Ikpeazu vs Ogah: There Can’t Be Two Kings In One Palace (1)

Mike Ozekhome

By Mike Ozekhome, SAN, OFR

As an avid researching scholar, social critic and legal analyst, I can freely comment on the Abia governorship imbroglio (because a judgment has already been given), without running afoul of the “subjudice” rule. Nigerians deserve to know the issues.

Abia, like Kogi State, presents a peculiar legal conundrum, what late colourful politician, Adelabu Adegoke, would call “Pekelemesi” (peculiar mess). Surely, there cannot be two Ezes, Obas or Emirs in one palace.

The judgment of Justice Okon Abang of the FHC, 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 peremptorily 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 haste was unnecessary... It smacks of political undertones, especially since the news flying in the market place (not independently confirmed), is that the game plan was for Ogah to be sworn in immediately on the platform of PDP, and then immediately decamp to APC. Thus, APC, it is said, would control, 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. Thank God Abubakar Malami, Attorney General of the Federation, has calmed the raging storm by denying government involvement, and advising the combatants to await final court decisions.

“Lis pendens”

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 must 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, even if no injunction has been specifically applied for and granted. See also Vaswani Trading Company vs. Savalakh (1972) 7 NSCC 692. 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. Contrary to analysts’ argument, INEC would have committed no contempt by waiting. INEC should not have done anything to pre-empt the outcome of the case by “accelerating or rushing the process of execution”(Rastico Nig Ltd vs. SGS (1990) 6 NWLR (pt. 158) 608).

In any event, 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 same. 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 result in 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 the FHC). Such matters are post-election matters over which only the election petition tribunal, not the FHC, has jurisdiction.
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 cast 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 all 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 AISHA ALHASSAN VS DARIUS ISHAKU.
The FHC’s judgment to the effect that Ogah should be “sworn in immediately”, and the hasty act of INEC in giving a 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 somersaulted, upon production of evidence. It had claimed 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 three days? This had raised serious suspicion and concern about possible external forces being at play.

Pre- or  Post-election

The characterisation 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 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 or FHC, 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 could only have been presented as an election petition before an election Tribunal. See SALIM V CPC (2013) LPELR-19928(SC) wherein the Supreme Court held:

“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”.
The above case involved a complaint after 38 days. Ogah’s complaint is coming nearly after one year. Spot the difference.

Qualification and disqualification

Section 177 of the Constitution provides that a person shall be qualified for election to the office of Governor 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 qualification, Ikpeazu crossed the hurdle. But, was Ikpeazu disqualified? Let us see. Section 182 (1)  of the 1999 Constitution lists disqualifying factors 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 if within 10 years before the election he has been convicted and sentenced for an offence involving dishonesty; or has been found guilty of the contravention of the code of Conduct; he is 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 has presented a forged certificate to INEC. For the records, Ikpeazu suffered none of the above. It is clear that whether by way of qualification or disqualification, Dr. Ikpeazu was as clean as a whistle.

Under Section 138 (1) (a) of the Electoral Act, an election may be questioned on the ground that a person whose election is questioned was, at the time of the election, not qualified to contest the election.

 SOURCE: http://www.sunnewsonline.com/ikpeazu-vs-ogah-there-cant-be-two-kings-in-one-palace-1/