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Many cases pending at Appeal Court, less than a year to elections

By Emeka Umeagbalasi

It is chilling to discover that less than one year to the next general elections in  Nigeria, over 40 cases,
which arose from the conduct of the 2007 general elections, are pending and undecided at the Court of Appeal, Enugu Division.

The Enugu Division of the Court covers jurisdictionally Enugu, Ebonyi and Anambra States. Over 1,500 election petitions arose from elections conducted in 2007 into over 1,600 elective offices in Nigeria other than local government chairmanship and councillorship positions across the Federation.

The matters so pending range from State House of Assembly Seats to House of Representatives’ Seats. Most of the cases cited were reportedly mentioned in May 2010 and adjourned to later dates.

Traditionally, matters in the Court of Appeal are not meant to stay long because of its status as a “case-review court”, not a “case-trial court”. When a matter goes on appeal, it is followed by prompt forwarding of record of proceedings from a trial court. The next is writing and adoption of addresses with accompanying time-limits. And a judgment date is fixed, to be followed by a judgment.

Election matters are treated in the context of “extreme essence of time”. To ensure timely disposal of election matters, Practice Direction and Front-loading of witnesses or transfer of witnesses’ accounts in writing were designed or issued in 2007 by Justice Umaru Abdullahi, former President, Court of Appeal.

But pieces of information obtained in the course of our investigations showed that apart from few administrative challenges, the continued pendency of the matters above mentioned is caused by pre-hearing delays, introduction of frivolous motions and counter-motions and adjournments. The surmounting of these is not outside the discretionary powers of the Presiding Judges.

One of the most pathetic cases found in the course of our investigations is that involving  Mrs. Edith Ejezie vs. Chief Sylvester Okeke. In the said case, Mrs. Ejezie contested the Anambra East/West Federal Constituency under the All Nigerian Peoples’ Party against Chief Okeke of the Peoples’ Democratic Party and other candidates from other political parties. The election, which produced Okeke as the winner according to INEC, was held on April 21, 2007.

Dissatisfied, Ejezie approached the National Assembly Election Petitions’ Tribunal, Awka, Anambra State, on May 18, 2007 and contended that she, not Chief Okeke, won the majority of lawful votes cast and that Okeke was declared winner in error by INEC.

She told the Tribunal that INEC awarded arbitrary results to candidates in some parts of Anambra East Local Government Area and the entire Anambra West Local Government Area where elections did not hold at all. She prayed the Tribunal to nullify the arbitrarily awarded results and declare her winner on the strength of winning the majority of lawful votes cast. She told the Tribunal that she, not Okeke, ought to be declared winner, and should be so declared and issued by INEC with a Certificate of Return, with accompanying order for her to be sworn in as duly elected member, representing Anambra East/West Federal Constituency in the House of Representatives.

During the pre-hearing proceedings, the presiding panelists led by Justice James Abriyi formulated two issues for determination and they are: 1. who as in between the Petitioner and the 1st Respondent was validly elected by majority of lawful votes cast at the said poll; and whether the Petitioner ought not to have been returned as the winner of the election based on the fact that she won majority of lawful votes cast at the said election.

In its judgment, delivered on May 15, 2008, the Tribunal held that Okeke was not validly elected by reason of the fact that he did not win the majority of lawful votes cast. The Tribunal made a finding of fact that Ejezie lawfully won the election, having scored 18,694 votes as against her opponent’s 6,838 votes.

But the Tribunal refused to accede to Ejezie’s prayer that she should be returned as validly elected having scored the majority of the lawful votes cast, instead, it ordered for fresh election in Anambra West Local Government Area part of the Federal Constituency.

These resulted to appeal and cross-appeal which were lodged same day (4/6/2008) at the Registry of the Court of Appeal, Enugu Division.  Ejezie, the cross appellant, sought for the Appellate Court’s declaration of herself as duly elected, and an order compelling INEC to issue her with Certificate of Return and her swearing-in.

Ejezie is also challenging the Tribunal’s order for fresh elections in Anambra West & parts of Anambra East because the same Tribunal has made   a finding of fact that she won majority of lawful votes cast, more so when in legislative poll, spread is reportedly not required.

She conclusively opined that the Tribunal painstakingly made a finding of fact, but reached a wrong conclusion. Since September 23, 2008, when Ejezie and her opponent, Okeke filed and exchanged their briefs, the matter has remained at the messy of pre-hearing till date.

It has also suffered from undue adjournments. For instance, it was initially adjourned from  September 23, 2008, to a date in November 2008. On the adjourned date, it was moved to January 15, 2009. On the said date, it was moved to a date in March 2009, from that date, it was moved to a date in May 2009.

On the said date, it was moved to a date in July 2009. On the July 2009 date, it was moved to November 9, 2009, and from the said date, it was moved to of February 6, 2010. From the February 6, was moved to May 14,  2010. On the said date, it was moved to May 13, 2010 and from the May 13, it has now been moved to June 2010, for the first hearing of the matter proper.

The foregoing shows that Ejezie’s matter at the Court of Appeal has been adjourned for twelve times since June 2008 when it was originally filed.

Also, in the course of these adjournments, the case has remained at “motions and pre-hearing” levels. It is baffling that a matter filed in June 2008 at the Registry of the Court of Appeal (review court), Enugu Division, a period of two years, has not been heard on its own merit, when it took the Tribunal, which is the trial court, one year (May 2007 to May 2008) to preside over same and issue verdict.

Similarly, in the case of  Zeribe Ezeanuna vs. Chukwuka Onyema (Ogbaru Federal Constituency), it wears a similar outlook. Mr. Ezeanuna had approached the Court of Appeal following the judgment of the lower tribunal, which quashed Mr. Ezeanuna’s quest to annul the election on the grounds that election did not take place in the Ogbaru I and Ogbaru 2 Constituencies, which make up the Ogbaru Federal Constituency, in the April 21, 2007 legislative poll. Mr. Ezeanuna is of the All Progressives Grand Alliance, APGA, while his opponent, Chukwuka Onyema of the PDP. The first Tribunal had held that Mr. Ezeanuna was unable to establish that election did not take place in the said Federal Constituency.

The Tribunal had predicated its judgment on the inability of the Petitioner to provide the Voters’ Register for Ogbaru Federal Constituency despite the fact that the same Tribunal granted an order against INEC to release the Voters’ Register to the Petitioner (Ezeanuna). The INEC disobeyed the order.

The said matter at the Court of Appeal, Enugu Division, matured for filing and adoption of addresses since December 2008 and since then, it had suffered over ten adjournments. Final addresses were adopted in March 2010 and judgment fixed for  May 10, 2010. On the said date of judgment, the Court failed to sit and till date, no new date has been fixed. We, therefore, call on the President of the Court of Appeal, Justice Ayo Salami’s attention to these unhealthy developments at the said Appeal Court have forced almost all the candidates, especially those canvassing for nullification of their opponents’ alleged wrongful declarations to either withdraw or abandon their suits at the said appellate court.

For instance, the petition for Idemmili North Constituency in Anambra State between Mr. Alphonsus Uzoegwu and Mr. Anthony Nwoye was struck out in May 2008. An appeal was filed in the same month, seeking for a retrial, only for it to be withdrawn in March 2010 out of frustration. In Onitsha Federal Constituency, Mrs Anthonia Okoye was forced to withdraw in March 2010 the appeal she had filed in 2008 against Ms. Lynda Ikpeazu, whose seat has now gone to Mr Gozie Agbakoba. She withdrew the case in March 2010.

There are three appeals challenging the election of Chinwe Nwaebili of the Ogbaru 2 State Constituency in Anambra State. But they have all been abandoned out of frustration. One of them got Nwaebili’s election nullified at the lower tribunal. The mighty hands of “adjournments” have also stalled the hearing of the matter between Mr. Bona Orakwue and Mr. Obiora Chukwuka of the Onitsha 2 State Constituency.

The matter, which was lodged in 2008 had suffered over ten adjournments and when it came up for hearing on May 14, 2010, it was again adjourned. The importance of this piece is to drawn the attention of Justice Salami to the powers vested on him by Section 237(2)(a) of the 1999 constitution,  as the “general overseer” of the Nigeria’s Court of Appeal. It is judicially indefensible that less than one year to the next general elections, many matters arising from the 2007 general elections are still pending before various Divisions of the Court of Appeal, under his able leadership, to the extent that in a Division of the Court of Appeal, over 40 cases are so pending. The most worrying aspect is that the reasons for the pendency of these matters are not far from the desks of their lordships. Some of the Justices seem to have forgotten that in resolving election disputes, time is of extreme essence.

To them, election matters have become “land matters” that precede generations. Some have even taken refuge in Section 294 of the 1999 constitution, by unduly exhausting reasonable part or whole of 90 days before delivering any election-related verdicts. Some cases with respect to election disputes, after suffering over ten adjournments, are still kept in “judges’ protective custodies” for 90 days before their final judgments.

Assuming any of these cases is annulled by the appellate court and fresh election ordered in 90 days, say from July 2010, for instance, what will be the fate of aggrieved parties if it is re-conducted and perceived to have been re-rigged? What time will be left for such aggrieved parties to challenge same in tribunals and appellate courts? Justice must not only be done, but also seem to have been done at all times. And equity must always take its course.

We call on Justice Salami to intervene by issuing a firm administrative directive to his brother Justices at the various Divisions of the Court of Appeal to resolve all 2007 election-related cases before them before the third quarter of 2010 elapses. Other administrative solutions should also be found to remedy the ugly situations. There may be need to create more panels of judges so as to decongest the matters so piled up. As a long term measure, a Division of the Court of Appeal may be cited in Anambra State so as to lessen the burden placed on the Enugu Division.

Our investigations revealed that most of the cases so pending come from Anambra State. The Justices handling various election matters should be implored to surrender their rights to “countless adjournments” and “90 days of pre-judgment leisure”, so as to enhance our highly cherished democracy, justice and equity.


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