Gov. Okorocha’s GOVT. @ 2: Perspectives on the former Local Govt Chairmen’s Suit – By John I. Mgbe

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In the first part of this viewpoint, I discussed the ongoing governorship petitions in Imo State extensively. Today, I wish to focus on the subsisting litigation between the former Local Government (LG) Chairmen and Governor Okorocha.The bone of contention in this suit is about the tenure of the former LG councillors.The genesis of this case is traceable to the purported Local Government election which was conducted in Imo State on August 7, 2010. It is pertinent to state from the outset that the then State Governor,Chief Ikedi Ohakim, went ahead to conduct the election  in spite of  a court injunction which ordered Peoples Democratic Party not to present candidates for the election. The exercise was conducted on Saturday,7th August 2010; the result was released the next day while the purported winners were sworn into office  in the early morning of Monday,9th August,2010.All the 27 Chairmanship  candidates who were declared   winners were members of the ruling party,PDP.The election was a sham .The radio announcement which released the names of the so-called winners did not announce the votes cast for such winners.It is deplorable that a governor who took the Oaths  of Office and Allegiance to defend the Constitution could conduct himself in such a mafiosi  style setting aside the  provisions of the Electoral Act,ignoring orders from the national secretariat of his party and, above all, exhibiting such wanton indifference to the Court Injunctions. The shabby and shoddy manner in which the Local Government selection was conducted became a source of recrimination and intense bickering among the political class. In fact, there were numerous lapses that would have culminated in the cancellation of the sham election by the courts, if the opposition parties were resolute and focused. Unfortunately, the opposition political parties were in disarray and so could not put up a formidable challenge. Aside the injunction placed on the PDP by the Justice Goddy Anunihu court, the mandatory notice of 150 days to the participating political parties ahead of the actual Election Day was not given. A few days to the election, I called the State Chairman of All Nigerian Peoples Party (ANPP) and asked if the parties were served the “Notice of Election” of 150 days.He said that as at the time I asked the question (2weeks to the election date),his party was yet to be served any such notice. It was this violation of the Electoral Act that caused the Court of Appeal in Ibadan and the Supreme Court to sack all the 30 elected Local Government Council Chairmen in Osun State and to order a fresh election in compliance with the Electoral Act.In that case ,Justice Chidi Uwa who read the lead judgment upheld all the reliefs sought by Osun State Chapter of the  Action Congress(AC) which dragged the State Governor,Prince Olagunsoye  Oyinlola ,the Peoples Democratic Party(PDP) and the Osun State Independent Electoral Commission(OSSIEC)  to the appellate court over the conduct of the council poll in Osun State on December 15th,2007.The decision of the Court of Appeal was also upheld by the Supreme Court.Of course, there was abundant insinuations from impeccable sources that the Chairman of the State Independent Electoral Commission(ISIEC) was a PDP-Card carrying member whose appointment would have been contested in the court.Worse still, the procedure which was used to produce the delegates who would vote to determine the candidates for the party was arbitrary and unknown to both the Electoral Act and the Constitution of the Federal Republic.Rather than produce the delegates through a properly conducted Congress/Primary process, a system which was tagged “Ohakim’s Template “ was adopted to the discomfiture and chargrin of the PDP members.As already stated, the template system was tyrannical and undemocratic as it gave the State Governor exclusive authority to determine who eventually became the candidates of the party in the August 7th 2010 Local Government Selection charade.

In fact, a PDP chieftain who is now the  State Publicity Secretary of the party in Imo State,Chief Blyden Amajirionwu, boldly corroborated the fact that the illegal “Template System” was adopted in determining the candidates of the PDP in the Kangaroo election.In his viewpoint entitled:”The Negligence of Alliance for Good Governance” which was published on page 16 of the ANNOUNCER WEEKEND newspaper of Friday,July 2-July 4,2010, he wrote :”…right now,the PDP decided to go through other means using a widely accepted template to nominate candidates for both the Chairmanship and Councillorship positions in all the 27 Local Government Areas and 305 electoral wards in Imo State…”. Chief Amajirionwu confirmed in the viewpoint that the PDP resorted to the Template System because”some mischievous elements went for an injuction at Iho High Court to stop the PDP from conducting primaries to elect candidates of the party for the election”. Does this confession by Chief B.Amajirionwu not constitute prima facie evidence of the illegality of the so-called election? So, in actuality, Chief Amajirionwu confirmed that there was no primary election in his party prior to the charade of August 7th, 2010.What a terrible revelation by a PDP chieftain!!  While the 1999 Constitution as well as the Electoral Act (both as amended) is talking of Congresses and Primaries, the Ohakim-led PDP in Imo State had the audacity to impose a so-called “Template System” which is incongruos and incompatible with Statute.So, how can such a heinous act of illegality be given a wink and a nod by the Temple of Justice or even the Temple of Law?  These are just a few of several infractions that would have compelled any Election Tribunal to invalidate the Kangaroo charade but unfortunately the political bigwigs of the so-called Alliance for Good Governance abandoned their members who were shortchanged in the exercise.As a result of problems of logistics such as paucity of funds and loss of focus, the election petition of the group called “Opposition Counsellors of the August 7th. 2010 LG Election in Imo State” has been stalled in the courts.


This was the scenario when Owelle Rochas Okorocha defeated Chief Ikedi Ohakim in the governorship election of 2011. In his maiden broadcast to the populace on June 6th, 2011, Governor Okorocha did not hide his grouse on the abnormal circumstances that brought the Local government Concillors into office. As a result of these infractions, he dissolved the 27 Local Government Councils in the State and appointed Transitional Committees to run the Councils.Dissatisfied with this decision, the 27 Executive Council Chairmen dragged the Government to the High Court in Owerri. The Supreme Court will determine whether it was in order  for the former Executive Council Chairmen to channel their petition through the regular court or through the Elections Petitions Tribunal.This obsrervation becomes necessarily because in the supreme Court judgment on the OHAKIM VS AGBASO suit 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”.So, with this averment by the apex court ,one begins to wonder if it was in order for the former Local Government Chairmen to file their suit through the Owerri High Court and not through the Local Government  Elections Petitions Tribunal.The true position on this contentious issue lies in the womb of time but there is a need to take judicial notice of the fact that a court that has no jurisdiction over a case labours in vain.

 

In the State High Court, the former Local Government Chairmen lost out.In what was a very controversial judgment, Justice Ben Njemanze who is also the Chief Judge of Imo State titilated the Chairmen when he said:”….the governor lacks the power to dissolve the councils while their tenure was running”. Just in the same breath, the Judge held:”…I therefore hold that the Claimants have not placed before the court any credible evidence to enable the court grant the reliefs they are seeking.Consequently, this case is hereby dismissed.The Claimants are to pay costs of N10000 each to each of the defendants”. Note that the Claimants are the 27 Executive LG Chairmen while the defendants are the State Governor and others.

 

Dissatisfied with the decision of the State High Court, the Chairmen appealed to the Court of Appeal,Owerri.In their Motion on Notice, the Claimants were asking for ten reliefs and under  item(iv),they prayed the court to  declare that” by virtue of the provisions of Section 23(1) of the Local Government Law No. 15 of 2000 (as amended), the Claimants have a guaranteed tenure of two years in office as democratically elected Chairmen commencing from the date of inauguration on 9th August,2010”.This relief was granted by the Court of Appeal.In a judgment delivered on Thursday the 5th day of July,2012, when the panel of three Justices unanimously allowed the appeal  of the appellants.In a lead judgment read by the Presiding Justice,Hon.Justice Uwani Musa Abba Aji, in Appeal No:CA/OW/215/2011,the court held inter alia:”It is hereby declared that by virtue of section 23(1) of the Local Government Administration Law NO 15 OF 2000(as amended),the appellants have a guaranteed tenure of office(i.e 2 years as demanded in their relief ) as democratically elected Chairmen commencing from the date of inauguration on 9th,August,2010.The matter would have ended at that decision of the Court of Appeal which granted the 2-year tenure they asked for.   After a mild tiff with the Government, they were allowed to complete their 2-year tenure which  expired on 8th,August,2012, having been sworn into office on 9th August,2010.Sensing that their tenure would be exhausted in the next few days, they filed a suit asking in a State High Court praying  that an injunction should be placed on the Governor to desist from dissolving the councils at the expiration of the 2-year tenure.The injunction was granted but removed after a few days thus empowering the Governor to appoint Transitional Committees to run the Local Government Areas. It was at this point that the Claimants went wild in a desperate bid to catalyze crisis in the State through illegal and unauthorized hijacking of the Local Government Secretariats.It is only in a regime of mobocracy(mob rule) that the 27 Claimants would be allowed to continue in office beyond the statutory 2-year tenure.The bottomline of my thesis is that the former 27 local government chairmen completed their tenure on the 8th day of August,2012 and no court in the land has the powers to grant them a tenure elongation.They should gently vacate the secretariats because their time is up.

 

I will cite some decided cases to corroborate my stand that they will never get a tenure elongation. Since charity begins at home,I wish to start from the home front. Let’s start with the case of   Oshieze Vincent Akujobi Ehirim who was the democratically elected Chairman of Owerri Municipal Local Government following the election conducted on the 18th day of June,2005 He took his Oath of Office  and Allegiance on 24th day of June,2005 for a tenure of 3 years.On the 13th day of April 2007, the then Governor removed him from office on the grounds that his tenure had expired.Dissatisfied with his illegitimate removal from office, he challenged it in the State High court but lost.He appealed to the Court of Appeal,Port Harcourt where the Court of Appeal set aside the judgment of the State High Court of Imo State  dated 14/6/2007 and upheld his appeal as meritorious. The State High Court said it did not have jurisdiction to entertain the suit.THE State High Court held that the appellant ought to have commenced his action in accordance with the provisions of the Electoral Law before the Local Government Election Tribunal and not before the High Court.In its judgment,the Presiding Justice Mohammed Lawal Garba,J.C.A  held inter alia that”…the three year term of the appellant as the duly elected Chairman of Owerri Municipal Local Government Council commenced from 24/6/05,the very day he took his oath of office.Thus,the three year term or tenure of the appellant would expire on 24/6/2008.And so I hold”.In a post judgment chat with the press,counsel to Oshieze Vincent Ehirim,Barrister Declan O.Madu, explained that following the judgment of the Court of Appeal,the tenure of Oshieze Vincent Ehirim would expire on 24th June,2008.He clarified that the application to extend his tenure by 14 months was rejected because the Court of Appeal said it did not have the power to  extend tenure or to so act. Counsel to Oshieze Vincent Ehirim, Barrister D.O.Madu has since appealed to the Supreme Court for final adjudication.This suit has been in abeyance in the Supreme Court for over five years.

 

Oshieze Vincent Ehirim went back to the State High Court to seek some clarifications.One of such clarifications is: “Whether or not it is permissible for the government to permit, direct or authorize the running of the affairs of the Owerri Municipal Council by a non- democratically elected Transition or Caretaker Committee?” In a judgment in the suit No: HOW /350/2008 on Monday,the 23rd day of June,2008,Hon Justice C.I.Durueke held:”I hold that both the suit and the reliefs are premature and should wait until the Supreme Court hears the appeal and cross- appeal of both parties pending before it.To do otherwise would amount to forum shopping to actualize undue interest which amounts to abuse of court process.For this reason,I hereby strike out this suit as premature and an abuse of court process…” The PDP and the 27 Council Chairmen in the ongoing suit between and the Government of Imo State should take judicial notice of the fact that althouh Oshieze Vincent Ehirim was denied 14 months of his tenure, the Court of Appeal, Port Harcourt, did not take judicial notice of the residue of his tenure (14 months) which vanished while he was in the court to retrieve his mandate.

Again,  Governor Peter Obi of Anambra State who was sworn into office on 17th March,2006,had part of his tenure consumed by wrongful impeachment and the 17-day governorship of Chief Andy Uba. The Supreme Court in its judgment in suit SC.123/2007 of Thursday, 14th June,2007 held that Governor Peter Obi would serve out his 4-year tenure on  17th March.2010 having been sworn into office on March 17th,2006.Delivering the lead judgment,Justice Katsina-Alu,J.S.C(retd) held inter alia:”….I therefore make the following declaration and order-(1)That the office of Governor of Anambra State was not vacant as at 29 MAY,2007;(2)It is ordered that the 5th Respondent,Dr ANDY Uba, should vacate the office of the Governor of Anambra State with immediate effect to enable  the appellant, Mr.Peter Obi, to exhaust his term of office” .Again in the case of Ladoja Vs I.N.E.C,”the appellant sought a declaration before the Federal High Court that his term of office would not terminate or cease on May 29,,2007 but on 29th April,2008 when he would have had his full four uninterrupted years in office as Governor of Oyo State having been unconstitutionally and unlawfully kept out of that office by a faction of the members of the Oyo State House of Assembly”.  The extension of tenure sought by Ladoja was declined by the Supreme Court who insisted that Ladoja’s tenure must terminate on 29th May 2007, even though he was wrongly impeached and thus lost a substantial part of his tenure.

 

There is also a need to talk about the case of Hon Chidozie Eze vs Governor of Abia State & Ors. The Claimant sued the Governor of Abia State demanding to be reinstated after the Governor had dissolved the Councils. Delivering the judgment in the Court of Appeal on the Suit No CA/PH/162/2008 on 23rd April 2010, Justice Abubakar Jega Abdul-Kadir, JCA, held: “Appellants relief No. 8 for an Order compelling the 1st defendant/respondent (Government of Abia State) to reinstate the plaintiff/appellant is not possible to grant as the appellant’s tenure has lapsed by efluxion of time.

So, the Supreme Court’s judgments on the cases of Governor Peter Obi, Chief Ladoja as well as the Court of Appeal,Port Harcourt judgment on Oshieze Vincent Ehirim Vs Imo State Government and Hon Chidozie Eze of Abia State have significant bearing and relevance to the issues raised in the case of the former Executive Chairmen of the Local Government Areas in Imo State in the case under review.

 

Perhaps, there is a need to emphasize that Justice is not always based on law                             In MACFOY VS UAC AT PAGE 1172,Lord Denning held that”If an act is void,then it is in law a nullity.It is not only bad,but incurably bad.There is no need for an orderof the court to set it aside.It is automatically null and void without more ado,though it is sometimes convenient to have the court declare it to be so.And every proceeding which is founded on it is also incurably bad.You cannot put something on nothing and expect it to stay there.It will collapse”.On the strength of this averment by the mathematician-turned Jurist,Lord Denning, who is often referred to as the Father of Equity, the Supreme Court may validate or uphold Governor Okorocha’s use of fiat to disband the Councils.The fact that justice is not always based on law is a Res Ipsa Loquitur- a fact that speaks for itself.Some citations of Judicial Precedents will confirm this assertion. For example, Governor Peter Obi of Anambra State went to the Supreme Court to seek interpretation of Section 180(2)(a) of the 1999 Constitution to enable him pursue the search for his stolen mandate through the Court of Appeal.But he was pleasantly surprised when the Supreme Court  ordered that he should go back to his job and complete his tenure and that the Pretender to the throne, Chief Andy Uba, should vamoose from the office of Governor thus disbanding his 17-day stint as Governor of Anambra State. His 17-day spell as rogue governor could enter the Guinness Book of records as the shortest governorship incumbency in the world.

 

All in all, the bottom line of my argument in this report is that on the 7th August, 2010, the then Governor, Chief Ikedi Ohakim, conducted a sham and Kangaroo Local Government election in Imo State. In this shameful and deplorable selection exercise, Chief Ohakim unilaterally handpicked the so-called winners made up of the Chairmen of the 27 Local Government Areas (all picked from PDP) and 305 councilors. This selection exercise was conducted in spite of entreaties and exhortations from the WADATA Plaza, the Headquarters of the PDP in Abuja, pleading with him to postpone the election to enable the party broker peace among the feuding members/factions of the party in Imo State. Above all, “our dear and beloved”  Chief Ohakim ignored two court injunctions  granted by High Courts in Imo State prohibiting the PDP  from “organizing, conducting, holding or causing to be organized any Primaries of the Peoples Democratic Party (PDP) at any level of the party in Imo State for the purposes of electing or selecting the candidates of the PDP for the forthcoming Local Government elections in Imo State until the hearing and determination of the Motion on Notice for interlocutory injunction in this suit”. One of the injunctions was given by Justice Goddy Anunihu while another came from the IHO HIGH Court. Governor Ohakim’s impunity of conducting the election in spite of Party directives and court injunctions can only be tolerated in an ambience of MOBOCRACY and anarchy. It takes Imo State to the Hobbessian stage of nature where life was short, nasty, and brutish.

 

The insinuation by the L.G. Chairmen that the 2-year tenure is retroactive does not appear convincing because the enabling law with the long title: “A law to amend the Imo State Local Government Administration Law No 15 of 2000 (as amended)” was signed and assented to under the hand of Chief Ikedi Ohakim, the then Governor, and the Clerk of the House of the State House of Assembly, Clifford Echendu, on 23rd June, 2010- about two months to the purported election of August 7th 2010.I am full aware that if Chief Ohakim had succeeded to regain his second term bid, none of those Local Government Councilors would have had the effrontery and audacity to talk of a three year tenure.

 

The August 7, 2010 purported election was fundamentally flawed and fraught with irregularities as it was not conducted in line with the Electoral Act or the 1999 Constitution. It is also necessary to State that both the Electoral Act 2006 and Electoral Act 2006(as amended) which prevailed at the time state: “A sealed certificate of Return at an election in a prescribed form shall be issued within 7 days to every candidate who has won an election under the Act”. Without this document, one cannot take the Oath of office and Oath of Allegiance.  So, by extrapolation, the act of swearing the councillors into office a day after the release of the result was a monumental illegality because they did not have a “Certificate of Return”.

In the case under review, ISIEC conducted a sham election on Aug 7th 2010, released the purported result in the early morning of Aug 8th and swore the Chairmen into office the next morning, Monday, 9th August- first light. Is this not a barefaced affront on the Constitution as well as the Electoral Act? At which point were the so-called winners given the almighty Certificate of Return? If you ask these chairmen to swear before Okija Shrine, Sango Shrine,Arusi Ogbaga Shrine and long JuJu of Arochukwu Shrine that they actually won any election, they would flee and scamper to safety. The God of today is a God of amazing compassion and humanity hence our politicians don’t give a damn. While the conflagration ignited by INEC boss in 2007 is spreading like   a Bird-Flu epidemic, the ISIEC unilaterally conducted a purported election on August 7, 2010- an infraction that set Imo State on the precipice since then. The then State Governor, Chief Ikedi Ohakim, ignored the orders of court, ignored all entreaties from his PDP Head office, Wadata Plaza and Legacy House and went ahead to appoint 27 chairmen and 305 councillors to run the local Government tier(all are virtually PDP members. Is this fair?

 

In conclusion, I wish to remind the politicians in IMO State the ageless  maxim of the former U.S. President, Abraham Lincoln, that: “You can fool all the people some of the time, and some of the people all the time but you cannot fool all the people all the time”. He also said that: “No man is good enough to rule the other without his consent”. In this vein, the same President Abraham Lincoln said: “An injustice anywhere is a threat to justice everywhere”. It is on account of the events of these perilous times that George Santayana posits: Those who do not remember their past are condemned to repeat their mistakes”. Our politicians from both PDP and APGA  as well the other political groups should exhibit moderation and decorum in their quest for power, lest we stand to witness a recrudescence of the Otokoto saga of 1996 or even an implosion which may teeter on the brink of the Arabian spring. Enough is enough from Imo politicians from all the parties because there comes a time when forbearance ceases to be virtue.

In spite of the points made here, no one can preempt the Supreme Court judgment. There is no certainty that the Supreme Court may uphold Governor Okorocha’s use of fiat in dissolving the Councils based on the aforementioned judgment of Lord Denning in the UAV VS MACFOY CASE where he held that “You cannot place something on nothing and expect it to stand there”. The Court may also in its wisdom uphold the appeal of the 27 former LG Chairmen. However, it is pertinent to state that if in the very unlikely event the Supreme Court upholds the relief sought by the LG Chairmen, the three year tenure will expire on 8th August, 2013. In that case, the victory becomes of nuisance value since Judicial Precedents validate the point that no court will grant them a tenure elongation, and above all, the Courts are on vacation till October. So, with this inescapable reality , which way is better for the LG Chairmen- to make haste and settle out of court or to continue waiting on the Supreme Court judgment. Whichever way the Supreme  Court rules, it will be a veritable lesson to those politicians who are lawless and power drunk and thus play God; it will also strengthen the political jurisprudence of our ever nascent and fledgling democracy by making pertinent clarifications on some recondite issues of the law,  after all, it was our local Socrates and revered Jurist, Justice Chukwudifu Oputa, who during his valedictory speech in the Supreme Court said:”We are not final because we are infallible but, rather, we are infallible because we are final”.

JOHN I. MGBE

08032722897

johnmgbe@yahoo.com

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