- By Chief Mike Ozekhome, SAN,
The judgment of Justice Okon Abang of the Federal High Court, Abuja, sacking Dr. Okezie Ikpeazu as Governor of Abia State is nothing but a judicial coup.
With all humility, it was poorly researched. There are just too many things wrong with it.
INEC did not help matters by preemptorily handing over a certificate of return to Dr. Uche Ogah, even when Ikpeazu had already appealed, filed a motion for stay of execution and got INEC duly served.
The last was unnecessary. It smacks of political undertones, especially since the news in the market place (not independently confirmed), is that the game plan is for Ogah to be sworn in immediately on the platform of PDP, and then immediately decamp to APC.
Thus, APC, it is said, would have at least one state in the S/E and S/S of the country. If this was the expectation, then it is a legal illusion as the entire judgment is fundamentally flawed in law.
Matters are not helped by alleged imminent invasion of Abia Government House by Federal troops. In a democracy?
Under the doctrine of Lis Pendens (suit pending), once a party is aware that a suit has been submitted to a court of law, it should stay further action by not resorting to self help, viet armis.
In GOVERNMENT OF LAGOS STATE V OJUKWU (1986) 2 NWLR (pt 18) 621, the Supreme Court held that once a party is aware of a pending suit, he should not take further steps in the matter, and if he does, it is at his risk. This is even if no injunction has been specifically granted.
INEC on becoming aware of Ikpeazu’s appeal and service of the motion to stay execution of the judgment, ought to have exercised restraint by not presenting Ogah with a certificate of return.
By the provisions of section 143 of the Electoral Act, a person whose election is nullified shall stay in office pending the determination of his appeal, so long as he has notified INEC of his appeal. And he even has 21 days to do this!
Under sections 140 and 141, disputes over nomination and qualification within a political party can only lead to the holding of a fresh election between the two combatants (Ikpeazu and Ogah), where a court or tribunal nullifies the election for any reason whatsoever including that the person elected (Ikpeazu), was not qualified to contest the election in the first place (as held by Abang).
It can never result in the certificate of return being given to Ogah, a situation that only occurs under section 142 where the issue is that the sitting Governor did not have majority of votes over his opponent.
Section 140 (2) specifically states that the “election tribunal or court shall not declare the person with the second highest votes or any other person as elected, but shall order for a fresh election. It is so clear.
This was the major reason the Supreme Court affirmed the decision of the Court of Appeal and nullified that of the election petition tribunal in February, 2016, in the case of AISHA ALHASSAN VS DARIUS ISHAKU.
Justice Abang’s judgment to the effect that Ogah should be “sworn in immediately” and the audacious act of INEC in giving certificate of return to Ogah, all attempted to abort and foreclose completely, Ikpeazu’s constitutional right of Appeal (see section 241 of the 1999 Constitution and section 143 of Electoral Act).
See also EYESAN VS SANUSI (1984) 15 NSCC 271; THE STATE VS OLADOTUN (2011) LPELR 1961 (SC)
The judgment is therefore dead on arrival, as dead as dodo.
INEC that first denied ever receiving any notice of Appeal before issuing a certificate of return to Ogah suddenly summersaulted upon production of evidence, claiming it received only a notice of Appeal, but not a motion for stay of execution.
The subsequent evidence produced by Abia State Attorney General, Umeh Kalu, showed that one Saleh Ibrahim, Senior clerical officer in INEC Headquarters Legal Department, received and stamped both Notice of Appeal and motion for injunction at 12:50 pm on June 29, 2016.
Under the Electoral Act, INEC has one full week to issue a certificate of return. So, why the rush to do so within 24 hours? This raises serious suspicion and concern of external forces being at play.
The characterization of a dispute over a person’s qualification for election for any reason as a pre-election or post election is determined by whether the dispute was presented for judicial determination before or after the general election. If it is brought before the general election, it is a pre-election matter. If it is brought after the general election and after the person whose qualification is disputed has been elected, it is a post election matter. See CHUKWUEGBO v. AGU & ORS (2015) LPELR-25578(CA).
As a pre-election matter, it can be presented only in a High Court by Virtue of S.31(5) and (6) and S.87(9) of the Electoral Act 2010 as amended. As a post-election challenge of an elected person’s qualification for election, it can be presented only as an election petition in an election Tribunal. See SALIM V CPC (2013) LPELR-19928(SC) in which the Supreme Court held that:
“it is my considered opinion therefore that the issues of qualification, disqualification or non-qualification of a candidate to contest an election (in this case governorship election) is a matter which the High Courts and the Election Petition Tribunal that those grievances can be presented after election has taken place. …..In conclusion it has to be stated that the issue of disqualification, nomination, substitution and sponsorship of candidates for an election precede election and are therefore pre-election matter.
The instant situation where the appellant as plaintiff did not complain to court before election and even then 38 days after the election to talk of pre-election matter for the first time is a pill too difficult to swallow.
He by his lack of consciousness took his matter out of the domain of pre-election and can only go before the election tribunal to try his luck since the status of the matter was post-election clearly outside the ambit of either the Federal High Court, State High Court or High Court of FCT”.
QUALIFICATION AND DISQUALIFICATION DO THEY AFFECT IKPEAZU?
Section 177 of the Constitution of the Federal Republic of Nigeria, provides that a person shall be qualified for election to the office of Governor of a State if he is a citizen of Nigeria by birth; he has attained the age of thirty-five years; he is a member of a political party and is sponsored by that political party; and he has been educated up to at least School Certificate level or its equivalent.
On the disqualifying features of a candidate for an election, Section 182 (1) of the 1999 Constitution lists them as: voluntary acquisition of citizenship of another country being elected to such office at any two previous elections; being adjudged a lunatic, or a person of unsound mind, being under a sentence of death; or within 10 years before the election he has been convicted and sentenced for an offence involving dishonesty; or having been found guilty of the contravention of the code of Conduct; being an undischarged bankrupt; or he has not resigned, withdrawn or retired from the employment of public service of the federation or a state at least thirty days to the date of the election; belonging to any secret society; or he has been indicted for embezzlement or fraud by a Judicial Commission of Inquiry or an Administrative Panel of Inquiry or a Tribunal or if he has presented a forged certificate to INEC.
It is cleared that whether by way of qualification or disqualification, Dr. Ikpeazu suffers no such deficit.
Under Section 138 (1) (a) of the Electoral Act, an election may be questioned on the grounds that a person whose election is questioned was, at the time of the election, not qualified to contest the election
In DANGANA V USMAN (2013) 6 NWLR (pt 1349), 50 at 89 90, the Supreme Court held that qualification/disqualification to contest an election is both a pre election and post – election matter, which both the High Court and the relevant Election Tribunals have jurisdiction to hear and determine. See also WAMBAI V DONATUS (Supra) and IKECHUKWU V NWOYE (Supra). To be continued next week.