As I said in the first part of this viewpoint which was published on this website last week (Google the headline and read online), this suit will eventually end in the Supreme Court. As we speak, Governor Okorocha and the APGA have appealed to the Supreme Court to intervene in the case. It is expected that this appeal to the Supreme Court will stagnate the work of the Court of Appeal, Owerri on this suit. As I said in my review, all the ingredients in the Agbaso/INEC suit of 2007 are present in the ongoing Ararume/INEC suit. It will be recalled that on 27th November, 2008, the Court of Appeal sitting in Port Harcourt adjourned indefinitely on the hearing of an appeal filed by Godwin Ararume against Independent National Electoral Commission (INEC) in his effort to truncate the victory of Chief Ohakim in the Kangaroo Election of April 28, 2007. That day (27/11/08), all the parties in the suit were gathered in the Court of Appeal, Port Harcourt for the hearing of the suit, when Justice Saka Ibeyeye suddenly announced that the hearing of the case could no longer go on because he had just received a letter from the President of the Court of Appeal that the Court of Appeal, Abuja was also hearing a similar suit filed by Chief Martin Agbaso. In spite of the shock and grief expressed by all the counsel, the Court of Appeal Port Harcourt suspended the hearing indefinitely. In the same vein, the Court of Appeal, Owerri in its sitting of Wednesday, 7th November adjourned hearing on the ongoing Ararume/ACN suit indefinitely. The judgment was expected; it’s much better to allow the Supreme Court to take control and resolve this matter decisively.
In its appeal to the Supreme Court, the ALL PROGRESSIVES GRAND ALLIANCE(APGA) is seeking the following reliefs:(1)To allow the appeal of the Appellant (i.e. APGA) , and set aside the decision of the Court of Appeal and dismiss the application for leave to appeal as interested party; (2) To remit the appeal in CA/OW/101/2012 tainted by the proceedings in the application for leave to appeal, to the Court of Appeal to be determined before another panel of Justices
As I said earlier, the Ararume/ACN case started from the Federal High Court, Owerri and not from the Elections Petitions Tribunal. The Federal High Court dismissed the suit because according to the Judge,” the case has metamorphosed to an election petition matter”. So, in other words, the Federal High Court, Owerri struck it out because of lack of jurisdiction to hear the case. In his considered opinion the presiding judge felt the suit should be heard in the Elections Petitions Tribunal and not in a regular court. The issue of jurisdiction will be a very crucial factor in the judgment of the Supreme Court on this suit. Jurisdiction is a factor which may make or mar the efforts of the parties in the suit. The ruling by the judge of the Federal High Court Owerri strikes a chord with the judgment of the Supreme Court in the Agbaso/INEC suit. Delivering judgment on the suit on July 16th, 2010, the apex court clarified that “what took place on 14th April, 2007 in Imo State in particular was an election and as such any action relating to the processes leading thereto including the actual conduct of the event or its cancellation fall within the jurisdiction to the Election Tribunal by operation of law”. The decision of the Ararume/CAN Group to channel their case through the regular court (Fed High Court) is incompatible with the ruling of the Supreme Court on July 16th, 2010 in the Ararume /Ohakim suit. What the Supreme Court actually said on that judgment should be a judicial precedent which the lower courts must faithfully adopt. The ramification of the Supreme Court pronouncement is that jurisdiction to hear petitions on elections, whether inchoate, cancelled or concluded belongs to the Election Tribunals and not to the regular courts. This is perhaps why the judge of Federal High Court struck out the ongoing Ararume/ACN and INEC suit for lack of jurisdiction.
Recall that in 2007, Chief Martin Agbaso dragged INEC to Court to protest the cancellation of the April 14th 2007 governorship election which he won fair and square. Chief Agbaso filed a suit in the Federal High Court Abuja on 19th April 2007 challenging the cancellation of the Election and requested the Court to stop the April 28th Election from holding. The Court failed to hear the suit before the election of April 28th, 2007. On April 30, 2007 the Court struck out Agbaso’s case and directed him to go to the Elections Tribunal since the election he was trying to stop held on April 28th, 2007.It is very callous that a Judge who had all the time to stop the Kangaroo election of 28.4.2007 turned a blind eye and waited for the so-called election to hold before ruling on Agbaso’s petition.
Chief Agbaso took his case to the State Elections Tribunal in Owerri. On June 26th, 2007, the election Tribunal in Owerri held that it was a pre-election and constitutional matter which only a regular court could hear. Recall that a regular court (Federal High Court, Abuja) had already declined hearing the suit. On 14th April 2008, the Court of Appeal, PortHarcourt upheld the ruling of the Election Tribunal that the matter should be tried in a regular court. When the matter eventually got to the Supreme Court, Justice Samuel ONNOGHEN who delivered the lead judgment on JULY 16, 2010 said:” The April 14, 2007 cancelled election remained an election even though it was inconclusive”. He therefore concluded that being an election, the only place to question the legality or otherwise of it was before the Imo State Governorship Election Tribunal. He consequently upheld the argument of Bon. Nwakamma, Counsel to Chief Ikedi Ohakim, the then State Governor of Imo State and declared Ikedi Ohakim validly elected.
Furthermore Justice ONNOGHEN said: “It is my considered view that since the action concerned an election, whether inchoate or not, the proper court with jurisdiction to entertain any action arising therefrom or relating thereto is the relevant election Tribunal established by the constitution of this country as the matter is not a pre-election matter neither can it be accommodated under the procedure of judicial review”. Justice ONNOGHEN further said: “Section 164 of the Electoral Act 2006 defines an election as meaning any election held under this Act and includes a referendum and that it is beyond doubt that what took place on 14th April, 2007 in Imo State in particular was an election. As such, any action relating to the processes thereto including the actual conduct of the event or its cancellation, falls within the jurisdiction of the electoral Tribunal by operation of law and no other Court or Tribunal is clothed with jurisdiction to entertain it in any guise”.
Justice Onnoghen concluded thus: “the appeal is meritorious and allowed by me”, adding that” the judgment of the lower Court is set aside while that of the Federal High Court delivered on 30th April, 2007 to the effect that the Court had no jurisdiction to entertain the action is hereby restored and affirmed by me”. The apex Court also held that the case was commenced at the Federal High Court “by a defective procedure”. Out of the panel of five justices, Justice Christopher Chukwuma – Ene was the sole dissenting voice.
After a careful review of the pronouncement of the apex Court in Agbaso/INEC suit, one begins to have a sense that the court with original jurisdiction in the ARARUME/ACN suit would have been the Imo State Governorship Elections Tribunal and not the Federal High Court. Now that Governor Okorocha and APGA have appealed to the Supreme Court, let us wait and watch the judgment of the Supreme Court. If the Supreme Court rules that the suit should not have been passed through the Federal High Court but through the State Elections Tribunal, then the hope of ACN Group will crumble like a house of cards.
On the election petitions affecting Governor Okorocha, it is pertinent to recall that the Supreme Court gave its final judgment on the PDP Vs Okorocha suit on Friday. March 2nd, 2012. The Supreme Court struck out the appeal and Governor Okorocha was upheld as the validity elected Governor of Imo State in the 2011 governorship election which held on April 26th, 2011 and the supplementary election of May 6, 2011.
Now that this same suit has surfaced again at the Apex Court, the next question is: “Can the Supreme Court overrule itself?”Again, can the Court of Appeal, Owerri ignore the fact that the Apex Court has already given judgment on this suit?
In an attempt to provide an answer, one can only refer to what transpired when Chief Martin Agbaso, after losing at the Apex Court, went back to ask the Court of Appeal to set aside its judgment of 14th April, 2008 in the light of fresh evidence as a result of the judgment of the Supreme Court. Chief Agbaso made a simple appeal thus: “You, the Court of Appeal, in your ruling of 14/4/2008, upheld the Election petitions Tribunal ruling of 26th JULY, 2007 that the Tribunal had no jurisdiction to hear my suit. Now that the Apex Court has ruled otherwise, please set aside your judgment and set up a fresh panel to hear my case”. In its judgment delivered on Wednesday, the 19th Day of January, 2011, Justice Mojeed A. Owoade who read the lead judgment in the Suit No CA/OW/254/2010 cited so many authorities to support the refusal of the Court to overrule itself. While the Counsel for Agbaso made a case for setting aside the judgment on the grounds that is was judgment given by mistake (judgment per incuriam) the Counsel for Ohakim held that the Court of Appeal cannot set aside its judgment because of the doctrine of FUNCTUS OFFICIO which means that a Court cannot set aside its judgment unless for some reasons which were not seen in the instant case.
The arguments by counsel to both parties in the Court of Appeal case show that, although in some exceptional circumstances, a Court may have the power to review its own decisions, such cases are a rarity. In spite of manifest injustice and miscarriage of justice meted out to Chief Agbaso as a result of the mistake of the Tribunal and the Court of Appeal, the Court of Appeal remained obdurate and refused to set aside its judgment Lending her weight to the judgment, Helen M. Ogunwumuji JCA, said: “Order 18 R 4 of the Court of Appeal Rules 2007 provides as follows: “This court shall not review any judgment once given and delivered by it, save to correct clerical mistake or some error arising from any accidental slip or omission…….” She cited the words of BELGORE JSC (now retired) in OBIORA V IBERO where he said inter alia”… Once the Supreme Court has entered judgment in a case, that decision is final and will remain so forever. The law does not permit this Court a double say in the same matter; it allows or dismisses an appeal, not the two on the same matter. The inherent powers of S6 (6) of the Constitution cannot be invoked to reverse a decision already given by this Court. No matter the sentiments or temptation, we cannot be lured into revisiting a matter in which we have given a final opinion…”
The bottom line of this viewpoint is that the ongoing ARARUME/ACN court suit will raise a series of fundamental questions on the justice delivery system in Nigeria. Some of these issues include (1) Can the Supreme Court set aside its judgment? (2)If yes, under what conditions can this happen? (3) Are those conditions present in the case under review? (4) Can any court still have jurisdiction to sit in judgment over the 2011 Governorship election in general and, above all, the legality of the supplementary election of May 6th, 2011, more so, since the apex court has given a final judgment on this issue since March 2nd, 2012.This poser becomes necessary because of the provisions of Sections 285(6) of the 1999 Constitution(AS AMENDED) which clearly set timeframes of 180 days and 60 days for the determination of election petitions in the Tribunals and the Court of Appeals respectively.(5) Is the case not statute-barred as a result of the effluxion of time? (6) In view of the issues raised in the Supreme Court judgment of July 16th.2010 in the AGBASO Vs Ohakim suit, is it proper for Ararume and ACN to adopt the Federal High Court as a court of original jurisdiction in an election matter? This particular question also affects the Imo Local Government Chairmen’s suit which was started from the State High Court instead of the Local Government Elections Petitions Tribunal. These are some of the puzzles that will be unraveled when the Supreme Court gives judgment in respect of the Appeal filed by the All Progressives Grand Alliance (APGA).
In the 2007 Agbaso Vs INEC suit, Chief Agbaso’s prayers before the courts were very simple :(!)Let the INEC release the results of the poll conducted and results collated from about 25 LGAs and submitted to the party agents, INEC, and security personnel and declare him governor ;( 2)Did INEC have the power to cancel an election that was concluded and results tabulated and submitted to the relevant accredited bodies? Throughout the period of his travails in the Temple of Justice or is it Temple of Law, no court provided an answer. The case of Chief Agbaso was not just a case of not being given a fair hearing but it was a case of not being given a hearing at all.
It is both deplorable and despicable that at a time when the world’s most powerful country (U.S.A) conducted her presidential election within a few hours, some politicians in IMO State are wasting money in the courts in a frantic bid to be proclaimed Governors by our “courts of technicalities” in an election that was conducted about 18 months ago. It’s a Pity indeed to our local politicians. Since most of these politicians are stinking wealthy and they virtually reside in the United States and the neon-lighted cities of the First World, what lessons and morals do they imbibe from their interminable contacts and interactions with the politicians from these developed countries? In my viewpoint entitled:”Gov Ohakim VS Agbaso: What goes round comes round” (Announcer Express newspaper, Monday, October 5-7,2009, I painted a panoramic scenario of the travails of Chief Martin Agbaso as he was in the courts searching for the mandate given to him by the electorate in the Governorship election of April,14th.2007.It is indeed both an irony and a paradox that today, we are back to where we were in 2007-a state that is haunted and hounded by her past acts of intrigue, perfidy and deceit. Whenever the Supreme Court dispenses justice on the appeal filed by APGA, let it be a classic case of substantive justice. Often in this country, the impression is given that the law is a spider’s web; big animals like elephants and lions crush it and move on while the little ones like flies and ants are caught and destroyed. Whatever judgment the Supreme Court gives will validate the age-old maxim that “What goes round comes round.
(CONCLUDED)
JOHN I.MGBE
08032722897
johnmgbe@yahoo.com
