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Rep Seat: S/Court, INEC on a collision course

By Ise-Oluwa Ige

On June 3, this year, a five member panel of the Supreme Court fixed October 10 for definite hearing in two separate appeals challenging the verdict of an Abuja Federal high court which declared Mr Emmanuel Obot as the candidate of the ruling Peoples Democratic Party, PDP, for the 2007 poll into the Uyo constituency seat of the National Assembly.

The apex court said that although there were so many appeals pending before it crying for attention, it said it had resolved to take the two appeals on the day to finally resolve the legal dispute on who between Mr  Bassey Etim and Mr Obot should occupy the Uyo constituency seat at the lower chambers of the National Assembly. The two appeals fixed for hearing were brought by the ruling  PDP,  which withdrew Obot’s candidature on ground of indictment entered against him on one hand and Mr Etim, the lawmaker presently representing the Uyo constituency seat at the National Assembly on the other hand.

The duo of the PDP and Mr Etim are contesting the high court verdict which declared Obot as the party’s rightful candidate for the constituency poll on sundry grounds including that the trial judge in the matter, Justice Abimbola Ogie, gave two conflicting judgments on the issue in question.

Specifically, Obot had, in his suit, asked the Abuja Federal high court to issue him an order quashing his indictment and a separate order restraining PDP and INEC from substituting him as candidate for the Uyo constituency election. The judge, in her judgment, quashed Obot’s indictment but refused to restrain both the PDP and INEC from substituting him on the ground that the act sought to be restrained was a completed act.

Instead of going on appeal, Obot went before an Uyo Federal high court to ask for the relief he could not get in Abuja but had to withdraw the case when Hon Bassey and PDP informed the court that he was forum-shopping. Obot later came before the same Justice Ogie of of the Abuja Federal high court with a fresh application on the issue of substitution which the court earlier refused to grant. Strangely, Justice Ogie who had already given a final order on the issue reversed herself as if she was sitting in an appellate capacity over her earlier verdict.

Both PDP who is contending that Obot had been expelled from its fold and Etim Bassey who claimed that the judge had no jurisdiction to sit in an appellate capacity over her first judgment went on appeal. The said appeal is now before the Supreme Court for hearing October 10. But while this matter was on appeal, Obot took the Abuja Federal high court verdict before the Akwa Ibom Election Petition Tribunal and the Appeal Tribunal.

Bassey Etim and PDP challenged the jurisdiction of the election petition tribunal to entertain a pre-election dispute touching on substitution of candidates.

The panel of justices that sat as the Akwa Ibom Election Petition Tribunal in Uyo threw out the case for want of subject-matter jurisdiction but the Court of Appeal, Calabar ordered the tribunal to re-hear the case on its merit. In the final analysis, the tribunal which earlier said it had no jurisdiction also reversed itself and gave judgment in Obot’s favour which he finds difficult to enforce now because of the pending appeal before the Supreme Court on who between him and Hon Etim is the rightful candidate of PDP for the election. In view of the importance of the Supreme Court pronouncement on the resolution of the issue, Prince Lateef Fagbemi (SAN), the lead counsel to Obot pressured the Supreme Court to hear the case on June 3, this year, saying the res of the case is perishable, lawmaker’s tenure being four years certain. But the apex court begged for understanding. The apex court said it had heard so many appeals on which judgment must be delivered before they proceeded on vacation in July this year.

Justice Dahiru Musdapher who was the presiding justice of the panel said if they heard the case on June 3, he said there was no way judgment would be ready in July and that it was impossible for them to deliver judgment in the case during vacation.

He also explained that even assuming they heard the case and fixed October for judgment, he said such verdict would be a nullity because the rules of the court provided that judgment must be delivered on heard cases within three months after conclusion of hearing. But he assured Obot’s lawyer that the case would be one of the first to be heard and decided during the next legal year. He said that there were other pre-election cases still pending before the apex court and that Obot’s was not an exception but that all would be cleared in October.

But few days after Supreme Court promised to pronounce, soon, on the issue in dispute with a finality, INEC which was a party in the two appeals, dared the apex court and issued certificate of return to Obot for the Uyo constituency seat. The conduct of the Acting Chairman of INEC, Mr Soyebi, is no doubt confrontational to the authourity of the Supreme Court and capable of foisting a fait accompli on the apex court, on the issues distilled from grounds of appeal for determination. But Soyebi said he had a reason for doing what he did. He said he was acting on a petition written by Obot on the issue wherein he alleged that some powers that be were preventing his swearing in even several months after the final court on legislative election matters had cleared him for swearing_in.

Sources close to him said he wanted to depart from what Iwu did in his time to earn great respect and praises from Nigerians. But Vanguard Law and Human Rights authouritatively gathered that Soyebi was being economical with facts. For instance, it was gathered that there was a relationship between Soyebi and Obot which dated back to 2003 when the latter was Special Assistant to Governor Victor Attah of Akwa Ibom state while the former was the Resident Electoral Commissioner (REC) of Akwa Ibom State.

Sources said they were very close and that it was indeed Soyebi who advised Obot to do a petition to him so that he would have a platform to act. In the said petition, Obot detailed the same story of how he procured judgments at the tribunal and the Court of Appeal Calabar without stating that he rode to the tribunal on the back of the Abuja Federal high court verdict which is on appeal at the Supreme Court.

Vanguard Law and Human Rights also gathered that Soyebi asked Obot to withdraw the committal proceedings he instituted against three principal INEC boss before an Uyo Federal high court wherein INEC insisted that there was no order in his judgment directing it to issue him certificate of return. Beyond this, an impeccable source also said that the incumbent Attorney General of the Federation, Mr Mohammed Adoke (SAN) also backed the INEC boss to issue the certificate of return notwithstanding that the matter was pending before the Supreme Court.

The source added that Adoke decided to involve himself in the case because there was also a relationship between him and Obot. In fact, Vanguard Law and Human Rights gathered that Mr Adoke (SAN), the learned Attorney-General of the Federation was the lead counsel to Obot in the case at the tribunal stage. Indeed, Adoke’s name appeared conspicuously on the compiled record of proceedings at pages 274, 259, 263, 271 and 274 as the chief counsel representing Obot and leading other junior wigs like Azekomeh, Uwemedino Nwoko among others.

But the source close to Adoke (SAN) said he was very smart by allegedly working in favour of his old client by speaking with the relevant authourities to release the certificate of return and swear him in notwithstanding the fact that the Supreme Court was already seized of the facts of the case and had promised to deal with it in October with a finality.

On moral ground, one may be sympathetic with Obot, the tenure of office he wanted to occupy if the Supreme Court judgment is in his favour, would expire May 29, 2011. But a close look at the facts of the case will not evoke any stroke of sympathy for him in view of the fact that both the Election Petition Tribunal which sat at Uyo and the Court of Appeal, Calabar had no jurisdiction to entertain pre-election case, the perimeter under which the case he took there fell. In fact, the Uyo Tribunal specifically threw out his case for want of subject-matter jurisdiction but the Court of Appeal ordered it to re-hear the case on its merit.

Of concern however is that the case of Philips Nonye maintained against the incumbent Delta State Speaker, Martins Okonta at the Delta State House of Assembly Election Petition Tribunal was on all fours with Obot. The two tribunals including the Court of Appeal, Benin which sat as a final court on the legislative election matter dismissed the case for want of subject-matter jurisdiction. The implication now is that there are two conflicting judgments of the Court of Appeal of Nigeria on the issue of whether or not an election petition tribunal can hear a pre-election matter which, to a large extent, rubbished the age-long principle of stare decisis.

Besides, assuming without conceding that the judgments Obot procured at the tribunals are valid in law, what becomes of them if the Supreme Court rules in October or thereabout that the second judgment of Justice Abimbola Ogie on substitution is a nullity?

Without doubt, such a pronouncement from the Supreme Court would naturally nullify the two judgments Obot procured at the tribunals which he is brandishing everywhere. Which is why all relevant authourities must await the decision of the Supreme Court on who is the rightful candidate between the two. After all, section 149 (1) of the Electoral Act 2006 is succinct and unambiguous on what to do in the instant case.

The section reads: “If the election tribunal or the court, as the case may be determines that a candidate returned as elected was not validly elected, then if notice of appeal against that decision is given within 21 days from the date of the decision, the candidate returned as elected shall, notwithstanding the contrary decision of the election tribunal or the court, remain in office pending the determination of the appeal.”


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