Femi Folaranmi, Yenagoa The All Progressive Congress (APC) and the Peoples Democratic Party (PDP) have been trading blame over the violence on defection controversy that broke out, on Monday, in Twon Brass, the headquarters of Brass Local Government Council of Bayelsa State. The PDP leadership, led by the Brass Local Government Chairman, Mr. Victor Isaiah,…
“Run, Run” are separate lyrics by Tamar Braxton, Leanne & Naara, Freddy’s 3 songs. FNAF song by chaotic canine culture; and “run, run, run,” by the supremes song. Let us see their relevance:
INEC top management may have to start to run, run, run, into the cold embrace of contempt proceedings in the unthinkable event that it goes ahead to conduct the sham of Anambra State Central Senatorial elections which it has whimsically and capriciously fixed for Saturday, 13th January, 2018.
INEC, as the acronym suggests, is supposed to be “independent” in its dealings on electoral matters, malice towards none; affection towards all; oblivious to fear; immune to favour. But, its role so far in the Anambra electoral conundrum leaves much to be desired. First, it has appeared in some of the cases that have plagued the senatorial seat which is not expected of an unbiased umpire who should hold the scales of electoral justice evenly between all contestants.
It has wrestled with some of the contestants, thus having its vision beclouded by the dust of the conflict. Quite unnecessary! Some of the adversarial contestation have dragged from the specialised Electoral Tribunal and ordinary courts (such as the High Court and Federal High Court), up to the Court of Appeal and even Supreme Court.
Chief Mrs Uche Ekwunife, the fearless, gladiatotrial political titan from Anambra State, had featured in Anambra Central Senatorial election in March 2015 and emerged victorious on the platform of the PDP. Dr Victor Umeh of APGA challenged this victory on the ground that Ekwunife was not qualified to contest the election since the primaries that introduced her were not validly conducted. The Election Petition Tribunal dismissed same. On further appeal to the Court of Appeal by APGA,the intermediate court nullified the election and ordered a re-run that must exclude PDP. PDP appealed to the Supreme Court. The case is still there as both INEC and PDP are contesting it. It is apposite to state that the Court of Appeal’s judgment on 16th December, 2016, never mentioned, which parties or candidates to participate in the rerun,whether PPA, APGA, APC or Labour Party. But it was clear on one thing: PDP must not participate, a decision INEC attempted to enforce within 90 days ordered by the Court of Appeal
INEC in attempting to consummate the rerun, excluded the PDP. On its part, PDP peeved by the exclusion sued INEC at the Federal High Court, Abuja.
In a well-considered judgment, Justice Anwuli Chikere who delivered the judgment, agreed with PDP and ordered its inclusion in the rerun.INEC disagreed and appealed against this judgment to the Court of Appeal Abuja. The only narrow issue presented to the Court of Appealdetermination by the Appellant (INEC) in the Appeal that is still live and extant, was whether the PDP should be allowed to participate in the rerun, having regard to the fact that her sanctioned candidate, Uche Ekwunife, had earlier been disqualified, based on the invalidity of her nomination, a reason for which Dr. Obiora Okonkwo( a PDP aspirant), had gone to court in a separate pre-election suit filed at FHC, Abuja, in 2015, in which he argued that he, not Ekwunife was the rightful nominee. APC that had produced Dr Chris Nwabueze Ngige (Onwa), who lost in the elections later made a fresh substitute after primaries because Ngige had excused himself for personal and family reasons. He is now the Minister of Labour. INEC said no, rejected the substitution and said Ngige must contest. His party APC, went to the FHC, Abuja and lost. It appealed to the Court of Appeal, Abuja, an appeal that is still extant and already fixed for hearing. APC is relying inter alia, on the provisions of sections 31, 33 and 35 of the Electoral Act.
It must be noted that the said Dr Obiora was never a party to the legal tussle between the PDP and INEC (now at the Supreme Court), nor that between APC and INEC decided by Justice Chikere and over which INEC appealed. Dr Okonkwo’s issue or challenge of Ekwunife’s qualification for nomination was never an issue in the case between INEC and APC, nor was it discussed or reflected in the processes leading to the judgment or in the judgment itself. Okonkwo’s case simply bordered on the foundation of who was the originally qualified candidate as between him and Ekwunife in a totally different suit. It was a pre-election matter that had assumed a life of its own.
INEC is said to insist on going ahead with the rerun election for the Anambra Central Senatorial election based on alleged three Court of Appeal orders, directing INEC to conduct rerun elections within 90 days, which it has allegedly fixed for 13th of January, 2018.This is where INEC as an unbiased umpire must tread softly. It must not tread the path of ignoble dishonor or apparent favouritism. Is she not a party to the appeal filed by the PDP, now at the Supreme Court? Is she not a party in the appeals filed at the Court of Appeal, Abuja? Has she never been advised about the hallowed doctrine of lis pendens and the desirability of awaiting final decisions before acting?
Seeking Legal Opinion
In a well-considered legal opinion written by its lead external Solicitor, AsiwajuAdegboyege Awomolo, SAN (which has been trending online in the last few days), the erudite senior lawyer recounted the events leading to INEC’s attempt to hold a rerun election, and referred INEC to section 87 of the Electoral Act which views Okonkwo’s action as a pre- election matter. This is because the suit filed by Dr Okonkwo against INEC and others since 2015, was a pre-election case at the FHC, even before the elections won by Ekwunife. Justice John Tsoho of the FHC, Abuja, had in his judgment, delivered on 13th December, 2017,entered judgment for Dr Okonkwo, and held that he was the validly nominated candidate of PDP (as against Ekwunife), during the 7th December, 2014, PDP primary election for Anambra Central Senatorial District, which held at Alex Ekwueme square Awka.
Noting that the PDP had won the said Anambra Central Senatorial election which held on the 20th March, 2015,Justice Tsoho ordered INEC to issue a certificate of return to Dr Obiora Okonkwo “forthwith as the the Senator representing Anambra Central Senatorial District of Anambra State”. The court concluded by ordering the Senate President to immediately swear in Dr Obiora Okonkwo as the Senator representing Anambra Central Senatorial District. This seat has been vacant without an occupant at the Senate since the legal hostilities commenced nearly three years ago. A case of two elephants fighting and the grass suffering. It is Ndi Anambra Central people that are at the receiving end.
INEC should obey this straight forward judgment
Rather than obey this simple lucid judgment, INEC enmeshed itself in some needless labyrinth of legal conundrum, by referring to three earlier Court of Appeal judgments that did not even involve Okonkwo himself, nor challenged his pre-election matter.
Awomolo’s timely legal opinion
It is from this background that Chief Awomolo wrote his legal opinion, recalling that Nnamdi Nwaeze, esq, who had appeared for INEC in the case before Justice Tsoho had confirmed not having filed a counter affidavit in opposition to Okonkwo’s matter and did not contest it. This means INEC did not contest the case. In other words, it agreed with Okonkwo.
Indeed, Awomolo noted that Mr Nwaeze had undertaken that INEC as “a responsible organization was ready to abide by the decision of the court”. Noting that Dr. Obiora’s case “falls squarely under section 87 of the Electoral Act”, Awomolo also noted that “the Supreme Court in most successful appeals ordered the return of the candidate (Okonkwo) who ought, lawfully to have been fielded but unlawfully denied”.
Observing that Dr. Okonkwo “was not party to any of the orders of the Court of Appeal” in the “three different orders of the Court of Appeal directing the Commission to conduct a rerun election within 90 days”, the Asiwaju concluded that INEC must, as one of two possible options (I only agree with this one), “obey the order granted in the judgment of Hon. Justice 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 cogent judgment binding on all parties.”
Can Inec Appeal Justice Tsoho’s Judgment?
No. It cannot. Because it was a consent judgment. A consent judgment can only be appealed if it was obtained by fraud or misrepresentation. See the cases of DANA IMPEX LTD. & ANOR V. ADEROTOYE (2005) LPELR-5534(CA); HARUNA V. ADAMU & ANOR (2016) LPELR-41157 (CA); UNION HOMES SAVINGS & LOANS LIMITED V. CPL INDUSTRIES LIMITED (2009) LPELR-8154(CA); AMORI V. IYANDA (2008) ALL FWLR (PT.416) 1864 AT P.1893. None was shown here.
What INEC must do
Should INEC run, run, run, to the re-run election of 13th January, 2018? No. it dares not. Why? Here is why it must wait, wait, wait. My unremunerated piece of legal opinion to INEC’s top management is to escape the cold embrace of contempt proceedings through issuance by Dr Okonkwo of forms 48 and 49. It must obey this clear judgment whose manifold effect that was most ably espoused by her legal Adviser/Solicitor, Chief Awomolo, by shelving forthwith, the 13th January, 2018, elections, and issuing Dr. Okonkwo a certificate of return immediately. The Senate President should thereafter swear in the Senator-Elect, Dr. Okonkwo, and allow Anambra Central people have representation at the Senate which they have been denied of for nearly three years.
In the unlikely event that INEC contumaciously insists on going ahead, Okonkwo should resort to section 75(2) of the Electoral Act, which provides most ironically and peremptorily, that:
“Where the Commission refuses and, or neglects to issue a certificate of return, a certified true copy of the Order of a court of competent jurisdiction shall, ipso facto, be sufficient for the purpose of swearing-in a candidate declared as the winner by that court”.
THOUGHT FOR THE WEEK
“Our government… teaches the whole people by its example. If the government becomes the lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy”.(Louis D. Brandeis).