When Justice Takes Flight: The Abia Situation

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Obasi Ubah

The age-long saying that the judiciary is the last hope of the common man seems to be gradually taking flight in Nigeria if recent pronouncements of the Abuja Division of the Court of Appeal in the legal tussle over who between Dr Okezie Ikpeazu and Dr Uchechukwu Ogah should appropriately occupy the governorship seat of Abia State is anything to go by. The court below presided over by Justice Okon Abang had in its judgement of June 27 on the matter declared that based on the facts before it, Okezie was not qualified to take part in the governorship election in the state. The court went ahead to declare Ogah, who came second in the primaries of the PDP, as the authentic party candidate. The court made a consequential order asking the INEC to issue Ogah with the Certificate of Return as the duly elected governor of the state.

However, dissatisfied by the judgement, Okezie and his team had approached the Court of Appeal seeking not just to stay the execution of the judgement but insisting that Abang’s judgement be set aside. But, against all known judicial procedure, the appellate court led by Justice Ogunwimiju last Thursday clearly shied away from the issues at hand and not only dwelt on technicalities but also imported dimensions never canvassed in the course of the proceedings.

Whereas the issue has to do with alleged false information, not falsification, the appeal court concerned itself mainly with forgery. It also went ahead to use all matter of unprintable words to disparage and terribly demean the integrity of the respected Justice Abang in what has been condemned in different quarters.

It is pertinent to take a critical look at the main issue in context. As already known, it has to do with “Whether or not Governor Ikpeazu of Abia State gave false information to the INEC in his nomination form”. And in the instant case, the “false information” has to do with “whether Governor Ikpeazu had given any false information in his affidavit or other document especially as regards his tax documents.”

This matter clearly has the protection of the Section 31 of the Electoral Act 2010 (as amended) which states, “(5) Any person who has reasonable grounds to believe that any information given by a candidate in the affidavit or any document submitted by that candidate is false may file a suit at the High Court of a State or Federal High Court against such person seeking a declaration that the information contained in the affidavit is false.(6) If the Court determines that any of the information contained in the affidavit or any document submitted by that candidate is false, the Court shall issue an order disqualifying the candidate from contesting the election.”

The matter at hand from all intents and purposes clearly has nothing to do with forgery, as presently being painted in several articles. Ogah, in his case at the Federal High Court, Abuja, did not allege forgery or tax evasion, he commenced his action under originating summons after obtaining the documents and affidavits of Ikpeazu in accordance with S31(4) of the Electoral Act 2010 and his allegation is that the governorship candidate of PDP, Ikpeazu, gave false information(not falsification, not forgery) of his tax payments. This is in accordance with Section 31(5-6) of the Electoral Act, 2010 as amended. Section 87(10) of the Electoral Act, 2010 as amended gives a co- contestant right to approach the court, either federal high court or state high court, for a remedy where he or she finds out that the information disclosed by his or her opponent contains false information.

Section 31(6) of the Electoral Act provides that where the court is satisfied from the evidence presented that the candidate has given false information as provided in the Act, that candidate is liable to be disqualified. Abang of the Federal High Court Abuja examined the affidavit of Ogah and the counter affidavits of Ikpeazu and found out that indeed the tax papers of Ikpeazu contained several lies on its face. In one instance he was alleged to have paid tax when he was not yet employed, in another instance he was alleged to have been taxed on amount that was not his annual salary, in another he allegedly paid more than he was supposed to pay. There were several other lies on the tax papers. In all these, the three years tax was paid with one booklet and all in one day! To compound his problems, the serial number of the tax receipts showed that the beginning of the serial number was used for the tax receipt of 2013 and that of 2011 was used for the last serial number. What false information is more than this? His tax documents did not indicate that he paid his tax as and when due in accordance with the tax laws, the constitution of 1999 Section 24(f) and in accordance with the Electoral Guidelines of PDP 2014, Articles 13 and 14.

As to whether tax is a constitutional issue, please, see S177(c) of the 1999 Constitution. S177(c) of the 1999 Constitution as amended provides that a candidate must belong to a party and must be sponsored by that party. For a party to sponsor a candidate for the governorship election, he or she must have fulfilled all the conditions stipulated in their guidelines, including tax payment stipulated in article 14(a) which provides that if the candidate fails to so do, he or she shall be disqualified. Therefore, tax is constitutional requirement since the party’s guidelines made provision for it. Ikpeazu also swore an oath after disclosing his tax details that the information therein were from him and he alone should be held responsible for any false or misleading information that may lead to his being accepted as qualified when he is not. He finally stated under the same oath that if it is found out that the information disclosed about his tax payments were false, he should be disqualified. He signed it, and it was sworn to before a Commissioner of Oath in Aba High Court Registry, Abia State.

Ikpeazu’s legal team in their counter affidavit got the Board of Internal Revenue to bring in a letter in which they attempted to rationalise all these discrepancies, including admitting that these serial numbers were indeed a mistake. They tried to rationalise the discrepancies in payments by arguing that he was indeed outside the service for the period of January to June of that particular year but that he paid tax as a private person. If that is true, how come in his tax papers they put him under employment of Abia State from January to December ending of that year. These are false information and they were not corrected in the documents he submitted to INEC. The documents certified by INEC does not contain the after- thought explanation of the board which wouldn’t have come from them if not for the discovery that Ikpeazu’s documents contained false information. Since the board is appointed by the government of Ikpeazu would it not be foolhardy to expect a truthful information from such tainted persons now that Ikpeazu is allegedly in trouble?

By the way, when does a document become correct and accurate just because the maker says so? If on the face of the document it is a lie, it is a lie irrespective of what anyone may have to say, especially from a known tainted maker, in this case the Board of Internal Revenue working in Umuahia under Ikpeazu who cannot be free to disclose truthful information about his tax papers at least for now until the coast is clear as to who takes over the governor’s seat. In any case, that information from the Board of Internal Revenue cannot and will not alter what is already submitted to INEC for which he was pronounced qualified to participate in the primary election.

These were the basis for the judgement of Abang of the Federal High Court which on June 27 ruled that Okezie was not ab initio qualified to seek for the governorship of the state. Now, having been disqualified, was the trial court competent to make a consequential order for the necessary changes that INEC must effect as a result of that finding?

The decision of the Supreme Court delivered on Friday, January 18, 2008 in the case of Amaechi V INEC (a pre-election matter in which no less than the Supreme Court had intervened to ensure that its order disqualifying Omehia who had been wrongly presented by the party was given effect) sheds light on this.

Oguntade JSC (as he then was) in most gracious language pointed out the duplicity of the Court of Appeal in the way it deliberately, not only conflicted with its earlier judgement in the Ararume case, but also over-ruled the decision of the Supreme Court in that case in order to find favour of Omehia. Oguntade made no accusations and refrained from attacking the justices involved, even though everyone could guess what was happening at the time. All he said in all decorum was: “The matter however does not end there. The court below which had decided in the Araraume case that the reason ‘error’ did not meet the requirement of section 34 later decided in the present case that the fact that Amaechi had been indicted was good enough a reason for not following the decision of this court and its own in the Araraume case.”

Perhaps, if the case had been handed over to Ogunwimiju and other appellate court justices, who delivered judgement to Ikpeazu, to review, they would import all known and unknown words to demean the towering credibility of the apex court justices.

No doubt, the court of appeal which used to be the pride of the nation has for some time now continued to degenerate in view of some of its rulings which have clearly left a lot to be desired.

The fact that Anambra Central senatorial zone has remained for almost one year without any form of representation is as a result of the worrisome judgement delivered at the Enugu Division of the Court of Appeal, which sacked Senator Uche Ekwunife on grounds of improper nomination process by the PDP.

While Enugu appeal court enjoyed unfettered freedom in prying into what ought to be the internal activities of a political party, the Abuja Division which handled the election issues arising from the Taraba State governorship election in its ruling which set aside the decision of the Election Tribunal that handled the issue as a court of first instance declared that it was wrong for the court below to have nullified the election of Governor Darius Ishiaku on grounds of improper nomination since the candidate of the APC in the said election, Aisha Alhassan, has no business with the internal affairs of another party.

The Supreme Court has since affirmed that decision by the Abuja Court of Appeal which made it possible for Ishiaku to remain as governor, whereas Ekwunife who suffered same damage did not have the opportunity of heading to the apex court as National Assembly election issues by the provisions of the Electoral Act terminate at the appellate court.

With that issue in mind, it is imperative for judges at the appellate court level to be mindful of their utterances and pronouncements at all times because their actions or inactions have the capacity to cause an irreparable damage to issues which a painstaking effort would have easily resolved.

The saving grace in the present scenario is that it is still quite probable that the Supreme Court may disagree with the Court of Appeal on all the issues it treated in that appeal and one would have expected that in the best tradition of the profession the Court of Appeal would have left room for that possibility rather than take on the air of infallibility so arrogantly displayed in its judgement. It is even quite possible that another division of the Court of Appeal may have reached a different conclusion on each of the issues. The present set of appellate court justices are yet to come to terms with fact that the present Chief Justice of Nigeria has always preferred that substantial justice be done in any case instead of dwelling on technicalities.

The technical issues raised and decided by the Court of Appeal judges were neither here nor there. They raised the issue that the originating summons was not signed. The point to note is that there was a signature. Signature is a factual thing. It is either it is there or is not there. Mind you, this was a matter that had initially gone up to the Supreme Court and the issue of signature was never raised by the defendants or learned justices of the Court of Appeal and Supreme Court. Nobody contended that signature was not on the originating summons before the matter was subsequently referred back to the lower court for expeditious trial. The issue also raised by the Court of Appeal judges that the matter should have been commenced by way of Writ of Summons instead of Originating Summons is also neither here nor there. This is a pure documentary evidence matter and the lies on the documents are very visible on the face of the documents. Therefore, the process was rightly commenced by Originating Summons.

The issue of procedures on commencement of actions are already established by decided case laws most especially by the apex court. I believe that most of the issues the Court of Appeal judges raised are Issues that should not have mattered in a matter that has to do with serious matter of public interest like this one in which a candidate for the governorship position of a state filed tax documents that were full of lies. We will certainly want the Supreme Court to have a final say on this issue and set the records straight once and for all.

––Ubah, a public affairs analyst, writes from Ohafia, Abia State.