It is no longer a secret that there will be a re-run election into the IMO State Assembly seat of Oguta Local Government Area(LGA) on Saturday, June 29th,2013.The re-run poll is caused by the sacking of the former legislator by the Court of Appeal, Owerri on 20th,April,2013.What happened was that the State Assembly and Governorship elections which were held in Oguta LGA on the 26th April,2011 were declared inconclusive by Independent National Electoral Commission(INEC).Other LGAs which were equally affected include Ngor-Okpala,Mbaitoli LGAs and Orji ward in Owerri North LGA.The INEC directed that the poll should be rerun. Dissatisfied by this decision,the candidate of Peoples Democratic Party(PDP), Hon Eugene Dibiagwu, filed a suit at the Federal High Court,Owerri wherein he contested the powers of INEC to cancel an election and order for a re-run.Delivering judgment in the suit, the Federal High Court, Owerri ruled that INEC was in order to have ordered for a re-run poll.The Federal High Court dismissed the suit and affirmed that INEC acted on the powers granted it by Section26 (4) of the Electoral Act. Hon Eugene Dibiagwu was dissatisfied with the ruling of the Federal High Court and thus filed an appeal to the Court of Appeal, Owerri. The Court of Appeal upheld his appeal and ruled that the election should be repeated in 4 out of 11 electoral wards in the Oguta local government Area.
INEC obeyed the order of court and conducted a rerun election in 4 out of the 11 wards in the LGA and thereafter made a return on the consolidated results in the 11 wards and consequently declared Hon Eugene Dibiagwu validly elected. Dissatisfied with the declaration of Hon Dibiagwu as validly elected, Hon Walter Uzonwanne of APGA headed to the Election Tribunal and filed a petition challenging the result. Delivering its judgment, the Election Tribunal nullified the election in the 4 wards and ordered for a rerun poll in the entire 11 wards. Aggrieved by this ruling, both PDP and their candidate, Hon Eugene Dibiagwu, filed separate appeals to the Court of Appeal, Owerri.On the 12th April, 2013, both appeals were consolidated. The appeals were merged because the appeal filed by PDP and numbered CA/OW/EPT/2/2013 and the one filed by HON Eugene Dibiagwu numbered CA/OW/EPT/1/2013 are substantially the same. In both appeals, the PDP and Hon Eugene Dibiagwu held that by holding that the election was not conducted in substantial compliance with the Electoral Act and thus annulling the election, the Federal High Court had overruled the Court of Appeal which had earlier ruled that election should be held in only 4 wards. In his relief, Hon. Eugene Dibiagwu sought a declaration that the election in the constituency on 26th, April,2011 was conducted in compliance with the Electoral Act and that he having scored the majority of lawful votes there from, was entitled to be returned to as the winner of the election.
Delivering its judgment, the Court of Appeal alluded to Section 133(1) which posits: “No election or return at an election under this Act shall be questioned in any manner other than by a petition complaining of an undue election or undue return(in this Act referred to as an Election Petition) presented to the competent tribunal or court in accordance with the provisions of the Constitution or of this Act and in which the person elected as returned is joined as a party”. The court of Appeal rejected the submission of the appellants that the earlier decision of the Court of Appeal foreclosed the Tribunal from entertaining any question as to whether the election in the 7 wards were conducted substantially in conformity with the provisions of the Electoral Act 2010,as amended. The Presiding Hon Justice Ignatius Agube held:” The Federal High Court and this Court would have acted ultra vires, and the judgment per incuriam if they made that pronouncement in matters within the exclusive jurisdiction of the Election Tribunal by virtue of Section 285 of the 1999 Constitution”. Hon Justice Ignatius Agube emphasized that on issues bordering on election litigations:”The Electoral Act and the Constitution vest that exclusive jurisdiction in the Election Tribunal”. He said:” The trite law is that the appellate court will not readily disturb a finding of fact made by the trial court unless the finding is perverse. The presumption is that the trial court is the best judge of facts. As I find nothing perverse about this finding, and it has not been shown to be perverse, I do not think we should disturb it”. Efforts by Mr Njemanze(SAN), counsel to Hon.Eugene Dibiagwu, to embark on pleadings that were not raised at the Tribunal were resisted by the Presiding Judge when he said:”The Learned Silk cannot be heard to argue this fresh issue without leave of court sought and obtained. This issue was neither canvassed nor decided at the Tribunal. Audi alteram partem which negates trial by ambush is the cardinal principle of our adversarial jurisprudence”. The Court of Appeal went further to state that”Section 26(1) of the Electoral Act ,2010, as amended, vests discretion in INEC to postpone election in any area or areas if it “ has reason to believe that a serious breach of peace is likely to occur if the election is proceeded with.Conducting election in atmosphere free of violence is the basis of a free and fair election in compliance with the provisions of the Electoral Act”.Hon Justice Ignatius Agube further said:”The totality of these facts informs the holding of the Tribunal at page 1128 of the record… that the Appellant(i.e Eugene Dibiagwu) emerged winner of the election ‘through a faulty process” and in consequence thereof nullified the election and ordered a rerun.The decision and order of the Tribunal which it rendered upon proper evaluation of the evidential materials before it, cannot be faulted”.
In a finger-wagging and lectern banging jeremiad, the Hon Judge denounced the ignoble and disgraceful role played by INEC in reprobating and approbating- an action that is capable of catalyzing mayhem ,anarchy and conflagration in Imo State. Hear Hon. Justice Agube:”Having ensnared the electorate, the Electoral officials came up with exhibits P1-P3 which admitted the existence of substantial irregularities in the disputed election in one breath and in another staunchly insisted that the election was conducted in substantial compliance with the Electoral Act. Here in this court, they filed no Briefs, thus indirectly conceding to the appeal. The unfortunate position of INEC smacks of double standards. Unless and until the conduct of elections in this country is transparent to the extent that INEC is firm and fair in its neutrality, the much needed quest for a stable democratic society shall continue to elude us. Politicians in Nigeria on the other hand, should borrow a leaf from a country like Ghana and other climes where elections have been fought and won without the bitter acrimony and do or die syndrome now plaguing our polity. Now a fresh election will be conducted with all the expenses and waste of time and energy but it is hoped that INEC this time will get it right”.
In this analysis, I have decided to avoid a full scale analysis of the election of June 29, 2013 in order not to instigate crisis in the land. Once the election is over, we are going to subject that election to exhaustive and unrestricted analysis irrespective of who wins .In an environment of developmental journalism and Social Responsibility Theory of the Press, Journalists should talk with caution, moderation and foresight in order not to exacerbate an already terrible situation. We are not yet mature to practise the Libertarian Theory of the Press. This is because the pen is not only mightier than the sword;it is in fact, mightier than the bullet. The bullet kills one person at a time but my pen can set Imo State ablaze now. The so-called freedom of information is not a licence to shout fire in a market square because the pandemonium such a fake outcry can endanger has the potentiality of catalyzing crises and fatalities of ponderous proportions and may even consume you who caused the mayhem.
However, I wish to ask the ACN to explain why their candidate, Hon Henry Igbomezie, is not participating in the election. Is that the decision of the party or that of the candidate? Do people like Senator Tinubu know that their party is not fielding a candidate in this election into the Oguta State Assembly? I ask this question because in the AMAECHI VS Omehia case, the Supreme Court said that votes are cast for the party, hence Amaechi was declared Governor by the Apex Court, even though he did not participate in the poll. ACN can go to court and ask for postponement of the poll, if they feel that their candidate has sabotaged them. By the way is Senator Ararume still in the All Congress of Nigeria (ACN).I have a strong feeling that he seems to be looking in the direction of PDP.If so, all is well. This is not the time for people like him to siddon look. Does he support the idea that the ACN candidate should not participate in the upcoming election? On the side of APGA, I am shocked that a party that defeated an incumbent governor in 2011 is today struggling to win a mere State Assembly election in a constituency that is in the Governor’s senatorial zone, more so, the Secretary to the State Government is from Oguta. On the side of PDP, we have always derogatively described them as a party that treats everything as a family affair. So, if now they see the election as a family affair, nobody should blame them. It is part of Esprit de corps. The truth is that the election of Saturday, June 29 is a peep into what will happen in the Governorship election of 2015.The election goes beyond Eugene Dibiagwu; it’s a dress rehearsal for 2015 election. In fact, I will not be surprised if President Goodluck Jonathan arrives Imo State to campaign for Hon Eugene Dibiagwu. It’s that serious. In fact, it is an understatement to describe the poll as “a mere” State Assembly Election.I
For me, all is well. Unlike 2011 when I was fanatical to Regime Change, I will accept whoever is validly elected and returned by INEC as winner. The result of the election will be a much needed shock therapy through which politicians in Imo State in particular and indeed everywhere in Nigeria will learn lessons for the future. It was George Santayana who once said that those who cannot remember the past are condemned to repeat their mistakes. The only thing we ask for in this poll is a free and fair election because all the candidates are our brothers. May the best candidate emerge victorious. AMEN.
JOHN MGBE
O8O32722897
johnmgbe@yahoo.com
