From Godwin Tsa, Abuja
The Independent National Electoral Commission (INEC) is poised to conduct the rerun election for the Anambra Central Senatorial seat this weekend. However, ahead of the scheduled election, the electoral body is faced with multiplicity of lawsuits in relation to the senatorial seat.
Some of these cases, which are capable of rendering the whole exercise a nullity include Dr. Obiora Okonkwo Vs PDP and others; Comrade Anayo Nweke Vs INEC, pending before Federal High Court, Awka and PDP and another Vs Chief Victor Umeh and 11 others, now pending before the Supreme Court, and Barrister Chukwunweike Maduekwe Vs PDP, filed before a High Court of the Federal Capital Territory (FCT), with suit No: FCT/HC/CV/ 1110/2015.
In all of these cases, however, the one that has direct legal consequences on the conduct of the January 13 rerun election scheduled by INEC is the pre- election suit filed on December 23, 2014, marked: FHC/ABJ/CS/ 1092/2014, by Dr. Okonkwo and which judgment has been entered in his favour by a Federal High Court. The court declared Okonkwo winner of the Anambra Central Senatorial seat, being the authentic candidate of the PDP.
Before the judgment, which was delivered by Justice John Tsoho of the Abuja division of the Federal High Court, the Court of Appeal, Abuja division, had, on November 20, 2017, ordered the INEC to conduct a rerun election for Anambra Central Senatorial district within 90 days. Justice Tinuade Akomolafe-Wilson read the judgment of the court while giving a judgment in a post-election appeal brought by Victor Umeh.
Following the order, INEC, on November 23, 2017, issued a statement entitled, ‘Press Statement on the Vacant Seat of Anambra Central Senatorial District’ and signed by its National Commissioner and member, Information and Voter Education Committee (IVEC), Mohammed Kudu Haruna, wherein the commission said: “INEC has decided that all encumbrances to the conduct of the re-run have been removed.” It therefore fixed January 13, 2018 for the conduct of the election.
On December 13, 2017, however, a consent judgment was given by Justice John Tsoho of the Federal High Court in which INEC was ordered to give Dr. Okonkwo a certificate of return as the senator representing Anambra Central in the Senate.
Following the judgment, Sebastine Hon (SAN), on December 14, 2017, wrote INEC urging it to issue a certificate of return to Dr. Okonkwo in accordance with the judgment of court. He also promised to make available to the commission Certified True Copies (CTCs) of the judgment when they become available. Same day, in a statement signed by May Agbamuche-Mba, a National Commissioner, the INEC, in announcing the registration of 21 new political parties, also stated that it had read news of the judgment in favour of Dr. Okonkwo, promising to not to act until it received CTC of the judgment.
However, a bailiff from the Federal High Court served on INEC’s Director, Legal Services, Mrs. Oluwatoyin Babalola, CTC of the judgment and the judgment order of December 19, 2017. The documents were duly acknowledged at her office by one Mohammed Sani. The following day, a lawyer from the law firm of Sabastine Hon, also served on the INEC chairman, a CTC of the judgment and the enrolled order.
Following these, youths from Anambra Central protested before INEC headquarters in Abuja on December 22, 2017 demanding that the commission issues Okonkwo a certificate of return, as ordered by the court. Addressing the protesters, Richard Awolola, an acting director in charge of security at the commission, said the INEC was “studying the judgment.”
However, in a leaked legal opinion published on www.ripplesnigeria.com, Asiwaju Adegboyega S. Awomolo SAN, stated that the Commission’s Director of Legal Services, Mrs. Babalola, approached him in the evening of December 20, 2017 with a certified true copy of the judgment and sought his respected opinion. Awomolo, who is INEC’s external legal adviser, wrote: “The Director, Legal Services had a meeting with us this evening and gave us court processes with a view to guiding the Commission in the way forward.”
It was gathered that the Commission decided to approach its external legal adviser after internal legal advice urged it to respect the decision of justice Tsoho.
In his legal advice received at the INEC chairman’s office on December 21, 2017, Awomolo SAN wrote: “The plaintiff in this case was one of the members of the PDP who contested the party primary election for nomination to the Anambra State Central Senatorial District. He claimed that he was unlawfully excluded and wrongly denied the opportunity to be nominee of the party in the 2015 election. Chief (Mrs.) Uche Ekwunife was nominated by PDP. She contested the election and won.
“Dr. Obiora Okonkwo, before the election challenged the nomination of Chief (Mrs.) Ekwunife at the Federal High Court on the grounds of Section 87 of the Electoral Act.
“In the suit, INEC was the third respondent. The result of the Senatorial election held in 2015 was challenged at the Election Petition tribunal and it ended in the Court of appeal.
“The Court of Appeal in its decision nullified nomination of Chief (Mrs.) Ekwunife and ordered INEC to conduct a fresh election excluding Chief (Mrs.) Ekwunife within 90 days.
“The case protracted from 2014 to 2017. Plaintiff filed an application on 20th June 2017 praying among other reliefs that the court entered judgment for the plaintiff/applicant as per his claims in the amended originating summons filed on 23rd December, 2014.
“He also prayed for the following reliefs:
“AN ORDER that the plaintiff/applicant is the validly nominated candidate of the PDP at the 7th December, 2014 PDP Primary Election to nominate candidate for Anambra Central Senatorial District at Ekwueme Square Awka, Anambra state whose political party (PDP) contested and won the National Assembly election that was held on the 28th of March, 2015.
“AN ORDER directing that INEC, the 3rd defendant/respondent cancels the certificate of return (if any is subsisting) issued to the 4th defendant/respondent.
“AN ORDER that the 3rd defendant/respondent (INEC) issues a certificate of return to the plaintiff/applicant Dr. Obiora Okonkwo forthwith as the senator representing Anambra central Senatorial District of Anambra State.
“AN ORDER that the Senate President of the Federal Republic of Nigeria swears in the plaintiff/applicant Dr. Obiora Okonkwo forthwith as the senator representing Anambra central Senatorial district of Anambra state on the senate of the National Assembly of the Federal republic of Nigeria as there is no occupant of the said seat at the senate at the moment.
“AN ORDER that arrears of emoluments, salaries and other perquisites of office be paid to the plaintiff/applicant from 7/12/2015 up to the date he sworn in as the senator representing Anambra Central senatorial district.”
Hearing and consent judgment:
“When the case came up for hearing of the motion, all the parties, including INEC was represented by counsel.
“From the judgment the following remarks were made by the Honourable Justice Tsoho. Learned counsel for the 1st and 2nd defendants and the 4th defendants respectively, Messer I.E. Umeji and E.O. Okoli stated their non-opposition to the motion for judgment and also adopted the processes that had been filed by the respective defendants to the effect of not contesting the plaintiff’s suit.
“In similar vein, Nnamdi Nwaeze Esq. of learned counsel for the 3rd defendant confirmed not having filed any counter affidavit to the plaintiff’s matter. He added that the 3rd defendant, as an impartial umpire is, not inclined into delving into such matters. He undertook that the 3rd defendant as a responsible organisation is ready to abide by the decision of the court.
“The court consequently entered judgment for the plaintiff in accordance with the prayers which arise from proceedings related to the said Anambra Central senatorial district election.
“There is in the records of INEC, 3 orders of the Court of Appeal directing the commission to conduct rerun election into Anambra Central Senatorial district within 90 days, but had been delayed and rescheduled for the 13th day of January, 2018.
“The first question is to determine what is the status of pre-election matter even after the case had been concluded in the Election Tribunal and the Appeal court.
“The most common cause of action in pre-election matter is the failure of the political parties to organize credible nomination as stated by Section 87 of the Electoral Act. Section 87 in particular gave candidates or aspirants of political parties who were unlawfully denied nomination, right to approach a court with a view to seek redress.
“The case of Dr. Obiora Okonkwo falls under Section 87 of the Electoral Act. The Supreme Court in most successful appeals ordered a return of the candidate who ought, lawfully to have been fielded but unlawfully denied.
“Such cases include Adugu Gbileve v Mr. Ngunan Auddingi, Jonkun Glare Gwende v INEC and in Jev v Iortyom.
“In the last case, the Supreme Court reversed its decision which had earlier ordered fresh election to directing INEC to issue certificate of return to the successful party.
“However, the dilemma we have in this case is the existence of 3 different orders of the Court of Appeal directing the commission to conduct a rerun election within 90 days. The commission in obedience to these orders scheduled another election on the 13th January, 2018. It is important to note that the respondent judgment creditor was not a party to any of the orders of the court of appeal.
“The options open to the commission are as follows:
Obey the order granted in the judgment of Hon. Justice john Tsoho delivered on the 13th Day of December 2017 because it relates to pre-election case, which is given priority in election related matters and it is a consent judgment binding on all parties.
Apply that the judgment be varied, in view of the subsistence of these three orders of the Court of Appeal, directing the commission to conduct fresh election, as the judgment in this case contradict the decisions of a superior court; the Court of Appeal.
“There is no right to appeal against a consent judgment by the Federal High Court, and the Court of Appeal expressly prohibits it.
“It is very important to note that the undertaken of learned counsel for the commission carries very serious weight and legal consequences, even for the integrity of the commission. He may, however, given the undertaken in good faith but the Commission deserves to be notified by learned counsel.
“We suggest an application may be made to the Hon. Justice Tsoho to consider a review of the judgment and the orders.
“We thank you for your confidence reposed in us”.
Curiously, INEC has accepted the second leg of Asiwaju Awomolo’s recipe and gone ahead to seek a variation of the judgment, through a suit also filed by Awomolo SAN, while ignoring the first advice to respect the judgment of court in a pre-election matter.
In the suit filed by Awomolo on behalf of INEC, it is asking Justice Tsoho for an order “varying the consent judgment of the court delivered on the 13th day of December 2017 in FHC/ABJ/CS/1092/2014, which ordered the plaintiff/judgment creditor/respondent to be issued a certificate of return and sworn in as senator representing Anambra Central senatorial district of Anambra state.”
Basis upon which it is seeking variation of the judgment is that there is a subsisting Court of Appeal judgment on the issue of Anambra Central. However, the suit, as filed by INEC, was cleverly silent on the fact that the judgments of the Court of appeal, in reference, emanated from a post-election litigation while the judgment of Justice Tsoho emanated from a pre-election matter, which Awomolo SAN, had said in his legal opinion, is superior in election cases.
Interestingly, Alhassan A. Umar, a legal officer at INEC, speaking in an affidavit of urgency attached to the suit stated that, while making a case for the continuation of the election stated that “tax payers monies and other vital logistics have been deployed to ensure that the election ordered by the court of Appeal is conducted.” Umar and INEC would have saved themselves this pain and waste if they had accepted Awomolo’s advice to issue Dr. Okonkwo with the certificate of return as ordered by the Federal High Court. INEC’s further reason that “campaigns are already on by the different parties” comes as afterthought as the judgment of Justice Tsoho was given long before the campaigns began. If INEC had obeyed the order, there would have been no need to coarse parties to waste scarce resources on campaigns that may become academic exercise.
INEC had opportunity to save itself from wasting taxpayer’s money, as Umar said in his affidavit, but it decided to ignore a court order and the legal advice it willingly sought from Awomolo. Does that not indicate self-interest from INEC?
It is also worthy to mention that the PDP has since filed an appeal before the Supreme Court challenging the November 20, judgment of the Court of Appeal directing INEC to conduct a rerun and excluding it from participating in the conduct of the said election.
Besides the litany of lawsuits over the Anambra Central Senatorial district, there is a petition before the Senate by a chieftain of the Advance Democratic Party (ADC), Anayo Nweke.
In the said petition pending before Senate Committee on Ethics, Privileges and Public Petitions, the petitioner has asked the Senate to stop the INEC from going ahead with the proposed re-run election in the Anambra Central senatorial seat pending the determination of all subsisting court cases against the electoral body.
In the petition addressed to the Senate President entitled, “Petition to request that INEC be directed to refrain from proceeding with the proposed re-run election in the Anambra Central senatorial seat pending the determination of all subsisting court actions against INEC.” Nweke argued that INEC is a named party in all the pending cases and would therefore be bound by the respective decisions of the courts.
According to him, “proceeding with the proposed re-run election, prior to a final determination of these cases, would invariably result in a situation where INEC will foist a fait accompli on the courts.
“Consequently Sir, in the light of the foregoing, we respectfully request that you direct the Chairman, Public Petitions, to exercise it’s legislative oversight functions by directing INEC not to proceed with any proposed re-run election in Anambra Central senatorial district until these pending litigations are concluded.
“This would obviate the occurrence of an embarrassing situation whereby INEC, an agency of the Federal government, would appear to be impugning the jurisdiction of the courts of the Federal Republic of Nigeria by foisting a situation of helplessness on the courts and thereby rendering their decisions nugatory.”
It will also go a long way to reaffirm the constitutional oversight of the Senate in the minds of the people.”