Thursday, 18 August 2016

ABIA GUBER: APPEAL COURT DESCRIBES ABANG'S JUDGMENT A RAPE OF DEMOCRACY, MISCARRIAGE OF JUSTICE




The Abuja Division of the Court of Appeal, on Thursday described
as a rape of democracy and miscarriage of justice, the judgment
of Justice Okon Abang of a Federal High Court Abuja, thar sacked
the Abia State Governor, Dr Okezie Ikpeazu.

The appellant court, which restored the mandate of Governor
Ikpeazu as the duly elected governor of Abia State, also set aside
the judgment of justice Okon Abang delivered on June 27, 2016.
"From whatever angle one looks at the judgment of the trial
Judge, the decision of his court was grossly erroneous.

"The inadequacies of the tax receipt cannot be visited on Ikpeazu
who scored the highest votes in the 2015 governorship elections
as doing so will amount to rape of democracy."

"In all, the appeal court set aside the judgment of Justice Abang
delivered on June 27 for being a nullity an a miscarriage of justice
that must not be allowed in law."

The Federal High Court removed Ikpeazu from office on account
of supplying false information to obtain his party nomination for
the 2015 governorship election.

The appellate court however on Thursday voided the legal action
which brought about the judgment of justice Abang on the ground
that the originating summons relied upon by the judge to give the
judgment did not comply with any known law in the country .

Justice Ibrahim Shata Bdliya who delivered one of the lead
judgments in an appeal filed by Ikpeazu, held that Justice Abang
erred in law by assuming jurisdiction in an originating summons
that was not signed by any identifiable legal practitioner among
the three lawyers that issue the said summons.

In the unanimous judgment of the court, the federal high court
judgment delivered on June 27th was said not to have been
competent having been based on an originating summons that
was invalid, null and void.

Apart from not signing the originating summons, the appeal court
held that the suit filed by Dr. Samson Ogah did not disclose any
cause of action because it was filed even before the appellant
(Ikpeazu) submitted his documents to the Independent National
Electoral Commission (INEC).

Justice Bdliya agreed with counsel to the governor Chief Wole
Olanipekunsan that it was not the duty of the court to begin to
search for the signatory to the originating summons to
authenticate it as required by law.

Besides, the appeal court also held that although the originating
summons was later amended, but said that an amended
originating summon has no capacity to cure a defective and
incurably bad originating summons being the foundation of the
suit.

The appeal court further agreed with Olanipekun SAN that Justice
Abang erred in law by making findings at the interlocutory level of
case by taking a stance on issues in the main suit.

"He ought not to have given the final findings at the interlocutory
level and his conclusion at the interlocutory level was a breach of
fair hearing against the appellant (Ikpeazu) who was not given
opportunity to use the substantive suit to prove his case.

The court also upheld the submission of Olanipekun SAN that
because of the circumstances if the issues in the suit, the suit
ought to have been Instituted through the use of writ where
witnesses can be called to make clarifications on the the
disputed issues, rather than using originating summons that does
not require the calling of witnesses.

In another Judgment by Justice Helen Morenikeji Ogunwumiju, the
appellate court held that Justice Abang raped democracy in his
order that the Independent National Electoral Commission (INEC)
should issue a certificate of return to Dr. Samson Ogah when
there was no evidence of forgery of criminality against the
appellant.

According to the court, the judgment of Justice Abang was
grossly erroneous because it was based on inadequacy of tax
receipt that cannot be visited on the appellant (Ikpeazu).

"After reading through the judgment several times, I was amazed
at how the trial Judge arrived at his conclusion of pejury against
the appellant when there was no evidence of forgery. To say the
least, his findings are ridiculous.

"The Judge must have sat in his chamber, unilaterally assessed
and computed the tax of the appellant and came to the
conclusion that he did not pay the required tax. But let me say
that courts are not allowed to speculate as the trial Judge has
done in the instant case.

The trial Judge spoke from both sides of his mouth when in one
breadth, he claimed that he based his findings on supply of false
information and in another breadth, he came to the conclusion
that the appellant in this matter committed perjury, even when
there was no allegation of forgery and no allegation that he did
not pay tax.

Justice Ogunwumiju also agreed with Olanepekun SAN that the
Federal High Court Judge turned the head of the law upside down
in his conclusion that it was the appellant that should bear the
burden of proof on the allegation made by Ogah.

"With respect, we disagree with him (Judge) in this conclusion
because it is the person that makes allegation of falsehood that
must prove it."

The Appeal Court also held that Justice Abang erred when he
imported the phrase 'as at when do' into the PDP 2014
guidelines.

"The Judge would not have imported the phrase into his findings
if he had seen the copy of the PDP guideline. In this case, he
violated the PDP guideline".

The court also awarded various sums of money against Ogah as
cost.
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