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Anambra 2010: Andy Uba moves to actualise 2007 mandate

The Anambra state governorship election has again become a subject of litigation before our court, this time, before the Court of Appeal, Enugu at the instance of Peoples Democratic Party (PDP) chieftain and Governorship candidate of the party in Anambra state in the 2007 general elections, Dr Andy Uba, who was just a Governor for 16 days before the Supreme Court ordered him to vacate the position to allow Mr Peter Obi, All Progressive Grand Alliance (APGA) governorship candidate in the 2003 general elections, complete his tenure, which the Independent National Electoral Commission (INEC) fraudulently awarded to Dr Chris Ngige, then the governorship candidate of the PDP in the state.

It was the Court of Appeal, Enugu in its judgement in the 2003 governorship election in Anambra state, on March 16, 2006, that upheld the election of Mr Obi as the winner of the election. The Supreme Court had in ordering Dr Uba to vacate office for Mr Obi, in its judgement in Obi’s suit, held that since that he (Obi) took oath of office on March 16, 2006,  his tenure will not expire until March 2010. Uba in the fresh application, through his counsel, Chief Wole Olanipekun (SAN) has raised serious and important questions and issues that the appellate court, has to consider.

It has been argued that the Supreme Court had made a final pronouncement on the 2007 governorship election in Anambra state, but that argument for whatever it is worth cannot be true, as the Supreme Court in the first place has no business making pronouncement on a governorship election matter, which even by the admission of the apex court,  is purely and certainly for the Court of Appeal, which is the court, constitutionally vested with the power as the final arbiter on governorship election matter.

The constitution and the Electoral Act, makes it clear that it is the Court of Appeal that has the jurisdiction to entertain on appeal, which is final, governorship, National and State Houses of Assembly elections, to the exclusion of any other court in the court.

Reference has always been made to the Supreme Court judgement in the Peter Obi’s tenure interpretation suit and though the apex court in its judgement observed that the INEC ought not to have conducted the Anambra governorship election of April 2007, as Obi’s suit was then pending, and the outcome would effect the result of the election, the apex court in its judgement emphatically said that the judgment as per Aderemi JSC, at page 40 of his reason for the Jun 14, 2007, judgement delivered on July 13, 2007, said “for the avoidance of doubt, this judgement affects the office of the Governor of Anambra state alone”, and certainly did not sit on appeal of the election of April 2007, as some people have erroneously argued.

The essence of the apex court judgement, was in the word of Justice Aderemi “… to enable the plaintiff/appellant (Mr Peter Obi) to exhaust his term of office” and not because the apex court voided or annulled the election, as they have no power to do so and never did.

It is admitted that the court said that the election was a nullity in view of the fact that Obi was yet to exhaust his tenure, the nullity so used by the apex court is in the context that the election should not have taken place and nothing more. The court vested with the power to annul or cancel the Anambra governorship election, is the Governorship/National Assembly and Legislative Houses Election Tribunal, which sat in Awka.

The panel was made up of Justices James Abiriyi, Ayuba Kwajaffa, Peter Isibor, Biobele Georgewill and Abubakar Lamido. The tribunal did sit and on July 19, 2007, following argument by counsel to parties, held “we also agree with Chief Ahamba that under the doctrine of lis pendens, the election having been conducted when the case of Peter Obi vs INEC was pending was nullity. See page 30 of the Supreme Court judgement.

Since the gubernatorial election in Anambra state on the 14/4/2007 was a nullity, in the light of the Supreme Court judgment referred to above, we hereby declare the said gubernatorial election, the subsequent inauguration and any steps in furtherance of the said election a nullity”.

The tribunal went ahead to strike-out the petitions, including the cross-petition, which it also held were nullity.

Another court that has the final say in the governorship election is the Court of Appeal and interestingly, the decision of the lower tribunal was appealed against before the Court of Appeal, Enugu, wherein Uba asked the appellate court to determine, “whether the tribunal acted outside and beyond its jurisdiction under sections 145 and 147 of the Electoral Act 2006, having regard to the reliefs sought in the election petition No: EPT/AN/9?2007 before it (a) to declare the inauguration of the appellant and any step taken in furtherance of the election a nullity (b) to rely on section 178(2) of the 1999 constitution not raised in the election petition (c) Rather than simply striking out the election petition on the basis of the Supreme Court judgment without annotating that judgement; whether lis pendens is a doctrine applicable to an election petition so as to make it relevant to the election petition before the tribunal; and whether it was a valid exercise of judicial authority for the tribunal to give a single judgement for nine consolidated election petition”.

In the lead judgement by Justice Mohammad Muntaka-Coomassie, on February 18, 2008, the court said it “has looked at all the addresses and submission of counsel following the order of the tribunal after the judgement of the Supreme Court in the case of Obi V INEC & 6 ors and considered it appropriate in the circumstance of this appeal, for the Court of Appeal to invoke the legal power conferred on it under section 16 of the Court of Appeal Act, that is to make any order which the lower court could have made in the interest of justice.

“By virtue of section 16 of the Court of Appeal Act, this court hereby order as following:- 1, that the orders of nullification made by the lower tribunal on July 19, 2007 as they affect each of the consolidated appeals in the Governorship/National Assembly and Legislative Houses of Election Tribunal, Anambra state sitting in Awka are hereby revoked and discharged.

“Since there is no live issue in the petitions and cross-petition filed against the election of the appellant, Dr Emmanuel Andy Uba as Governor of Anambra state before the lower tribunal, which now lacks jurisdiction to hear them the merits in view of the decision of the Supreme Court in the suit by Obi V INEC and 5 ors, delivered on June 14, 2007, the petitions and cross petitions are accordingly struck out”, the court held.

Having voided the decision of the lower tribunal, it only stand to reason  that no court of competent jurisdiction has annulled, voided or invalidated the election of Dr Uba, because the Supreme Court in the Obi’s suit did not do so, but said that INEC ought not to have conducted the election, which cannot mean or interpreted to imply that the apex court annulled the election.

And the Supreme Court, no matter how one reads the judgement, cannot be said to have annulled the Anambra governorship election, because that was not Obi’s prayer, as all he asked for was that the court should hold that in view of the fact that he took oath of office in March 2006 for a four year tenure, his tenure will expire in 2010, which the Supreme Court agreed with.

In view of the Court of Appeal decision on the Anambra state governorship election tribunal verdict, Dr Uba has returned to the same court, praying for an order, varying the judgement delivered on February 18, 2008, so as to give effect to its meaning and intention by making a consequential order sustaining and/or upholding the election of the appellant/applicant as Governor of Anambra state on April 14, 2007.

He is further seeking for an order, varying the judgement delivered on February 18, 2008, so as to give effect to its meaning and intention by making or adding a consequential order sustaining and/or upholding the certificate of return issued to him by INEC and the Resident Electoral Commissioner of Anambra state on or about April 20, 2007.

* An order of this court varying the judgement delivered on February 18, 2008, so as to give effect to its meaning and intention by making or adding a consequential order that the return of the appellant/applicant as Governor of Anambra state, vide the election held on April 14, 2007 is still extant and/or subsisting.

* Pursuant to (i), (ii) and (iii) an order of injunction restraining INEC, Resident Electoral Commissioner of Anambra state and others, either by themselves, agents, aides, officers, privies, servants or through any person or persons however from arranging, organising, appointing or fixing any date for any other governorship election in Anambra state or from conducting any fresh governorship election in Anambra state until the appellant/applicant completes his term of office as Governor of that state pursuant to his election to the office of Governor of Anambra state on April 14, 2007.

Chief Olanipekun, counsel to Uba is contending in the application, that “the orders prayed for as couched in the body of the application directly flow from the judgment of this court delivered in favour of the applicant on February 18, 2008. They do not derogate from the judgment, rather they are meant to give life and meaning to it. Furthermore, they do not detract from the judgment of the Supreme Court which was/is to last till Peter Obi exhausts his tenure as made clear in that judgment. The orders are also not meant to disrupt or interrupt that tenure of Peter Obi.

According to him, “the orders have become more compelling in view of the extant nature and position of the certificate of return already issued to the applicant. That certificate is a statutory instrument vesting in the Applicant the rights and privileges of a winner of an election and also a returned candidate.

In the same vein, the judgment of this court undeniably vests in the applicant the right of a winner of an appeal and as a successful appellant, he is entitled to the reliefs which any appellant in his shoes is entitled to.  He cannot be denied those reliefs, as they come to him naturally and/or consequent upon the success of his appeal.

We do submit further that the Supreme Court was not unaware of the intervening factor of the election of Omehia as the Governor of Rivers State on the Platform of the Peoples Democratic Party (PDP) when it declared Amaechi as the Governor based on primaries held before the Governorship election”.

He further argued, “our submission, is that the applicant’s reliefs are located on stronger legal wickets than that of Amaechi in the sense that whereas Amaechi never had a Certificate of Return in his favour or judgment of a Court of Appeal inuring for his benefits, the applicant before your Lordships is vested with both certificate of Return and  judgment of the Court of Appeal. Therefore, we must humbly submit that after Peter Obi exhausts his term or tenure on March 17, 2010, the applicant will then actualize his preserved electoral mandate, come that March 17, 2010″.

“The only reasonable, logical, natural and legal thing to do in the circumstances is to accede to the Applicant’s prayers, as anything to the contrary will make the. judgment of this court delivered on  February 18, 2008 unenforceable, meaningless and ineffectual.

In conclusion and for the reasons adumbrated in this address and submissions canvassed, your Lordships are urged to grant this humble application. There, cannot be a judgment without any benefit accruing to the winner of either the case or appeal, stretched further, it  judgment of a court in never a barren exercise or victory”, he contended.


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