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Abia guber election appeal judgment: Defending the indefensible (3)

By Nnamdi Nwokocha-Ahaive

This the third and last part of  this piece. The second part was published in our last edition

THESE sections of our Constitution and several judicial authorities were drawn to the attention of Justice Shoremi and his brother judges of the Court of Appeal, and yet these appellate judges held that the position of  chief of  staff to a governor and commissioner in the State Executive Council were neither civil nor public servants even in the face of section 208(d) which expressly includes an appointment to “any office on the personal staff of the governor” or section 318 which defines civil service of a State as including “service of the government of a State in civil capacity as staff of the office of the governor, deputy governor or a ministry or department of the government of the State assigned with the responsibility for any business of the government of the State”.

Wonders shall never end!!! According to Justice Shoremi and his brother judges, therefore, a chief of  staff to the governor (who in this case was also a permanent secretary listed in section 208(2)(c) of the Constitution) does not serve in a civil capacity as staff of the office of the governor assigned with responsibility for any business of the government of the state, nor is he even an officer “on the personal staff of the governor” as specified by section 208(2)(d) of the Constitution.

According to the honourable judges, a commissioner does not also come in within the definitions clearly set out by sections 208 and 318 of the Constitution? You the reader, whether layman or legal expert, should be the judge. In his Sunday Vanguard interview, Justice Shoremi said, “We look at the Constitution:

Who is a civil servant?…. there were about eight cases. I wrote two of it. No dissent that he was not a civil servant and member of a secret cult. They said he was a civil servant because he was living in the government quarters and using government car.

As a commissioner, sometimes you hear your appointment on the radio. Your dismissal is also on the radio or on the pages of the newspaper. As a civil servant, there is a way of appointment and dismissal. After about a few months, we now saw in the papers that each of the justices had been paid including our president. It is rubbish”..

Justice Shoremi is misrepresenting the case of the PDP and its candidates at the tribunal and Court of Appeal. It is not true that the petitioners/respondents’case was that Orji and his deputy were civil servants because they were “living in the government quarters and using government car.”

The case of the petitioners was very clear  that they were civil/public servants because in the case of Orji, he was at the relevant time a permanent secretary in the Abia State Civil Service/the chief of staff, Government House, Umuahia while his deputy was a commissioner in the Abia State Executive Council.

The issue of “living in the government quarters and using government car”only arose in relation to resignation of such offices and not definition of who is a civil/public servant. In other words, the petitioners gave evidence (which was never denied) that Orji and his deputy did not resign their said offices, evidence of which, among others, was that as at and after 30 days to the election, they continued to live in their official government quarters, earned their salaries and allowances, used official cars, etc.

The petitioners never ever nominated living in government quarters or driving government cars as a definition of which office or position is in the Abia State Civil/Public Service; a definition provided by the Constitution itself.

Regarding the issue of Orji’s membership of a secret society, Justice Shoremi, in the Sunday Vanguard interview, said: “What is a secret cult? They said he went to Okija Shrine, to do what?…. to swear to an oath! We now agreed that that does not make him a member of a secret cult. In the lower court, the secretary of the so-called secret cult came, he said they have a register and that he is also a member, he didn’t tender the register.

In Okija Shrine, there is a sign board. And there was a case at the Supreme Court where it was said that Okija Shrine is a place where the Igbo go to settle matters, where you just take an oath. We said the tribunal had no right to declare Okija Shrine a secret society.

It became the judgment, unanimous.” The reader will notice that the petitioners never alleged that Orji went to Okija Shrine to swear an oath. They said and procured evidence, which was never denied, that the governor was initiated into the Okija Secret Society in 2006 in a special ceremony. The secretary of the secret society came to the tribunal and gave evidence of how the initiation was performed. Orji never denied the allegation.

Of what use, therefore, was the register of members of the secret society when the person concerned never denied membership and particularly when the PW5 had given evidence that the register was seized by the police  when the society was raided and some of its members including PW5 were arrested?

Where did the honourable justice procure the evidence that at Okija Shrine there is a signboard and in any case what is its significance in explaining how they came about their decision? Also the gratuitous insult to the entire Igbo nation by the honourable justice and his colleagues that Okija Shrine is a place where the Igbo go to settle matters, where you just take an oath is strongly deprecated.

The Supreme Court never held any such thing. The Supreme Court decision in question relates to a land dispute between two private individuals, who first took their dispute before an arbitration panel comprised of some juju priests of the Okija Shrine decades ago. Judgment was entered in favour of one of them at the shrine.

Subsequently, the dispute ended up in the courts all the way to the Supreme Court. The party who lost at the Okija arbitration sort to urge the court to overlook the decision of that arbitration but the Supreme Court held that as long as both parties had willingly subjected themselves to the jurisdiction of the shrine and had taken an oath to be bound by the outcome of the arbitration, none of them could urge the Supreme Court not to place reliance or weight on the decision by the juju priests.

The Supreme Court never found nor held that there is no secret cult embedded or located within the Okija Shrine and that decision has nothing whatsoever to do with determining whether or not  Orji was or was not an initiate and member of Okija Secret Society with headquarters at Okija Shrine, an allegation not denied by the governor.

There is one other point the public should know about what transpired at the Court of Appeal where Justice Shoremi and his brother judges upturned the well considered judgments of the election tribunal which heard the petition first hand. At the tribunal, there were two petitions:

One by the PDP (Petition No. ABS/GOV/EPT/9/2007) and the other by the PDP’s candidates for the election (Petition No. ABS/GOV/EPT/4/2007). The lower tribunal entered judgment in favour of the petitioners in both petitions declaring the PDP and its candidates the winners of the gubernatorial election and ordering that they be sworn into office. Orji, his deputy, the PPA and the other respondents appealed against both judgments. The appeals were all subsequently consolidated and argued accordingly.

In their final judgment, Justice Shoremi and his brother judges  found and held that the appellants did not formulate any Brief of Argument in respect of the appeal against the judgment in favour of PDP in Petition No. ABS/GOV/EPT/9/2007 and that, as a consequence and by law, all 23 grounds of appeal against that judgment were deemed abandoned.

They then proceeded to strike out all the grounds of appeal against the judgment of the tribunal in Petition No. ABS/GOV/EPT/9/2007. That should have been the end of the matter, but, in a curious and shocking twist, the honourable judges went on to hold that Petition No. ABS/GOV/EPT/9/2007 was incompetent before the lower  tribunal and should have been struck out and, therefore, went ahead to set aside the judgment of the tribunal in Petition No. ABS/GOV/EPT/9/2007, a judgment in respect of which, by their own decision, there was no longer a valid appeal.

The question the public should ask Justice Shoremi and his brother judges, is: Where did the Court of Appeal get the jurisdiction to set aside the judgment of the lower  tribunal in Petition No. ABS/GOV/EPT/9/2007 in respect of which no valid appeal was before them by consequence of their having struck out all the Grounds of Appeal filed against that judgment?

Since all the grounds of appeal against that judgment had been struck out by them, which ground of appeal, therefore, did Justice Shoremi and his colleagues sustain in their decision to strike out the Petition No. ABS/GOV/EPT/9/2007 and set aside the judgment of the lower tribunal in respect thereof?

Clearly, the decision of Justice Shoremi and his brother judges setting aside the judgment of the lower tribunal in Petition No. ABS/GOV/EPT/9/2007 was one without jurisdiction and a complete nullity. It is a matter which will soon be addressed. This decision, as indeed the rest of the judgments, was “handwritten for obvious reasons” as pronounced by the honourable judges. Till date, the Court of Appeal has not deemed fit to explain these “obvious reasons.”

What is obvious is that exchanges of briefs in the appeals were concluded in May 2008 while the hearings of the appeals were concluded on November 26, 2008 and the appeals adjourned for judgment. Judgment was delivered on February 11, 2009 after about two and half months, a period sufficient to have typed the judgments.

All other judgments by various panels of the Court of Appeal all over the country were typed before being read in open court. The public is still anxiously waiting to hear the “obvious reasons” for the  said judgments being hand-written. It is clear as crysta,l therefore, that  Justice Shoremi and his brother judges in the Abia gubernatorial appeal panel deliberately decided to close their eyes to the clear provisions of the Constitution and the undisputed and undenied evidence before them.
Nwokocha-Ahaaiwe is a  legal practitioner, based in Abuja


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