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Enugu guber primaries: How far can Obiechina go?

By Innocent Anaba
THE Supreme Court, on September 26, 2016, resumed hearing in the lingering legal tussle on the pre-election appeal brought by the former governorship aspirant of the People’s Democratic Party, PDP, in the 2011 election in Enugu State, Dr Alexander Obiechina, against the former governor, Sullivan Chime.

Justice Bode Rhodes-Vivour led a panel of five Supreme Court Justices to resume hearing on the case.

The apex court, which was already uncomfortable with the undue delays in the case, however frowned at the unusual representation of the first respondent, the Independent National Electoral Commission, INEC, by two different counsel, Ngozi Dimgba and M. Nunghe, a development that created a mild confusion and drama in the court over which, among the two counsel, has a bonafide power of attorney to appear for the electoral body in the case.

The presiding Justice, Justice Bode Rhodes-Vivour, however, ruled that the issue of appearance, in the case of INEC, must first be sorted out by the electoral umpire before the next adjourned date.

Chief Justice of Nigeria, Mahmud Mohammed
Chief Justice of Nigeria, Mahmud Mohammed

The Justice also ordered that fresh hearing notices be served on all the parties to the case. But the second respondent PDP, and 3rd respondent and former governor of Enugu State, Chime, were not represented at the court by counsel.

A member of the panel,  Justice Dattijo Muhammad, however,  asked of the relevance of the suit considering that another   general election has been conducted and somebody had been sworn- in into the office under contest.

But Chief Nnoruka Udechukwu, SAN, who led Prof Charles Ilegbune, SAN, and announced appearance for the Appellant, Dr Alex Obiechina, told the court that under the provisions of section 6 (6) (b) of the 1999 Constitution as Amended the Court has powers to determine   the suit and that the Supreme Court had decided several times that conducting an election into an office with a pending suit does not vitiate the powers of the court to determine the suit more so for an office which political relief being sought is not time barred.

Obiechina’s counsel, Udechukwu, also reminded the court that INEC ought not to have proceeded with the conduct of an election to the Enugu governorship position until the subsisting pre-election case and all matters relating to it were duly dispensed with by the court.

Governorship  dispute

For instance, the case of Peter Obi vs Andy Uba in the Anambra governorship dispute in 2007 was perhaps a clear precedence that would have guided INEC in addressing a situation of similar nature.

According to him, in the Obi vs Andy suit, the Supreme court seriously reprimanded INEC for conducting an election into an office with a pending suit and said that if the electoral umpire has respect for the rule of law it would have acted otherwise and that her team of lawyers would have advised that a party in a suit is not allowed to force a fait accompli on the court.

The apex court, had ruled that Peter Obi’s mandate as governor of Anambra State was not voided by the conduct of that election, hence Andy Uba should vacate his seat as governor as his election was unknown to law since he won election when there was no vacancy.

Udechukwu in his final submission, maintained that it was not the fault of Obiechina that the appeal case had been unduly delayed for so long, contending that when a matter is before a court, it should not be rendered nugatory by any party.

Instances of diversionary tactics introduced in the Enugu governorship appeal case which had contributed to the prolonged delays in concluding the case, once and for all, had surprised observers of political developments in Enugu state and the country in general including the Supreme Court itself.

It is therefore, the strong expectation of the nation’s legal and political pundits and the ordinary citizens alike who were  anxiously looking forward to the speedy resolution of such a novel political case with strong constitutional implications for the country and her democratic future, for the Supreme Court to do nothing but the desired justice to the appeal.

The Supreme Court at the last hearing of the case  on  June 6,  vowed to deal with any staff of the apex court found culpable in frustrating the hearing of this pre-election appeal by Dr.  Obiechina against Chime.

Sometime in June, the apex court commenced moves to restore the appeal which had earlier been struck out under controversial circumstances. The absence of the respondents at the time stalled the application in court. A  mild drama played out then when the registrar initially claimed that there was no proof of service on the respondents.  When the appeal was called at the court, none of the respondents, INEC, PDP and Sullivan Chime, listed as 1st, 2nd and 3rd respondents, were present and also not represented by their counsels in court. The registrar explained the absence of the respondents in court on the fact that there was no proof of service on them.

Counsel to the appellant, Chief  Udechukwu (SAN), swiftly countered the claim, insisting that all the respondents were duly served with hearing notices.  He tendered an affidavit of proof of service sworn to by the bailiff of the court.  The court thereafter, summoned the bailiff, Mr. Micheal Akan, who confirmed in open court that he indeed effected service on the respondents and filed an affidavit to that effect.  Akan told the court that the matter was adjourned for that day in June for hearing and that hearing notice was issued by the Registrar on April 11, 2016.

Obiechina had challenged Chime in the courtroom over what he described as irregularities in the election of Chime as the governorship flag-bearer of the PDP in that election despite the apparent hurdles on his route to get justice. Records available to Obiechina and at the PDP headquarters in Abuja and now filed at the Supreme Court, show that Obiechina   and not Chime, validly won the party primary conducted by PDP NEC in Enugu on January 9, 2011.

The leadership of the PDP, for inexplicable reasons, then threw away the result of that primary and conducted another one on  January 12, 2011 in which Chime was declared the gubernatorial candidate for the PDP for that year’s general elections.

 Mandatory  notice

Since that 2011, Dr Obiechina had been in courts seeking to be declared the Governor of Enugu State.   He is however, alleging that the governorship primary re-conducted on    January 12, 2011 by the PDP was riddled with legal flaws. Such flaws, he claimed, were that the PDP did not give  the legally required 21 days notice to INEC before the conduct of that primary as stipulated in the Amended Electoral Act 2010.

He equally alleged that the party  did not give  the seven days  mandatory notice  to the governorship aspirants as contained in the party guidelines for the conduct of that election. Interestingly also,  INEC admitted they were given 21 days notice for the primary of  January 9, 2011 which Obiechina   won but was only given one day notice for the primary of January 12, 2011 from where   Chime emerged.

In INEC written   submission at the High Court,  she said   that the notice for the primary of January 12, 2011 was further flawed legally as it was given to her Resident Electoral Commissioner in Enugu and not to the Commission itself as stipulated in law and that she would have rejected  Chime as PDP gubernatorial   candidate   for 2011 general election but for a section of the Constitution that barred them from doing that.

Some lawyers have argued  that granting the appellant the relief he is seeking shall mean that if a party wins governorship election, then her candidate can still be sworn-in even after 100 years. To few lawyers in this school of thought, this will be  ridiculous  and  should not be allowed  as it is against the public interest. However, to many other constitutional lawyers, this argument does not hold water essentially because section 181(2) of the 1999 Constitution as Amended has clearly provided that if the persons elected Governor and Deputy Governor die or are incapacitated or without legal hindrances did not take the oaths of office before the inauguration of the State Assembly, then INEC shall immediately conduct an election for the position of Governor and Deputy Governor of that State. Thus this logic and its argument can only arise if a case is abnormally delayed in courts. Secondly if the appellant is not prosecuting the case seriously  or did not approach the Court early enough, the case shall be struck out by the Court.  But where he is diligently prosecuting his pre-election suit, the case cannot last more than few years.

 


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