By Inibehe Effiong,
On Monday 27th June, 2016 the Federal High Court in Abuja presided over by Justice Okon Abang delivered judgment in a pre-election case brought by a gubernatorial aspirant of the Peoples Democratic Party (PDP) in Abia State in the 2015 election, Uche Sampson Ogah, against Mr. Okezie Ikpeazu, the governor of Abia State. The learned judge in his judgment declared that Ikpeazu was not qualified to present himself for the primary election conducted by his party, the PDP, and that he was equally not eligible to contest for the 2015 governorship election due to his failure to meet the mandatory legal requirement on payment of taxes for the three years preceding the election. His Lordship found that Ikpeazu perjured by lying in his election papers about his eligibility.
Sequel to the above findings, Justice Abang inter alia, declared Ogah as the duly elected governor of Abia State being the person who scored the second highest number of votes at the December 2014 primary election of the PDP; ordered the Independent National Electoral Commission (INEC) to immediately issue Ogah a Certificate of Return and also ordered the Chief Judge of Abia State to immediately swear in Ogah as the elected governor of Abia State. On Thursday June 30th, 2016, while purporting to act in compliance with the said order(s), INEC National Commissioner in charge of the South East, Ambassador Lawrence Nwuruku issued Ogah with a Certificate of Return.
Abia State is currently enmeshed in an avoidable constitutional crisis following the conflicting claims to the governorship seat by the two contenders. While Ogah in whose favour the judgment of the Federal High Court was given is seeking to be sworn-in in conformity with the orders of Justice O. Abang, the incumbent, Ikpeazu is holding tight to the office on the basis that he has appealed the said judgment and is therefore entitled to remain in office pending the determination of his appeal.
Divergent views have been expressed on the propriety of the issuance of a certificate of return to Ogah and the solution to the imbroglio.
What precisely is the position of the law on the subject?
I do not intend to examine the correctness of the judgment delivered by Justice Okon Abang. That may be done subsequently. This essay is intended to extensively dissect the law on the controversy over the governorship seat of Abia State sequel to the issuance of a certificate of return to Ogah.
As a prelude, two points are worthy of note.
Firstly, by virtue of Section 287 (3) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), all authorities and persons (INEC inconclusive) have a duty to observe and enforce the decisions of the Federal High Court. It is settled law that the judgment of a court, no matter how perverse, is valid and binding until same is set aside on appeal by a superior court. For reference, see the decision of the Supreme Court in Agbogunleri v. Depo (2008) 3 NWLR (Pt. 1074) 217.
Secondly, a successful litigant is entitled to enjoy the benefits and reap the fruits of his judgment and nothing ordinarily should be done to obstruct this right. In the words of Niki Tobi , JCA (as he then was) in Lijadu v. Lijadu (1991) 1 NWLR (Pt. 169) 627 at 644, nothing should be done to make the victorious party leave the court in “victory” without victory.
Notwithstanding the above postulations on the validity and enforceability of subsisting judgments of superior courts, there is a legally recognisable circumstance by which adherence to, and enforcement of a judgement may be put in abeyance (suspended momentarily). A judgement or decision of a court will not be enforceable where a stay of execution of the judgment is ordered either by the trial court that delivered same or by an appellate court.
Section 18 of the Court of Appeal Act Cap. C37 L.F.N. 2004 expressly states that “An appeal under this Part of this Act shall not operate as a stay of execution, but the Court of Appeal may order a stay of execution either unconditionally or upon the performance of such conditions as may be imposed in accordance with rules of court.”
Essentially, this implies that the mere filing of a Notice of Appeal by a party will not as a matter of course stay the execution of a judgment. This is beyond dispute. For emphasis, the decision of the court in TSA Ind. Ltd. v. Kama Inv. Ltd. (2006) 2 NWRL (Pt. 964) 300 at 316 is apt on the point.
However, a party seeking to stay the enforcement of a judgement must in addition to his Notice of Appeal, file a motion (an application) for stay of execution and serve same on the other party. A stay of execution ensures that a fait accompli is not foisted on an appellate court by rendering its judgment in the substantive appeal nugatory.
In the present case of Abia State, did INEC act within the bounds of the law in issuing Ogah with a certificate of return? The answer will depend on whether INEC was given notice of the pendency of an appeal together with a motion for stay of execution.
The Abia State Government in a statement issued by the State Attorney-General, Mr. Umeh Kalu, said thus:
“It’s unfortunate that INEC said that it was not served. But the truth is that they were served. I have a proof to that. Saleh N. Ibrahim, Senior Clerical Officer at the Legal Services Department of the Commission’s Headquarters, Abuja, who (sic) stamped the Notice of Appeal and Injunction with the Commission’s official stamp by 12.50pm on Wednesday, June 29, 2016.”
In an explanation to an online newspaper, Premium Times, on Friday July 1, 2016, Nick Dazang, spokesman for INEC, said Mr. Ikpeazu’s failure to provide a stay-of-execution order left the commission with no choice than to issue the certificate of return to Mr. Ogah. He said since Mr. Ikpeazu’s notice was not deemed sufficient, it had to, as a matter of policy, execute the judgment of the high court.
“I discovered that INEC received Mr. Ikpeazu’s notice. However, it did not contain a motion or order of stay of execution. In the circumstance, and in deference to the previous court order, INEC as a responsible regulatory body has no recourse than to issue Mr. Ogah the certificate of return,” Mr. Dazang said.
It is apparent that one of the parties, between the Abia State Government and INEC, is either outrightly mendacious or economical with the truth. So who is right?
I have carefully examined the proof of service (affidavit of service) published by Ikpeazu on his Facebook page and circulated to the media by the Abia State Government, there is no mention of motion for stay of execution in the said affidavit. Only Notice of Appeal is mentioned. Putting it differently, there is nothing evidencing that INEC was served with an application by Ikpeazu seeking a stay of execution of the judgment delivered by Justice Okon Abang on Monday the 27th day of June, 2016. In my quest to unravel the truth and facts of this case, I made spirited efforts to reach the Chief Press Secretary to Ikpeazu (through phone calls and sms) in the afternoon of Friday 1st July, 2016 for him to furnish me with evidence that there is indeed a motion for stay of execution. He did not reply.
The only sensible and logical inference to be drawn from the non production of evidence of the existence and service of motion for stay of execution is that none is available. He who alleges must prove. The maxim is ‘ei incumbit probatio qui dicit’. See Section 131 of the Evidence Act 2011. The burden is on Ikpeazu to prove beyond unsubstantiated press statements, that INEC had notice of not only his appeal but very importantly, his motion for stay of execution prior to the issuance of a certificate of return to Ogah.
I have seen a copy of the interim order (ex parte injunction) obtained by Ikpeazu dated Thursday the 30thday of June, 2016 from the High Court of Abia State, Osisioma Ngwa presided by Justice Chibuzor Ahuchaogu, restraining INEC from issuing a certificate of return to Ogah and his swearing-in by the Chief Judge of Abia State or by any judicial officer in Abia State.
The injunction to say the least is a gross abuse of judicial cum court process and not binding for two principal reasons.
Firstly, the High Court of Abia State cannot give an order which purports to vary or render nugatory the order(s) of the Federal High Court. The simple reason is that both courts have concurrent jurisdiction. Only a superior court (the Court of Appeal or the Supreme Court) can interfere with the orders given by Justice Okon Abang. The Supreme Court in a recent decision in the case of Orji Uzor Kalu v. Federal Republic of Nigeria (Unreported Appeal No. SC/215/2012) delivered on March 18, 2016 emphatically sounded a warning to the effect that courts of concurrent jurisdiction cannot police each other and that they are not bound by each other’s decisions.
In the case cited supra, a former governor of Abia State, Orji Uzor Kalu, had obtained an ex parte order from the High Court of Abia State restraining the Economic and Financial Crimes Commission (EFCC) from arresting, detaining or prosecuting him. The Supreme Court held that the Federal High Court where Mr. Kalu was arraigned, is not bound by the injunction given by the High Court of Abia State. Thus, the case was remitted back to the Federal High Court for commencement of Kalu’s trial. Other authorities on this position includes: Olutola v. University of Ilorin (2004) 18 NWLR (Pt. 905) 452 and Uwazuruike v. Attorney General of the Federation (2008) 10 NWLR (Pt. 1096) 444 at 459-59.
The second reason why the injunction granted on Thursday the 30th day of June, 2016 by Justice Ahuchaogu of the Abia State High Court is defective is that it sought in part, to restrain a completed act. It is an established fact that Ikpeazu only obtained the said injunction after INEC had already issued Ogah with a certificate of return. It was totally wrong for the court to issue an order to stop what had already been done. The order is offensive to the spirit and letters of the law as stated by the Supreme Court in the case of Okafor v. Attorney General of Anambra State (1992) 2 SCNJ 219 to the effect that injunction cannot lie against a completed act.
Before I conclude, let me respond to an erroneous argument that has been canvassed on this issue. It has been vigorously contended by some lawyers that based on the provisions of Section 143 of the Electoral Act 2010 (as amended), Ikpeazu being the incumbent governor of Abia State, is entitled to remain in office pending the determination of his appeal.
Agreed that by virtue of Section 143 of the Electoral Act, where the Election Tribunal or Court, as the case may be, determines that a candidate returned was not validly elected, the invalidly elected candidate shall continue to remain in office pending his appeal and is also entitled to remain in office for a duration of 21 days within which he is to appeal.
This provision does not apply to pre-election cases like the instant case of Abia State. Why? The “Election Tribunal” or “Court” referred to in the preceding paragraph is defined in Section 133 (2) of the Electoral Act to be the Court of Appeal where it sits over Presidential or Governorship election petitions and the election tribunal established by the Constitution or the Electoral Act. This interpretation also applies to Section 141 of the Electoral Act which forbids an Election Tribunal or Court from declaring any person who did not fully participate in all stages of the election as the winner of the election.
Mention should be made that the Federal High Court in Suit No. FHC/ABJ/CS1/2011 between Labour Party and Attorney General of the Federation, delivered on 21st July, 2011 had annulled Section 141 of the Electoral Act 2010 (as amended).
Interestingly, the injunctive orders granted by the Abia State High Court in favour of Ikpeazu were made pursuant to Section 143 of the Electoral Act. With due respect to the judge, the orders are not only legally indefensible but amounts to an affront on the position taken by the Supreme Court on the non-applicability of those provisions to pre-election cases. This is another reason why the said injunction cannot command respect.
Both Sections 141 and 143 of the Electoral Act are not applicable to the Federal High Court, the Court of Appeal and the Supreme Court in pre-election cases. Any doubt on this submission can easily be resolved by reference to the recent landmark decision of the Supreme Court in Jev & Anor v. Iyortom & Ors (2015) LPELR-24420 (SC) where the Apex Court pronounced on the issue in vivid terms.
The legal significance of the (mere) filing of a motion for stay of execution (pending appeal) has been highlighted in plethora of locus classicus. In Vaswani Trading Co. v. Savalakh (1972) 12 S.C. 77, the Supreme Court held inter alia @ page 87 line 30:
“any action or conduct of one or the other of the parties to the action taken whilst an application for a stay of execution is pending in this court, for the obvious or subtle purpose of stultifying the exercise by this court of its jurisdiction, and indeed its duty to consider the application on the merit, must not be countenanced by this court”.
In conclusion, it is submitted that since there is at present no evidence that Ikpeazu had file a motion for stay of execution of the judgment along with his Notice of Appeal on or before Wednesday the 29th day of June, 2016 and serve same on INEC, the issuance of a certificate of return to Ogah on Thursday the 30th of June, 2016 cannot be legally faulted. Strictly, INEC acted within the law. Neither the Notice of Appeal (without a corresponding motion for stay) nor the injunction by the High Court of Abia State can be invoked to puncture INEC’s action.
Without prejudice to the above submission, I need to observe that INEC may have acted mala fides (in bad faith) by waiting for three days to elapse before complying with the order of the court. While it is true that Section 75 of the Electoral Act gives the Commission 7 days to issue a Certificate of Return, that leverage cannot avail it in the instant case because the tenor of the judgment demanded immediacy. The order was made on the 27th of June, the issuance of the certificate of return on the 30th of June was belated; not immediately as ordered.
Instead of dissipating resources on trivialities such as media propaganda; sponsorship of protests and unjustifiable declaration of public hollidays, Ikpeazu is advised to immediately file a motion for stay of execution of the judgment and serve same on INEC and Ogah. If that was or has been done, let it be published publicly for the world to see.
Where this is done, INEC should cancel and withdraw the certificate of return issued to Ogah pending the determination of Ikpeazu’s appeal. In the absence of an application for stay of execution, there is absolutely nothing in law preventing the issuance of the certificate of return and the swearing-in of Ogah as the governor of Abia State pending the outcome of appeal(s) in the case.
Though Ogah has been declared the duly elected governor of Abia State, Section 185 (1) of the Constitution is explicit that a person duly elected as governor shall not begin to perform the functions of that office until he has declared his assets and has subscribed to the Oath of Office and Oath of Allegiance prescribed in the Seventh Schedule to the Constitution. The decisions by the Chief Judge and the President of the Customary Court of Appeal of Abia State to abdicate their responsibilities in this regard amounts to an unconstitutional dereliction of duty in the absence of an application for stay of execution.
Inibehe Effiong is a Legal Practitioner and Convener of the Coalition of Human Rights Defenders (COHRD) and can be reached at: [email protected]