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Agbaso back to Court of Appeal over cancelled governorship election

By Innocent Anaba

The recent decision of the Supreme Court, ordering the Court of Appeal to hear the suit by All Progressives Grand
Alliance (APGA), governorship candidate in the April 14, 2007 election in Imo state, Chief Martin Agbaso, has finally put to stop, the delay in allowing the court determine once and for all, whether the Independent National Electoral Commission (INEC), has the power to cancel an election.

The issue is not just about the powers of theSupreme Court to cancel elections, but whether it can cancel an election held on the same day for the governorship and allow that of the state House of Assembly, as was the case in Imo state.

Agbaso is universally acknowledged as the winner of the governorship election in Imo State on April 14, 2007 . That election was concurrently with the State House of Assembly election that took place throughout the state and was adjudged as free and fair by the electorate.

While the INEC represented by the Resident Electoral Commissioner for Imo State, Austin Okojie, affirmed the sanctity of the State Assembly elections, INEC cancelled the governorship poll after results had been declared in about 80 percent of the wards in the entire state. The reason given by the INEC for an annulment was violence in nine of 27 local council areas. But police report on the conduct of that election as published by a national newspaper suggested no significant instance of violence.

The apex court vindicated Agbaso’s position by ordering that the Court of Appeal, which has the jurisdiction to hear the matter, should immediately decide the appeal lodged before it by Agbaso. The court presided over by Justice Dahiru Musdapher struck out the appeal filed by Imo state Governor Ikedi Ohakim and  INEC, challenging the February 26, 2009 ruling of the Court of Appeal, which assumed jurisdiction to hear Agbaso’s appeal.

Justice Musdapher, who read the judgement, held that the counsel representing INEC and Ohakim should have allowed the Court of Appeal to exhaust its hearing of the motion brought before it by Agbaso and APGA before rushing to the apex court to raise the issue of jurisdiction.

Both  INEC and had earlier sought leave to file a new motion, which the apex court turned down, just as it also struck out the request of the PPA to be joined as an interested party. According to the court, the PPA had a wrong motive to want to join in the case when it could be decided with or without the party.

“How does this case affect you? You want him to lose because he left your party. You are not a necessary party in this case and the application is hereby struck out,” Musdapher said. In addition to returning the matter to the Appeal Court and striking out the appeals brought by INEC and Ohakim, the apex court asked the Court of Appeal to give the matter accelerated hearing.

At the Court of Appeal, Agbaso had asked the court to also clarify if it was possible to cancel the governorship election and uphold that of the State House of Assembly held simultaneously on the same day with votes cast in the same ballot box.  While challenging the legality of the poll cancellation, Agbaso had attached the INEC result sheets.

The matter which the Court of Appeal is now to consider is simple,  whether the INEC has statutory power to cancel an election that had taken place. Agbaso is appealing against last year’s judgment of the Federal High Court, Abuja in a suit he filed against the  INEC and others.

In an earlier ruling of the court in a motion filed by INEC and Okahim, seeking dismissal of Agbaso’s appeal case, Justice Olukayode Bada of the Court of Appeal, Abuja had held that the Court of Appeal, Port Harcourt Division refused to hear the case because it was a pre-election matter and dismissed the motion of INEC and Ohakim, that the appellant’s suit should be thrown out for constituting an abuse of court process.

Justice Bada held that the fact that the appellant participated in the re-run election of April 28, 2007 had not removed his legal rights to challenge the annulled poll of April 14, 2007 in which he also took part.  The issue of jurisdiction having been resolved by the apex court, the Appeal Court submitted that the April 28 rescheduled election should not have taken place, in the first place.

The court further held that the two elections were different from one another and held on different days, adding that aggrieved participants had rights in law to ventilate their anger in a law court by se
eking redress on any issue in dispute.

The court held that the dispute on the first election was whether INEC was right in canceling it, even when the results had been collated, adding that Agbaso as a participant and as an aggrieved person has the right to challenge the legality of the election cancellation. Many Nigerians may not know that Governor Ohakim did not emerge by the governorship election, which took place in the country on April 14, 2007 .

Once the April 14 poll was cancelled INEC went ahead to conduct another election on April 28, which results was declared in favour of Ohakim and the said second election was conducted in spite of the fact that there was a pending suit by Agbaso before the Federal High Court in Abuja .

It has been argued that the conduct of that election was done in contravention of the general rule in legal jurisprudence, that once an application is before the court, parties are enjoined to maintain status quo and take no further step in order not to put the court in a helpless situation.

While INEC nullified the governorship election, citing violence in nine local government areas,  the commission went ahead to uphold the House of Assembly elections that took place on the same day and with voting on the same ballot boxes. Not even in the nine affected local government areas did INEC cancel the results of the election, which suggests that the INEC’s claim might as well be a charade.

The final compilation had been done and all that was left was for the REC to announce the results, when the REC allegedly absconded only to reappear with a company of soldiers and armed policemen, announcing to the amazement of Imo people, that the election has been cancelled.

At the time of the election, the REC was answerable to Iwu, who hails from Imo state and belongs to the same Mbano clan as Ohakim. Was INEC right to have cancelled the election, only to conduct another in which a candidate distant from the frontline of the April 14 contest was declared winner?

Those who spoke on Agbaso matter not only expressed interest in the cause of justice, but also expressed  confidence in the judiciary. They include former President of the Nigeria Bar Association (NBA), Olisa Agbakoba, a chieftain of the PDP in Imo State, Cliff Ogbede, National Vice Chairman (South West) of the All Progressives Grand Alliance (APGA), a chieftain of the Action Congress (AC), Ahmed Jaji and the Attorney General of Abia State, Umeh Kalu.

“I want the Court of Appeal to expedite action and give the case an accelerated hearing. Imo people are confused and would be very grateful to God and thankful to the judiciary if this matter is quickly determined. Let the INEC give reasons why they abruptly cancelled an already concluded election,” said ” Ogbede.

He  wants the Appeal Court to determine whether that decision is in conformity with the laws of our land.

“Agbaso is aggrieved and deserves to know why INEC cancelled the April 14 election, in which other elections held in the same polling units were upheld and certified. With the ruling of the apex court, it is obvious that justice will be done,” added Ogbede.

Agbakoba on his part argued that the INEC has no power to cancel the April 14, 2007 governorship election in Imo state . He insists that what is awaited with great expectation is the consequential order that the Court of Appeal will likely make.

Though Kalu said that it’s difficult to proffer a legal opinion on a court judgement without having the privilege of reading the judgement, he noted that parties seem to have been returned to the starting block.

“I do know that INEC is the body that has the statutory right to conduct elections and declare results in accordance with the electoral laws. The courts and or election tribunals can intervene where there are flaws in the process. In the Imo case, INEC has to justify the cancellation of the April 14 election and where the umpire fails, the court will be left with the duty of determining the winner of that election on the basis of the facts and figures placed before it. In summary, Agbaso’s hope is on the justification or otherwise of the first election,” Kalu said.

Mallam Jaji, in his reaction said, “Agbaso is likely to replace Ohakim in Government House in that state. What goes round must surely come around. The rulings have surely exposed the shenanigan and perfidy INEC represents in the infamous charade called elections in Nigeria under the successive governments of PDP foisted on seemingly hapless Nigerians since 1999. The courts will right the wrongs, over time,” he said.

Sowunmi noted that APGA values the relentless effort of the judiciary to instill discipline and decorum in the Nigeria , saying that the Supreme Court verdict fits well with not only with APGA members but with well meaning Nigerians.

“Our expectation is that the Appeal Court will carry out the order of the Supreme Court to give the matter accelerated hearing so that Agbaso could resume duty as Governor of Imo state in no distant time. And we know and confirm again that Agbaso won that election of April 14, hands down in Imo state.

As a strong believer in the rule of law, APGA will not relent in its effort to settle all particular issues of this nature. We have explicit confidence in the judiciary,” he said.


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