Between Ogah and Ikpeazu: Who is Abia governor in law?, by John Collins Nwobodo

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Court-symbolDr Uche Sampson Ogah, a co-contestant with Dr Okezie Ikpeazu for the ticket of the Peoples Democratic Party (PDP) for the 2015 governorship election in Abia State instituted a pre-election suit at the Federal High Court. The suit was predicated or premised on the fact that Dr Ikpeazu who later won the election submitted false information relating to his his tax payments to the PDP and ipso facto was not qualified to participate in the primaries. It was his contention that the PDP wrongly forwarded the name Dr Ikpeazu to INEC who was not qualified to participate in the primaries ab initio. It was his further contention that his name ought to have been submitted to INEC. This contention was in order as he is deemed to be the winner of the primary election since Dr Ikpeazu, the actual winner was not qualified for want of payment of his tax as and when due.

It is now settled law that an aspirant who complains that any of the provisions of the Electoral Act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court or the High Court of a State or FCT for redress. See Section 87(9) of the Electoral Act, 2010 (as amended).

Failure of a political party or an aspirant to follow primary election guidelines vests on an aggrieved aspirant a justiciable right.

The allegation against Ikpeazu was that the PDP Electoral Guidelines required a candidate to show evidence of tax payment as and when due for three years running. In supplying those documents Dr Ikpeazu lied on oath in claiming to have paid tax on a Saturday which is a non working day and in another instance he gave an outrageous annual taxable income different from what was stated in his letter of employment. Yet in another instance he claimed to have paid tax when he was not yet employed by the State. Yet in another he purportedly gave a receipt for 2011 that bore a receipt number that showed clearly that that of 2013 was paid earlier than that of 2011. The climax was when he purportedly gave a tax certificate that showed that all the taxes were paid in one day. The failure here is not want of payment of tax but of want of payment as and when due.

From the forgone, it is agreed that Dr Ogah is clothed with the legal competence to institute the proceedings that culminated in the judgment ousting Governor Ikpeazu from office.

The Legal Thunderbolt

The Federal High Court, Abuja presided over by Honourable Justice Okon Abang on 27th June, 2016 delivered its judgment in Dr Ogah’s suit finding that Governor Ikpeazu made false declarations relating to his tax returns to his his political party. On this score, he was found ineligible to have participated in the primaries and that his name ought not to have been submitted to INEC as the PDP candidate for the election. The consequence of this finding and decision was that Dr Ogah was the candidate of the PDP and is deemed to be the winner of the governorship election. This was so expressed in the consequential orders directing INEC to issue certificate of return to Dr Ogah immediately and the Chief Judge of Abia State to swear-in Dr Ogah as the Governor of Abia State.

Digression

Let me digress a little and pose a critique. One issue which I am not too sure of is whether Dr Ogah brought up the issue of Governor Ikpeazu’s default in paying his tax as and when due before the PDP Screening Committee and/or the Primaries Appeal Committee. I am minded to say that contravention of party guidelines may be committed by an aspirant or the party through its relevant committees or by both. The question of non-compliance will be tied to the decision of the party on a complaint questioning same by an aspirant. It is the decision of the party that will give rise to a cause of action. When the contravention is not brought to the attention of the party to enable her investigate the claims and take a decision on the point, to my mind a cause of action will not accrue.

However, distinction must be made between constitutional requirements and additional requirements by the political party. For example, prior submission of a complaint on want of academic qualification for a decision of the Screening Committee may not be necessary to give rise to a cause of action because it is a constitutional requirement unlike tax payment which is an additional requirement imposed by a political party. As a matter of law payment of tax is not a legal requirement for contesting offices which elections are conducted by INEC. A political party has power to exclude any non-legal additional requirements contained in its guideline. Therefore, I am of the view that the appropriate time to raise the issue of non-compliance with any provision of a guideline of a political party is at the screening stage or screening appeal stage. If it is not raised, the aspirant will be estopped from doing so later. This is in line with provisions on exhaustion of local remedies. Well, this is not suggestive that Dr Ogah did not exhaust the local remedies. The point I have made is that if this was not done, the issue being a question of a non-legal additional requirement imposed by the party cannot a ground for invalidating the election of a duly elected Governor.

Propriety or Validity of the Federal High Court Judgment

The validity of the judgment is rooted in many judicial decisions of the Supreme Court. The locus classicus case of Amaechi v. INEC (2008) 5 NWLR (Pt.1080) p.227 @ 315 is apt here. I have read some commentaries which posit that the court judgment is perverse on the basis of Section 141 of the Electoral Act 2010 (as amended). This cannot be true. Section 141 provides that “an election tribunal or court shall not under any circumstance declare any person a winner at an election in which such a person has not fully participated in all the stages of the said election. This provision certainly does not apply to pre-election cases. This is amply demonstrated in section 133 (2) which provides: In this part “tribunal or court” means (a) in the case of Presidential election, the Court of Appeal; and (b) in the case of any other elections under this Act, the election tribunal established under the Constitution or by this Act.

Obviously, the Federal High Court, the High Court of a State and the FCT High Court and the Supreme Court are excluded from the application of section 141. It is settled law that the express mention of a thing excludes others. See Ogbuinyinya v. Okudo (1979) 6-9 SC 32.

Although, there is a problem with the application of Section 141 of the Electoral Act vis-a vis section 137 (1) of the same Act. The later section provides that only a candidate in an election or a political party which participated in the election may present an election petition. There is no widespread scenario in which a person that did not participate in an election may approach an election tribunal to warrant the invocation of Section 141. Such a person ordinarily has no locus to present an election petition. A handy instance is the petition filed by Hon. James Faleke challenging the election of Alhaji Yahaya Bello as the Governor of Kogi State wherein he sought to be declared the Governor. The Election Tribunal had in its judgment delivered on 6th June, 2016 held that Hon. Faleke was not nominated as a candidate of APC implying that he did not participate fully in all the stages of the election.

The confusion created by Section 141 aforesaid reared its head in the case of Odedo v. INEC (2008) 17 NWLR (Pt.1117) 554 where Niki Tobi, J.S.C (of blessed memory) after finding merit in the appellant’s appeal and instead of ordering the immediate swearing in of the appellant declared him to contest the election on the platform of the PDP in respect of the Idemili North and South Federal Constituency, Anambra State. On his part, Oguntade, J.S.C disagreed with the conclusion of Tobi that the election be nullified. He said, “Rather, I would order that the appellant being the candidate validly nominated by PDP should step into the shoes of the 3rd Respondent Obinna Chidoka as the winner of the election”. Other learned Justices in the panel followed the conclusion of Oguntade.

Despite driving the nail down the wood in Odedo’s case, this confusion did not abate still but resurfaced in 2014. In the case of Jev v. Iyortyom (2014) All FWLR (Pt. 747) 749 @ 758-9, ratio 12, Okoro, J.S.C stated, “The truth of the matter is that the 1st appellant cannot continue to maintain his seat at the House of Representatives, having found his way into House unlawfully…At the same time, the 1st respondent cannot be ordered to be sworn in immediately because section 141 of the Electoral Act, 2010 (as amended), forbids such an order since the 1st respondent did not participate in all stages of the election”.

Similarly, in a later case the same year: Eligwe v. Okpokiri (2015) Vol. 240 LRCN 28 @ 36, ratio 5, Ngwuta, J.S.C stated, “It is contestable to argue that a pre-election matter must abate once the election is held and the winner sworn or that the mere fact that the election had been held and the winner inaugurated as a member of the legislative house for which the election was conducted, the Court has no jurisdiction in the pre-election matter relating to same but that is not the case in view of section 87 (9) of the Electoral Act, 2010 (as amended)…If the 1st Respondent succeeds in the Court below, he would not, thanks to section 141 of the Electoral act, be declared winner of the election in which he did not actually participate. His remedy will have the election declared null and void and a fresh election in which he will contest as his party’s candidate ordered”.

This confusion was finally cleared and laid to rest in the same case of Jev via a subsequent application by the appellant to the Supreme Court after it had earlier decided the appeal to revisit the judgment and amend or set aside its consequential order made pursuant to the provisions of Section 141 of the Electoral Act, 2010 (as amended). Okoro, JSC who read the Lead Ruling stated, “But having a closer look at Section 141 of the Electoral Act reproduced above, it is clear that the said section refers to courts for which the Supreme Court is not part of…Thus this court not being one of the courts mentioned in Section 133(2) of the Electoral Act is not one of the courts to which Section 141 regulates. This is much more so since the issue for consideration was not an election petition appeal but a pre-election matter. In appropriate cases, this court has exercised its power to order successful litigants to be sworn in immediately without the rigour of having to go through another election. The applicant herein should not be an exception. Clearly, the definition of “tribunal or court” does not include the Supreme Court or the Federal High Court hearing and determining pre-election matters”. See (2015) 2 KLR (Pt. 359) 601 @ 611, C-H.

The Drama of Appeals/Stay of Execution and Ex-Parte Order of a Concurrent Court vis-a-vis Ogah’s Certificate of Return

The suit that gave rise to the present situation of two governors in Abia State did not generate as much interest as the drama after the judgment. However in law strictly, there can only be one Governor of a State at a time.

The question that remains to be answered is between Ogah and Ikpeazu who is the authentic Abia Governor? The correct answer to this will depend on whether the application for stay of execution was filed before INEC issued certificate of return to Ogah. If the application for stay was filed before, then INEC may have to cancel the certificate pending the final determination of the appeal but even without a formal cancellation the certificate will be inoperative until the appeal is determined.

One may even ask whether a person who comes to office through pre-election suit should be issued with a certificate of return. Section 75(1) of the Electoral Act provides: “A sealed certificate of return at an election in a prescribed form shall be issued within 7 days to every candidate who has won an election under this Act:..” It is perhaps the view that Ogah is deemed to be winner of the election, that the issue of certificate of return comes into play or perhaps it was included in the relief before the court, otherwise the certified true copy of the order of court could still have availed.  The only reason he has not assumed the functions of his office is because he has to fulfill the rituals of swearing in.

It is well known as a matter of law that mere filing of an appeal does not operate as a stay of execution. See Section 17 of the Court of Appeal Act, 2004. For an execution to be stayed there should be an application to that effect.

I have also read commentaries which opined that by virtue of section 143 of the Electoral Act, 2010 that a person elected is to remain in office pending determination of an appeal, if notice of appeal is given within 21 days of the date of the decision. Again, this is not correct. The section has no application to pre-election matters. The opening section begins with, “If the Election Tribunal or the Court…” As I have shown before from the authorities that the definition of Tribunal or the Court does not include the Federal High Court. It must be said that pre-election matter is like ordinary civil action and so all the rules, practices and procedures regulating civil actions apply to it including matters as to appeal and enforcement of judgments.

The most bizarre of the drama was the exparte order of an Osisioma High Court restraining the Chief Judge from swearing in Dr Ogah. The Superior Court has warned and called for caution in granting exparte orders. The situation here is even most worrisome. The Abia High Court has no jurisdiction to entertain the application seeking to frustrate a judgment of a court of concurrent jurisdiction.

Again, I cannot understand why the Chief Judge of Abia State has been evasive in complying with the orders of the Federal High Court to swear in Dr Ogah even with the certificate of return which is a mere surplussage. He may only be excused if he has clear proof that an application for stay of execution has been filed and acting in good faith to avoid further compounding the already compounded scenario.

It will not be good to have resort to seek a Judge from another State to come and perform the swearing in. Swearing in is an important judi-politico ritual without which an elected public officer cannot begin to perform the functions of his office.

It is in the interest of our democracy to accelerate the resolution of the appeal in this case as it may likely go up to the Supreme Court. Again bearing in mind that this is an intra-party matter, care must be taken to avoid a situation where the benefiting party and the contenders reaches compromise and apply the tactics that may delay the appeal to enable both Ikpeazu and Ogah take a bite. Such an arrangement can even allow Ikpeazu do four years, while at the twilight Ogah will step in and his four year tenure will start from when he took Oath of office. We should not forget that politicians can be clever moreso since both Ogah and Ikpeazu are from the same political party. The beneficiaries will not mind that such an act is against public policy.

The judiciary owes a public duty to dispense the appeals with utmost dispatch to forestall the fears just expressed.

* Nwobodo is an Enugu based legal practitioner

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