Endless Litigation over Anambra Central Senatorial District

Executive Briefing

Last week’s ruling by Justice John Tsoho of the Federal High Court, Abuja declaring Dr. Obiora Okonkwo who did not take part in the Anambra Central Senatorial District election, the senator-elect for the district has added yet another bizarre dimension to a much-litigated dispute, writes Davidson Iriekpen

A new dimension was last week added to the protracted legal tussle over Anambra Central Senatorial District election when Justice John Tsoho of the Federal High Court in Abuja ordered the immediate swearing-in of Dr. Obiora Okonkwo of the Peoples Democratic Party (PDP) as senator representing the district.

Delivering judgment in a pre-election case filed in 2014 by Okonkwo against the PDP and three others, the judge held that the plaintiff was validly nominated by the PDP in its primary election of December 2014 for the senatorial district.

He ordered the Senate President to immediately inaugurate Okonkwo to fill the vacant Anambra central senatorial seat. The judge consequently, ordered that the certificate of return earlier issued to Uche Ekwunife be withdrawn and that a fresh one be issued to the plaintiff by the Independent National Electoral Commission (INEC).

Okonkwo had filed the suit against the PDP, its former National Chairman, Adamu Muazu, INEC and Mrs Uche Ekwunife, challenging the emergence of Ekwunife as PDP candidate for the 2015 National Assembly election. However, in the course of trial, all the four defendants withdrew their processes in the case and agreed to submit themselves to the judgment of the court.

Justice Tsoho agreed with the submission of the plaintiff’s counsel that in view of the withdrawal of all defendants, the court was at liberty to enter judgment in favour of the plaintiff. He said with the withdrawal of the defendants and their consent to abide by his judgment, the plaintiff has emerged as the lawful candidate of PDP in the March 28, 2015 National Assembly election for Anambra Central senatorial district.

The Anambra central senatorial seat has been vacant since the nullification of Ekwenife’s election by the Court of Appeal in Enugu on December 7, 2015. The court voided Ekwunife’s election on the grounds that she was not “the product of a valid primary and was therefore not duly and legitimately nominated.” It did not only order for a rerun election, but excluded the PDP from participating in the rerun election.

This angered the PDP which insisted that it must re-contest the election. Even when Ekwunife went to the Supreme Court to review the Appeal Court’s judgment, the court turned down her request. Since then, the senatorial district has been denied representation in the Senate.
While Justice Tsoho’s judgment has further exposed how long it takes the judiciary to determine a simple matter, it came a few weeks after the Court of Appeal in Abuja had ordered INEC to conduct a rerun election within 90 days to fill the vacant senatorial position.

Delivering judgment in an appeal filed by the All Progressives Grand Alliance (APGA) and its candidate, Chief Victor Umeh, challenging the February 29, 2017, judgment of the Federal High Court in Abuja, wherein the trial judge, Justice Anwuli Chikere, ordered the inclusion of PDP and its candidate, Senator Uche Ekwenife in the scheduled Anambra Central senatorial re-run poll, the three-member panel of the appellate court headed by Justice Tinuade Akomolafe Wilson ordered that a re-run election be conducted in the senatorial district within 90 days.
Justice Wilson who led a three-man panel of the Appeal Court, dismissed PDP’s preliminary objections on the issue of the appellants’ locus standi and the court’s jurisdiction to entertain the suit.

Recall that following the disqualification of Ekwenife, PDP had hoped to substitute her with Peter Obi. This made the party to file another suit in which Justice Chikere ordered the inclusion of PDP senatorial re-run poll. But Justice Wilson of the appellate court held that the appellants’ suit was not academic as there were live issues in the appeal. She further upheld the exclusion of the PDP in the rerun election.

In determining the main crux of the appeal, the appellate court held: “The rationale therefore, is correct as submitted by the appellants that the principle of guiding who can participate in a court ordered re-run election following the nullification of general election has been established in Labour Party Vs. INEC, and it remains the law.

“Where a court nullifies an election and orders a fresh election, a political party which participated in the annulled election at whose instance the election was nullified cannot field a new candidate to contest in the fresh election. This is because the fresh election does not entail an entirely new process; rather it takes the place of the annulled election, because the period of nomination of candidates has lapsed.”

This is why Justice Tsoho’s judgment last week has raised many questions for the judge such as: Was he aware of the two judgments by the Court of Appeal and one from the Supreme Court on the same matter which had rested the case? Can his decision override these judgments? Was he not aware that the Court of Appeal nullified PDP’s election? Can his judgment stand on nothing?

To show that the PDP house is not in order, presently, Senator Annie Okonwko who is in another faction of the party is still in court challenging the recognition of Ekwunife as the candidate of the party in 2014 by INEC. Last week, he issued a statement faulting Justice Tsoho’s judgment, saying it was a miscarriage of justice.

This is why many observers believe that the judge failed in his judgment to make any reference to the Court of Appeal decision that nullified the PDP and Ekwunife’s election. He also did not make any reference to the Court of Appeal judgment delivered on November 20, that ordered INEC to conduct the rerun election within 90 days nor to the earlier judgment that nullified Ekunife’s election. They therefore wondered if he wants INEC to ignore the Appeal Court order and decision?

It is against this background that analysts have not only faulted the judgment, but described it as hopeless. They argued that if the election had not been nullified by the Appeal Court, and he came to the conclusion that Okonkwo was the rightful candidate of PDP, he can order that Okonkwo should be sworn in but under the present situation, he cannot.

“But in the present case, the election in question has been destroyed by the Court of Appeal judgment delivered on December 7, 2015 which nullified the election. And that is why the seat has been vacant till date. So, Obiora Okonkwo is not going there to replace anybody because there is nobody there. The election has been voided by the Court of Appeal which is the final court vested with the authority to adjudicate over National Assembly matters. And that was what the Supreme Court justices told Uche Ekwunife on 10th of February10 2017. They told her that they don’t have any authority to tamper with the judgment of the Court of Appeal, that the judgment is final. So, the election remains nullified forever. A high court cannot pretend that it is treating a pre-election matter and fail to recognise the fact that nobody can be winner of a nullified election. There is nothing for Okonkwo to claim because the election does not exist anymore. It has been invalidated,” said Emmanuel Edegbai.

To harvest Justice Tsoho’s judgment, Okonkwo, through his lawyer, Sabatine Hon (SAN), has written INEC demanding the immediate issuance of a certificate of return to him as ordered by the court. The letter dated December 14, 2017, and titled: ‘Request to issue certificate of return to Dr. Obiora Okonkwo in compliance with judgment of the Federal High court in suit No.
FHC/ABJ/CS/1092/2014 delivered on December 13, 2017’, demanded for the issuance of a certificate of return to enable him present himself to the leadership of the Senate for inauguration.

But interestingly, APGA is not losing sleep over the latest judgment. Last week, it flagged off its campaigns for the senatorial district re-run poll scheduled for January 13, 2018. Chief Victor Umeh, the candidate of the APGA for the rerun election who addressed party supporters at the weekend, said he was confident that INEC as a responsible institution of government would not obey a high court ruling against a subsisting Appeal Court verdict on the Anambra Central rerun issue.

“INEC would take a decision based on the superior judgment on record on the matter. INEC has no right to choose a high court order against a Court of Appeal order that is subsisting. The constitution of Nigeria provided for hierarchy of courts – Supreme Court, Court of Appeal and High Court. And when Court of Appeal renders a decision, all the authorities and persons and all courts of subordinate jurisdiction will abide by it. INEC cannot choose between Court of Appeal order and high court order. Two of them don’t have the same level of authority in our jurisprudence. A high court is a high court. The decision of the Court of Appeal comes before that of high courts,” Umeh argued.

Countering Okonkwo’s contention that pre-election matters take precedence over tribunal cases, Umeh argued that “What he (Obiora Okonkwo) is saying is a misconception. If the election is alive and somebody is deriving benefit from the election and it is finally determined that the person who is occupying the seat was not the right person, it should be the other person, then, the pre-election matter can be given validity. But when the election has been nullified, there is nothing left again. Assuming Uche Ekwunife is in the Senate, for example, and Justice Tsoho determines that Obiora Okonkwo should be sworn in, then Uche Ekwunife will appeal against that judgment and remain in office.

When the Court of Appeal finishes, Ekwunife can appeal to the Supreme Court again. Until the Supreme Court finishes, Obiora Okonkwo cannot go there. But in the present case the Court of Appeal has nullified the election. That is the difference. So, the analogy he is making is misconceived. He was talking about Governor Ikpeazu that high court ordered Ogah to be sworn in and INEC issued Ogah certificate of return. It was because the governorship election of Abia State was still valid and somebody is governor. So, he can be replaced. But in this case the election has been nullified. It is dead and buried. That is the difference! That is the ignorance he (Okonkwo) is exhibiting on television today. You cannot claim anything from nothing.”

The ex-APGA chairman pointed out that the only way a Senator can now emerge for Anambra Central in the eyes of the law is through the rerun election ordered by the Court of Appeal, adding that “those who are still running around and trying to contrive one mischief or other should go home knowing that it’s over. How can you imagine that in just one election, PDP has projected so many candidates? The first one was Ekwunife. The second one was Peter Obi. The third one is now Obiora Okonkwo – all from the same party in respect of one election. And remember that there is also the case of Annie Okonkwo hanging. So, PDP should buried itself in shame and allow the Anambra Central people to have peace.”

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INEC has no right to choose a high court order against a Court of Appeal order that is subsisting.