Abia governorship tussle: A pre-election case

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Uchechukwu Ogah

Okezie Ikpeazu

It seems the rigmarole surrounding the Ogah-Ikpeazu legal battle for Abia State Government House keeps getting muddled up every day. This is not just because of the convoluted litigations involving suits and counter-suits with a multitude of vested interests and proxy opponents, but the continuous toxic flow of much misinformation and misrepresentations of the real issues at stake. The matter becomes more worrisome when even supposedly informed commentaries by acclaimed legal practitioners fall short of the validity of information and drawn conclusions expected.

For instance, the submissions of Professor Ben Nwabueze (SAN), in his law article titled Illegality of Okon Abang’s judgment in Abia State, and published in The Guardian of Tuesday, August 9, 2016, followed the same familiar pattern of most ill-informed commentaries on the Abia State case. The eminent constitutional lawyer laboured hard in his article to disparage Justice Abang’s judgment as a rape of the law and an abuse of the judiciary. However, all of Prof. Nwabueze’s submissions are founded on the same plank of public pervasive ignorance of the Ogah-Ikpeazu case as a strictly pre-election matter. In a pre-election case of Ikpeazu-Ogah context, Prof. Nwabueze’s conclusions are wrong, while Justice Abang’s judgment is quite valid, not an illegality.

One cannot but pity Dr. Uche Ogah, a much-misunderstood man, who must be aghast at the level of misrepresentation of his main arguments in the quest for justice. Even Justice Okon Abang deserves no less sympathy on account of his June 27, 2016 judgment, being relentlessly misinterpreted and dismissed as illegality. What about INEC, which is still being condemned for promptly complying with a court judgment to issue a certificate of return? The fact is that all the persisting misrepresentations and condemnations of the above parties are based on misinformation and wrongful selective interpretations of electoral law provisions and legal precedents.

For one, let it be repeated to all that Ogah’s initial suit, which gave rise to Justice Okon Abang’s judgment is a pre-election matter. It is not an electoral or post-election case as being wrongly assumed. It originated since 2014 after the Peoples Democratic Party (PDP) governorship primaries, which produced Dr. Okezie Ikpeazu as the winner, much to the disappointment of fellow contestants like Dr. Uche Ogah, who felt the former was not eligible due to his false tax payment declarations contravening the PDP’s electoral guidelines. Ogah first lodged his complaints with the Abia State PDP about Ikpeazu’s ineligibility issue. He was ignored. Consequently, he resorted to filing a suit in court to pursue justice through a legal process.

According to the Electoral (Amendment) Act, 2010 -87 (9), “Notwithstanding the provisions of the Act or rules of a political party, an aspirant, who complains that any of the provisions of this 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, for redress.” So, Ogah duly acted within his rights to apply for justice at a Federal High Court in Abuja.

As the plaintiff, Ogah dragged Ikpeazu, the PDP and the Independent National Electoral Commission (INEC) to the Federal High Court and produced convincing evidence that taxes allegedly paid for the years, 2011, 2012 and 2013, by Ikpeazu were paid on the same day and therefore faulted the authenticity of Ikpeazu’s tax clearance certificate and the information contained in his INEC “Form CF100”. Ikpeazu had no answer to the allegations but challenged the competence of the Federal High Court, Abuja to hear the case. The trial Court overruled his objection, but the Court of Appeal sided with him and ruled that the case ought to have been filed at the Abia State High Court.

Dissatisfied with the Court of Appeal judgment, Ogah took the matter to the Supreme Court. In its judgment, handed down by five Supreme Court justices led by Justice Mohammed Muntaka-Coomassie, the Supreme Court faulted the decision of the Court of Appeal and affirmed the competence of the Federal High Court, Abuja to try the case. The justices then remitted the case back to the Federal High Court for the expedited trial of the tax fraud case challenging the eligibility of Ikpeazu to contest the governorship election. And to ensure that the hearing was not delayed, the Supreme Court ordered the Chief Judge of the Federal High Court of Nigeria to ensure that the case was heard and determined expeditiously.

The foregoing developments were what led to the eventual judgment by Justice Abang on June 27, 2016. So, it can be seen as clearly as daylight that the judgment was not an illegality as it was based on a pre-election matter, far from being usurpation of the duties of an election tribunal or court in post-election cases. In fact, in Amaechi v. INEC, the Supreme Court held that “the jurisdiction of the ordinary courts to adjudicate in pre-election matters remains intact and unimpaired by sections 178(2) and 285(2) of the Constitution.”

By the way, those who keep criticizing the Federal High Court, Abuja judgment for relying upon the PDP constitution and guidelines fail to realize that the PDP being a creation of the constitution and the Electoral Act, its constitution and guidelines have acquired a statutory orientation and the court is bound to take judicial notice of PDP constitution and its guidelines for the party primaries. Section 87(1), (2), (3), 4(b)(i) and (ii), (C)(ii) of the Electoral Act (2010) (as amended) makes it mandatory that only a candidate, who scores the highest number of votes in the party primaries shall be forwarded to INEC as the candidate of the party.

Furthermore, Section 87 (11) of the Electoral Act reads “Nothing in this section shall empower the Courts to stop the holding of primaries or general election under this Act pending the determination of the suit.” Here, the combined implication of Section 87 (10) and (11) of the Electoral Act is that once it is determined by the Court, even after the election that the candidate emerged contrary to the Electoral Act, the party’s constitution, guidelines and rules on the primaries, such a candidate stands disqualified and the candidate that came second in the primaries steps into the shoes of the invalidly nominated and sponsored candidate of the party. The fact that Ikpeazu was invalidly nominated as the PDP candidate and Ogah was the candidate that came second in the primary is the basis on which Justice Abang’s judgment was hinged, calling on INEC to do the needful.

On whether the issue of Tax Clearance is a requirement for election eligibility under the law, it is crucial to state that the payment of tax is typically provided for in the political parties’ guidelines for elections, which the aspirants for elective office must satisfy as a condition precedent to contest elections. Now, Ogah’s main argument all this while has been on Ikpeazu’s false tax declarations as sworn to, in affidavit submitted to INEC as part of his qualification forms. Section 31(5) of the Electoral Act states that “Any person who has reasonable grounds to believe that any information given by a candidate in the affidavit or any document submitted by that candidate is false may file a suit, at the High Court of a State or Federal High Court against such person seeking a declaration that the information contained in the affidavit is false.”

Ogah has not alleged that Ikpeazu forged his Tax Clearance Certificate or that he did not pay his tax. It was Ikpeazu that submitted documents to INEC that contain false information, whether by mistake or accident. So, the Federal High Court, Abuja having so determined that Ikpeazu’s documents filed with INEC contain false information, rightly issued an order disqualifying Ikpeazu from being an eligible PDP Governorship candidate in the election. The order of the Court that INEC should issue a certificate of return to Ogah and that he should be sworn in, is a consequential order based on the unfettered discretion of the court over the matter. Pre-election suits are not sui generis and therefore not circumscribed by the Electoral Act.

Some critics have also raised issues with the stay of execution of the Justice Abang’s judgment. The truth is that the Federal High Court, Abuja presided over by Justice Abang is neither a Court of Appeal or an election tribunal established under the constitution or by the Electoral Act and therefore has unfettered jurisdiction and powers to make the orders contained in his judgment. There are no special circumstances to warrant the granting of a stay of execution of the judgment as there is no perishables res to be preserved and the appeal cannot be rendered nugatory since a condition of helplessness cannot be foisted on the Court of Appeal. What is more, a return to the status quo is even possible because if Ikpeazu wins at the Court of Appeal, he will be restored to the office of Governor of Abia State.

Incidentally, the resort to self-help, when Ikpeazu obtained an ex-parte order of injunction from a High Court sitting at Osisioma, Abia State and when he declared dubious public holidays to frustrate the swearing-in of Ogah has actually compounded his case beyond a discretionary stay of execution in his favour.

By the way, the Abia High Court even has no jurisdiction to entertain the application seeking to frustrate a judgment of a court of concurrent jurisdiction. Without doubt, a case of self-help in litigation, such as done by Ikpeazu, is a gross abuse of the law, which was roundly condemned by the Supreme Court in Ojukwu V. Attorney General of Lagos State.

One hopes public commentators will better appreciate the context of the Ogah-Ikpeazu case as a pre-election matter and stop misleading the innocent public, the judiciary and all stakeholders with toxic misinformation, misrepresentations and misinterpretations of the law with selective deployment of provisions of the electoral law and out-of-context legal precedents.

Onifade, a lawyer writes from Lagos.