The Abia Conundrum  

Since it started playing out last week, the political development in Abia State, where Justice Okon Abang of a Federal High Court sitting in Abuja, ordered that the first runner up in the last Peoples Democratic Party (PDP) governorship primary, Uche Ogah be sworn in as the governor of the state, in place of Governor Okezie Ikpeazu, has resulted in a lacuna for the state.

Their prayer was that the PDP and INEC should disqualify Ikpeazu from contesting the governorship election. They contended that Mr. Ikpeazu was not fit and proper, having failed to pay his personal income tax for two years in line with the demands of the Constitution of Nigeria.
They therefore asked the court for a declaration that Ikpeazu, who was a defendant in the suit, having purportedly failed to pay his personal income tax promptly for the years in question and in compliance with the mandatory provisions of the constitution as well as Paragraph 13 of Part IV of the Electoral Guidelines for Primary Elections 2014, was not a fit and proper person to contest the gubernatorial election of Abia State in the 2015 general election, and should be disqualified from contesting the election.

They also sought an order barring the PDP from presenting Ikpeazu as candidate for governor in the 2015 election. Other reliefs sought by the plaintiffs included an order barring INEC from accepting Ikpeazu as the Abia State PDP governorship candidate for the 2015 election. They further requested a consequential order that the candidate at the PDP primary election of December 8, 2014, who polled the second highest number of votes cast at the said election, should be pronounced the rightful candidate of the party for the governorship election.

In his ruling, Justice Abang was straight to the point when he said Governor Ikpeazu should give way for Ogah. “It is hereby ordered that INEC, the third defendant should immediately issue certificate of return to Dr. Samson Ogah as governor of Abia State in the election held in 2015 and restore to him all the entitlements as the elected governor of Abia.”

Abang’s ruling was premised on several considerations. First, he held that the tax clearance certificate and income tax receipts submitted by Ikpeazu were unknown to the law and made him ineligible to contest the poll and that the 2011 tax clearance certificate and income tax receipt submitted to INEC before the 2014 PDP primaries contained false information.

“Going by the appointment letter, Ikpeazu would have worked for Abia Passenger Integrated Scheme for five months 12 days. The earnings of the second defendant based on the letter of appointment by single calculation in 2011 for five months 12 days is N493 or N546, 669 if not assigned government vehicle. The tax payment submitted by the second defendant didn’t reflect this figure,” the court held.

He also held that the date on the tax receipt filed by the governor was on a Saturday, whereas Saturdays are public holidays. The court argued that Ikpeazu did not file his tax clearance in 2011, 2012 and 2013 and that all payments he made preceding the 2014 primaries were made in one day and not as and when due.

According to Abang, Ikpeazu perjured in the face of the law, when he said he had fulfilled all the requirements to contest the 2015 elections. Hence, the governor was not qualified to be the candidate of the PDP in the primaries of 2014 and was also not qualified to be fielded as the candidate for the 2015 election. That was why he asked INEC to issue a certificate of return to Ogah, who neither won the primaries nor contested the governorship election.

“Dr Okezie Ikpeazu is hereby ordered to vacate office as governor of Abia immediately relying on the decision of the Supreme Court in INEC vs Obi,” Abang held.

According to him, Abang specifically ordered INEC, which was the third Defendant in the case “to issue certificate of return to the Plaintiff, Dr. Sampson Uchechukwu Ogah as Governor of Abia State, for the election held on 11th April, 2015 and restore all entitlements to him as the elected Governor of Abia State.  Dr. Okezie Ikpeazu is hereby ordered to vacate office as Governor of Abia State”.

“After the court, another person we obey in our land is God and my conscience is my God. Another thing that guides us is the court and we must obey its order with immediate effect. If you were in the court that day, and I urge you the media, to go and study the court ruling very well, it was wonderful; it was direct,” he said.

Naturally, the judgment has elicited disappointment, melodrama, confusion, and a glimmer of hope for Ogah and his team, who are waiting for the actualisation of Abang’s ruling, but first to discard the judgment and opting for further legal options to address the matter was Ikpeazu, who asserted that irrespective of the judgment, he remained the governor of Abia State.

While many are waiting to see how the appellate court determines the matter, lawyers are already engaging one another over the judgment. For instance, in the notice of appeal filed by Chief Adegboyega Awomolo (SAN), the governor raised five grounds of appeal upon which he asked the court to set aside the judgment of the High Court. He said the Federal High Court lacked the power to order him to vacate the seat of Abia State governor.

“The trial judge erred in law, when he ordered as a consequential order that the appellant vacates his office‎ as the governor of Abia State, immediately when there was no jurisdiction in the Federal High Court to remove, vacate the occupier of the office of the governor of a state or order the removal of such officer after the unsuccessful challenge of the result of the election at the tribunal and swearing-in of the appellant as the governor,” part of the notice of appeal read.

The governor maintained that the only power, authority and order exercisable by the Federal High Court was to disqualify the candidate from contesting the election based on section 31(6) of the Electoral Act 2010, faulting also the judge when he held that he did not pay his tax for the years 2011, 2012 and 2013 as and when due, when he was a public officer whose tax deduction was under the Pay As You Earn (PAYE) scheme, where tax deductions made from the source of his monthly salaries by the tax authorities, which issued all the tax receipts and certificates.

‘He explained that the Abia State Board of Internal Revenue Services that issued him with the tax certificates had not declared the certificates forged and that the trial court did not invite the issuing authorities to give evidence in the course of the trial and that Ogah was not a staff of the Abia Board of Internal Revenue and neither did any staff of the board to testify ‎that the tax certificates were forged.

He therefore accused Justice Abang of violating his right to fair hearing by embarking on judicial investigation without giving him (Ikepazu) the opportunity to address the court on the issue.

Ikepazu also rejected the decision of the high court declaring him unqualified to be nominated at the primary election conducted by his party because false information was supplied to INEC‎. According to him, INEC Form CF001 which the judge relied on was not one of the grounds of qualification to contest the primary election of PDP.

Addressing the judgment, Ebun-Olu Adegboruwa, said “With all due respect to the court, this judgment is wrong, both in law and morality,” adding that “The other point that makes the judgment totally unacceptable is that it is totally against the tenets of democracy and the rule of choice, for courts to be supplanting pubic office holders that have been conferred with a sacred mandate by the people.

“This is why matters relating to elections have been limited to election petitions, so that it is only those who canvassed for the votes of the people that should expect to enjoy their mandate. The courts should not be imposing leaders on the people, to annul their mandate through judgments that have no bearing with and cannot be traced to the votes cast.

“Furthermore, this is a case that has been fought and won, even up to the highest court of the land, the Supreme Court. So if one may ask, where was Mr. Ogah, in all of the time that the governorship election of Abia State was in the tribunal, in the Court of Appeal and in the Supreme Court? Was it today that he got to know of the forged certificate? How will a High Court turn around to annul a mandate already confirmed by the Court of Appeal and the Supreme Court, the latter being the highest court of the land?

“The worrisome part of this whole drama is the sentiment gaining ground that this may just be the clandestine ploy of the ruling party to entrench a one party state, as it is already being speculated that upon his swearing-in, Mr Ogah will immediately defect to  the ruling APC, citing the present factionalisation between Modu Sheriff and Ahmed Markafi. Surely this cannot help our democracy, and it is gratifying that it is all a matter of speculation and conjecture.

Also wading into the issue, a constitutional lawyer and former National Secretary, Labour Party, Dr. Kayode Ajulo, in statement titled: ‘Abia State Governorship Matter Arising: Ogah & Co. Might Wittingly Or Unwittingly Risk Treasonable Felony’, said: “Above all, cognisance has to be taken of the nature of the res in this matter, which is the propriety of the election vis-a-vis the eligibility and disqualification of a state governor.

“Our law makes the propriety or otherwise of the judgment of the trial court and Court of Appeal specifically reserved for the Supreme Court, which is the highest court in Nigeria. The Supreme Court therefore has the final say in the evaluation of the two lower courts mentioned above. The incumbent, having lost in the trail court has a right of appeal to the Court of Appeal and then the Supreme Court as well as obtain stay of execution of the judgment pending final determination.

“As it is, Governor Ikpeazu, who is presently the occupier of the seat of Governor of

Abia State by the provisions of the Constitution (as amended) has inherent right to file an appeal, and obtain stay of execution of court judgment to the Court of Appeal and also has a statutory period of grace from the day of the judgment of the Court of Appeal to file his appeal at the Supreme Court,” he said.

According to Ajulo, “Having appealed as expected and obtained the requisite stay of execution of the judgment, any attempt geared towards swearing-in of Ogah as the governor of Abia State under any guise at this stage is not only satanic, it is uncharitable and crystal clear violation of the Constitution. It should also be noted that such attempt or contemplation is without precedent in our jurisdiction on how to determine the seat of a governor in Nigeria.

“Furthermore, any speculation of swearing-in Ogah on the strength of the High Court judgment is not only without precedent, it will only amount to self-help, which will make Ogah and his supporters to be wittingly and or unwittingly committing treasonable felony.”
He said the federal government and the Attorney General of the Federation (AGF) must do the needful in ensuring that the law is protected from any violation.

He posited that Governor Okezie is a peace-loving man and an ardent believer and respecter of the rule of law, saying: “We ask for nothing less and nothing more but that the rule of law must prevail, otherwise, all the parties involved in this grant conspiracy and sabotage against the will of the people of Abia and against the law and the constitution of Nigeria should wait for us. We shall meet at Philipi.”

Marshalling its pro-Ogah position in a statement by the duo of its National Chairman, Alhaji Balarabe Musa and the Secretary General, Chief Willy Ezugwu, the body further noted that “What has happened in Abia State showed that the era of impunity was behind us.

“There is hope in our democratic future as a country as any country where impunity is the norm never survives. The President Muhammadu Buhari administration and the Independent National Electoral Commission (INEC) must be commended for this singular demonstration of courage to do what is right in line with the court judgment that ordered the issuance of the certificate of return to Dr. Uche Ogah, who came second in the Abia State PDP governorship primary.

The All Progressives Congress (APC) senatorial candidate for Abia North senatorial district at the last election, Nnenna Nma Lancaster-Okoro, who is also a lawyer, argued that whenever a judgment of a court of competent jurisdiction is delivered, it must be adhered to.

“The unfortunate governorship issue in Abia State has deviated from politics to law, taking in the present situation in which Dr. Sampson Uche Ogah has been issued a certificate of return by INEC following a Federal High Court ruling to that effect.  Politics they say can accommodate sentiments but law doesn’t. He (Ogah) therefore remains the pronounced governor of Abia State until another Court of competent jurisdiction says otherwise,” she said.

But in the opinion of an expert in constitutional law, Mr. Kola Kolade, who is also the Ekiti State Commissioner for Local Government and Chieftaincy Affairs, the judge erred in making the order, because according to him, “What the Electoral Act says, particularly in section 140 subsections 1 and 2, is that where there is a problem like this or the court nullifies the election of a governor, the court shall not declare the person with the second highest vote, but order a rerun.”

Kolade said on that basis, the court should not have made that ruling. Besides, he contended that the INEC shouldn’t have taken the action it took in giving Ogah a certificate of return almost immediately as if it has a prior knowledge of the ruling.

He stressed that it is wrong to say that Abia has two governors as being given a certificate of return does not make Ogah a governor automatically. “At best, it only makes him a governor-elect until he is sworn-in. Until then, he is not a governor. So, there are no two governors in Abia as of now, most especially as there is a stay of execution in place.”

Mr. Duoeyi Fiderikumo, another legal practitioner disagreed with this position. “We need to understand the orders that were made by the court. The court annulled the election of Ikpeazu based on the allegation that Ikpeazu submitted false information to his party, the PDP for the governorship primaries.

“INEC should have waited for this statutory period to lapse before issuing the certificate of returns to Mr. Ogah. Again since the Supreme Court is the final determinant of whether or not a person is validly elected as governor, it is my considered opinion that Governor Ikpeazu has taken the right steps in lodging an appeal against the judgment of the Federal High Court at the Court of Appeal. Ogah should wait until the matter is exhausted at the Supreme Court.”

Former President of the Nigerian Bar Association (NBA), Dr. Olisa Agbakoba (SAN), on his part, argued that Ikpeazu was no longer the Governor of Abia State in the eyes of the Law. He said by law, Ikpeazu has been removed by the court and no longer the governor of Abia State.

“The court has removed him as governor but the problem is that there’s a transition period. But the court has removed him as governor and there’s a new governor-elect, who is yet to be sworn-in and that is why I think there’s a major political vacuum. Clearly, the Ikpeazu is no longer the governor by law.

“I don’t know the grounds, which the other order from Abia State was obtained by one of the parties. But I do know that a judgment was given and a certificate of return was issued by INEC in Abuja. If they want to stay that order they have to go to the very court that passed the judgment. It is procedurally wrong to want to arrest that judgment us- ing another court of coordinate jurisdiction. The order of the Federal High Court in Abuja should be obeyed.

“A Notice of Appeal is clearly not a Stay and INEC has broken no Law in issuing Certificate of Return to Ogah. But they should have relied on the prudential principle by cautioning themselves, giving the fact that they have received a Notice of Appeal, which in itself, does not constitute a stay of execution of the order of the court. However INEC has broken no law by issuing the certificate of return to Ogah,”Agbakoba said.

For the people Abia State in particular and Nigerians in general, the current situation in the Umuahia is a cause for concern. While it is a trite principle of law and indeed of public policy that if there is a judgment against an occupant of an elective position invalidating his election, he remains in office until he has exhausted his right of appeal, which terminates at the Supreme Court, it is hard to comprehend why the haste to get Governor Okezie Ikpeazu out of office at all cost.

What all lawyers have always known to be the sacred position of the law is that once a party, who has lost a case has filed an appeal and at the same time filed an application for a stay of execution of the judgment, that judgment cannot be enforced until his application has been decided one way or the other.

But despite the fact that Ikpeazu has filed and served a notice of appeal against the decision of Justice Abang of the Federal High Court in Abuja, which invalidated his election as governor, as well as a motion for stay of execution – all served on the Independent National Electoral Commission (INEC), the commission still went ahead to issue a certificate of return to Ogah.

Abang, while sacking Ikpeazu on Monday, June 27, 2016, from office, said the governor did not possess the requisite qualification to contest the election as governor, in that he did not furnish credible evidence of payment of tax, to the Abia State Government. The judge, who predicated his judgment on section 24 (1) (f) of the 1999 Constitution and the Electoral Act, said the governor did not therefore qualify to contest the election ab initio and that PDP was wrong to have presented him as a candidate.

On these grounds, he consequently directed INEC to issue a certificate of return to the plaintiff, Ogah, who came second in the PDP governorship primary election. How the judge arrived at this judgment is still shocking to both legal and political pundits.

The 1999 Constitution clearly defines the qualifications for candidates seeking the office of governor. Section 177 stipulates only four requirements or conditions for eligibility to the office of governor: Citizenship of Nigeria, attainment of 35 years of age, membership/sponsorship of a political party and education up to school certificate level or its equivalent.

In respect to forged certificate, it is expected that the alleged forgery must have been authenticated by the relevant hand writing analysis experts of the Nigeria Police Force and must be shown to have been masterminded by the governor himself.

A careful cursory look at the two sections of the Constitution and the Electoral Act shows non-payment of tax at all or as and when due is not one of events that could disqualify a candidate for the office of governor or public office. An examination of the nomination forms for all elective offices in Nigeria including for governorship shows clearly that payment of tax is not mentioned and tax receipts or tax clearance certificates are not one of the documents required to be included in the form.

Consequent upon this, the next question to ask is: Can the issue of payment or non-payment of tax invalidate an otherwise valid election or can the election of a governor be invalidated on the basis of contents of a document, which is not even required by the Constitution or the Electoral Act in the first place?

An interested person may apply for a CTC of such documents and if he believes that any information in the documents is false, such person can go to court for a declaration that the information is false and if he succeeds, the candidate is disqualified from contesting the election.

The question which arises thereof is: can any other document other than those in proof of the eligibility requirements set out in Section 177 of the Constitution be the basis for such disqualification? Does it mean that if in putting together his nomination form, affidavit and the documents required by law, a candidate inadvertently includes his grocery bill or his electricity bill he is thereby disqualified from standing election if any of such bills contains false information or incorrect entries?

Section 31(5) is very clear and unambiguous, it relates to “information given by a candidate in the affidavit or any document” submitted by him. Thus, the alleged false entry or information in such document or affidavit must be one given by the candidate himself and not that given by another person contained in a document submitted by him. Why would a candidate have his election invalidated because of a false statement or entry in a document given to him and submitted by him when he was not aware or responsible for any error the document may contain?

An analogy is appropriate. If a person requires his bank statement for submission to an embassy for visa, he merely goes to his bank, collects the request form, fills his name, account number and signs it. When he hands it over to the bank official, his role is complete. The bank will on their own generate the figures, compute the entries, produce it, print the statement, stamp and sign it and hand it over to the person.

Assuming the customer was contesting for governorship election and either by error or in the mistaken belief that his account Statement is one of the documents to be submitted to INEC, includes it in his nomination form, is cleared to contest election, wins, goes through the challenge of his election victory at the tribunal, Court of Appeal and Supreme Court and wins, should his election/victory be invalidated simply because it was subsequently discovered that some entries in the account statement are incorrect or “false”?