Fresh Hurdles for Anambra Central Senatorial Re-run

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INEC Chairman, Mahmood Yakubu

In spite of the recent court judgement ordering the Independent National Electoral Commission to conduct a re-run election in the Anambra Central Senatorial District, there remain a couple of obstacles that if unresolved may affect the credibility of the election. Iyobosa Uwugiaren writes

There are still many hurdles for the stakeholders in the Anambra Central Senatorial election to cross in spite of the Court of Appeal’s judgement, which recently ordered the Independent National Electoral Commission (INEC) to within 90 days, conduct a rerun election into the vacant seat of the senatorial district.

Following the judgement, INEC has fixed the poll for January 13, 2018.

However, new facts have shown that the judgement of the Court of Appeal may have been given without regard to another appeal pending in the same court in Abuja, in which Dr. Obiora Okonkwo of the Peoples Democratic Party (PDP) is seeking a declaration that he is the rightful candidate of the party and ought to be sworn-in as a senator representing the zone.

Okonkwo has claimed that he ‘’rightfully, and convincingly’’, won the PDP primary election, contesting that by virtue of a Court of Appeal declarative judgement that Uche Ekwunife should not have been fielded as candidate for PDP, and therefore invalidated her purported election, he had become the rightful candidate that should be declared as a senator representing Anambra central at the Senate.

In his appeal, which judgement has been reserved for December this year, Okonkwo argued that a re-run election, as recently ordered by another panel of judges of the Court of Appeal, was unnecessary since his pre-election matter is yet to be determined.

Ekwunife was removed from the Senate by the Court of Appeal in Enugu on the grounds that she was wrongly nominated by the PDP, and as such, ought not to have been fielded in the 2015 election.

Before the judgement, Okonkwo had filed a pre-election matter seeking an order upholding his nomination as the rightful PDP candidate for the election. He also asked the court to declare him the candidate of the party who should be sworn-in as senator representing Anambra Central because PDP actually won the election.
He argued that by virtue of the pending suit, the Court of Appeal’s judgement— ordering a re-run election would amount to an action nullifying the electoral will of people of the senatorial district, who voted massively for him as votes cast in the election in favour of PDP are still valid and not invalidated by any court.
An affidavit sworn to by the national secretariat of PDP shows that the Alaye Tremie (Jnr) led–committee conducted the primary election for Anambra central senatorial race on December 7, 2014 at Ekwueme Square, Awka. And that one Okechukwu Akachukwu was appointed the returning officer for the primary election by the PDP NASS Electoral Panel—in accordance with Part V Par. 25(VIII) of the PDP Electoral Guidelines for Primary Elections 2014

The deponent averred that: ‘’The returning officer accredited 294 delegates for the Anambra central senatorial primary election, which held on December 7, 2014. Five aspirants: Obiora Okonkwo, Annie Okonkwo, Kodilichukwu Okonkwo, Uche Ekwunife and Sylvester Okonkwo participated in the primary’.
‘’At the end of accreditation and voting, the returning officer counted and announced the votes scored by each aspirant. He entered same in the official result sheet provided for the purpose by the PDP and marked Form PD004/NA.

‘’Okonkwo was returned as winner having scored 204 votes. Result was publicly announced by the returning officer. Duplicate copies of the results were made available to each aspirant who also acknowledged them.’’

However, the Chairman of the Election Committee, Tremie was said to have refused to receive the result sheet from the returning officer and refused to declare Okonkwo the winner of the primary election, acting on directive of some political forces within the party.

Apparently convinced that Tremie’s action was in violation and breach of section 87(4)(c)(ii) of the Electoral Act 2010 (as amended), and Part V Par. 29(c)(e) and (g) of the Electoral Guidelines for Primary Elections 2014 of the PDP, Okonkwo had approached the court through an originating summon–dated December 22, 2014 and filed the next day at the Federal High Court in Abuja.

He prayed the court for a declaration that based on the outcome of the primary election and the authenticated result by the returning officer, he is the authentic winner of the primary and should be returned as such so as to contest in the senatorial election scheduled for February 14, 2015 or any other date.

He also prayed for injunctive order to compel INEC to accept his name as the duly elected PDP candidate for Anambra Central Senatorial Election. Processes were exchanged in the suit and along the line, Ekwunife was joined. The suit has progressed and judgement was fixed by Justice A.R. Mohammed.

However, the judge was said to have shelved judgement and called for oral evidence to determine which of the results sheets, as presented by Okonkwo and Ekwunife, was the authentic result sheet that should be relied on in the matter.

Consequently, Okonkwo compelled the court to subpoena the chairman of the Anambra Central Electoral Panel, Tremie and he was subpoenaed.
He reportedly testified that the result sheet presented before the court by Okonkwo was authentic. He also testified on oath, by way of a sworn affidavit of declaration, that Okonkwo actually won the primary election of the PDP for Anambra Central Senatorial seat. This means the result sheet paraded by Ekwunife was fake.

Ekwunife through her counsel had also filed preliminary objection, which was subjected to another round of exchange of processes. However, her objection was dismissed and judgement set for a new date.

However, rather than allow the matter to go to judgement, Ekwunife filed another application to set aside the order of adjournment for judgement and sought for an adjournment to enable her call additional witnesses. Okonkwo opposed the application. The trial judge however granted the Ekwunife application only to later washed his hands off the matter.

Okonkwo later appealed against the decision. The Appeal Court dismissed the appeal and returned the matter to the FHC to continuation of trial and allow Ekwunife to call additional witnesses. The case was subsequently transferred to Justice Okon Abang.

Before Justice Abang, Ekwunife refused to call the witnesses she had applied for, but instead, came with a fresh application urging the court to grant her request to shelve the witnesses. The application was opposed by Okonkwo and subsequently rejected by Justice Abang, who ordered her to bring her witnesses on the next adjourned date.

Dramatically, THISDAY gathered that rather than continue with the witnesses on the next adjourned date, Justice Abang, in a surprising move, also washed his hands off the matter and sent the case file to the Chief Judge for re-assignment to another judge.

The matter was then assigned to Justice Quadri. When the case first came up before him, Ekwunife still refused to call the witnesses she had secured and ordered for. Rather, she came with another preliminary objection seeking that the suit be dismissed because as she argued, the plaintiff (Okonkwo) had no cause of action and that all aspirants in the primary election were not joined in the suit.

Fresh processes were exchanged, arguments were taken and judgement reserved for August 3, 2017. However, before the judgement date, Okonkwo filed a motion on notice reminding the court that Ekwunife lacked locus to be joined in the suit ab initio on the grounds that another court had given judgement against Ekwunife to the effect that she was not validly nominated person to contest in the election and as such sacked her from the senate.

Ekwunife also challenged the judgement and lost all through to the Supreme Court. Having defected from the PDP to the All Progressive Congress (APC) and sacked by Court of Appeal, the apex court ruled that she was not even entitled to be heard in the matter, or any matter that has to do with the Anambra Central Senatorial primary election.

Victor Umeh had challenged Ekwunife’s election in court and the Court of Appeal in Enugu in a well-considered judgement held that Ekwunife was not the validly nominated/elected candidate of the PDP as per the primary election of December 2014 and as such ought not to have been on the ballot in the first place. Following this, the court ordered her out of the Senate.

Okonkwo also asked that the judgement already reserved on his initial motion, be suspended while the motion filed against entertaining Ekwunife in any matter that had to do with the Anambra Central Senatorial Election because of her disqualification, and sack, by a high court which was also affirmed at both the Court of Appeal and the Supreme Court, be decided first.

Ekwunife objected to the application on the grounds that it would amount to arrest of judgement. The court obliged her. The trial judge therefore proceeded to deliver his ruling on the objection. He dismissed the preliminary object by Ekwunife where she argued that Okonkwo had no cause of action in the matter he was pursuing. Having dismissed the objection, there was expectation that he would proceed with either asking Ekwunife to call her additional witnesses for questioning or deliver judgement on the main suit. He did not.

Like his two previous brothers, Justice Quadri also washed his hands off the matter saying that the interest of justice dictates that he walks away from delivering judgement.

It is the ruling of Justice Quadri on August 3, 2017 that that hearing the plaintiff’s (Okonkwo) motion on notice and delivering a composite ruling with the ruling reserved amounted to arrest of judgement that the plaintiff (Okonkwo) is dissatisfied with and at the appeal contends that the trial court ought to have heard his motion on notice, challenging Ekwunife’s locus standi to file any further processes or defend the suit since the suit, as it stood then, was undefended.

He is also praying the court to deliver judgement in his favour as the authentic PDP candidate for Anambra Central Senatorial election as per the primary election conducted on December 7, 2014.

The issues before the Court of Appeal for determination are: Whether the FHC was right in refusing to hear, and determine, Okonkwo’s motion on notice of 20th June 2017 and suspended ruling reserved for August3, 2017, and which motion on notice also challenges Ekwunife’s locus to file any further processes in the suit; strike out Ekwunife’s name from the suit; enter judgement in favour of Okonkwo.

Meanwhile, apparently not satisfied with the recent decision of the Appeal Court, which ordered INEC to conduct the election within 90 days, the PDP in a fresh case, has approached the apex court to upturn the decision.

The party in the suit filed at the Supreme Court is asking it to set aside the judgement of the Court of Appeal, Abuja, excluding the appellant from fielding any of its candidates to participate in the fresh election ordered by the Election Petition Appeal Tribunal.

The party is further asking the apex court for an order directing the 3rd respondent (INEC) to accept and put on the ballot paper, any candidate sponsored by the appellant to contest the fresh senatorial election for Anambra Central senatorial district.

The PDP premised the appeal on the grounds that the justices of the Court of Appeal erred in law by holding that the 3rd respondent (INEC) was right to exclude the appellant and any of its candidate from participating in the fresh election ordered by the Court of Appeal Enugu Division sitting as Election Appeal Tribunal in CA/E/EPT/28/2015, between Chief Victor Umeh and another vs PDP and others which disqualified only the appellant’s candidate, Uche Ekwunife and thereby breached the fundamental right to freedom from discrimination guaranteed the appellant by section 42 of the 1999 Constitution as amended.

The appellant also argued that being a corporate entity and a political party operating in Nigeria, the Appeal Court’s order excluding it and any of its candidates from contesting the said election is discriminatory and breaches its right of freedom from discrimination.

The appellant stated further that the Appeal Court erred in law in assuming jurisdiction to interpret its own judgment by sitting on appeal in its own judgment which is a final decision in CA/E/EPT/28/2015 between Chief Victor Umeh and another vs PDP and others which did not nullify the election to Anambra Central senatorial district seat won by the appellant but merely ordered fresh election after holding that the decision of the tribunal was perverse.

Also, the party argued that the court misdirected itself in law when it held that the case of Labour Party vs INEC was applicable in the appeal at the lower court when the facts and circumstances of the case are ‘not on all fours with the facts of the Appeal at the court below.

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However, new facts have shown that the judgement of the Court of Appeal may have been given without regard to another appeal before the same court.