Gov. Okorocha’s Administration @ 2 Series(1): Combating the bogey of election petitions

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Governor Okorocha celebrated the second anniversary   of his tenure on May 29th, 2013. He emerged governor after the Independent National Electoral Commission declared him the winner of the 2011 governorship election in Imo State. It is pertinent to recall that the first poll which held on April 26th, 2011was declared inconclusive by INEC on the grounds that election did not hold in three local Government Areas and a ward.The three Local Government Areas include Oguta, Mbaitoli, Ngor-Okpala and Orji ward in Owerri North LGA.As a result of this stalemate, the PDP Governorship candidate, Chief Ikedi Ohakim, threatened to make Imo State ungovernable if a supplementary election was not held. In order to placate and appease Chief Ikedi Ohakim and the PDP ,the INEC scheduled a supplementary election for May 6th,2011.In the morning of May,7th,2011,the Independent National Electric Corporatio(INEC) declared Owelle Rochas Okorocha the validly elected Governor of Imo State .Although the supplementary election was held at the behest of  the PDP,the party eventually went to the Election Tribunal to challenge the result of the election.This is in spite of the fact that the candidate,Chief Ikedi Ohakim, had accepted the result of the election and even congratulated the Governor –Elect,Owelle Rochas Okorocha on his deserved victory in the poll.

The main grounds of Ohakim and the PDP petition were that the PDP candidate,Chief Ikedi Ohakim, scored the majority of the lawful votes cast at the election and that the supplementary election held on the 6th of May,2011 was invalid being in breach of the provisions of both  the Electoral Act 2010(as amended) and the 1999 Constitution (as amended).On Saturday the 12th day of November,2011,the Election Tribunal delivered its judgment wherein it upheld the result of INEC that Owelle Rochas Okorocha was the winner of the poll and thus the Governor-Elect of Imo State.In the judgment which took over three hours,the Panel which was headed by Hon Justice Kpojime as Chairman and Hon Justices M.L Sirajo and  as E.O.Osinuga as memberrs in its unanimous judgment held that”the supplementary election  held on the 6th of May,2011 was held in compliance with the provisions of the Constitution of the Federal Republic of Nigeria(as amended) and Electoral Act 2010(as amended)”.The Tribunal held that from the analysis of the evidence as presented by the petitioner  and by the respondents”we come to the irresistible conclusion that the petitioner has failed to prove that the candidate scored the majority of the lawful votes cast at the election;under the circumstance and in consequence therefore,the Tribunal in its unanimous judgment holds that the petition lacks merit,and is accordingly dismissed in its entirety” .Dissatisfied with the ruling, the PDP appealed to the Court of Appeal, Owerri.In the Court of Appeal Judgment which was delivered on January,6th,2012, the court upheld the judgment of the Election Petitions Panel which declared Governor Okorocha validly elected.In the judgment, the Court of Appeal held that the PDP appeal lacked merit and in a unanimous
decision dismissed the case. Justice Tijani Abdullahi who led four other justices of the court subsequently upheld the election of Okorocha of the ALL Progressives Grand Alliance (APGA) thus upholding the judgment of the Election Petitions Tribunal. Justice Abdullahi said: “After a careful consideration of the preliminary objection filed by the appellants, we hold that it lacks merit and is hereby dismissed.Theappeal also lacks merit and also dismissed with N50,000 cost against the applicant.


 Still dissatisfied with the judgment of the Court of Appeal, Owerri,the PDP  appealed to the Supreme Court. Delivering judgment on the petition brought by  the PDP,Justice Sylvester Ngwuta who delivered the lead judgment cited section 285(7) of the Constitution which requires that judgment must be delivered within 60 days.He noted that though the Court of Appeal had delivered its judgment within 60 days, the decision by the Appelate Court to give the reason for the judgment on January,24th, 2012 was outside the 60-day period stipulated in the Constitution.According to the Supreme Court ,the judgment of the Court of Appeal was therefore a nullity as it was deliverted on January 6th2012 while an explanation for the ruling was given on January,24th2012.The Apex Court thus declared   the judgment of the Court of Appeal,Owerri, a nullity.Consequent upon this breach of the constitution, the Supreme Court  struck out the Appeal Court’s judgment and in its place  upheld the judgment of the Imo State Governorship Election Tribunal which had declared Owelle Okorocha winner of the election

It is pertinent to recall that in the election Owelle Okorocha polled 336809  votes as against Chief Ikedi Ohakim’s  290,496 votes while ACN polled a paltry 110,171 votes.The totaL votes polled by each candidate represent the cumulative votes cast on the first poll of April 26 and the supplementary election which held on May 6th,2011.

While the Supreme Court was concluding judgment in the PDP vs Okorocha case, the ACN and Senator Ifeanyi Araraume were opening a fresh litigation on the same issue at the Federal High Court, Owerri. In the Federal High Court,Senator Araraume and the All Congress of Nigeria(ACN) were asking the court to declare the supplementary election of May 6th, 2011 unconstitutional and of nuisance value. In their relief, they were asking the court to revoke the entire governorship poll in Imo State by declaring it null and void and order the INEC to  conduct a brand new governorship election in the 27 Local Government Areas (LGAs). What a weird demand!

The Federal High court struck out the case on the grounds that it was not only unmeritorious, above all,  the court did not have jurisdiction to hear the case because superior courts had already heard the case and given final judgment. The Federal High Court also held that the case should have been channeled through the Election Tribunal. The APGA and Governor Okorocha applied to join and they were joined as parties in the suit.

Dissatisfied with the ruling of the Federal Court of Appeal,Owerri, the ACN and Senator Araraume took the case to the Court of Appeal, Owerri. Chief Ohakim and the PDP applied to be joined as parties to the suit. As we speak, the entire case is now in the supreme court. One does not need to be a lawyer in order to know that the fresh litigation on the same issue which the Supreme Court had concluded is tantamount to double jeopardy – the prosecution of a person twice for the same offence. The law frowns at this aberration because it is an abuse of court process; if re-litigation goes interminably, then, litigation will never come to an end. On a related note, does anyone expect the Supreme Court to overrule itself on the judgment it had earlier delivered to the effect that Governor Okorocha was validly elected. I am not able to see any genuine reasons that will  make the Supreme Court or even the Court of Appeal to repudiate their earlier judgments  on this matter. A court may overrule its judgments under certain conditions such as when it is proved that judgment was obtained by fraud or when it is proved that the earlier judgment was a nullity or given without jurisdiction and the like. But none of these instances exists unless, of course, they exist in the warped consciousness of the PDP and ACN litigants who are in a desperate fantasy to truncate Okorocha’s victory. Even where a court has given judgment by error(i.e judgment per incuriam), it is not enough reason for a court to set aside its judgment as long as there are no such errors as fraud and the like. So, one wonders what the PDP and ACN groups seek to achieve in the ongoing interminable litigation.

 

It is pertinent to state at this point that the probability of a court overruling itself is a rarity. Perhaps, one may draw attention to the Supreme Court judgment of July 16, 2010 on the vexed Ohakim/Agbaso case in regard to the 2007 governorship election in Imo State. In that ill-fated selection , the Professor Iwu-led INEC declared Chief Ohakim the winner of the Kangaroo governorship selection held on 28/7/2007. The actual winner of the election held on April 14th.2007, Chief Martin Agbaso, and candidate of All Progressive Grand Alliance (APGA) took the case to the Governorship and Legislative House Election Tribunal in Owerri. The judgment  which was delivered on 26th July 2007 upheld the result of INEC. Again Chief Martin Agbaso lost at the Court of Appeal, Port Harcourt on the 14th April, 2008. Both Courts held that since the matter was not a pre-election matter, they did not have jurisdiction to entertain the petition of Chief Martin Agbaso, the APGA Governorship candidate.

As a result of some technicalities that arose in the course of the case, the matter ended up in the Supreme Court as a result of the decision of the counsel to Chief Ohakim to seek constitutional interpretations on the ruling of the court of Appeal, Abuja which  ruled that it had jurisdiction to hear Agbaso’s petition. The Supreme Court affirmed the ruling of the Court of Appeal. When the Court of Appeal remitted the case to the Federal High Court for hearing before it (the Court of Appeal) could then review it, Chief Ohakim’s Counsel,Chief Bon Nwakamma, appealed to the Supreme Court and pleaded foul play.

 

In the judgment of the Supreme Court which was finally delivered on July 16th, 2010 in Appeal No. SC/3/2010, SC/51/2010 and SC/54/2010 (consolidated), the Supreme court held inter alia: “It is beyond doubt 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 falls within the jurisdiction of the Election Tribunal by operation of law”. The court went further to emphasize that “the governorship election conducted on 14th April 2007 by INEC, whether inchoate or not is properly within the jurisdiction of the Election Tribunal established by the constitution of this country as the matter is not a pre-election matter”.

 

On the strength of this Supreme Court judgment, Chief Martin Agbaso went back to the Court of Appeal, Owerri to seek a relief: that the Court of Appeal should set aside its judgment of 14th April 2008 which upheld  the ruling  of the Election Tribunal, Owerri on 26th July, 2007 and set up a fresh panel to give hearing to his  substantive suit.Chief Agbaso’s suit  was filed  about the 19th April,2007. It was thought that in the spirit of stare decision and Judicial Precedent as well as Chief Agbaso’s fundamental right to fair hearing as enshrined in section 36 of the Constitution, the Court of Appeal would domesticate the judgment of the Supreme Court and set up a fresh panel to hear the substantive petition of Chief Martin Agbaso, after all, one of the twin pillars of natural justice is:”Hear the other side”. The leading counsel to Chief Agbaso,Chief P.I.Ikwueto(SAN), had argued that the judgment of the Tribunal and the Court of Appeal, were Judgment Per Incuriam  i.e. judgment by mistake; he then asked the Court of Appeal to set up another panel to hear the substantive suit of Chief Agbaso.

 

However, the leading senior counsel to Chief Ohakim, Chief Bon Nwakamma( SAN), caused a stir when he brought a Notice of Preliminary objection for an order striking out the said application for lack of jurisdiction on the Honourable Court and also for being an abuse of judicial processes. He emphasized that the Honourable Court (i.e. Court of Appeal) is functus officio in so far as it relates to its judgment or decision dated 14th April, 2008. Functus officio (latin) is a legal maxim which means that a court which has given judgment on a case has no further force or authority to open such a case.

 

The Court of Appeal Owerri  referred to several cases which discouraged the opening of cases after they have been heard and judgment given, more so, where  there are no “exceptional circumstances” which would justify  the re-opening of the  case. What the Court of Appeal Judge,Justice Mojeed A. Owoade, summarized was that when the judgment initially rendered on appeal in the case was not a nullity,  and there is  no such fundamental defect or want of jurisdiction to warrant the setting aside of the judgment, then it is not feasible to reopen a case.

 

On the strength of the arguments stated above, I am unable to see any reason why any court will reopen the Okorocha vs PDP/ACN case after the Supreme Court had declared its judgment on July 16th,2012, more so, the Apex Court held that  the case is not a pre-election matter and above all,the ACN case appears to have been erroneously channelled through the Federal High Court and not through the Election Tribunal in line with the Supreme court judgment on the Ohakim/Agbaso case.So Chief Martin Agbaso’s relentless effort to reclaim the mandate given him by the electorate in the 2007 governorship election was not given a hearing at all because of the doctrines of judgment per Incuriam and Functus Officio.If the twin rules of Judgment Per Incuriam and Functus Officio have not been expunged from the Constitution, is there any reason that they will not be used to  demolish the PDP/ACN attacks on Governor Okorocha?

 

In the same vein, the effort of Dr. Onyema Ugochukwu of PDP to get the Court of Appeal Owerri to reopen the case in regard to his election petition against Governor T.A Orji of the Progressives Peoples Alliance(PPA) in the 2007 governorship election in Abia State failed woefull on the grounds of complications arising from the bogeys of Judgment per Incuriam and Functus Officio. In the light of this reality, will the Supreme Court and Court of Appeal use a different statute to arrive at its judgment in the present case of ACN/PDP against Governor Okorocha. One can conclude that these individuals are merely pursuing a mirage .

 

So, it is difficult to decipher what encouraged these litigants,the (ACN/Ararume/Ohakim/PDP) to embark on another round of wild goose chase with the concomitant cumulative legal fees that run into mega billions to boot.These nagging politicians in PDP and ACN should learn from other great politicians elsewhere on how to  bow out of office in a blaze of glory when they are defeated.An example is the seamless manner in which the former South African President,Thabo Mbeki, bowed out of office with dignity and applause when he had political challenges with his party,African National Congress(ANC).On that occasion,Thabo Mbeki swiftly announced his resignation in a live broadcast after calls by his party(ANC) to step down even months before the end of his second term. In spite of having stepped down, he left office in a  blaze of applause and ovation and today Thabo Mbeki is reverred as one of the greatest political leaders in the world. Is it not deplorable that the ACN in Imo State which had persistently  made press releases to the effect that “APGA is a dead party” has suddenly started praisig Governor Okorocha as a great politician  who has performed well.If they have now accepted the immutable truth that Okorocha won the election fair and square ,the first thing they would have done is to withdraw  their petition from the court and advise the Supreme Court that they want to settle out of court.It is also a paradox that Governor Okorocha has continued to appoint members of ACN into his Administration even though they have not withdrawn their case from the court.This new found love between the ACN and Governor Okorocha is vexatious to those who put their lives and skills on the line to fight on the side of Governor Okorocha during the halcyon and heady days of the electioneering.Even now the Sole Administrator of Oguta Local Government Council is a member of ACN, a political party that fought Owelle Okorocha in the election.Where are all the APGA faithful who  were Okorocha fundamentalists during the election?It is even very sad that this is happening in a Local Government where the Secretary to the State Government, Professor Anwuka, hails from.The bottomline is that politicians are  interested in whatever they can do to corner the resources of state; they do not care about us,the masses.The ACN’s sudden love for Governor Okorocha is hypocritical; it is anchored on the fact that they are desperate to join Okorocha’s gravy train.  The penchant for interminable swashbuckling  by the politicians in Imo State PDP and ACN to perpetuate themselves in political power reminds me of the late music /entertainment idol,Michael Jackson, who sang the heart rending lyric entitled:”They don’t care about us……”. Yes, these politicians in PDP and ACN “don’t give a damn about us”  hence  they prefer to spend billions in chasing the wind in politcal litigations than appplying such huge moneys to provide democracy dividends to the citizenry.The money they spend in such litigations does not belong to them;it’s our money which they pillaged and looted while in office and yet they are not ashamed of such barefaced looting of the commonwealth or our patrimony.

It is pertinent to emphasize that the now contentious  supplementary election of May 6th, 2011 was  a desperate move to placate appease Ohakim and the PDP after they had vowed to make Imo State ungovernable if INEC failed to conduct the Supplementary election.

In one of the chats with the press after the April 26 election which was declared inconclusive, the PDP Zonal Chairman for South East, Barrister Olisa Metuh threatened:”I am challenging INEC CHAIRMAN, Mr President, national and international observers to come and monitor election at NGOR-OKPALA and Ohaji/Egbema to test whether PDP will win or not. I am challenging that if INEC does not fix the election (i.e. supplementary election) today, the situation in IMO would be too odd that it’s never seen anywhere. In fact, there will be constitutional crisis in IMO”. He threatened that if the supplementary election was not held, “we will create a situation where the whole army, police, senators and even Mr. President cannot be able to quench.Pleas read the White Paper newspaper of Friday,April 29th,2011,page 1 & 2). So, it is provocative and incompatible with due process for a party at whose behest the supplementary election was held to now ask the court to declare the exercise illegal. This is an abuse of court process, more so, when one considers the legal maxim:”volenti non fit injuria” which means:”that to which a person consents cannot be considered an injury”. The fact that neither ACN nor the PDP secured  an injuction on the INEC ordering it not to conduct the supplementary election is fatal to the reliefs they are seeking from the court. The move by PDP and ACN flies against the maxim:”ex turpi causa non oritur” which means: “No action arises out of a base cause”.A litigant who sleeps over his perceived rights should not wake up very late in the day to become the rampaging bull in a China Shop.Imo State cannot come to a standstill for the simple reason that the PDP and ACN desperadoes and demagogues lost an election.

In the 1983 governorship election in Nigeria which was rigged by the NPN in Ondo State.the candidate of the NPN, Chief Omoboriowo, who  was rigged into power swiftly made a frantic escape from Ondo State to Lagos State when the electorate arrived to take their pound of flesh.Yes, a so-called governor-elect abandoned his kingdom in search of safety and security in another person’s kingdom. This was the scenario in 2007 in IMO State  when the victory of Chief Martin Agbaso was annulled by  some sadists in power.However ,there was a limit to what the masses could do because the people of Owerri zone whose son, Chief Martin Agbaso, won the election disowned him  and even worked against the actualization of his victory.Today, the same Owerri which was indifferent on their son’s governorship victory in 2007 have  woken up from slumber to decree that they must produce a governor in 2015.The question is :”what did they do with the one given to their son,Martin Agbaso,in 2007”? Why did they abandon Chief Martin Agbaso to the extent that a prominent traditional ruler in Owerri proclaimed that it was over his dead body that Chief Agbaso would be governor? It was this vexed scenario that the Greek philosopher, HERACLITUS, once said:”No man ever steps into the same river twice”. There is a need to warn those who are desperately  asking for the annulment of the 2011 election to be wary of what they ask for because if in the unlikely event they get it, the consequencies may be ponderous and an overwhelming catastrophe.  To be forewarned is to be forearmed.

NEWS FLASH:At the time of submitting this report for publication,I got  news that the Supreme Court today, Friday,31/5/2013, dismissed the petition filed by the ousted Governor of Ekiti State,Mr Segun Oni(PDP), against  the ruling of the Court of Appeal sitting in Ado-Ekiti  that reaffirmed  the election of Chief Kayode Fayemi(ACN) as eartlier delivered by   an the Court of Appeal, lLORIN  on October 15th,2010.The Suppreme held that there was no jurisdiction to entertain the suit.Details of the judgment will be  x-rayed soon.Nonetheless, this latest judgment validates my opinion that the Supreme Court will throw out the PDP/ACN  election  petitions   against Governor Owelle Okorocha.The only path of honour for these litigants is to tactfully withdraw the case in order to avoid loss of face ,odium and the concomittant opprobrium that will trail their imminent defeat and humiliation in the Supreme Court.Under the new Daniella, sorry,the new Daniel in the Temple of Justice, Nigeria has turned a page for good and nobody expects  us to go back to the days when the Supreme Court did not feel any pang of conscience to approbate and reprobate in one fell swoop.Today, we have come to  a stage where “the streams of Justice are kept clear for all to navigate”.Yes, we have passed that era when Justice, sorry,when judgment was sold to the highest bidder, the Hobbessian Stage where THE LAW was a spider’s web where small animals like insects and ants were trapped while big animals were asked to bow and move on.Today, what we have in Nigeria is not just the symbol of the Temple of Justice,a blindfolded maiden wielding a matchete and a balance, but even now the Maiden of Justice is here in flesh and blood in the person of the Chief Justice of Nigeria, Justice Aloma Mariam Mukhtar. In the second part of this viewpoint, I will discuss the ongoing litigation between the State Government and the former executive Council Chairmen of the 27 Local Government Areas of IMO State. The essence of these viewpoints is to remind our people that while we celebrate GOVERNOR Okorocha’s second anniversary, we must be mindful of the fact that those who were humiliated in the MAY 6,2011 Revolution are still menacing and plotting all manner of stratagems and scams to truncate the victory of Governor Rochas Okorocha.In celebrating Governor Okorocha’s second anniversary, we should not eat like hedonists and epicureans  but we should imbibe the caveat of our great leader, Dee Sam Mbakwe, P.HD who always reminded us that :OKE Anagh eri ihe onye mu anya which means :”the rat does not eat what belongs to a man that is awake”.(TO BE CONTINUED

 

JOHN I.MGBE

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