By Ikechukwu Nnochiri

TO many pundits, the current governorship crisis rocking Abia State has placed the Nigerian judiciary on trial. A situation that could reinforce opinion of those that believe we are still practicing ‘democracy by court order’.  Basically, Justice Okon Abang of the Federal High Court in Abuja had in a judgment he delivered on June 27, sacked Governor Okezie Ikpeazu from office over alleged tax fraud. Justice Abang further directed the Independent National Electoral Commission, INEC, to issue a fresh Certificate of Return to Mr. Uchechukwu Ogah who came second in the governorship primary election the Peoples Democratic Party, PDP, held on December 8, 2014.

Governor Okezie Ikpeazu and Uche Ogah

The court said evidence before it showed that Ikpeazu did not file his tax clearance in 2011, 2012 and 2013, saying all payments he made before the 2014 primaries of the PDP were made in one day (on a Saturday) and not as at when due.

Governorship election

According to the court, the 2011 tax clearance certificate and income tax receipt Ikpeazu submitted to INEC before the primaries contained false information, thus making him (Ikpeazu) ineligible to stand for the 2015 governorship election. Placing reliance on Supreme Court decided case law in INEC vs Obi, Justice Abang held: “It is hereby ordered that INEC, the third defendant, should immediately issue certificate of return to Dr Uch Ogah as governor of Abia state in the election held in 2015 and restore to him all the entitlements as the elected governor of Abia.

“Dr Okezie Ikpeazu is hereby ordered to vacate office as governor of Abia immediately”. Meanwhile, Ikpeazu quickly appealed the judgment which he said occasioned a grave miscarriage of justice against him. In the notice of appeal he filed through his team of lawyers led by Chief Adegboyega Awomolo, SAN, Ikpeazu, insisted that Justice Abang misdirected himself and erred in law when he held that he presented false information to INEC.

“The trial judge erred in law when he ordered as a consequential order that the appellant vacates his office  as the Governor of Abia state immediately when there was no jurisdiction in the Federal High Court to remove, vacate the occupier of the office of the governor of a state or order the removal of such officer after the unsuccessful challenge of the result of the election at the Tribunal and swearing in of the appellant as the governor”, he argued.

Besides,   Ikpeazu, in his five-grounds of appeal, maintained that the judge erred when he held that he did not pay his tax for the years 2011, 2012 and 2013, at when due. He said the judge got it wrong considering that he was just a public officer whose tax deduction was under Pay As You Earn (PAYE) scheme where tax deductions were from the source of his monthly salary by the tax authorities who issued all the tax receipts and certificates. Ikpeazu told the appellate court that Abia State Board of Internal Revenue Services that issued tax certificates to him had not declared the certificates forged. Aside the appeal which he lodged on June 28, Ikpeazu also approached Justice Abang with a motion to stay execution of the judgment.

Certificate of return

Meanwhile, two days after the appeal was filed, INEC, issued Certificate of Return to Ogar. Determined to retain his seat, Ikpeazu immediately ran to an Abia State High Court at Osisioma with an ex-parte motion, where he secured an order that stopped the Chief Judge of the state, Justice Theresa Uzoamaka Uzokwe from swearing Ogah in as governor.

Meantime, Ikpeazu subsequently re-approached the high court in Abuja, praying it to set-aside its order that led to the issuance of Certificate of Return to Ogah. Ikpeazu whose legal team is now led by Chief Wole Olanipekun, SAN, urged the court to take judicial notice that INEC issued Certificate of Return to Ogah on June 30, despite the fact that it was served with the notice of appeal and application for stay of execution at exactly 12:50am on June 28. He contended that INEC acted wrongly by going ahead to issue the Certificate to Ogah, two days after it was served with the appeal processes.

On his part, Ogah who has engaged five SANs led by Dr. Alex Iziyon, urged the court to refuse Ikpeazu’s prayer for stay of execution of the judgment. He notified the court that Ikpeazu, despite the pendency of his application for stay of execution, went before another court to secure a restraining order, an action he said was tantamount to “self-help”.

On the other hand, INEC justified its action in issuing Certificate of Return to Ogah, saying it merely obeyed an express order of the court. INEC lawyer, Mr. Alhassan Umar told the court that the commission had already issued the Certificate to Ogah before it was served with Ikpeazu’s motion for stay.                                              “We had no difficulty to issue the Certificate because election matters are suis-generis. “Where the law intends that an appeal should operate as a stay it is expressly provided so. In our view, this matter is not regulated by section 143 of the Electoral Act”, INEC lawyer argued.

Apart from declining to set-aside the enrolled order of the judgment, Justice Abang, in a ruling on July 8, held that Ikpeazu’s sack remained valid until a higher court decides otherwise. “The order of the court subsists until set aside by the Court of Appeal. Therefore, the INEC lawfully issued Certificate of Return to Dr. Sampson Ogah as it was in line with the judgment of this court”, the judge held.   Justice Abang gave the ruling on a day another Federal High Court sitting in Owerri, Imo State, ruled that Ikpeazu was validly elected and remains the governor. Interestingly, both courts relied on the same tax receipts presented before them by Governor Ikpeazu which was alleged to have been forged.

Justice A. I. Alagoa gave Ikpeazu the nod to remain on seat after he dismissed another suit by a third claimant to the governorship seat, Mr. Friday Nwosu who is also a member of the PDP.

Court verdict

Nwosu who also participated in the December 8, 2014, governorship primaries of the PDP has equally appealed the Abuja court verdict that cleared Ogah to replace Ikpeazu. He insisted that the court, having disqualified Ikpeazu as the governorship candidate of the PDP in Abia for the 2015 polls, should have declared him as   governor-elect and not Ogah.

He maintained that Ogah should not be allowed by the court to benefit from a primary election he condemned by refusing to sign the result, after he had petitioned the leadership of the party to conduct another primary election. In view of the contradictory positions of the three high courts which incidentally are of co-ordinate jurisdiction, all eyes are now focused on the Court of Appeal which is now seized of the facts of the case.  It is expected that the appellate court will promptly clear the ‘judicial-mess’ created by the lower courts.

 

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