ikpeazu’s appeal for a stay of execution, Abang absolved INEC of any blame in the matter, saying, there was no evidence to show that the commission had acted illegally.

“Again, there is no evidence before the court to show that the certificate was issued after service of the motion,” he had said.

“No evidence to show that the certificate was issued after service of the motion on INEC if at all the motion was even served.

“Counsel that appeared for INEC on July 4, in a sister suit, which is related to this suit, informed the court that the certificate of return was issued before service of the motion.

“So the burden was on Dr. Okezie Ikpeazu to prove that the certificate was issued after service of the motion and there is no such evidence before the court.”

But interestingly, a Federal High Court in Owerri dismissed a suit filed by another PDP governorship aspirant, Friday Nwosu, against the election of Ikpeazu on the grounds that the governor’s tax documents were forged.

Ruling on the suit, Justice A.I. Allagoa, said Nwosu could not prove that the tax documents were forged.

But reacting to the judgment, Shittu said, “They are two separate cases; if one (suit) succeeded and one was thrown out, the one that succeeded has to be overturned by an appellate court.”

Also reacting to the Abia State imbroglio and the conflicting court judgments, another legal practitioner, Mr. Jiti Ogunye, described the issues as “over dramatised”.

He said, “The two cases were not in the same division of the Federal High Court, they were not being handled by the same judge and Ikpeazu, Ogah or Nwosu didn’t seem to consolidate the two cases. That way, the decision in one would bind the other.

“But the two cases were separately initiated, litigated, conducted, adjudicated and judgments were separately rendered. So, if you then have the outcomes conflicting as it were, what implications does it have for the judiciary? None! When they go to the court of appeal, the matter can be streamlined or ultimately at the Supreme Court.”

Ogunye also described Abang’s judgment as in order if truly Ikpeazu’s tax papers were falsified.

He said even though sections 177 and 182 of the Nigerian Constitution that deal with the qualification and disqualification of a candidate in an election do not mention the issue of tax payment as a condition for eligibility or disqualification, another section of the Electoral Act aptly deals with the issue.

He said, “Section 31(5)(6) of the 2010 Act provides that a person who has reasonable grounds to believe that any information given by a candidate in the affidavit or any document submitted by that candidate is false may file a suit at the High Court of a state or Federal High Court against such person seeking a declaration that the information contained in the affidavit is false.

“If the court determines that any of the information contained in the affidavit or any document submitted by that candidate is false, the court shall issue an order disqualifying the candidate from contesting the election. So it is not about tax being a requirement, it is about if your party says that you should submit your tax papers to show that you are a good citizen and you forge those papers, that is forgery. The candidate can then be disqualified whether he has become a governor or not because it is a pre-election matter.”