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Rep Seat: Why INEC can’t issue fresh certificate of return on 2007 Uyo Constituency poll

By Ise-Oluwa Ige

About one week ago, Mr Emmanuel Obot, the former aide to ex-Governor of Akwa Ibom state, Chief Victor Attah, wrote a letter to INEC, demanding for his alleged certificate of return as the winner of the April 21, 2007 poll into the Uyo Federal constituency. He also wrote another letter to the Speaker of the House of Representatives, Mr Dimeji Bankole, demanding that he be sworn into office.

He wrote the two letters on the strength of a string of favourable judgments he claimed to have procured at the Federal high court, Abuja; Akwa Ibom National Assembly Election Petition Tribunal which sat in Uyo and the Calabar division of the Court of Appeal with respect to the poll.

Obot is arguing that by the clear provisions of section 246 (3) of the 1999 constitution, he said the Court of Appeal is the final court on disputes arising from National Assembly election. He said having been so declared as winner of the election into the Uyo Federal Constituency by the apex court on National Assembly election petition (Calabar Court of Appeal), he said INEC is bound by law to yield to his request.

Hon Bassey Etim, it would be recalled, was declared winner of the April 28, 2007 poll into the Uyo Federal constituency by INEC after beating other contestants that stood the election with him. He contested the poll on the platform of the ruling Peoples Democratic Party (PDP).

Obot who is claiming to be the winner of the poll never participated in the National Assembly poll because his political party substituted his name with Hon Bassey Etim for the election. In fact, for alleged anti-party activities, Obot was expelled from the ruling PDP by its National Executive Committee before the election held. Etim is the sitting representative of the Uyo Federal constituency at the National Assembly up till date.

But Obot is claiming that he was the authentic candidate of PDP for the poll and the winner of the election. In his letters to both INEC and the House of Representatives, he is claiming that the final law court on election matter had nullified the political process leading to the emergence of Etim as the flag-bearer of PDP for the Uyo Federal constituency poll and that the same court had declared him not only the party’s candidate but the winner of the poll.

But Obot deliberately concealed a fundamental fact in his letter to INEC and the Speaker of the House of Representatives to the effect that the case which he claimed to have won in all courts started as a pre-election matter and that it is the Supreme Court rather than the Court of Appeal that has the final say on the issues in contention.

He also refused to disclose that the controversial Abuja Federal high court judgment on which back he (Obot) rode to procure judgment at the Election Petition Tribunal, Uyo and the Calabar Court of Appeal is already a subject of litigation at the Supreme Court.

Besides, he also refused to draw the attention of INEC and the Speaker of the House of Representatives to the fact that litigation is still on-going in the case and that since both of them have the right of appeal, it will be prejudicial for the electoral umpire to take any action, for now, on the issue.

Whereas, Justice Philip Nnaemeka-Agu in the case between Hispanil Construction Limited Vs Odogiyan reported in 1986, 4NWLR, part 35 at page 249 had warned that “litigation is not a game of hide and seek. “It is one played in accordance with certain rules.

And those rules are strictly predicated on fairness and equal opportunity to the two contending parties.” Obot seems not to appreciate this.

He seems to be simply in a hurry for the implementation of the judgment of the election petition tribunal, Uyo and the Calabar Court of Appeal when he knew quite well that the Supreme Court is yet to pronounce on the validity of the judgment he procured at the Abuja Federal high court which back he rode to the tribunal. It would have been a different ball game if the judgment of the Abuja Federal high court was not appealed against.

But assuming both INEC and the Speaker of the House of Representatives are willing to yield to his request, what happens to equity when the case which constitutes the legal substratum upon which all the favourable judgments he claimed to have procured in various courts is pending at the Supreme Court?

Justice Niki Tobi in the case of Emeshie vs Abiose reported in 1991, 2NWLR part 172, page 194 at page 200 had also warned that “equity can only assist a person who seeks it with very clean hands. “And equity with its purity of purpose and fair play will dissociate itself from the company of fraud!” Obot’s case would not have raised any controversy if he had stated the facts surrounding why the string of judgments he procured are yet to be implemented.

He also did not mention that the peculiar circumstance of his case had made the Attorney-General of the Federation, Chief Michael Andoakaa (SAN) to dabble into the arena by preaching caution until the Supreme Court pronounces on the live issues before it.

Already, the Chief Justice of Nigeria (CJN), Justice Idris Legbo Kutigi has empanelled five justices of the Supreme Court to examine the merits in the two separate appeal by both Hon Etim and the ruling PDP challenging the verdict which declared Obot as the candidate of the PDP for the Uyo Federal constituency poll. The outcome of the case will determine whether Hon Etim has any business at the House or not.The verdict entered too will determine the value and legal weight of the string of judgments being flaunted by Obot.

The Federal high court, Abuja presided over by Justice Abimbola Ogie had given the controversial judgment in favour of Obot over the suit touching on who between him (Obot) and Etim is the candidate of the PDP in the April 2007 National Assembly election into Uyo Federal Constituency of Akwa Ibom State.

The said judgment was delivered on May 17, 2007, shortly after which the trial judge was transferred from the Abuja division of the Federal high court. The said judgment had declared Hon Obot as the candidate of the ruling PDP for the Uyo Federal constituency.

Both Hon Etim and his political party (PDP) are contesting the judgment on the ground that the trial high court judge, Justice Abimbola Ogie who heard the case lacked the jurisdiction to so do for more reasons than one. They had contended that the same judge had earlier sat on a similar suit filed by Hon Obot with similar set of facts and refused his request to stop INEC from substituting his name with Etim for the National Assembly election.

They said having earlier decided the case, they said it is trite that neither Hon Obot could re-litigate on the issue nor the same trial judge, Justice Ogie, could re-hear the case on the account that she was already functus officio on the matter.

They cited the case of Faleye Vs Otapo where the Supreme Court held that once a matter is finally settled in a previous suit by a court of competent jurisdiction, such a matter or issue so settled can never again, on the principle of issue estoppel or res judicata be raised or re-litigated in subsequent proceedings by those who were parties or privies to the previous proceedings.

They argued that instead of Obot going on appeal against the first judgment of Justice Abimbola Ogie of the Abuja Federal high court which declined to reverse his substitution as done in Ugwu vs Ararume and Amaechi Vs INEC cases, he came before the same Abuja Federal high court judge, Justice Ogie, who had earlier decided his case on substitution with a finality to re-litigate on the issue.

They argued that curiously, the trial judge, not only assumed jurisdiction on the matter even though it was unavailable to her, but that the trial judge re-sat on the case and voided Obot’s substitution. But the Court of Appeal disagreed with the duo of Etim and the PDP and gave judgment against them. Aggrieved, both of them exercised their rights of appeal to the Supreme Court.

They gave seven reasons why the Supreme Court must depart from the judgment of the Court of Appeal. Instead of allowing the apex court to pronounce on the issue, Obot was busy writing letters to all relevant authourities, asking them to implement a judgment that is still in issue.

The fact however is that the case at hand is a peculiar one. It is so because the subject-matter of the case before the tribunal was an intra party dispute which could only be entertained by a regular court instead of a transitory court like the election petition tribunal.

Besides, the parties (Etim and Obot) that appeared before the election tribunal and the Appeal Tribunal belonged to the same political party even though one of them has been expelled. And ordinarily, the tribunal ought not to have jurisdiction to entertain it but for the judgment of the Abuja Federal high court which wears it a questionable circumstantial jurisdiction.

The truth therefore is that the provision of section 246 (3) of the 1999 constitution can not apply in this case until after the Supreme Court has endorsed the validity of the verdict entered by the Abuja Federal high court which declared Obot as the authentic candidate of the PDP for the Uyo Federal constituency poll.

Which is why INEC has to apply brakes in issuing any fresh certificate of return with respect to the said poll. Another debacle is the issue of Obot’s expulsion from the party.

Even if the Supreme Court endorses the validity of the Abuja Federal high court which declared him the candidate of the PDP for the 2007 Uyo Federal Constituency poll, can he claim the mandate when his party had expelled him on April 12, 2007, more than ten days before the said election held. Except the issue of expulsion is not pursued, there are more reasons than one why INEC cant issue any certificate of return for now.


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