Way out of Abia crisis, by lawyers

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Court-symbolThere is tension in Abia State over who occupies the governorship seat. Dr. Uche Ogah is laying claim to the seat, having been issued a certificate of return by the Independent National Electoral Commission (INEC) following the verdict of the Federal High Court. But Dr. Okezie Ikpeazu insists he remains the governor having appealed the judgment. How can the stalemate be resolved? The Nation asked lawyers.

All eyes are on Abia State to see how its political logjam will be resolved. It began with last Monday’s judgment by Justice Okon Abang of the Federal High Court in Abuja.

He ordered Governor Okezie Ikpeazu to vacate office for allegedly giving false information in the form submitted to the Independent National Electoral Commission (INEC) by the Peoples Democratic Party (PDP) nominating him as its candidate for the April 11, 2015 governorship election.

Justice Abang, in two separate judgments, ordered Ikpeazu to immediately vacate office.  In one of the two suits before the court, the judge directed INEC to issue a certificate of return to the plaintiff, Uche Ogah, who was the first runner-up in the PDP governorship primary of December 8, 2014.

The judge held that Ikpeazu lied on oath as regards payment of his personal income tax in the three years preceding the primary as required under Article 14(a) of the PDP Electoral Guidelines.

He disqualified him as the PDP candidate on the basis of perjury. The court ruled that all votes credited to Ikpeazu in the primary by virtue of his non-qualification were wasted. The judge made a consequential order removing Ikpeazu from office and declaring Ogah as the validly-elected governor.

Ikpeazu kicks

Ikpeazu, through his legal team, headed for the Court of Appeal to challenge the judgment. He is praying the appellate court to set aside Justice Abang’s judgment. Despite the appeal, INEC issued Ogar with a certificate of return.

The commission said it was obeying Justice Abang’s order. Ikpeazu obtained another order restraining the Chief Judge or any other judge from swearing in Ogah as governor.

Justice Chibuzo Ahuchaogu of the Osisioma Ngwa High Court in Abia State, stopped the Chief Judge, the President of the Customary Court of Appeal and any other judiciary officer from swearing in Ogah.

The judge was ruling on a Motion ex-parte filed by Ikpeazu through his counsel, Mr. O. O. Nkume, pursuant to Section 143 (1) & (2) of the Electoral Act 2010 (as amended) and pending the determination of the motion on notice filed by the applicant.

The court also issued an order of injunction restraining INEC from issuing a certificate of return to Ogah  while the claimant, Ikpeazu remains in office in accordance with Section 143 (1) & (2) of the Electoral Act 2010 (as amended).

He said the order will last for 10 days and fixed Friday for the claimants and respondents to return to the court.

Ikpeazu is insisting that he remains the governor until his appeal is determined. There is also a pending motion for stay of execution of the judgment.

INEC’s position

INEC admitted that it received a notice of appeal from Ikpeazu. At first, it said it issued the certificate of return to Ogah because it received no notice of appeal from the governor, who responded immediately that the commission did indeed receive the notice.

The two documents were said to have been signed for by Saleh N. Ibrahim, Senior Clerical Officer at the Legal Services Department of the commission’s headquarters, Abuja, who stamped the notice of appeal and motion for stay of execution with the commission’s official stamp by 12.50pm on Wednesday, June 29, 2016.

Clarifying INEC’s position on the issue, its spokesman, Nick Dazang, said Ikpeazu’s failure to provide a stay-of-execution order left the commission with no choice than to issue Ogah the certificate of return.

He said since Mr. Ikpeazu’s notice was not deemed sufficient, it had to, as a matter of policy, execute the judgment of the high court.

“I discovered that INEC received Mr. Ikpeazu’s notice. However, it did not contain a motion or order of stay of execution. In the circumstance, and in deference to the previous court order, INEC as a responsible regulatory (body) has no recourse than to issue Mr. Ogah the certificate of return.

“By law, a certificate of return is supposed to be issued within one week. Also, the commission has decided as a matter of policy to obey all subsisting court orders. That means if the court were to issue a contradictory order, INEC has no option than to obey.”

Abia State Attorney-General Umeh Kalu said the governor’s legal team included the notice of stay of execution order with the appeal notice delivered to INEC.

He said: ”It’s unfortunate that INEC said that it was not served. But the truth is that they were served. I have a proof to that.

“It is now clear that the commission had no reason or cause to proceed with their dangerous action of issuing a certificate of return to Dr. Uche Ogah when it was clearly in receipt of a notice of appeal and stay of execution expressly forbidding it from taking any further action on the judgment of Justice Okon Abang of the Federal High Court pending the determination of the appeal in the case.

“It is rather surprising that the commission could lend itself to be used for an act capable of destabilising a state in Nigeria with the attendant consequences for anarchy and breakdown of law and order.”

What is the way out of the situation?

Lawyers speak

Senior lawyers, including Sylva Ogwemoh  (SAN), Dr. Joseph Nwobike (SAN), member, Ogun State Judiciary Commission, Mr. Abayomi Omoyinmi, activist-lawyer Mr. Ebun Adegoruwa, Chairman, Nigerian Bar Association (NBA), Sagamu Branch  Mr. Adebowale Oduguwa and former Chairman, NBA Ikeja Branch, Monday Ubani said the court should be allowed to conclude its adjudicatory process.

Ogwemoh, however, argued that the fact that an appeal was filed does not translate into a stay of execution of judgment of a lower court.

He said: “It is the law that an appeal does not operate as a stay of execution of a valid judgment of a court.

“But where an appeal has been filed challenging the judgment rendered by a court or tribunal, and an application seeking a stay of execution of the judgment is filed and served on all the relevant parties, no step(s) should be taken by any of the parties to dispute to render the appeal nugatory.”

The lawyer explained that on the other hand, the Electoral Act, 2010 (as amended) has provision in section 143 dealing with stay of execution of a judgment of a tribunal or court.

Ogwemoh said: “The Act allows a period of 21 days for an appeal to be filed where a tribunal or court determines that a candidate returned as elected was not validly elected. The person against whom the judgment of the tribunal or court has been made and who has appealed against the judgment is by virtue of Section 143(1) of the Act allowed to remain in office pending the determination of the appeal. Even where the person in office declared by the tribunal or court as not validly elected has not appealed, he shall by virtue of Section 143(2) of the Act remain in office pending the expiration of the period of 21 days within which an appeal may be brought”.

Ogwemoh said Ikpeazu took the right step by approaching the high court in Abia State for interpretation of the provision of the Electoral Act in order to avoid anarchy and chaos in the system, adding, “We should not forget so quickly that Section 143 of the Act was introduced to avoid the experience in the past under the old law where there was no provision to address this kind of situation where a candidate in office is declared not validly elected by a court or tribunal and another candidate is immediately sworn in, and when the judgment of the tribunal or court is upturned on appeal, the person returns to office and claims to be entitled to a fresh term of office.

To Omoyinmi, INEC is right to have carried out Justice Abang’s order. He noted that the order of the court from the judgment is that Dr. Ogah should be issued a certificate of return with immediate effect and INEC is right in carrying out the order of court to that extent.

“However the notice of appeal filed by Dr. Ikpeazu before the Court of Appeal does not operate as a stay over the judgment. Where there is no order for stay of execution, the INEC is right to have obeyed the court and all parties must obey the court decision. Nevertheless the Abia State High Court may have been placed with facts to show that a notice of appeal against the decision of Justice Abang has been filed, and consequent on that issued an interim order which I believe is invalid in law considering the fact that the Abis State  High Court is of coordinate jurisdiction with the Federal High Court.”

While admitting that Ikpeazu,  under the law is entitled to file an appeal and subsequently and statutorily remain in office pending the determination of his appeal, Oduguwa also stated that an appeal does not operate as a stay of execution of judgment. According to him, INEC requires a specific order of stay of execution to stop it from issuing the certificate of return, more importantly that the court specifically ordered that the certificate be issued.

He argued: “It will be contemptuous on INEC to ignore the issuance of the certificate nothwithstanding that an appeal has been filed. INEC has a duty to comply with the valid and subsisting order of a court of competent jurisdiction.

But Dr. Nwobike reasoned that Justice Abang should not have made those consequential orders directing INEC to issue a certificate of return to Mr Ogah  in view of the clear and mandatory provisions of Section 141 of the Electoral Act, 2010.

“Again, having filed an appeal and applied to stay the execution of orders of the Federal High Court, I believe that a prudent INEC should have awaited the decison, one way or the other, regarding that application for stay of execution.

“Granted that an application for stay of execution does not amount to the stay of execution of the orders, INEC should have, in view of the provisions of Section 143 of the Electoral Act, awaited the complete determination of that application before proceeding to issue the certificate of return to Dr. Ogah.

“I also believe that INEC should have given due consideration to the fact that, apart from the fact that the orders emanated from pre-election action, Dr. Oga never participated in the governorship election that it conducted on  April 11, 2015. Putting the foregoing on a scale, it does appear to me that the haste with which INEC issued the certificate of return provides validity to possible charge of bias or bad faith”, he further argued.

In respect of the order made by the Abia State High Court, he said it appeared to have been sought for to prevent the breakdown of law and order. “I cannot, with any modicum of certainty comment on its propriety until I read the substantive reliefs”, he said.

Adegoruwa argued that once a party who lost a case has filed an appeal and an application for a stay of execution of the judgment, that judgment cannot be enforced until his application has been decided one way or the other.

“There is no controversy in this matter at all. We have evidence that INEC was duly served with both the notice of appeal and the application for a stay of execution of the judgment.

In that regard, the commission was clearly in error, to have proceeded to execute the judgment that was already on appeal, by issuing a certificate of return to Chief Ogar, thus precipitating and provoking the current tension and confusion in Abia State”.

Adegoruwa said the appropriate thing to do now is for INEC to withdraw the certificate of return that was issued to Ogar in error, and await the determination of the appeal.

“The crisis that is to follow is better imagined. If Ogar is sworn in now and Ikpeazu eventually succeeds on appeal, then Ikpeazu will be sworn in again and that monumental confusion will continue until the case is finally decided by the Supreme Court. There is no need for this drama at all. Parties should be patient and await the final determination of this case by the Supreme Court”, he said.

Ubani argued that since INEC has issued Dr. Ogah with a certificate of return, the next thing is for the Chief Judge of Abia State to swear him in as governor.

He argued that the order of the Abia High Court restraining the Chief Judge from swearing in Ogah into office is invalid in law as “it did not emanate from a higher court but from a court of coordinate jurisdiction and does not in any vitiate or invalidate the earlier judgement 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, Court of Appeal, has the jurisdiction to reverse the judgement of the Federal High Court”.

He added: “The appeal of Dr Okezie Ikpeazu before the Court of Appeal does not operate as a stay over the judgment of Justice Okon Abang. In the absence of any express order of the high court or the court of appeal ordering stay of execution, the judgement of the Federal High Court delivered on the 27th of June, 2016 should be obeyed by all the parties”.

Way out

Ogwemoh said it is also important at this stage of the crisis for the Chief Law Officer of the Federation to make a pronouncement on the issue, ‘’which I think should be in support of allowing the appeal process initiated by Governor Ikpeazu to be exhausted to enable us have the benefit of an appellate court decision on the matter.

Dr. Nwobike and Omoyinmi agreed with Ogwemoh on the need to allow the matter go through the appellate court.

Nwobike said, “I think that the Court of Appeal should quickly intervene, upon the application of any of the parties, by ordering the maintenance of status quo before the orders of Justice Abang pending the determination of the appeal.

Omoyinmi added that the way out is for the Higher Court to  be allowed to make a pronouncement on the matter be it at the Court of Appeal or Supreme Court “after all if Dr. Ogah emerge victorious, his four year term will commence on the date of his swearing and he would have ultimately lost nothing as to the number of years for his tenure in office”.

Oduguwa suggested that in view of the conflicting orders of the Federal and State High Courts on the swearing in issue, “the most ideal thing to do and which we seem to have adopted is to allow the appellate courts to consider the appeal if any so that all the issues in controversy including the appeal can be dealt with once and for all. My advice is that the CJ should allow the judgment to be tested on appeal.

“If Dr. Ogah wins on appeal, his tenure will commence from the date he is sworn in. I am sure that the appeal, even up to Supreme  Court, will terminate within a year considering the fact that priority is given to the hearing of election cases”.

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