By Chinelo Obogo
The tussle between Governor Okezie Ikpeazu of Abia state and the first runner up in the Peoples Democratic Party (PDP), 2014 governorship primary election, Uche Ogah would be heard today, by the Supreme Court amid heightened tension and anxiety.
In the suit no FHC/ABJ/CS/1086/2014, Ogah, is challenging Ikpeazu’s eligibility to contest the primaries, alleging that he did not pay his taxes for years 2011, 2012 and 2013 as at when due, alleging that his taxes for the three years were paid on same day. On the strength of the issues raised, Ikpeazu was subsequently sacked from office as governor of the state last year by a Federal High Court, Abuja for alleged falsification of tax papers.
Delivering the judgment then, Justice Okon Abang ordered Ikpeazu, to vacate office immediately for contesting the governorship primaries based on false information. He also ordered the Independent National Electoral Commission (INEC) to immediately issue a certificate of return to Ogah.
Ogah in the suit had contended that based on Article 14(a) of Part IV of the PDP Electoral Guidelines for Primary Elections and Section 87(4) (B) of the Electoral Act, 2010, the Abia governor was not qualified to contest the December 8, 2014, governorship primary poll in the state, because he presented a fake tax clearance certificate in his nomination form.
Interestingly, another PDP governorship aspirant, Mr Friday Nwosu, also challenged the nomination of Ikpeazu as PDP governorship candidate on the same ground. But in his own case, he prayed the court to declare him the duly nominated candidate of the PDP even though he came third in the primaries. Ironically, he also joined Ogah in the case, saying he left the venue of the primaries and did not sign the result.
Ikpeazu, appealed the judgment, and the matter was decided in favour of the governor, at the Appeal court. Dissatisfied with the decision of the Appeal court, the matter proceeded to the Supreme Court.
But Ikpeazu, said he was unfazed by the whole issue and urged the people of Abia to remain calm even with the challenge in the case of alleged falsification of tax receipts against him.
His Chief Press Secretary, Enyinnaya Appolos, said the governor was an appointee of the Abia State Government from 2011 to 2014, where he served as the General Manager, Abia State Passengers Integrated Manifest and Safety Scheme (ASPIMSS), and first Deputy General Manager, Abia State Environmental Protection Agency (ASEPA), Aba and Environs respectively, before his resignation in October 2014 to contest the governorship election in the state.
He also said that within the period in question, Ikpeazu’s taxes were deducted at source, and when he had need of his tax clearance in 2014, he applied to the Abia state Board of Internal Revenue, and was duly issued with tax receipts for the period in question.
He maintained that Ikpeazu remained the governor of the state, according to law and would await the final determination of the matter by the appellate courts.
Besides the headache from members of his own party, Ikpeazu had faced a lengthy legal tussle from Alex Otti, the All Progressives Grand Alliance (APGA) governorship candidate in the 2015 elections. After he was declared winner of the election, Otti dragged Ikpeazu to the Abia State Governorship Election Petition Tribunal, sitting in Umuahia, urging it to annul his election. Otti, had among other things alleged that the election was marred by irregularities and substantial non-compliance with the Electoral Act. He then urged the tribunal to declare him (Otti) the winner on account of the lawful votes that was cast during the election. But Otti’s prayer was not granted, as the tribunal upheld Ikpeazu’s election instead.
Not done, Otti dragged Ikpeazu to the Court of Appeal, and seemed to get some reprieve when the court, sitting in Owerri, on December 31, 2015, nullified Ikpeazu’s election and declared Otti the winner of the April 11 and April 25 supplementary elections in the state.
Delivering the judgment, the five-member panel, headed by Justice Oyebisi Omoleye said the APGA candidate scored 164, 444 valid votes to defeat Ikpeazu who scored 114, 444 votes.
But at the Supreme Court, which is the final stop of governorship election petitions, Ikpeazu was declared the validly elected governor of the state, while Otti’s case was dismissed. The court reversed the decision of the court of Appeal, which nullified Ikpeazu’s election, and ruled that he (Ikpeazu) won the lawfully cast votes in the April 11, 2015 election.
In examining the legal implication of the Federal High Court ruling, the case of Uche Ekwunife (PDP) vs Victor Umeh (APGA) was used as a case study by analysts, where the court of Appeal sitting in Enugu had nullified Ekwunife’s senatorial election, stating that she was not qualified to stand for the primary election in the first place as she did not meet the provision of the Electoral Act. The court ordered for a fresh election within 90 days. The implication is that if an election is nullified on the grounds of disqualification of a candidate, as was the case with Ikpeazu, a fresh election should be conducted.
Another issue which raised controversy was whether it was constitutional for a party to field a fresh candidate in a rerun or conduct a fresh primary. In 2009, the Supreme Court laid this controversy to rest. In a case between the Labour Party (LP) and the INEC, the Supreme Court ruled that no party was required to either present a new candidate for a rerun or conduct a fresh primary.
An Nnewi based lawyer, Obinna Nnaka said that the Court based its judgment on the provisions of Section 182 (1)(j) of the 1999 Constitution (as amended) and Section 31 (5) and (6) of the Electoral Act, 2010 (as amended). The Constitution at the said Section provides: “182. (1) No person shall be qualified for election to the office of governor of a state if- (d) he has presented a forged certificate to the Independent National Electoral Commission.”
On the other hand, the Electoral Act provides: “31. (5) A person who has reasonable grounds to believe that any information given by a candidate in the affidavit or any document submitted by a 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. (6) If the Court determines that any of the information contained in the affidavit or any document submitted by that candidate is false, the Court shall issue an order disqualifying the candidate from contesting the elections.
“So based on the above, being disqualified, means that the governor of Abia State was not qualified to contest ab initio and that PDP did not have valid candidate for the gubernatorial election. In law, PDP is also disqualified together with its candidate. In my view, it is not right for the Court to order INEC to issue certificate of Return to the runner up (Uche Ogah), he is still of the PDP which is disqualified.
“To show how serious the issue is, the Electoral Act made it a crime for a political party to present a candidate that does not meet the qualifications.
“Section 31 (8) of the Electoral Act provides:-A political party which presents to the Commission the name of a candidate who does not meet the qualifications stipulated in this section commits an offence and is liable on conviction to a maximum fine of N500,000.”
Both Nwosu and Ogah’s cases were taken to the Abuja Division of the Court of Appeal, and on July 18, the court set aside the nullification of the governor’s election, describing the judgment of the lower court as a miscarriage of justice. Both suits went in favour of Ikpeazu. The Court of Appeal in a judgment read by Justice Philomena Ekpe, said Abang ought to have transferred the motion to it in line with time-honoured doctrine of stari decisis. She said Mr. Abang wrongfully interpreted the provisions of order 4 (10) and (11) of the Court of Appeal rules when he ruled that the said provisions were only applicable to an interlocutory ruling of lower court and when a final judgment in a suit had been delivered. Both cases were subsequently lodged at the Supreme Court.
But the case took a new twist when Justice Amina Augie of the Supreme Court disqualified herself from a five-man panel the Chief Justice of Nigeria (CJN), Justice Walter Onnoghen, constituted to hear Nwosu and Ogah’s suits.
When the matter came up for hearing, Justice Augie based her decision to withdraw from the case on allegation of bias leveled against her by one of the parties. She stated that the party accused her of not properly constituting the four-member panel of Justices of the Court of Appeal that heard the petition challenging Ikpeazu’s election in Owerri when she was the Presiding Justice of the Division. Justice Augie, who was recently elevated to the bench of the apex court, said her decision to pull out from the matter was in the interest of justice.
In his notice of Appeal at the apex court, Ogah argued that the appellate court’s judgment were against the weight of evidence, and prayed the court to restore the judgment given by Justice Abang. Ogah who said that Abia state was “thrown into mourning” when the appellate court gave its ruling, stated said he was confident that the Supreme Court would rule in his favour. Governor Ikpeazu and Mr. Nwosu do not share Ogah’s optimism. Ikpeazu said he was confident that the apex court would give him a favourable ruling, while Nwosu believes that the governorship seat is his for grab.