Ararume /ACN & INEC Suit: What Goes Round Comes Round – By John I. Mgbe

It is no longer a secret that Senator Ifeanyi Ararume and the All Congress of Nigeria (ACN) have headed back to court in a bid to challenge the legality of the Supplementary election which was held in Imo State on May 6^th, 2011.In order to carry everybody along, there is a dire need to amplify the genesis of this suit so that the reader can be carried along. The gist of the suit is that the governorship election which was held in Imo State on the 26^th day of April, 2011 was declared inconclusive by the Independent National Electoral Commission (INEC).The election was declared inconclusive because elections did not take place in some Local Government Areas and a ward. The local government areas where election was not held include Ngor Okpala, Oguta, Ohaji/Egbema, Ikeduru and Orji ward in Owerri North Local Government Area. The supplementary election was eventually held on May 6^th, 2011.On the 7^th May, 2011,INEC released the result and declared Owelle Rochas Okorocha the winner and Governor-Elect .According to INEC result, Owelle Rochas Okorocha, the candidate of the All Progressives Grand Alliance(APGA),emerged winner after he polled 336,809 votes to beat Chief Ikedi Ohakim, the governorship candidate of the Peoples Democratic Party(PDP) who polled 290,496 votes.

Dissatisfied with the result of the election, the PDP filed an Election Petition at the Imo State Government Election Tribunal headed by Justice E.N.Kpojime as Chairman, Hon Justice M.I.Sirajo  and Justice E.O.Osinuga as members. In the suit numbered EPT/IM/GOV/04/2011, the main grounds of the petition were that the PDP candidate scored the majority of the lawful votes cast at the said election, and (2) that the supplementary election held on the 6^th of May, 2011 was invalid being in breach of the provisions of both the Electoral Act2010 (as amended) and the 1999 Constitution (as amended).

On Saturday, the 12^th day of November, 2011 the Tribunal delivered its judgment. Before the judgment, the Tribunal had with the concurrence of all the parties in the matter formulated issues for determination:(1) Whether the supplementary election conducted on the 6^th day of May, 20II was held in compliance with the provisions of both the Constitution and the Electoral Act and (2) Whether the candidate of the PDP (i.e. CHIEF Ikedi Ohakim) scored the majority of lawful votes cast at the election. Delivering the judgment on Issue No I, the Tribunal after analyzing the various statutory provisions and  the relevant statutory provisions and especially Section 178 Subsections1 and2 of the 1999 Constitution (as amended) and reviewing the cited cases held that the Supplementary Election held on the 6^th May was held in compliance with the provisions of the Constitution of the Federal Republic of Nigeria(as amended) and Electoral Act 2010(as amended).On the strength of the weight of evidence, the Tribunal consequently held that, the petition, on this ground is accordingly dismissed(see pages 27-32 of the judgment).On issue No 2(i.e. whether Ohakim scored the majority of lawful votes cast at the election of April 26^th2011.The Tribunal held :“From the above analysis of the evidence as presented by the petitioner and the respondents, we come to the irresistible conclusion that on issue NO.2,we hold that the petitioner has failed to prove that its candidate scored the majority of the lawful votes at the election”. The Tribunal further held: “the petitioner can only be declared the winner with the majority of lawful votes if it proves that it scored even one vote above336, 809 scored by the first Respondent or that this number consists of unlawful votes which when subtracted will make it the winner. We have not seen any such proof from it in this petition. It cannot therefore be declared winner of any election”. In its unanimous judgment, the Tribunal held that “the petition lacks merit and is accordingly dismissed in its entirety”. I have merely tried to compress the 50 page judgment of the Elections Petitions Tribunal in order to carry you, the reader, along.

Dissatisfied with the judgment of the Election Petitions Tribunal, the PDP appealed to the Court of Appeal, Owerri. For inexplicable reasons, the judgment was shifted to the Court of Appeal, Abuja. The Court  presided over by Justice Tijani Addullahi who led four other Justices of the Court in a unanimous decision held that the PDP appeal lacked merit and was therefore dismissed. The Court subsequently upheld the election of Okorocha of the All Progressive Grand Alliance (APGA).Justice Abdullahi held:”After a careful consideration of the preliminary objection filed by the appellant, we hold that it lacks merit and is hereby dismissed. The appeal also lacks merit and also dismissed with N50,000 cost against the appellant”

Dissatisfied with the Court of Appeal Judgment, the PDP appealed to the Supreme Court. Delivering judgment in the morning of March 2^nd, 2012, Justice Ngwuta who delivered the lead judgment cited sections 285(7) of the 1999 Constitution (as amended) which requires that the judgment must be delivered within 60 days. He declared that, though, judgment was delivered within the period allowed (i.e. 60 days), the reason for the judgment was given outside the constitutionally allowed period of 60 days. Justice Ngwuta then declared that judgment of the Court of Appeal in Owerri on January 6^{th, 2012} was a nullity because an explanation for the ruling was given outside the 60 days allowed by the 1999 Constitution (as amended).It is pertinent to recall that the Court of Appeal, Owerri gave its judgment on January 6^th, 2012 but the reasons for the decision was given on January 24^th, 2012.

While the PDP was pursuing its case of truncating the election victory of Governor Okorocha  through the Election Tribunal/the Court of Appeal and the Supreme Court, the All Congress of Nigeria(ACN) and its Governorship candidate, Senator Ararume,were doing the same thing through the Federal Court of Appeal, Owerri. At this point there is a need for the reader to take judicial notice of the decision of the All Congress of Nigeria(ACN) and  Senator Ararume to file their suit through the Federal High Court instead of the Imo State Elections Petitions Tribunal ,Owerri. Should his case start from the Elections Petitions Panel or from a regular court? More clarifications will be made on this angle elsewhere. In the ACN/Ararume AND Independent National Electoral Commission (INEC) suit NO.FHC/CS/OW/133/2011 ,the plaintiffs(ACN and Ararume)  are  asking the court to determine (a)”Whether under Section 178(2) of the Constitution of the Federal Republic of Nigeria (as amended) the Defendant was competent to hold an election to the office of Governor of Imo State in less than 30 days to the expiration of tenure of office of the incumbent Governor of Imo State (i.e. the 29^th day of May, 2011? ;(b) Whether by the combined effect of  Sections 178(4)of the Constitution of the Federal Republic of Nigeria(As Amended) and or the Electoral Act,2010(As Amended),the Defendant was empowered to conduct a  supplementary election in Imo State to the office of Governor other than an election in the entire Imo State as one constituency in less than 30 days to the expiration of tenure of the incumbent Governor of Imo State?

On the basis of the above questions, All Congress of Nigeria (ACN)and Senator Ararume are seeking a declaration /reliefs that: “the Defendant(INEC) was not empowered by any law to hold supplementary election in IMO State as it has done; a  declaration that the said supplementary election was illegal, unconstitutional, null and void; An order directing the Defendant to conduct an election in the entire Imo State as one Constituency for the office of Governor, Imo State as provided by Section 178 of the Constitution of the Federal Republic of Nigeria (As Amended);and any other order(s) as the Honorable Court may deem fit to make in the circumstance”. I have decided to present this clarification in order to throw the light so that our people will see the way out of the maze and the interminable governorship litigations in Imo State. The recent permission granted the PDP and Chief Ikedi Ohakim has no reasons to create any anxiety among certain sections of the electorate. The inclusion of PDP and their governorship candidate, Chief Ikedi Ohakim), as a party to the suit does not, in any way, give them any iota of leverage neither does it diminish the chances of the other parties to the suit. Perhaps, it is pertinent to state that in the originating summons which was filed in the Federal High Court, Owerri, suit NO FHC/CS/OW/133/2011, the suit was between Action Congress of Nigeria/Senator Ararume as Plaintiffs AND Independent National Electoral Commission (INEC) as Defendant. It was later that Governor Okorocha and All Progressives Grand Alliance applied to be joined as parties to the suit .Their demand was allowed by the court. So, there are no reasons for some sections of the electorate to panic or to express anxiety for the simple reason that the PDP and Chief Ikedi Ohakim are now parties to the suit.

The bottom line of the ongoing suit is that Imo State is back to where it was in 2007.All the ingredients that featured in the protracted governorship tussle in Imo State in 2007 are all present in the present political face -off between the various parties. In the second and concluding part of this analysis, I will delve into more exhaustive and dispassionate appraisal of the issue in order to assuage any anxiety in the electorate. In that analysis,it will be pertinent to situate the ongoing litigations in the context of what happened in the last dispensation, especially, the AGBASO VS INEC suit which protracted from May, 2007 and ended in January, 2011.We shall take a peep into the Supreme Court judgment on the AGBASO/INEC  suit which was delivered on the 16^th July,2010.After the Supreme Court judgment ,the governorship candidate of the ALL Progressives Grand Party(APGA),Chief Martin Agbaso,went back to the Court of Appeal, Owerri  where he prayed the Court of Appeal to set aside its earlier judgment of 14^th April,2008 which upheld the decision of the Election Tribunal that the Election Tribunal did not have  jurisdiction to entertain Chief Agbaso’s suit. We shall take another peep into the Judgment of the Court of Appeal,Owerri on the demand that its earlier Judgment of  14^th April,2008 should be set aside in order to set up a fresh panel to try the suit.

The present suit in the Court of Appeal will eventually end in the Supreme Court of Nigeria. When that happens, it will tantamount to asking the Supreme Court of Nigeria to set aside its landmark judgment of 16^th JULY, 2010-a judgment which has since become a critical Judicial Precedent and Stare Decisis. At the end of the analysis, the direction of the ongoing suit will become a matter for personal conjecture. When the Supreme Court gives its final judgment on the suit, it will be a classic case of  “what goes round ,comes round”, more so, when viewed from the context of the Chief Agbaso/INEC suit which started in April 2007 and ended on the 19^th day of January,2011.

(TO BE CONTINUED)

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JOHN I. MGBE

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