Ogah Asks Supreme Court to Reverse Appeal Court’s Decision on Abia

Tobi Soniyi in Abuja

Dr. Sampson Ogah has rejected the Court of Appeal judgment which set aside the judgment of a Federal High Court that ordered the Independent National Electoral Commission (INEC) to issue him with a certificate of return as the governor of Abia State. In a notice of appeal filed by his lawyer, Dr. Alex Izinyon, SAN, Ogah raised seven grounds of appeal upon which he relied to ask the apex court to affirm the decision of the trial court. Among others, he said the Court of Appeal judgment was against the weight of evidence.

Apart from the appeal to the Supreme Court, he asked the Court of Appeal to issue an order of injunction restraining the Abia State Governor, Dr. Okezie Ikpeazu from applying for any certificate of return from INEC pending the hearing and determination of the appeal at the apex court.

Ogah also asked the Appeal Court for an order of injunction restraining INEC from issuing any certificate of return to Ikpeazu pending the determination of the appeal.

He also asked the court to issue an injunction restraining INEC from retrieving or revoking or cancelling the certificate of return issued to him on June 27, 2016 in relation to the office of the Governor of Abia State pending the hearing of his appeal to the Supreme Court.

Ogah said the justices of the Court of Appeal erred in law when they held that he was wrong to have commenced the suit by way of originating summons.
According to him, his case bordered on simple interpretation of the Peoples’ Democratic Party’s constitution, and the guideline and provisions of the Electoral Act.

He also faulted the Appeal Court justices for holding that the trial judge imported the phrase, ‘as at when due’ into the 2014 PDP Guidelines and that it was immaterial that facts of the documents were admitted when the said documents was not presented before the court.
He explained that his case was for the interpretation of Section 14(a) of the PDP Guidelines, 2014 and sections 31(5) and (6) of the Electoral Act, 2010.

“The said provisions in Paragraph 14(a) of the said PDP Guidelines were reproduced, easing the requirement of tax by Ikpeazu as an aspirant for gubernatorial primaries of PDP and the consequent election.”
He also faulted the judgment of the Court of Appeal where the justices held that the false information envisaged under section 31(2) of the Electoral Act must not go outside the constitutional provision of sections 177 and 182 of the constitution.

He argued that the Court of Appeal failed to understand the difference between pre-election qualification/ disqualification. He stated that the provision of Section 31 of the Electoral Act and challenge on grounds of false information was a pre-election matter.
“Failure of the Court of Appeal to appreciate this manifest dichotomy led to a miscarriage of justice,” he added.

The Appeal Court had, in a unanimous judgment, set aside the judgment of Justice Okon Abang which removed Ikpeazu from office.
Five justices namely Ibrahim Shatta Bdliya, Philomena Buwa Ekpe, Morenikeji Ogunwumiju, Abubakar Datti Yahaya, and Saidu Tanko Huseni had unanimously set aside the judgment.

They held that the trial judge went beyond his powers as a judge, became biased and also turned the law upside down. The court held that the matter was hostile, controversial and contentious and should not have been commenced by originating summons. In the views of the justices, the proper mode of commencement of the case should have been writ of summons.

The court held that Justice Abang erred in law and occasioned a miscarriage of justice against the governor when he refused to give him a fair hearing. The court further held that the judge pre-judged the matter when he touched on the substantive issues at the preliminary stage without hearing the appellant.
Justice Ogunwumiju who delivered the lead judgment in one of the appeals, held that Justice Abang “committed a grave violence against one of the pillars of justice” relating to fair hearing.

She further held that Justice Abang raped democracy in his order that INEC should issue a certificate of return to Ogah when there was no evidence of forgery or criminality against the appellant.
According to the court, the judgment of Justice Abang was grossly erroneous because it was based on inadequacy of tax receipt that cannot be visited on the appellant (Ikpeazu).

Justice Ogunwumiju also held that the trial judge turned the head of the law upside down in his conclusion that it was the appellant that should bear the burden of proof of an allegation made by Samson Ogar. The court said Justice Abang placed the law on its head when it directed INEC to issue fresh Certificate of Return to Mr. Sampson Ogah. While upholding the appeal, the court awarded N100,000 cost against Ogah.
Earlier, the court had held that Justice Okon Abang was wrong to have assumed jurisdiction on a motion for stay of execution of his earlier judgments delivered on June 27 even after the appeals against the judgments had been entered.

Justice Philomina Ekpe, who read the lead judgment, held that what Justice Abang ought to have done in line with time-honoured doctrine of “stari decisis” was to have transferred the motion to the Court of Appeal for determination.

The appellate court ruled in favour of the appellant Ikpeazu on his appeal challenging Abang’s decision to hear the application for a stay of execution of his judgment when he was duly informed that the appeals had been entered.

Justice Ekpe in her lead judgment held: “The lower court (Justice Abang) has made a complete summersault of the entire suit. Once an appeal is entered into, there is nothing left for the trial court to adjudicate upon. All the trial court was supposed to do was to transmit the record of proceedings to the appellate court. But it deliberately chose to do otherwise. This is against Order 4 Rules 10 and 11 of the Court of Appeal Rules 2011. The lower court acted ultra vires.”

Justice Abang had insisted that he had jurisdiction to hear a motion for stay of execution of his earlier judgments delivered on June 27 even after the appeals against the judgments had been entered at the Appeal Court.

In her contributing judgment, Justice Ogunwumiju who presided at the hearing of the appeal also held that Justice Abang “deliberately stood the law on its head”‎ when he erroneously assumed jurisdiction to hear the motion and adjourned it till a later date.

She further held that Justice Abang lacked jurisdictions to interpret the provisions of the Court of Appeal being the rules of a superior court. Judgment is still ongoing in the main appeal challenging Justice Abang’s Judgment which removed the governor from office.