Another court restrains Abia Chief Judge, Appeal Court President from swearing in Ogah

• Owerri court says Ogah should not be declared governor
• Abuja court refuses to stay judgment execution, Ogah restates claim to office

Justice Kerian Nwankpa of the Abia State High Court, Umuahia, yesterday restrained the Chief Judge of the state and the President, Customary Court of Appeal, Abia State from swearing in Dr. Uche Ogah as governor of the state.

Nwankpa gave the order following an ex parte motion filed by the state chairman of the Peoples Democratic Party (PDP), Chief Johnson Onuigbo, the PDP and PDP legal adviser, Ikechukwu Omenihu, against Ogah and eight other respondents, pending the determination of the substantive suit.

The other respondents are the INEC; Resident Electoral Commissioner of Abia State; Chief Judge of Abia State, President, Customary Court of Appeal, Abia State, Abia State Director, State Security Services, Director General, State Security Services, the Commissioner of Police, Abia State and the Inspector General of Police.

The judge ruled that, “Interim injunction is hereby granted restraining the 4th (Abia Chief Judge) and 5th (President, Customary Court of Appeal) respondents from swearing in or in any other way howsoever administering oath of office or allegiance on the 1st respondent as purported governor of Abia State under any guise, pretence or circumstances pending the filing of the motion on notice and the substantial suit in accordance with Order 3 Rule 4(1) (2), (3) and (4) of the Abia State High Court (Civil Procedure) Rules 2014.”

The court also barred the 4th to 9th respondents from giving any recognition to the 1st respondent as purported governor of Abia State pending the filing of the motion on notice and the substantial suit in accordance with Order 3 Rule 4(1) (2), (3) and (4) of the Abia State High Court (Civil Procedure) Rules 2014.

The court ordered that the substantial suit and motion on notice must be filed and served within eight days from yesterday, failing which the order will automatically elapse.

Meanwhile, a Federal High Court sitting in Owerri, Imo State, presided over by Justice Lewis Allagoa, yesterday, dismissed a suit brought before it by Chief Friday Nwosu, one of the Abia State governorship aspirants on the platform of the PDP, against Ikpeazu.

Allagoa also held that Dr. Ogah cannot be declared governor of the state on the strength of the dismissed suit.

Nwosu had filed a suit seeking Ikpeazu’s removal from office, alleging that the governor forged and presented to the PDP, forged tax certificate during the primaries.

He subsequently asked that he be declared governor on that score alleging that ab initio, Ikpeazu was not qualified to contest both the primary and governorship election in 2015, because of the tax issue.

Delivering judgment, Allaoga, said the plaintiff, through his counsel, Francis Uyimadu, failed to justify his claim that Ikpeazu submitted forged tax certificate maintaining that, “aside looking at the documents in litigation, proving a forged matter requires adequate clarification and additional proof by experts before a forgery claim can be established by law.”

He said the claim that Ikpeazu was under-taxed was not the governor’s making, rather that of tax officials who are saddled with the duty of determining how to tax taxable adults. The court asserted that since the tax certificate issuing authority- Abia State Board of Internal Revenue, was not joined in the suit, it would be unlawful for the court to rule in favour of the plaintiff. The Judge ruled on the third relief, stating that Dr. Uche Ogah, is not eligible to claim position of the governor, since he rejected the outcome of the PDP governorship primary in December 8, 2014.

Reacting to the judgment, which lasted more than two hours, Dr. Livy Uzoukwu (SAN), who represented the Independent National Electoral Commission (INEC), and Jude T.U. Nnodum (SAN), the PDP, and Theo Nkire, representing Ikpeazu, described the judgment as a landmark judgment.

However, Ogah yesterday said the refusal of Justice Abang to hear the application for stay of execution filed by Ikpeazu has proven that the judgment delivered by the court on June 27th still stands until it is reversed by a higher court, this time the Court of Appeal and/or later the Supreme Court.

Ogah, in a statement by his aide, Monday Ubani, after the court in Abuja declined to hear the application, said it is important to point out that the judgment of the Federal High Court, Owerri, Imo State in which the reliefs of Mr. Nwosu were dismissed favoured Ogah.

According to him, it would have been otherwise if the court in Owerri had ordered Dr. Ikpeazu to vacate his seat for Mr. Nwosu to take over.

“Mr. Nwosu came under weak foundation, first he alleged forgery of the tax papers, that allegation must be proved beyond reasonable doubts.

However, a Federal High Court sitting in Abuja yesterday dismissed application filed by the PDP, asking it to stay execution of judgment delivered against Governor Ikpeazu.

Justice Okon Abang in his ruling held that the Certificate of Return issued to Dr. Samson Ogah, by the Independent National Electoral Commission (INEC) was lawfully carried out in compliance with the judgment of his court.

The Judge in his previous judgment had ordered Ikpeazu to vacate office over false information and tax evasion.

Justice Abang stated that the application for stay of action filed by the PDP constituted an abuse of court process because the party filed two motions on the same subject matter. One was filed on June 28, 2016, while the another was filed on July 4, both on the same prayer and subject matter.

He pointed out that though PDP had sought to withdraw the earlier application filed on June 28, issues had already been joined by Ogah’s counsel, Dr. Alex Iziyon (SAN) via a counter affidavit.

The court also held that there was nothing before the court to stay as the judgment had already been executed by INEC.

He said: “Judgment has been executed, Certificate of Return has been issued to Mr. Ogah, there is nothing to stay.”

Justice Abang further held that there was no evidence before the court that the Certificate of Return was issued to Ogah before service of the notice of appeal was served on INEC

“INEC itself said so that the certificate was issued before service of the motion was done. INEC lawfully issued the Certificate of Return in compliance with the judgment of the court.

“The application is hereby dismissed for abuse of court processes, the applicant is to pay the sum of N40, 000 as cost,” the judge held.

Earlier, the court refused to set aside the interlocutory injunction restraining the Chief Judge of Abia State and other judicial officials from administering the oath of office on Ogah.

It also refused to entertain Ikpeazu’s application for a stay of execution of the court  judgment given in Ogah’s favour.

In the ruling of the court in three motions filed by Ikpeazu and Ogah, Justice Abang held that the Federal High Court has the jurisdiction to hear the motion for stay of execution of its own judgment.

He added that the court in the instance case has refused to take it because it will be presumed to have jumped into the arena as Izinyon, representing Ogah had conceded to the submission by counsel to Ikpeazu, Chief Wole Olanipekun (SAN), that the court lacked the jurisdiction.

Abang further disagreed with Olanipekun’s submission that the court should hands off all matters once an appeal has been entered.

He stated that a motion for a stay of court judgment, which is final decision, must be taken by the trial court. According to him, it was wrong for Ikpeazu to have filed an application for a stay of execution at the Court of Appeal without first filing such an application at the trial court.

On the interim injunctive order issued by the Abia State High Court, restraining the swearing in of Ogah, Justice Abang said: “It is absurd for a court that has not heard a matter to have issued order obstructing the judgment beneficiary.”