By Ndubuisi Orji
AS the controversy over who is the rightful governor of Abia State continues, former chairman of Nigerian Bar Association (Ikeja) and member of the Uche Ogah legal team, Monday Ubani, has said that based on the judgement of a Federal High Court, Abuja,
Ogah remains the rightful governor of Abia State until a superior court rules otherwise. Ubani who spoke in an interview with journalists at the weekend in Lagos explained the issues in the Abia governorship tussle. Excerpts:
Last week, a Federal High Court in Abuja ruled that Mr Uche Ogah is the authentic candidate of the Peoples Democratic Party(PDP) in the 2015 Abia governorship election, based on which he has been issued a certificate of return, how did we get to this point?
This issue came up as a result of the Primary election of the Peoples Democratic Party which was held on December 8, 2014.
My friend and by the special grace of God the current governor of Abia State, Uche Ogah, was a participant. He was manipulated out because the irregularities of that primary election was glaring for all to see. Before we could start the primaries, the delegates that were not supposed to be there were inside the stadium.
It all started when we sought to look at the documents presented
by Dr. Okezie Ikpeazu, which is a requirement of the law. The
law says if you want to contest an election, you must fill a form,
disclose your educational qualification, your birth certificate and your tax papers. Now, the issue of
tax is very critical. It is a constitutional requirement that if you want to contest an election in any political party, you must have paid your tax for three years as at when due.
Section 177(c) of the 1999 constitution says that a party must sponsor a candidate before he contests a general election. If a party doesn’t sponsor you, you can’t run for election. For that to happen, it means such a candidate must have complied with the guidelines of a political party before he is qualified to contest.
But in Ikpeazu’s case, we went through his papers and discovered
that he has lied. There were so many lies on his tax papers One of the things we discovered
was that he was alleged to have started paying tax when he was not yet in the employment of the Abia State Government.
Two, the serial numbers on his tax receipts were evidence of deception. The 2013 serial number showed as if it was the beginning of the tax payment, whereas, the 2011 receipt showed as if it was the last payment. The serial numbers were conflicting. The conflict showed that Ikpeazu had not paid his tax as at when due in accordance
with the law.
Third, was the issue of figures; let us assume he was supposed to earn N500,000 per annum, but in his tax papers, it was showing above N1million.
He said his tax was being deducted at source. But the question is, if that was so, why the discrepancies in your taxable income?
Is it not what he was earning he should be taxed on? We found so many discrepancies in his tax certificate.
And the law in Section 31 of the 2010 Electoral Act as amended gives a co-aspirant the opportunity to examine the documents of an opponent to validate whether he was qualified to contest for the primary election in the first place because it is a pre-election matter.
And if you find out in his disclosures and declarations that he has given a false or misleading information, the section guarantees you the right to apply to a Federal or State High Court for a redress.
You also have the right to ask that that candidate be disqualified because he was not qualified in the first place to run for primaries.
Section 31(6) says if such a candidate was found to have declared false information, he is liable to be disqualified by the court. When we found all that, we proceeded for Originating Summons, but they (Ikpeazu’s legal team) came up with the issue that the court has no jurisdiction. So, we had to trash it out at the Supreme Court. That was why time was wasted, because this matter would have been settled a long time ago.
So, when the Supreme Court ruled that the lower court has jurisdiction to hear the case, we had to come down to the Federal High Court again to start all over. Ikpeazu’s team alleged bias against Justice Ademola J, that he has been compromised and all manner of frivolous allegations.
So, the Justice said, “look I hands off the case, I don’t want anything that will tarnish my image”. For sanctity of the Justice and the judiciary, he transferred the case back to the Chief Judge for reassignment.
Then what happened thereafter?
The case was reassigned to Justice Okon Abang, who went on to hear the case. They came again with all manner of applications.
But if you read the judgement of Justice Abang, it was comprehensive.
He took time to tackle all the applications they brought, including the issue of jurisdiction, which had already been decided by the Supreme Court. All these were tackled before the Court came to the merit of the case. They (Ikpeazu’s team) agreed that on the face of the tax papers, the disclosures were false, but that it was a mistake.
This in law is an admission.
If this was a mistake, it means on the face of the law you are not qualified to participate in the electoral process. Does it now mean that Dr. Uche Ogah, who came second in that primary should go empty handed, the court said no.
Even though election has taken place and Dr. Okezie Ikpeazu won, since he was not qualified to have participated in the election ab initio, the proper order is to ask him to vacate the seat. PDP as a party should have presented a qualified candidate for the general election.
Again, now that the Supreme Court has held in the case of Otti vs. INEC, that PDP is the winner of April 11, 2015 election in Abia State, the PDP is the party that ought to replace the candidate that was not qualified. This is exactly what Justice Okon Abang ruled on June 27, 2016.
The Judge ordered that Ikpeazu should vacate the office and that INEC should issue a Certificate of Return to Dr. Uche Ogah immediately and he should be sworn in immediately by the Chief Judge of Abia State. And this was exactly what INEC did. There was no contrary order to
that judgement. It’s the extant law.
Now they have appealed. The fact remains that appeal does not operate
as a stay of execution. Every elementary student of law knows
this. They still have to obtain an order of stay before you can stay
execution of judgement. Now, it’s a different scenario, when it’s a
judgment t of the tribunal.
Many lawyers are saying that for the fact that Dr. Okezie Ikpeazu
has appealed, there should have been an automatic stay of
But this is not true. Section 143 of the electoral Act 2010 as
amended says if you appeal after your election has been validated
by the Tribunal, your appeal operates as a stay automatically if
it’s within 21 days. But in a preelection matter, it does not apply.
You still have to obtain a separate order from the appeal to stay execution.
So, the allegation that INEC was in a hurry to issue certificate
of return to Dr. Ogah, despite their appeal is a wrong assumption.
The problem we have in Nigeria is we tend to do certain
things wrong and when it becomes a norm, we feel that is the way it should be. No, the normal thing is that when a court makes a pronouncement, you have to obey it, you don’t look behind you or
begin to read meanings.
I must say that INEC’s action was very historical and good for the development of our laws and judicial system. For the first time, it obeyed our laws and issued Dr. Uche Ogah certificate of return. Dr. Ogah was supposed to be sworn in immediately as the courts have ordered, in the absence of any contrary order.
When Ogah got to Umuahia, what happened?
But he got to Umuahia and discovered that the Chief Judge of the state and the President in charge of the Customary Court of Appeal in Umuahia have disappeared or may be kidnapped or went into hiding. This gave them the opportunity to obtain a black market injunction in a nearby court in Umuahia. But the fact is that, that order can’t stand, because it is a court of coordinate jurisdiction with the Abuja Federal High Court. The order is nullity.
The only court that can reverse the decision of the Abuja High Court is a higher court and not one with a coordinate jurisdiction.
That shares the same power with the Federal High Court in Abuja.
Again, that interim order was based on the wrong premise
of law. It was quoting Section 143 of the Electoral Act which we already know is only applicable to a judgement delivered by a tribunal. So, in the absence of any stay of execution to the ruling of the Abuja High Court, Dr. Sampson Uche Ogah (OON) today, is the governor-elect of Abia State.
What happens to the Certificate of Return earlier issued to Ikpeazu?
Yes, when INEC issued him that certificate of return, the implication is that the earlier one you have issued has been cancelled.
So, Ikpeazu is sitting there illegally. He has no right to declare public holidays and he also has no right to withdraw money from the bank.
What Ikpeazu has to do now is to vacate office, while he continues his appeal. Then, Dr. Ogah according to the court order should be sworn in and be administered with oath of office by the Chief Judge, so that he can begin his responsibilities as the governor of Abia State.