Abia: Governor, Governor-elect Clash As Lawyers Express Divergent Views
There is confusion in Abia State. Four days ago, a Federal High Court in Abuja deposed the governor, Dr. Okezie Ikpeazu, for tax evasion. The former university don appealed the judgment, claiming that he is still the governor. But, yesterday the man who challenged his victory in court, Dr. Uche Ogah, stormed the Independent National Electoral Commission (INEC) headquarters, Abuja. There, he was given a Certificate of Returns.
Ikpeazu’s appeal is pending at the Court of Appeal. Thus, according to law, the status quoremains, until the case is disposed off by the court. In the eye of the law, he remains the chief executive, until the determination of the substantive case. The puzzle is: is an appeal to a higher tribunal not accompanied by a stay of execution order?
Also, in the eye of the law, Ogah became the governor-elect, following the receipt of the Certificate of Return. The implication is that the certificate issued to Ikpeazu has been statutorily withdrawn. In a state, two people cannot lay claim to an election certificate. Was the INEC hasty in issuing a new certificate to Ogah?
In God’s Own State, as Abia is fondly called, there is a governor and a governor-elect. The governor is struggling to keep his job. In fact, he has assembled a team of lawyers for a renewed legal battle. Ogah is in a celebration mood, eager to be sworn in.
The last governorship election was a subject of litigation for almost a year. The battle shifted from the polling booth to the court, following a case instituted by the All Progressives Grand Alliance (APGA) candidate, Dr. Alex Otti. But, at the Supreme Court, Ikpeazu’s victory was affirmed.
Ogah approached the High Court with prayers over a pre-election matter. He did not allege exclusion from the Peoples Democratic Party (PDP) primary. Neither did he accuse the handlers of the shadow poll of partiality, rigging or malpractices. The plaintiff did not say that he won the primary. His argument was that the winner, Ikpeazu, contested for the ticket in error. The aggrieved PDP chieftain said the governor was not eligible. Thus, a novel case of political right claim has arisen under a difficult situation.
The focus is electioneering, not the election day. Electioneering covers a longer process, between the preparations for nomination, through primary to voting, counting of votes, announcement of results and post-election litigation. The concern is about the process of an election, not about party victory or personal triumph for a candidate. What the judgment of the High Court has brought to the fore is that election starts from the party primary; how it is conducted, the rules guiding the process, the conditions for eligibility and the lawful advantage of revisiting the selection process, even after the general election has been won and lost.
Pre-election matters have shaped the outcome of polls and emergence of winners in some states. In Rivers State, former Governor Rotimi Amaechi, who was wrongly excluded from the primary by the PDP, later reclaimed the mandate from the interloper, Celestine Omehia. The victory of the party was not disputed by the court. In Kogi State, following the inconclusive governorship election, an aspirant who lost at the primary became the candidate for the residual election, following the death of the original flag bearer.
The pre-election matter in Abia was the eligibility of the winner of the election. Ogah, who scored the second highest votes at the primary, alleged that Ikpeazu, the former General Manager of Abia State Passengers Integrated Manifest and safety Scheme (ASPIMSS) and first Deputy General Manager of Abia State Environmental Protection Agency (ASEPA), submitted a false tax clearance certificate. He described it as a serious infraction, urging the court to depose him because he was not qualified to contest. Justice Okon Abang, who upheld his prayer, ruled that he was the candidate.
But, does the matter end there? The verdict is sacrosanct. Also is the potency of Ikpeazu’s appeal to the higher court.
Will the Chief Judge of Abia ignore the appeal and swear in Ogah? In another twist, an Abia High Court granted an ex-pate application yesterday against the swearing in of Ogah as governor by the Chief Judge.
Ikpeazu and Ogah are fighters. If Ikpeazu’s appeal succeeds, it will invalidate Ogah’s certificate. If not, he becomes the governor. The likelihood exists that the case may be finally decided at the Supreme Court. Until then, the confusion continues.
Meanwhile, lawyers yesterday disagreed on whether the Independent National Electoral Commission (INEC) was right to issue a Certificate of Return to Samson Ogah following a court order that Dr. Okezie Ikpeazu vacate Office as Abia State Governor.
Those who spoke on the issue include; senior advocates Chief Felix Fagbohungbe, Chief Emeka Ngige, Sebastine Hon, Dele Adesina (a former National Secretary of the Nigerian Bar Association), former Ikeja branch chairman of the NBA Mr. Monday Ubani, rights activist and Constitutional lawyer, Fred Agbaje and Lagos lawyer, Jiti Ogunye.
Fagbohungbe said that if Ikpeazu’s notice of appeal was accompanied by a motion for stay of execution, then the Certificate of Return issued to Ogah was in error.
“An appeal does not operate as a stay. That is the law. Ikpeazu’s lawyers should know that immediately they file the notice of appeal, they must also simultaneously file a notice for stay of execution of the judgment. Once they have done this, INEC should not do anything but allow Ikpeazu to pursue his appeal. But I don’t know the facts of the case, so I can’t tell if he has filed a stay of execution or not.
“Note that the judgment takes effect from the day it is delivered and if you want to stay the hand of the law you have to file a notice for stay of execution. If you don’t do that it means you have allowed the judgment to take effect. So, INEC will want to comply.”
Ngige reasoned that INEC would be right in issuing Ogah the certificate of return if Ikpeazu had failed to serve it with his motion for stay of execution.
He said: “If the notice of appeal coupled with a motion for stay of execution of the judgment either at the Federal High Court or at the Court of Appeal had not been duly served on INEC, the issuance of the certificate of return would seem to be in order. If otherwise, then it would be wrong.
“So, the question is: ‘Has Dr. Ikpeazu served both processes on INEC? Is there proof of service?’ If yes, the court can set aside the Certificate of Return the INEC issued to Mr. Ogah.”
Hon described the issues surrounding the Abia governorship position in Abia state as an invitation to anarchy.
He said: “The Certificate of Return is, to all intents and purposes, null and void, if there is proof that INEC was served not only with a notice of appeal to the Court of Appeal but also a motion on notice for a stay of execution of the judgment of the trial court.
“Issuing such a certificate to Mr. Ogah, the presumptive winner of the suit at the trial court, amounts to contempt ex facie curiae of the Court of Appeal. In other words, by so acting, INEC is competing with the Court of Appeal over the latter’s jurisdiction to hear and determine the motion for stay and subsequently the main appeal. This is a clear invitation to anarchy, which must be nipped in the bud at the earliest opportunity.”
Hon suggested that President Muhammadu Buhari should urgently step in and direct the acting Inspector-General of Police not to enforce the terms of the disputed judgment at this stage.
“But, even if the President does not so order, the Acting Inspector-General of Police (IGP) should accord respect to the Court of Appeal before which the motion for stay is pending, by refusing to enforce the judgment now on appeal, pending the determination of the main appeal.
“I must also counsel that no person, no matter how highly placed, should be allowed to trample on the rule of law and due process in this our tottering democracy.”
The former NBA General Secreatry (Adesina) believed INEC acted illegally by refusing to wait for the outcome of Ikpeazu’s appeal.
He said: “As long as an appeal has been filed against the judgment and there is stay of execution, it will be totally wrong and illegal for INEC to issue a Certificate of Return to another person. It will be premature for INEC to execute the judgment.”
Agbaje shared similar sentiments, stating that the country was “a free society where anything goes.” According to him, the INEC’s action amounted to an affront on the judiciary.
He went on: “Since there is an appeal, the Commission should have waited for the outcome of the Court of Appeal on the matter before taking any step.
“INEC is supposed to wait for the Court of Appeal to decide the fate of the man. The action of the Commission is illegal and cannot stand the test of law. What the Commission did was to donate power to an opponent of the governor. What if the Court of Appeal upturns the judgment? The action of Commission is unacceptable in law and it is illegal.”
Ogunye explained that everything depends on whether there was a motion for stay of execution or not.
He said: “An appeal does not operate as a stay of execution against the judgment of a court. When you file an appeal, you have to couple it with an application for stay of execution. The law is that even though that application for a stay of execution is yet to be determined one way or another, once you just file it, automatically it operates as a stay until that application is decided one way or the other.
“So, I would be willing to know whether Ikpeazu upon filing the notice of appeal, also filed an application for a stay of execution of the judgment. I would also be willing to know whether INEC was a party to that case, because it is a pre-election matter.
“However, there is also another matter. You know that under the Constitution, if an election petition succeeds against somebody that has been sworn in, that person continues to stay in office until the final and eventual determination of that election appeal. That is the position.
“I don’t know whether INEC now feels differently, that since this one is a pre-election matter, it is not covered by that Constitutional provision that if there is an appeal against an incumbent whose election has been nullified, he continues to stay in that office, like ex-Anambra governor, Chris Ngige, until that appeal is eventually determined. So, we’ll see.”
But former Ikeja NBA chair Ubani said that the appeal of the embattled governor of Abia State, before the Court of Appeal does not operate as a stay over the judgement of Justice Okon Abang.
Apart from ordering INEC to issue Ogah with a certificate of return, Justice Abang also ordered the Chief Judge of Abia State to swear him in as the governor of the state.
Ubani remarked that while INEC has complied with the first part of the order of the court, the Chief Judge of Abia State is yet to comply with the order of the court that the rightful person should occupy the governor’s seat.
He said: “I understand that a high court in Osisioma Ngwa, the axis where the governor hails from, has issued an interim order restraining the Chief Judge from swearing in Dr Uche Ogah as the governor of the state.
“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 vitiates, or invalidate the earlier judgment of the Federal High Court in which the Chief Judge of Abia State was ordered to swear in Dr. Uche Sampson Ogah. Only a higher court, in this case, the Court of Appeal has the jurisdiction to reverse the judgment of the Federal High Court.”
Ubani emphasised that 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 delivered on Monday should be obeyed by all the parties.
Prof Fidelis Oditah, a SAN and Queen’s Counsel (QC) said Ikpeazu’s pending appeal should automatically stop Ogah’s inauguration.
Oditah said: “It appears from newspaper reports that Dr Ikpeazu has filed an appeal against the decision removing him from office. The appeal prevents the immediate enforcement of the decision, including taking any step to enforce the decision which must include issuance of a certificate of return.
“Unlike the position in relation to ordinary appeals where an appeal does not by itself operate as a stay of execution or enforcement of the decision appealed, an appeal against an election result operates as a stay of enforcement of the decision appealed, pursuant to section 143 of the Electoral Act 2010.
“For this reason alone, Mr Ogah cannot be sworn in as the governor of Abia State pending the hearing and determination of Dr Ikpeazu’s appeal, because such swearing in would constitute enforcement of the appealed decision, which is prohibited by section 143 of the Electoral Act 2010.
“Besides, section 141 of the Electoral Act 2010 says that under no circumstance shall a court declare a person as the winner of an election unless he participated fully in all stages of the election.
“This is statutory reversal of the sound but unpopular decision in Amaechi v INEC. Mr Ogah does not appear to have participated in all stages of the 2015 elections as a candidate and prima facie cannot be declared the winner in Abia State, whether through the disqualification of Dr Ikpeazu or otherwise.
“As I do not know the details of the decision, I do not believe it is appropriate to comment further.”
To Mr. Wale Ogunade, Ikpeazu should have resigned and apologise to the people for flouting the laws of the land in the election that brought him to power.
The lawyer-analyst said: “The right and decent thing Dr Okezie Ikpeazu should do is to resign and apologise to the people of Abia for being `dishonest’.
“In the first instance, this matter does not require an appeal as it is a pre-election matter and since the issue of tax returns was a requirement during the preliminary stage of elections, the issue of appeal does not arise as all pre-election matters should be treated before elections.
“Nobody should be above the law, one cannot pay three years tax in a day and claim that the law has been followed when the requirement is that the tax payments should be made as at when due.
“He (Ikpeazu) also has no immunity because it is a pre-election matter which arose before he was elected governor; he just got this injunction as a ploy to buy time as governor.”