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Emodi, Igbeke and the movement of democracy

By  Chuks Onyeizukwe

Since the Court of Appeal in Enugu returned Alphonsus Ubanese Igbeke as the duly elected Senator for Anambra North Senatorial District, the controversy has centred on whether or not the Senate was right to delay his assumption of the respected seat.

The Senate said Chief Igbeke couldn’t be sworn_in because a legal process was on at the Supreme Court on the matter. It later said the man missed his grand entry into the Upper Chamber of the National assembly on account of lateness. Finally, its spokesman, Senator Ayogu Eze told the world that, based on latest advice from the hierarchy of the Nigerian judiciary, Igbeke would be sworn-in this week – unless a stay of execution was obtained by Senator Joy Emodi. With Igbeke now in as the Senator from Anambra North Senatorial District, the serious-minded and legally conscious must heave a sigh of relief.

This is because the main issue in the Igbeke-Emodi tussle is not really about the formality of one politician leaving the Senate and another replacing her.

It is true, of course, that in matters of senatorial elections subjected to judicial interpretation, the Court of Appeal is the last portal of justice. But, it will be too simple to assume that decisions of the Court of Appeal, or any court for that matter, must be cast in stone and not subject to query even where there are strong grounds to believe that one or two fundamental errors may deliberately have influenced the court’s decision.

In the Igbeke versus Emodi case, the latter had taken the attitude that the Court of Appeal had misdirected itself. She, therefore, asked for an interpretation of two existing Court of Appeal verdicts on her senatorial election – the first one that returned her as duly elected and the second one that reversed that decision.

A critical examination of Senator Emodi’s position puts her in tandem with the often stated position of Governor Peter Obi of Anambra State, to wit that the process by which a politician assumes an electoral office is far more important than whatever they go on to achieve in that post.

This statement is fundamental for Mrs. Emodi is insisting that Igbeke had not won that election and, most seriously, that the respected Justices of the Court of Appeal that returned the man did, in fact, impede the nation’s process of democratization. Allegations of this profound nature cannot and should not be allowed to be buried under the needless distraction of when a politician who has an INEC Certificate of Return in his hand actually joins the legislative business of the Senate.

The reader should please bear witness to Senator Emodi’s testimony and representation: After the ballot for the Anambra North senatorial District on April 28, 2010, Senator Joy Emodi was declared victorious by the Independent National Electoral Commission  and promptly issued with a Certificate of Return. She got sworn_in with all other elected senators on the day the present Senate was inaugurated.

But, as was the case with many an elected politician, Emodi’s victory was challenged at the Governorship, Legislative Houses of Assembly Election Petition Tribunal at Awka in suit EPT/AN/NAE/SE/9/2007.  This petition which was filed by Hon. Jessie Balonwu was heard by Justice Coram J. S. Abiriyi and four others whose verdict on June 14, 2008 returned Emodi as duly elected.

What to bear in mind here is that this verdict was consolidated to accommodate the petitions filed by four other senatorial contestants, namely Mr  Celestine Ughanze of the AC, Mike Areh of APGA, Mrs. Chinelo Onyekwe of the CNPP and Mr Alphonsus Igbeke of the ANPP. With the exception of Igbeke who pleaded that the senatorial election took place in just five of the seven local government areas of Anambra North Senatorial District, all the others had argued that no elections took place whatsoever. But the Tribunal found that the elections took place through the seven local government areas and that Senator Emodi was duly elected.

As was to be expected the matter went on to the Court of Appeal first as the case between  Balonwu (Appellant) and Senator Emodi and 213 others. The case was heard by Justice Omage OFR, Justice M. Ladan Tsamiya and  Justice Olu Ariwoola. The Court of Appeal unanimously decided the case in favour of Senator Emodi on February 10, 2009.

In dismissing the appeal in his lead judgment, Hon Justice Omage held that “The evidence of the Appellant as held by the Court below (Tribunal) does not support the claim and petition. That is why the petition was dismissed in the Court below. It is dismissed. On appeal, there is no need to consider the other issues of the Appellant. The success in those issues is dependent on the propriety and validity of the petition itself on which the appeal is founded. The appeal fails; it is dismissed.”  Both Justices Tsamiya and Ariwoola corroborated the verdict of Justice Omage.

The appeal filed by Igbeke was heard by Justices Amiru Sanusi, M. Ladan Tsamiya and Olu Ariwoola. What were the grounds of Igbeke’s petition to the Court of Appeal?  There were three of them.

One, that “there was no election in all the polling units/booths in the Onitsha south Local government area of the Anambra North Senatorial district in the National assembly election of April 18, 2007 and consequently that all the votes credited to all the candidates at the polling units in the Onitsha South Local Government Area at the election be set aside/nullified. Two, there was no election in all the polling units/booths in the Ayamelum Local government area of the Anambra North Senatorial District in the national Assembly election of April 28, 2007 and consequently that all the votes credited to all the candidates at the polling units in the Ayamelum Local Government Area at the election be set aside/nullified.

Three, that it be determined that the 1st respondent (Joy Emodi) did not score the majority of lawful votes cast at the National assembly election for Anambra North Senatorial district held on 28th April, 2007 and consequently that the declaration by the 2nd – 4th respondents ( INEC, Resident Electoral Commissioner for Anambra State and Returning Officer, Anambra North Senatorial district) that the 1st Respondent was the person returned as elected in that election be set aside/nullified.

Four, that “the petitioner (Igbeke) scored the majority of lawful votes cast at the National Assembly election for Anambra North Senatorial District held on 28th April, 2007 and ought to be declared as the person returned as elected at that election, and consequently to declare Your petitioner the winner of the election and accordingly returned as elected.”

In its judgment of March 25, 2010, the Court of Appeal found in favour of Igbeke on all four grounds and, therefore, declared him the rightfully returned candidate in the election. In his lead judgment Justice Ariwoola said that “It is clear that the Appellant (Igbeke) won the majority of lawful votes cast in the election held on 28/4/2007 and ought to have been returned and declared winner. The 1st respondent (Emodi) was not duly elected by a majority of lawful votes cast at the election. The 2nd – 4th Respondents did not so prove as they should. Accordingly, the 2nd Respondent is ordered to withdraw the Certificate of Return issued to the 1st Respondent forthwith. It is further ordered that the Appellant be issued with Certificate of return without further delay.”

How did the Court of Appeal come by this decision which stands in contradiction to its earlier verdict in the Balanwu versus Emodi case? An aggrieved Senator Emodi rushed to the Court of Appeal in Enugu through her lawyer. Dr. V. Azinge who, citing Order 7 Rules 1 of the Court of Appeal rules 2007, sought an order to (1) disqualify Justices Sanusi, Tsamiya and Ariwoola “from sitting, further sitting, adjudicating, taking part in any of the processes before the Court of Appeal in relation to Appeal No CA/E/EPT.04/2009 or delivering any opinion/ruling/judgment therein, and to (2)  exclude Justices Sanusi, Tsamiya, and Ariwoola from a new panel to be constituted to determine the motions pending before the Court of Apeal in Appeal No. CA/E/EPT/04/2009.

These are the grounds upon which the reliefs sought by Emodi were based: 1. The Justice Omage, Justice Tsamiya and Justice Ariwoola sat on the panel that determined Appeal No CA/E/EPT/73/2008 on  February 10, 2009.

2. That Justice Sanusi, Justice Tsamiya and Justice Ariwoola sat on the panel that determined Appeal No CA/E/EPT/04/2009 on March 25, 2010.

3. That 2 judgments entered by the panels referred to in 1 and 2 above are in conflict with each other hence two applications, one seeking an interpretation of the two judgments  and another seeking reference to the Supreme Court on the constitutional issues that have arisen as a result of the 2 Judgments were filed by the applicant.

4. The panel constituted to hear the motions for interpretation and referral is composed of 5 justices including the Justice  Sanusi, the Justice Tsamiya and Justice Ariwoola, all of whom sat in the second appeal and two of whom sat in the first appeal.

5. That the three justices referred to in 4 above, having participated in the 2nd appeal and two of them having participated in the 1st Appeal had foreknowledge of the facts in the two appeals.

6. Based on grounds 1, 2, 3, 4, and 5 above, the participation of the aforementioned justices will not guarantee fair hearing and the impartial determination of the issues arising in the motions pending before the Court of Appeal.


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