Tuesday, July 5, 2016

Abia: My order sacking Ikpeazu stays – Justice Abang



 ABUJA — The Federal High Court in Abuja, yesterday, dismissed as lacking in merit an application seeking to set aside the enrolled order of the judgment that sacked Governor Okezie Ikpeazu of Abia State from office. This came on a day presiding judge of the Federal High Court, Owerri, Justice A. I. Alagoa, fixed July 8 to deliver judgment on the tax forgery suit filed against Ikpeazu by a chieftain of Peoples Democratic Party, PDP, in Abia State, Mr. Friday Nwosu. Justice Okon Abang and Governor Okezie Ikpeazu Justice Okon Abang and Governor Okezie Ikpeazu of Abia State. The court, in a ruling by Justice Okon Abang, maintained that all the orders contained in the judgment it delivered against Ikpeazu on June 27 subsist until they were set aside by the appellate court. Justice Abang gave the ruling on a day the embattled governor, through his team of four Senior Advocates of Nigeria, led by Chief Wole Olanipekun, SAN, applied for an order restraining the beneficiary of the verdict, Mr. Uche Ogah, and the Independent National Electoral Commission, INEC, from executing the judgment. The judge had, in his judgment, ordered Ikpeazu to vacate his office, even as he directed INEC to immediately issue a fresh certificate of return to Ogah, who came second in the governorship primary election of the PDP. Although INEC had since issued certificate of return to Ogah, another court in Abia State had restrained the Chief Judge from swearing him in. Ikpeazu wants order set aside Meantime, Ikpeazu, through his lawyers, yesterday, re-approached the high court, praying it to set aside its order dated June 27 that led to the issuance of certificate of return to Ogah. Olanipekun urged the court to take judicial notice that INEC issued certificate of return to Ogah on June 30, despite the fact that it was served with Ikpeazu’s notice of appeal and application for stay of execution at exactly 12:50 p.m on June 28. He contended that INEC acted wrongly by going ahead to issue the certificate to Ogah, two days after it was served with the appeal processes. Olanipekun told the court that his client had filed “a comprehensive and elaborate notice of appeal,” and was “desirous of speedy and expeditious determination of the matter.” Ogah accuses Ikpeazu of resorting to self-help However, Ogah, who was represented by five SANs, led by Dr. Alex Iziyon, urged the court to refuse Ikpeazu’s prayer for stay of execution of the judgment. Ogah told the court that Ikpeazu obtained a restraining order from another high court at Osisioma in Abia State that prevented him from being sworn in. He stressed that Ikpeazu got the restraining order from the high court in Abia when his motion for stay of execution was already pending before the court in Abuja. “Where a party has taken to self-help, your lordship should refuse to indulge them further,” he argued. Responding, Olanipekun said it was Ogah and INEC that “deliberately and calculatively resorted to self-help in order to frustrate both the motion for stay of execution and the pending appeal.” He relied on Order 4 Rule 1(2) of the Judgment Enforcement Rules to argue that there should have been a timeline for enforcement of the June 27 verdict that removed his client. Olanipekun insisted that INEC “illegally tampered with the res of the case” by issuing certificate of return to Ogah, despite the pending appeal against the judgment. He also prayed the court to adjourn hearing on the motion for stay of execution until Thursday to enable him respond to a further affidavit filed by Ogah. On its part, INEC lawyer, Mr. Alhassan Umar, told the court that the commission had already issued certificate of return to Ogah as it was ordered to do, before it was served with Ikpeazu’s motion for stay. Umar said though the certificate was signed on June 28, it was, however, handed to Ogah two days later. According to INEC lawyer, “My lord ordered the 3rd defendant to issue certificate of return forthwith and upon service of the order, my lord, on June 28, the 3rd defendant issued a certificate of return accordingly. “The certificate of return was issued before we were served with the motion on June 28. We had issued the certificate upon being served with the court order. But the actual presentation of the certificate was on June 30. But we had complied with the order of my lord. “We had no difficulty to issue the certificate because election matters are sui-generis. Where the law intends that an appeal should operate as a stay, it is expressly provided so. In our view, this matter is not regulated by Section 143 of the Electoral Act.” My order sacking Ikpeazu stays —Judge In his ruling, Justice Abang refused to set aside the order containing the judgment against Ikpeazu, even as he adjourned hearing on the motion for stay of execution till Thursday. The judge said he would on that day also decide on an application by Ogah seeking to set aside the restraining order of the High Court in Abia State, as well as an application asking him to set aside the certificate of return INEC issued to Ogah. Justice Abang held that the enrolment order against Ikpeazu was properly signed and issued. The judge said though section 294 of the constitution allowed the court to get the judgment ready within seven days, he said the registry ensured it was available in four days, owing to pressure from Ikpeazu. He said: “I had jurisdiction to sign the enrolment order as at the time I did so. The court cannot order a sitting governor to vacate his office just for fun. We are here to settle dispute and I am not afraid to take decision. “Therefore, those going to the media to misinterpret the decision of the court when they have not even taken out time to study the 131-page judgment should take caution.” Judgment on tax forgery suit for July 8 Meanwhile, presiding judge of the Federal High Court, Owerri, Justice A. I. Alagoa, has fixed July 8, to deliver judgment on the tax forgery suit filed against Ikpeazu by Nwosu. Nwosu, who ran for the December 8, 2014, PDP governorship primaries in the state, had accused the governor of submitting a forged tax clearance certificate, praying the court to disqualify him. Joined in the suit were the PDP, INEC, Ikpeazu and Ogah as 1st, 2nd, 3rd and 4th defendants, respectively. The parties adopted their written addresses. Counsel to Nwosu, F. Unyimadu, prayed the court to grant the prayers of his client by disqualifying Ikpeazu for submitting forged tax certificate and declare him governor. Unyimadu added that the governor was not qualified to run for the primary election. He further argued that Ogah, who refused to sign the result and petitioned the PDP to conduct another primary election, had forfeited his right to benefit from the exercise. In their separate arguments, counsel to PDP, INEC, Ikpeazu and Ogah, Paul Ananaba (SAN), Jude Nnodum (SAN), Theo Nkire and O.J. Nnadi (SAN), respectively, said Nwosu’s suit lacked merit and urged the court to dismiss it. Earlier, the counsel had opposed an attempt by Ogah’s counsel to leverage on the judgment of the Federal High Court, Abuja, which declared him governor. This was upheld by the judge, who ruled that he was not bound by the verdict of a court of the same hierarchy. In a related development, Nwosu has filed a notice of appeal on the judgment of the Federal High Court, Abuja, which declared Ogah as governor, praying the court to set it aside and declare him governor. In a notice of appeal filed against Suit No. FHC/ABJ/CS/71/2016, between Sir Friday Nwanozie Nwosu (Appellant) and Sampson Uchechukwu Ogah, Peoples Democratic Party, Dr. Okezie Victor Ikpeazu, and the Independent National Electoral Commission, as Respondents, Nwosu listed nine grounds of appeal and particulars of error on the judgment delivered by Justice Okon Abang on October 27. While praying the Court of Appeal to set aside the judgment, Nwosu also sought five reliefs: “an order setting aside the declaration of first respondent, Uche Ogah, as the elected governor of Abia State as declared by the trial court. Others include: “an order that the first Respondent, Uche Ogah, is stopped from claiming any right or benefit from the second respondent’s (PDP) Gubernatorial Primary Election of 8/12/2014, in Abia State, having waived his right to do so; an order striking out the first respondent’s (Uche Ogah) suit on the ground that it constitutes an abuse of court process; an order that the suit of first respondent i.e. (Suit No. FHC/ABJ/CS/71/2016) is incompetent and the trial court lacks the jurisdiction to hear and determine the suit.”