Echocho vs Wada: Waiting for the judiciary

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By  Kamarudeen Ogundele
The emergence of Kogi State Governor Idris Wada as the candidate of the Peoples Democratic Party (PDP) at the primaries last year is being contested in court by two chieftains of the party, Jibrin Isah (also known as Echocho) and Oyebode Makinde. Kamarudeen Ogundele examines the case.
As the Federal High Court, Abuja is set to deliver judgment in the suit against Kogi State  Governor, Idris Wada, this Friday, the political machinery of the Peoples Democratic Party (PDP) has been set in motion again.
The winner of the January 2011, PDP primaries, Jibrin Isah and another governorship aspirant, Oyebode Makinde, are challenging the swearing-in of Wada as governor.
For those who have been following events in the state, the issue is which of the two primaries  won by Echocho and that won by Wada enjoys the status of legitimacy.
Last  Thursday, Wada made a political journey to the PDP  national secretariat where he met the national chairman, Alhaji Bamanga Tukur and other officers. He allegedly sought the intervention of the party in the dispute between him and Echocho. Could this mean that Wada is jittery as being insinuated?
However, in a statement by Echocho signed by his Special Adviser, Phrank Shuaibu, he appealed to the PDP to allow natural justice and rule of law to prevail. He said that reconciliation shall not be “at the expense of justice, fairness and the rule of law”.
But the question on the lips of the people of Kogi is will justice prevail? Or will it be sacrificed on the alter of political expedience?
Echocho had argued that the primaries that gave him the ticket was in line with Section 178(2) of the 1999 Constitution and 25(8) of Electoral Act 2010 as amended.
Many have also erroneously likened the case in Kogi to that of former Bayelsa Governor, Timipre Sylva, who lost his case against Seriake Dickson why fighting for the governorship ticket.
Sylva was challenging his exclusion from the governorship primaries won by Dickson.
The Supreme Court after hearing him declined jurisdiction to go into the merit of the case dismissing it as a pre-primary election matter which no court can adjudicate upon.
At the last hearing date, Echocho had told Justice Abdul Kafarati why Wada must vacate the seat for him.
Contrary to argument by Wada, Echocho said his case is different from that of Sylva which the Supreme Court declined jurisdiction on.
His Counsel, Chief Wole Olanipekun (SAN), maintained that the judgment of the Supreme Court which nullified the tenure elongation of five former governors including that of Kogi was not an issue in Sylva’s suit unlike now.
Besides, he argued that in the case of Bayelsa, it was Sylva who went to court to invalidate the primaries which he won while Echocho is in court to validate his own.
Isah had won the primaries before the INEC postponed elections in five states including Kogi.
The action followed an Abuja Federal High Court’s verdict which held that the tenure of the five governors is beyond May 29, 2011 having won re-run elections.
When the commission released a new date for the election, Kogi PDP conducted another primary election in September in which Wada emerged as the winner.
The Court of Appeal upheld the decision. Dissatisfied, the commission went to the Supreme Court to challenge the decision.
While the case was pending for determination before the apex court, INEC chose to take laws into its own hands by conducting a governorship election four days after it addressed the apex Court.
Wada eventually won the election defeating the candidate of the Action Congres of Nigeria (ACN), former governor Abubakar Audu.
By going ahead to conduct the election, was INEC not appropriating judicial functions to itself by not informing the Supreme Court that it wanted to hold elections in Kogi State on the 3rd of Dec.,2011, as at the time it addressed the Apex Court on  November 29 or after it purportedly held it, to inform the court before judgment was delivered on January 27, 2012?
Is it not proper for INEC, after purportedly holding the said election, to have withdrawn its Appeal, so that the Supreme Court would not have declared that the term of office of Alhaji Ibrahim Idris be terminated on the May 28, 2011?
The Supreme Court in its January 27, judgment however, ruled that the tenure of the governors had elapsed on May 28, 2011; more than six months before the primaries won by Wada in violation of Section 178(2) of the 1999 Constitution.
The question is, if as rightly held by the Supreme Court, the tenure of Ibrahim Idris ended on 28th May, 2011, when was election held to that office in accordance with Section 180(2) and(2a) of the Constitution?
Can the said section be waived or frittered away by INEC?
What of the mandatory provisions of Section 25(8) of the Electoral Act?
Is INEC above the Constitution and the Electoral Act?
When was the primary election that produced Mr. Wada conducted? Was it before or after the expiration of the tenure of Ibrahim Idris on  May 29,  2011?
When was the notice of election given? And what is the significance of the date of January 30, 2012  when INEC directed that Mr. Wada be sworn in?
Who did Wada succeed on January 30, 2012? Was it Ibrahim Idris whose tenure ended on May 28, 2011 or  Mr. Wada succeeded the vacuum that existed between May 29, 2011 and January 30, 2012?
Blaming INEC for the confusion in Kogi, Olanipekun argued that it was the commission that got the judgment that sacked the former governors and thereby reactivated the earlier PDP primaries conducted in January 2011 ahead of the May 29, exit date.
He said the present cause of action arose at the instance of the Supreme Court judgment on tenure elongation.
By the judgment of the apex Court, Olanipekun said the September 2011 primaries won by Wada had become extinct and no longer applies because it was not conducted within 150 days to the exit of former governor Ibrahim Idris.
He argued that the only valid primaries that can avail the party is that won by Echocho in January 2011.
Olanipekun further argued that in the case of Bayelsa, it was Sylva who went to court to invalidate the primary which he won but Echocho had not gone to court on his own, rather his cause of action arose at the instance of the Supreme Court judgment on tenure elongation.
Adopting his written address, Wada’s counsel, Chris Uche (SAN) however, argued that it was not in dispute that there were two primary elections held in January and September, 2011 and that the plaintiff participated in the two primaries.
Submitting that the case of Sylva which was dismissed by the Supreme Court had finally halted the suit of the plaintiff, he urged the court to rely on the judgment of the Supreme Court to dismiss the instant suit.
He also argued that every claim of the plaintiff is as to the effect of the April 2011 election and as long as the said election was cancelled, every other election relating to it is automatically canceled adding that the suit before the court is an internal affair of the party.
Counsel to INEC, Adegboyega Awomolo (SAN) submitted that the court lacks the jurisdiction to entertain the matter because the plaintiff is asking the court to interpret the judgment of the Supreme Court on tenure elongation and also asking it to give a consequential order.
He further submitted that Section 251(1)(q)(r)(s) of the 1999 Constitution did not permit the court to do such a thing adding that the court has no power or right to interpret what the constitution will imply in the judgment of the Supreme Court.
According to him, the reliefs sought can only be granted by the Governorship Election Petition Tribunal.
He urged the court to dismiss the originating summon as a clear abuse of court process.
In his own submission, PDP’S counsel, Olusola Oke argued that the reliefs sought by the plaintiff especially 3-8, is seeking to nullify the election which the party won.
By the Judgment in PDP against Sylva, Oke said the Plaintiff is estopped from seeking enforcement of January 2011 PDP primaries.
According to him, under Section 285 of the Constitution, jurisdiction to question the validity of an election is with the tribunal.
He therefore urged the court to dismiss the suit of the plaintiff.
After listening to parties in the suit, Justice Kafarati adjourned till June 29 for judgement.
A three-member panel of the Court of Appeal, Abuja, presided over by Justice Zainab Bukalchuwa had remitted the case back to the trial court following amicable settlement reached by the parties in the suit.
The re-assignment was at the instance of the Wada who through his counsel, Chris Uche SAN  told the Court of Appeal that he wanted the matter taken away from Justice Donaltus Okorowo and be re-assigned to another judge.
In the suit for determination before Justice Kafarati, Echocho is asking for an order setting aside Wada’s swearing in and for an order directing INEC to conduct a fresh election pursuant to the January 27, judgment of the Supreme Court.
He also wants a declaration that INEC which is an institution established by the Constitution is under a duty to obey and comply with decision of the Supreme Court delivered on January 27, 2012.
He is asking the court to declare that INEC being the appellant in Appeal No: SC/357/2011 between INEC(as appellant) V Alhaji Ibrahim Idris (as respondent) which prayed the Supreme Court to decree and declare that the term of office of the last holder of the office of Governor of Kogi state constitutionally lapsed on 28th May, 2011 by the virtue of Section 180(2) of the Constitution and which appeal/reliefs the Supreme Court allowed cannot rightly and in good conscience be heard and allowed to jettison or misinterpreted in any way the said judgment of the Supreme Court to again defeat the clear wordings of Section 180(2) and (2A) of the same Constitution.
He also wants the court to declare that the purported election to the office of Governor of Kogi State held by the defendant during the pendency of its appeal to the Supreme Court in Appeal SC/357/2011 and which purportedly produced the 2nd defendant as Governor-elect of Kogi State was unconceivable, unconstitutional, null and void and of no effect whatsoever.
He is praying the court to declare that the election that brought Wada in was done in violation of the mandatory provisions of Section 178(2) of the Constitution, Section 25(8) and 31(1) of the Electoral Act.
He is also praying the court to declare that the letter issued by the INEC on January 30,2012 directing Wada to be sworn in based on the December 3, 2012 is contemptuous, null and void and of no effect.
Makinde is seeking a declaration that the 1st Defendant Order/directive that the 3rd Defendant be sworn in as Governor of Kogi State is unconstitutional, null, void and ultra vires.
That the 1st Defendant Order/directive that 3rd Defendant be sworn in as Governor of Kogi State when the 4th Defendant is discharging same function pursuant to section 191(2) of the Constitution of the Federal Republic of Nigeria is unconstitutional, null, void and ultra vires.
That the 3rd Defendant cannot hold himself out/or parade himself as the Governor of Kogi State and that the 1st Defendant is bound to conduct a fresh election into the gubernatorial seat for Kogi State based on fresh primary by the political parties.

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