Thursday, 8 September 2016

Violations and abuses of due process of law in the unseemly tussle for the governorship of God’s Own State of Abia


Nwabueze

JUDICIAL ACTIVISM AND RECKLESSNESS RUN RIOT

By Professor Ben Nwabueze

On 27 June, 2016 Justice Okon Abang of the Federal High Court (FHC), Abuja Division, removed Governor Okezie Ikpeazu from office as Governor of Abia State, after his election has been affirmed by the Supreme Court.

He accompanied the removal with an order specifically directing the Independent National Electoral Commission (INEC) to issue his rival for the office, Dr Uche Ogah, with a Certificate of Return.

 According to a statement by the Special Advisers on Legal Matters to Dr Okezie Ikpeazu, published in The Guardian of July 19, 2016, Hon Justice Okon Abang next proceeded “within a few hours” of the delivery of his judgment, to issue a Judgment Enforcement Order of his said judgment in “disregard and breach of the Judgment Enforcement Rules, which forbid the enforcement of a judgment before the lapse of Three (3) days after delivery.” Following the Judgment Enforcement Order made by the Hon Judge and served immediately on INEC, the latter in less than twelve hours of the service of the Enforcement Order on it, issued a Certificate of Return to Dr Ogah while Governor Ikpeazu and the other parties to the suit, as well as the Appeal Section of the FHC whose duty it is to compile the Records of Appeal, had to wait for eight (8) days before copies of the judgment were made available to them. This seems a brazen exhibition of judicial recklessness, which may fairly be described as judicial activism run riot.

The removal of Governor Ikpeazu from office after his election has been affirmed by the Supreme Court, an action which Justice Okon Abang himself admits in his judgment to be something entirely “novel,” and, more obnoxiously, the order directing INEC to issue a Certificate of Return with immediate effect to Dr Ogah, is distinctly and manifestly careless and derogatory of the dictates of constitutional democracy and the rule of law, especially as he, as will be shown in another write-up, had no jurisdiction or power to sack Governor Ikpeazu or to issue the order to INEC.

 The decisions and orders of Justice Okon Abang had precipated, not surprisingly, a judicial drama, an unseemly one, sad to say. On 30th June, 2016, an interval of three days, another Judge of the same FHC, Justice Ambrose Allagoa, sitting in the Owerri Division of the Court, countered the removal order, affirming that Dr Okezie Ikpeazu remains still in office as Governor of Abia State. It is nothing short of a distasteful drama that two Judges of the same Federal High Court, should within a space of three days, give conflicting decisions on the same matter, one sacking the Governor, and other affirming his continued stay in the office.

The contradictions stem from their divergent findings on the forgery allegation. Whilst Justice Abang based his sack order on the ground that Dr Ikpeazu’s tax returns submitted by him and his party, the Peoples Democratic Party (PDP), to INEC contained false information, Justice Ambrose Allogoa of the FHC Owerri Division dismissed the forgery or falsity of information allegation as not having been proved, and accordingly affirmed that Dr Ikpeazu remains the Governor of Abia State.

 He is emphatic in dismissing the forgery allegation. Said he : “The plaintiff failed woefully to produce any evidence in proof of his allegation of forgery or fraud of tax receipts or Certificates

It is the decision of the Honourable Court that the Tax Clearance Certificate and tax receipts presented by the 3rd Defendant for the purpose of contesting the 2015 gubernatorial election in Abia State is not false or forged by the 3rd Defendant or anyone else. The 3rd Defendant Dr Okezie Ikpeazu was not a person disqualified to contest the Abia State gubernatorial election by reason of any false or forged tax receipt and/or certificate.” Pages 53 & 59 of his cyclostyled judgment.

The contradiction in the findings on this point by the two learned judges of the same court (the FHC) is remarkable, and suggests that something might be amiss with our judicial system. The State High Court too had been sucked into the vortex of the drama; for, on 8th July, 2016, Hon Justice C.H. Ahuchaogu of that Court, in a suit filed by Governor Okezie Ikpeazu, issued an injunction, operative while he (Dr Okezie Ikpeazu) remains in office, restraining INEC from issuing a Certificate of Return to Dr Uche Ogah (too late as the Certificate had already been issued), and the Chief Judge or any other Judge or judicial officer of the State High Court from swearing-in Dr Uche Ogah as Governor of the State. In the situation thus created, Abia State was thrown into a state of such tumultuous social discord in which the various clans, age-groups, people of different political and religious affiliations and other interest-groups in the State were pitched against each other in a social conflict marked by tension, with its deleterious impact on public order, social and economic activities and general well-being. The resultant situation was one of near abeyance of governance, of a looming anarchy, which seems, happily, to have abated somewhat. This is the distasteful and sorry state of affairs to which Abia State had been reduced since the 27th June 2016 judgment of Justice Okon Abang, a State christened at birth by its Founding Fathers as God’s Own State, and nurtured into harmonious co-existence among its inhabitants by its first Governor, Dr Ogbonnaya Onu, presently Minister of Science and Technology in the Buhari Administration. In all this, the State, its people and, indeed all Nigerians, are the losers and sufferers. Though not from Abia State, I, in particular, am deeply distressed and disquieted by these lamentable happenings.

THE FUNDAMENTAL NECESSITY FOR FINALITY IN LITIGATION

By resorting to the distasteful method of going to court, knowingly, it must be supposed,  to unseat prematurely, an incumbent governor whose election had been affirmed by the Supreme Court, our apex and final court, Dr Uche Ogah breached the fundamental necessity for finality in litigation.  The Supreme Court’s confirmation of Dr Ikpeazu’s election as governor of the State should have put the matter finally to rest in the interest of regularity, certainty in the law and orderliness. That is the understanding underlying the hierarchical grading of the courts and the system of appeals from the courts or tribunals at the base of the hierarchy, through the Court of Appeal, to the Supreme Court as the apex and court of last resort. Clearly, there is nothing in law to justify or warrant Dr Ogah breaching the fundamental necessity for finality in litigation in such flagrant manner, which has been rightly described as a “joker.” According to a write-up in The Niche of 17 July, 2015, Dr Ogah decided to “exploit one of his jokers.

He approached the court to open what may be described as the “Pandora’s box”, by asking it, months after the Supreme Court’s confirmation of the validity of Ikpeazu’s election as governor, to nullify it (i.e. the election) on the ground that the tax receipts and the tax clearance certificate he submitted in support of his candidature contained false information, an issue not raised during the first round of the litigation that went from the Election Tribunal to the Court of Appeal and, then, to the Supreme Court.

Contemporaneously Chief Nnanozie Nwosu, a fellow contender for the State governorship who was defeated at the PDP primaries for the office, filed another suit as sole plaintiff at the FHC Owerri against Dr Okezie Ikpeazu and others seeking to unseat him (i.e. Dr Ikpeazu) as governor on the ground, among other grounds, of alleged forgery of his tax clearance certificate. It is not as if our law provides no sanction or protection against a breach of the fundamental necessity for finality in litigation.

It does, mainly through the sanction against abuse of court process. The Supreme Court has held in Osun State Independent National Electoral Commission and Anor v. National Conscience Party and Ors (2013) 9 NWLR (Pt 1360) 451, at pp. 466 – 467 that “once a court is satisfied that any proceeding before it is an abuse of process, it has the power and indeed a duty to terminate it.” Whilst the concept of abuse of judicial process involves “circumstances and situations of infinite variety and conditions”, a notable example of it is “where a multiplicity of action on the same subject matter are instituted against the same opponent, on the same issue”: Chief Great Ogboru v. Dr Emmanuel Uduaghan (2013) 13 NWLR (Pt 1370) 33, p. 46. “There must,” said the Supreme Court, “be an end to litigation”, at p. 60. The decided cases on abuse of court process are legion, the older cases of which include notably Saraki v. Kotoye (1992) 9 NWLW (Pt 264) 156.

But the sanction or protection provided by the law against abuse of court process does not however avail where the parties, issues or reliefs claimed in a previous litigation are not the same as those in a later litigation. This is what made the sanction or protection unavailing in the present litigations. Knowing this, the plaintiffs in the later round of the litigation made sure they kept within the restrictions of the law. The sole plaintiff in the first round of litigation that went from the election tribunal to the Court of Appeal and from there to the Supreme Court was Alex Otti who contested the 2015 governorship election in Abia State as a candidate on the platform of the All Progressives Grand Alliance (APGA), while the defendants were Dr Okezie Ikpeazu, the Peoples Democratic Party (PDP), INEC and APGA.  The allegation that Dr Ikpeazu’s tax receipts and tax clearance certificate were forged was, as earlier stated, not an issue during this first round. …

To be continued Professor


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