One Senate, Double Standards

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The Senate’s refusal to swear in Bassey Etim as the senator representing Akwa Ibom North East Senatorial District, after the Independent National Electoral Commission (INEC) issued a certificate of return, smacks of double standards and constitutes an affront to‎ the rule of law, writes Tobi Soniyi.

Although the executive is notorious for disobedience to courts orders, it is saddening to know that even the National Assembly is not immune from this ‎uncivilised attitude in a supposedly democratic country. As we condemn the executive for refusing to comply with orders of court, it is not open to the National Assembly to pick and choose which court orders to obey.

About a month ago, the Uyo Division of the Federal High Court set aside the election of Mr Bassey Albert Akpan as senator representing Akwa Ibom North East senatorial district. The court held that‎ Akpan was not the validly nominated candidate of the Peoples Democratic Party (PDP) which won the 2015 general election for the ‎senatorial district.

The court, in the judgment on a pre-election filed by a former member of the House of Representatives, Bassey Etim against Akpan over who between them should be the PDP’s flagbearer for the senatorial seat, held that Akpan had wrongly and illegally represented the district in the National Assembly for 628 days.

The life span of the current 8th National Assembly is 1,460 which started in June 9, 2015 when it was inaugurated, will expire June 9, 2019.

The court consequently ordered Akpan to vacate forthwith the seat for Etim for the remaining 812 days, and refund to the coffer of the National Assembly, within 90 days, all monies he had collected by way of salary and allowances for the 628 days during which he illegally occupied the seat in the senate.

The court also ordered the Independent National Electoral Commission (INEC) to retrieve the certificate of return earlier issued to Akpan and issue a fresh one to Etim, to enable him proceed to the senate for his swearing-in.

INEC had since complied with the court order and had since issued Etim with the certificate.

But unlike INEC, the Dr Bukola Saraki-led Senate has refused to comply with the judgment by refusing to swear in Etim in a move that smacks of cronysms and undue loyalty to comradeship. Saraki had ignored a letter written to the leadership of the Senate by Etim that he was ready for his swearing-in. The Senate neither replied the letter nor sworn in Etim.

Not even a separate eight-page letter written by Etim’s lawyer, Chief Mike Ozekhome (SAN) would persuade the Senate to comply with the court’s judgment.

Etim said he had also visited the National Assembly twice between March 7 after he collected his certificate of return and March 14, to present himself for the swearing in ceremony but saw no sign that his swearing in would take place any time soon. He was also not allowed to see the senate president.

Worse still, even though INEC had nullified the certificate of return issued to Akpan by the issuance of fresh certificate of return to Etim, Albert has refused to withdraw from the Senate.

The refusal of the senate to swear in ‎Etim, it was learnt, was based on a letter written by the counsel to Akpan, Mr Paul Usoro (SAN) to the Senate President, requesting him to put on hold Etim’s swearing-in until after the determination of a pending appeal on the judgment of the Federal High Court, Uyo which sacked his client and ordered that Etim be sworn in forthwith in his place.

Usoro is coincidentally one of the lead counsel on the defence team of Saraki in his trial for alleged non-declaration of assets preferred against him by the Federal Government at the Code of Conduct Tribunal. Is the Senate President doing his lawyer a favour by refusing to swear in Etim?

The Usoro’s letter was dated February 28, 2017, implying that it was written about 24 hours after the judgment of the court, which sacked Akpan from office.

It was also gathered that Usoro did a separate letter to INEC same day (February 28), urging it not to issue certificate of return to Etim on the account that they had filed a notice of appeal against the judgment of the Federal high court, Uyo while a motion for stay of execution had also been filed before the court.

But INEC was properly guided by its legal department as it ignored the letter and promptly obeyed the court judgment in line with its tradition of absolute respect for the rule of law.

However, the Senate, which has to conduct the swearing-in ceremony for Etim before he could begin the functions of his office as it did for Air Marshal Isaac Alfa in the Suit No: FHC/ABJ/CS/1073/2014 and Senator Atai Aidoko in the Appeal No: CA/A/260/2016 and in several similar cases, is foot-dragging purportedly on the account of a letter by Usoro.

In the said letter to the Senate President, Usoro admitted that his client, Akpan was sacked by the judgment of the Federal High Court, Uyo but that they had filed a notice of appeal and a motion for stay of execution of the judgment, praying that Etim should not be allowed into the senate until after conclusion of the appeal because “allowing the victorious party to levy execution would result in foisting on the Court of Appeal a fait accompli and rendering the pending appeal nugatory.”

The letter, in the main, had alleged that the judgment of the court was not correct in law in that “the trial judge in his judgment completely ignored the evidence adduced by our client which established without any doubt that the plaintiff forged the result sheet that he tendered in evidence which forged result sheet formed the basis of the court’s judgment in favour of the plaintiff”

But Usoro, in the letter was silent on the findings of the court in the course of trial of the case to the effect that it was Usoro’s client (Akpan) and his witnesses that were indeed found to have presented various forged documents during trial of the case including forged results sheets.

That apart, the Supreme Court in plethora of authorities had held that a notice of appeal and a motion for a stay of execution of a judgment did not amount to a stoppage of the execution of that judgment. The fact that an appeal had been filed should not stop the Senate President from complying with the judgment.

Whereas, the popular tradition in the Senate which had guided the upper chamber in the National Assembly in a situation like the Akpan-Etim’s case is to swear-in any victorious candidate from the law court in pre-election disputes. That tradition was activated on January 10, this year in a pre-election lawsuit involving Senator Atai Aidoko and Senator Air Marshall Isaac Alfa who engaged each other in a legal battle over who between them was the authentic candidate of the PDP for the Kogi North East Senatorial District.

Briefly, the background of the pre-election dispute between Atai Aidoko and Air Marshall Isaac Alfa which is on all fours with Bassey Etim and Albert Akpan’s case is that the matter originated at the Federal High Court, Abuja, with both politicians from the Kogi North East senatorial district: Aidoko and Alfa, claiming to be the winner of the primary poll held by the PDP on December 7, 2014 for the senatorial district at Idah Town Hall. The matter therefore went to court as a pre-election dispute which Alfa won, the basis upon which he was admitted into the Senate.

But soon as Justice Nnamdi Dimgba of the Federal High Court, Abuja gave judgment in favour of Alfa, Aidoko went on appeal as did Akpan in the instant case. But the pendency of the appeal of Aidoko did not stop INEC from recognising Alfa while the Senate swore him in based on the judgment of the Abuja Federal High Court.

While Alfa represented his district at the hallowed chambers of the Senate based on the judgment of the Federal High Court, Abuja, the Abuja division of the Court of Appeal heard the appeal filed by Aidoko against the high court judgment of Dr Justice Nnamdi Dimgba and delivered its judgment on December 14, 2016.

In a unanimous judgment, a three-member panel of the Court of Appeal justices (Hussein Mukhtar, T. O Awotoye and Frederick O. Oho), the court specifically held: “In the final analysis, this appeal succeeds; the entire issues are resolved in favour of the appellant (Aidoko) and the judgment of the lower court delivered on 18-4-2016 by Federal High Court, sitting at Abuja by Dr N. Dimgba J. is hereby set aside.”

The court further ordered INEC to retrieve forthwith the certificate of return in favour of the 1st Respondent and issue a fresh certificate of return to the appellant Appellant (Idoko) forthwith .

Although Alfa quickly ran to the registry of the Supreme Court to challenge the verdict of the Court of Appeal by filing a notice of appeal in addition to filing a motion for stay of execution, INEC, again, promptly obeyed the judgment of the Court of Appeal by issuing a fresh certificate of return to Aidoko while the Senate followed its tradition by swearing in Aidoko notwithstanding the pendency of the appeal by Alfa at the apex court.

Rather than followed this precedent, the Senate has chosen to delay the Etim’s swearing even when it knew that time remains of essence. For every day, Akpan sits illegally at the Senate, Etim suffers injustice unnecessarily.

Etim had filed the pre-election case with Suit No FHC/UY/CS/1087/2015 at the Federal high court, Abuja by a way of originating summons. However, the case was transferred to the Uyo division, because the cause of action arose in Akwa Ibom. The court also ordered that the suit be converted to writ of summons, being a contentious matter of two aspirants claiming to be the winner of a primary poll held on December 7, 2014, to enable parties and their witnesses come before it to give oral evidence that would assist it in determining who was actually the authentic candidate of the PDP based on the result sheets they presented to the court.

In his determination of the suit, Justice F. O. Riman devoted a large part of the judgment to two fundamental issues including which of the results tendered by the parties was the authentic results and who were the authentic electoral and returning officers appointed for the conduct of the Akwa Ibom North East Senatorial District primary held on 7/12/2014.

Indeed, the trial judge, at page 40 of the judgment, for instance, found thus: “I have examined and compared Exhibit 8 (results) of the plaintiff (Bassey Etim) and Exhibit 19 (results of the 3rd Defendant (Albert Akpan). Exhibit 8 was signed by Michael George as the Electoral Officer with party membership card number of 2976821 and Daniel Ekanem as the returning officer with party membership card number 3872375. Exhibit 8 shows number of accredited delegates to be 375 and the plaintiff’s membership card number 4574227 and INEC Voters card number 90F5B071B7296. In Exhibit 19 of the 3rd defendant (the results), the returning officer signed it on 9/12/2014 (two days after the primary was held).The electoral officer signed it on 7/12/2014 when the primary was held. The party membership card numbers of the electoral officer and the returning officer are not indicated as well as party membership card number of the 3rd defendant and his INEC voter’s card number. I find that if the total number of votes scored by the 7 aspirants is summed up together, it will show that the total number of delegates was 374 and not 375 as stated in Exhibit 19 as there was no vote voided. I find also that Exhibit 19 does not contain the party membership card numbers of both Electoral and Returning Officers. I find that the exhibit 19 is falsified. This renders it not credible but questionable.”

But assuming without conceding that Usoro’s allegation in his letter of February 28 to the Senate Preside has merit, the question is: Is senate the appropriate forum to ventilate such grievances? Again, assuming without conceding that Usoro’s allegation has any probative value in law court, the question again is: Is such allegation superior to a court judgment which ordered that Etim should be sworn in forthwith?

Given the tradition in the senate regarding judgments in pre-election disputes, except the senate promptly obeys the judgment of the Federal high court, Uyo by swearing in Etim based on the fresh certificate of return issued him as it did to Air Marshal Isaac Alfa in the Suit No: FHC/ABJ/CS/1073/2014 and Senator Atai Aidoko in the Appeal No: CA/A/260/2016 and in several similar cases, Saraki-led senate will be creating the impression of one senate, double standard.

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Usoro is coincidentally one of the counsel defending Saraki in his trial for alleged non-declaration of assets preferred against him by the Federal Government at the Code of Conduct Tribunal. Is the Senate President doing his lawyer a favour by refusing to swear in Etim?