Ogah vs Ikpeazu: When Judiciary Abandoned Own Decisions Remijus Ohajika

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Ugochukwu Harvey Igboanugo

The issues for determination vide the originating summons were for the interpretation of Article 14a, Part IV of PDP Electoral Guideline for Primary Election 2014, Sections 87 (4), and 31 of the Electoral Act, 2010 (as amended) and for a declaration in the light of whether or not there is any false information contained in the documents submitted to INEC by Dr Okezie Ikpeazu before the PDP primaries for gubernatorial election in Abia State

Excerpts:

“ …the originating summons procedure should be used only where a deed, a will, enactment, written instrument are to be interpreted by the courts; that is to say, where the court is merely to determine the construction of such provision submitted by the parties. The procedure is not to be used to interpret bits and pieces of facts committed to paper which can be disputed or which may need to be explained. The consequence of this resolution is that the originating summons be struck out as an incompetent mode of initiating the proceeding”.-PER CORAM HON. JUSTICE H. M. OGUNWUMIJU, JCA (Court of Appeal) in APPEAL NO.: CA/A/390/2016 IN DR OKEZIE VICTOR IKPEAZU V DR UCHECHUKWU SAMPSON OGAH & 3 ORS

 Whereas in her earlier decision in CHRISTIAN ADABAH ABAH & ANOR VS HON. HASSAN ANTHONY SALEH & ANOR in appeal No.: CA/A/279/2015 delivered on 8THFEBRUARY 2015 on the same interpretation of Section 31 of the Electoral Act, 2010 (as amended) pertaining to false information submitted by a candidate to INEC in FORM 001, Court of Appeal held that the originating summons was proper as the originating procedure

QUESTIONS FOR DETERMINATION:

IS COURT OF APPEAL NO MORE BOUND BY THEIR PREVIOUS DECISION ON SAME ISSUE OF SIMILAR FACTS AND CIRCUMSTANCES AND LAW?

IS COURT OF APPEAL NOW ALLOWED TO SUMMERSAULT?

“…where a candidate is alleged to provide false information in FORM CF001 submitted to INEC and which is being challenged,….. the burden or onus is on the candidate to prove that his information was genuine and not false. All he needs to show and establish is that the documents he formulated and represented to the commission (INEC) are genuine and not false.” (emphasis is mine). Supreme Court Per MUNTAKA-COMMASSIE, JSC in Ekagbara v. Ikpeazu (2016) 4 NWLR PT 1503 at page 411.

Suprisingly and Strangely too, HON. JUSTICE H. M. OGUNWUMIJU, JCA (Court of Appeal) in APPEAL NO.: CA/A/390/2016 held otherwise by saying:

“In Ekeagbara v Ikpeazu (2016) 4 NWLR PT 1503 at page 411, the Supreme Court held that the burden of proof is on the candidate to prove that his information was genuine, not false. However, the very wording of Section 31 (5) of the Electoral Act, 2010 (as amended) shows that it is the person making an allegation of falsehood that must prove it”- ”.-Hon. Justice H. M. Ogunwumiju, JCA (Court of Appeal) in APPEAL NO.: CA/A/390/2016 IN DR OKEZIE VICTOR IKPEAZU V DR UCHECHUKWU SAMPSON OGAH & 3 ORS

QUESTIONS FOR DETERMINATION:

WHERE IS THE STARE DECISIS PRINCIPLE THAT SAYS THAT A LOWER COURT IS BOUND BY THE DECISION OF A HIGHER COURT REGARDING A PRINCIPLE OF LAW? IS COURT OF APPEAL NOW A SUPERIOR COURT TO THE SUPREME COURT

• “…Throughout the enthusiastic analysis of the supposed false information on the tax documents, the learned trial Judge was unwilling to consider the explanation in the counter-affidavit sworn to by Mr Okoji the tax officer who signed the Tax Clearance Certificate. That tantamount to saying that the court cannot allow amendment to pleadings that would rebut evidence led by the adverse party because that evidence should have been in the original pleadings. That cannot be fair hearing. It can only be fair hearing if the evidence is considered and weighed with other contrary evidence and found insufficient to convince the judex. An outright rejection of the evidence of the adverse party in this case because it should have been submitted with the Form 001 is perverse and unjust”.- HON. JUSTICE H. M. OGUNWUMIJU, JCA (COURT OF APPEAL) IN APPEAL NO.: CA/A/390/2016 IN DR OKEZIE VICTOR IKPEAZU V DR UCHECHUKWU SAMPSON OGAH & 3 ORS

• “…the 2nd Defendant (Dr Okezie Ikpeazu) tax receipt for 2011 ought to have been first in time before the serial number of his tax receipt for 2012 and 2013. However, in this case, it is the serial numbers of the 2ndDefendant’s tax receipt for 2012 and 2013 that came first. The 2nd Defendant claimed in his defence that exhibit OK6 (2011 tax receipt) was issued in error and that explained why his exhibit OK6 was later in time. The fact of the 2nd Defendant’s explanation here is an admission against interest that indeed the earlier 2011 tax receipt contains false information. If indeed the 2ndDefendant’s 2011 tax receipt was issued in error and known to him, he ought to have explained this (via further affidavit) to INEC when Form 001 with attached documents were returned to INEC on 26thDecember 2014. The court is only bound to examine documents attached to Form 001 and forwarded to INEC to see if they contain false information. Therefore, the defence of the 2nd Defendant on this issue has not discharged the burden placed on him by the Supreme Court in Ekeagbara vs Ikpeazu to prove that the documents he submitted to INEC do not contain false information”.-Per Justice Okon Abang (Federal High Court) in Suit No.: FHC/ABJ/CS/71/2016 in Dr Uche Ogah vs Dr Okezie Ikpeazu

QUESTIONS FOR DETERMINATION:

i. Is it not a settled principle of law that an error or mistake in an affidavit by a particular deponent can only be corrected if re-sworn by the same deponent (Dr Okezie Ikpeazu) and not by another person (Mr James Okoji) before a Commissioner of Oath?

ii.      Under the provisions of Section 31 Electoral Act, 2010 (as amended), is it not the fact, documents and information submitted to INEC at the time of the submission that remain and cannot admit alteration to prove the correctness of the truth therein except by another affidavit by the same deponent and any explanation by a third party which is not part of the initial facts, information and documents initially submitted to INEC will not hold?

iii. Between Justice H. M. Ogunwumiju of the Court of Appeal and Justice Okon Abang of the Federal High Court, who stood the law on its head?

–Message From: Advocates of Justice Network