Almost two weeks after the Independent National Electoral Commission (INEC) issued Hon Bassey Etim the certificate of return to represent Akwa Ibom North East Senatorial District in the National Assembly in obedience to a valid court order, the Senate is yet to swear in the senator-elect. Unconfirmed sources claimed that the delay to swear in Etim was as a result of a letter written by one Paul Ushoro (SAN), who incidentally is on the legal team of Dr Bokola Saraki at the Code of Conduct Tribunal and lead counsel to sacked Senator Akpan, requesting the senate president to use his good office not to swear in Etim until an appeal against the high court judgment in favour of Etim is heard and determined. Although the practice in the 8th Senate is to swear-in any victorious candidate from court, in a pre-election dispute, with certificate of return from INEC, notwithstanding the pendency of appeal at a higher court, the delay in following the tradition in Etim’s case appears to create an impression of: One senate, double standard, writes Ise-Oluwa Ige.
About three weeks ago, a Federal high court sitting in Uyo booted out Mr Bassey Albert Akpan from the National Assembly.
That was after the court found that Mr Akpan was not the valid and bonafide candidate of the Peoples Democratic Party (PDP) which won the 2015 general election for the Akwa Ibom North East senatorial seat.
The high court, in the judgment on a pre-election dispute between a former member of House of Representatives, Hon Bassey Etim and Senator Akpan over who between them was the authentic candidate of the PDP for the senatorial seat, specifically held that Akpan had wrongly and illegally represented the Akwa Ibom North East Senatorial District in the National Assembly for 628 days.
The life span of the current 8th National Assembly is 1,460 commencing from June 9, 2015 when it was inaugurated, to expire June 9, 2019.
The trial Federal high court consequently ordered Akpan to vacate forthwith the seat for the bonafide candidate of the PDP, Hon Bassey Etim for the remaining 812 days, and refund to the coffer of the National Assembly, within 90 days, all monies he had collected by way of salary and allowances for the 628 days during which he illegally occupied the seat in the senate.
Besides, the court ordered the Independent National Electoral Commission (INEC) to retrieve the certificate of return earlier issued to Akpan and issue a fresh one to the newly declared senator-elect, Mr Bassey Etim, to enable him proceed to the senate for his swearing-in.
INEC had since complied with the court order as it issued the certificate about two weeks ago.
But almost 14 days after INEC had complied with the court judgment and notwithstanding a letter written to the leadership of the senate by Bassey Etim that he was ready for his swearing-in, the senate is yet to reply him or take any action to the effect. Not even a separate eight-page letter written by fiery Lagos lawyer and human rights activist leading Etim’s legal team, Chief Mike Ozekhome (SAN) has been dignified by the senate.
Informed sources at the National Assembly told Bar and Bench Watch that Etim had visited the National Assembly twice between March 7 after he collected his certificate of return and March 14, to present himself for the swearing in ceremony but he was made to understand that no instruction had issued yet from the Senate President to his Chief of Staff on when the ceremony should hold.
All efforts to see the senate president too had proved abortive, it was learnt.
Worse still, even though INEC had nullified the certificate of return issued to Mr Albert Akpan by the issuance of fresh certificate of return to Bassey Etim, Mr Albert has refused to yield up his office.
He is said to be surviving on the spirit of camaraderie in the senate to work against Bassey Etim from being sworn in.
Whereas, the popular tradition in the senate which had guided the upper chamber in the National Assembly in a situation like the Akpan-Etim’s case is to swear-in any victorious candidate from the law court in pre-election disputes. That tradition was activated on January 10, this year in a pre-election lawsuit involving Senator Atai Aidoko and Senator Air Marshall Isaac Alfa who engaged each other in a legal battle over who between them is the authentic candidate of the PDP for the Kogi North East Senatorial District.
Briefly, the background of the pre-election dispute between Atai Aidoko and Air Marshall Isaac Alfa which is on all fours with Bassey Etim and Albert Akpan’s case is that the matter originated at the Federal high court, Abuja, with the two political juggernauts in the Kogi North East senatorial district: Aidoko and Alfa, claiming to be the winner of the primary poll held by the PDP on December 7, 2014 for the senatorial district at Idah Town Hall. The matter therefore went to court as a pre-election dispute which Air Marshal Alfa won, the basis upon which he was admitted into the senate.
But soon as Justice Nnamdi Dimgba of the Federal high court gave judgment in favour of Air Marshall Alfa, Senator Atai Aidoko went on appeal as did Albert Akpan in the instant case. But the pendency of the appeal of Senator Aidoko did not stop INEC from recognising Alfa with Senate swearing him in based on the judgment of the Abuja Federal high court.
While Senator Alfa represented his district at the hallowed chambers of the senate based on the judgment of the Federal high court in Abuja, the Abuja division of the Court of Appeal heard the appeal filed by Senator Atai Aidoko against the high court judgment of Dr Justice Nnamdi Dimgba and delivered its considered judgment on December 14, 2016.
In the unanimous verdict by a three-member panel of the Court of Appeal justices (Dr Justice Hussein Mukhtar, Justice T. O Awotoye and Justice Frederick O. Oho), the court specifically held: “In the final analysis, this appeal succeeds; the entire issues are resolved in favour of the appellant (Aidoko) and the judgment of the lower court delivered on 18-4-2016 by Federal High Court, sitting at Abuja by Dr N. DIMGBA, J. is hereby set aside. It is FURTHER ORDERED AS FOLLOWS:
- The third (3rd) Respondent herein that is the Independent National Electoral Commission (INEC) is hereby ordered to retrieve forthwith the Certificate of Return issued in favour of the 1st Respondent and issue a fresh Certificate of Return to the Appellant (Senator Atai Idoko) forthwith .
- There shall be cost of N50,000.00 in favour of the Appellant against the 1st
Although Air Marshall Isaac Alfa quickly ran to the registry of the Supreme Court to challenge the verdict of the Court of Appeal by filing a notice of appeal in addition to filing a motion for stay of execution, INEC, again, promptly obeyed the judgment of the Court of Appeal by issuing a fresh certificate of return to Senator Aidoko while the senate followed its tradition by swearing in Senator Aidoko into the senate notwithstanding the pendency of the appeal by Alfa at the apex court.
There are various instances in the current 8th National Assembly in which both key institutions of government—INEC and the Senate—have demonstrated absolute respect for the rule of law in similar situations that presented itself in Bassey Etim and Albert Akpan’s case , it is actually not clear why Bassey Etim’s swearing-in is suffering delay.
Although there is no official communication between the Senate and Bassey Etim on why his swearing-in ceremony is being delayed, a credible source close to the Office of the Senate President told Bar and Bench Watch that the delay was actually not unconnected with a letter written by the Chambers of Paul Usoro (SAN) to the Senate President, Dr Bukola Saraki, requesting him to put on hold Etim’s swearing-in until after the determination of a pending appeal on the judgment of the Federal high court, Uyo which sacked his client and ordered that Etim be sworn in forthwith in his place.
Ushoro is coincidentally one of the lead counsel on the defence team of Senator Bukola Saraki in a quasi-criminal charge of non-declaration of assets preferred against him by the Federal Government at the Code of Conduct Tribunal.
The Ushoro’s letter which had, indeed, been seen by Bar and Bench Watch was dated February 28, 2017, implying that it was written about 24 hours after the judgment of the Federal high court, Uyo, which sacked Mr Akpan from office.
It was also gathered that Ushoro did a separate letter to INEC same day (February 28), urging it not to issue certificate of return to Bassey Etim on the account that they had filed a notice of appeal against the judgment of the Federal high court, Uyo while a motion for stay of execution had also been filed before the Federal high court, Uyo.
But INEC had trashed Ushoro’s letter and promptly obeyed the court judgment in line with its tradition of absolute respect for the rule of law.
The senate which has to conduct the swearing-in ceremony for Bassey Etim before he could begin the functions of his office as it did for Air Marshal Isaac Alfa in the Suit No: FHC/ABJ/CS/1073/2014 and Senator Atai Aidoko in the Appeal No: CA/A/260/2016 and in several similar cases, is foot-dragging purportedly on the account of a letter by a lawyer who is on Saraki’s legal team at the Code of Conduct Tribunal.
The delay in swearing-in Bassey Etim is beginning to raise eyebrows.
In the said letter to the Senate President, Ushoro (SAN) had intimated Dr Saraki that his client, Senator Albert Akpan was sacked by the judgment of the Federal high court, Uyo but that they had filed a notice of appeal and a motion for stay of execution of the judgment, praying that Bassey Etim should not be allowed into the senate until after conclusion of the appeal because “allowing the victorious party to levy execution would result in foisting on the Court of Appeal a fait accompli and rendering the pending appeal nugatory.”
The letter, in the main, had alleged that the judgment of the Federal high court, Uyo, was not correct in law in that “the trial judge in his judgment completely ignored the evidence adduced by our client which established without any doubt that the plaintiff forged the result sheet that he tendered in evidence which forged result sheet formed the basis of the court’s judgment in favour of the plaintiff”
But Ushoro who made the damaging allegation in the letter not only refused to attach the judgment of the Federal high court, Uyo to his correspondence to the senate, he was also silent on the findings of the court in the course of trial of the case to the effect that it was Ushoro’s client (Akpan) and his witnesses that were indeed found to have presented various forged documents during trial of the case including forged results sheets.
Bar and Bench Watch had seen a copy of the judgment of the Federal high court, Uyo and reports that Bassey Etim actually commenced the pre-election case with Suit No FHC/UY/CS/1087/2015 at the Federal high court, Abuja by a way of originating summons but that the suit was not only transferred from Abuja to Uyo since the cause of action arose in Akwa Ibom, the court also ordered that the suit be converted to writ of summons, being a contentious matter of two aspirants claiming to be the winner of a primary poll held on December 7, 2014, to enable parties and their witnesses come before it to give oral evidence that would assist it in determining who between Etim and Akpan was actually the authentic candidate of the PDP based on the result sheets they presented to the court.
A close study of the 53-page judgment of the Federal high court, Uyo which Mr Ushoro discredited in his letter to INEC also revealed that the trial judge in the case, Hon Justice F. O Riman devoted pages 37-53 of the judgment to two fundamental issues including which of the results tendered by the parties is the genuine/authentic results and who are the authentic/genuine electoral and returning officers appointed for the conduct of the Akwa Ibom North East Senatorial District primary held on 7/12/2014.
Indeed, the trial judge, at page 40 of the judgment, for instance, found thus:
I have examined and compared Exhibit 8 (results) of the plaintiff (Bassey Etim) and Exhibit 19 (results of the 3rd Defendant (Albert Akpan). Exhibit 8 was signed by Michael George as the Electoral Officer with party membership card number of 2976821 and Daniel Ekanem as the returning officer with party membership card number 3872375. Exhibit 8 shows number of accredited delegates to be 375 and the plaintiff’s membership card number 4574227 and INEC Voters card number 90F5B071B7296. In Exhibit 19 of the 3rd defendant (the results), the returning officer signed it on 9/12/2014 (two days after the primary was held).The electoral officer signed it on 7/12/2014 when the primary was held. The party membership card numbers of the electoral officer and the returning officer are not indicated as well as party membership card number of the 3rd defendant and his INEC voter’s card number. I find that if the total number of votes scored by the 7 aspirants is summed up together, it will show that the total number of delegates was 374 and not 375 as stated in Exhibit 19 as there was no vote voided. I find also that Exhibit 19 does not contain the party membership card numbers of both Electoral and Returning Officers. I find that the exhibit 19 is falsified. This renders it not credible but questionable.
But assuming without conceding that Ushoro’s allegation in his letter of February 28 to the senate president has merit, the question is: Is senate the appropriate forum to ventilate such grievances? Again, assuming without conceding that Ushoro’s allegation has any probative value in law court, the question again is: Is such allegation superior to court judgment which positively ordered that Bassey Etim should be sworn in forthwith?
Given the tradition in the senate regarding judgments in pre-election disputes, except the senate promptly obeys the judgment of the Federal high court, Uyo by swearing in Bassey Etim based on the fresh certificate of return issued him as it did to Air Marshal Isaac Alfa in the Suit No: FHC/ABJ/CS/1073/2014 and Senator Atai Aidoko in the Appeal No: CA/A/260/2016 and in several similar cases, Saraki-led senate will be creating the impression of one senate, double standard.