Eminent lawyers are divided on the execution of the court order that the Independent National Electoral Commission should present the certificate of return to Uche Ogah as the substantive governor of Abia state and that he should be sworn in.
And yesterday (June 30), Ogah, who polled the second highest votes in the state’s Peoples Democratic Party’s primary, was indeed presented the certificate of return, after the judgement that Dr. Okezie Ikpeazu’s tax certificate were forged and he should vacate office.
Though Ikpeazu claimed he had filed a notice of appeal and also appealed at a higher court, moves to swear in Ogah were stopped by an order of another court in Abia.
And lawyers are divided on who the governor of Abia should be.
Read their views …
Mr Kunle Ogunba, SAN
I must state first and foremost state that I don’t have the full facts of the matter. But the question I will like to ask and have an answer is: Did his lawyers file for stay of execution of the judgment? I read that they have appealed, but did they also go back to the lower court to ask for a stay? I know that an appeal does not act as a stay in all cases, so, was an application for stay filed, because there is no law stopping the beneficiary of a judgment from enjoying the fruit of his labour. But if an application for stay was filed and served on parties, I believe it will be wrong for the authorities involved not to wait for the outcome of appeal.
Dele Igbinedion, rights activist
Once there is a judgment, it must be obeyed by the parties. An appeal, he said, was not an excuse to disobey court order. It is the right of the governor to appeal against the judgment but that does not mean that the judgment was not in existence, the moment the court made pronouncement on the matter, the judgment has comes into existence.
INEC complied with court order. INEC complied with the order of the court. We are also expecting the chief judge of the state to swear in Ogar, because that is the order of court. I hear a particular high court in Osisioma Ngwa issued an injunction, The Osisioma court is a court of co-ordinate jurisdiction with the Federal High Court. If there is any order to be made and obeyed, it should be an order from a higher court. When was the case filed and when was it assigned and served, even if it is on ex-parte. You can only upturn the existing order of a court if it’s a higher court.
Since there is an appeal, the Commission should have waited for the outcome of the Court of Appeal on the matter before taking any step.
INEC is supposed to wait for the Court of Appeal to decide the fate of the man. The action of the Commission is illegal and cannot stand the test of law. What the Commission did was to donate power to an opponent of the governor. What if the Court of Appeal upturns the judgment? The action of Commission is unacceptable in law and it is illegal.
Dele Adesina, SAN
INEC acted illegally by refusing to wait for the outcome of Ikpeazu’s appeal. As long as an appeal has been filed against the judgment and there is stay of execution, it will be totally wrong and illegal for INEC to issue a Certificate of Return to another person. It will be premature for INEC to execute the judgment.
Prof Fidelis Oditah, a SAN and Queen’s Counsel (QC)
Ikpeazu’s pending appeal should automatically stop Ogah’s inauguration. It appears from newspaper reports that Dr Ikpeazu has filed an appeal against the decision removing him from office. The appeal prevents the immediate enforcement of the decision, including taking any step to enforce the decision which must include issuance of a certificate of return.
Unlike the position in relation to ordinary appeals where an appeal does not by itself operate as a stay of execution or enforcement of the decision appealed, an appeal against an election result operates as a stay of enforcement of the decision appealed, pursuant to section 143 of the Electoral Act 2010.
For this reason alone, Mr Ogah cannot be sworn in as the governor of Abia State pending the hearing and determination of Dr Ikpeazu’s appeal, because such swearing in would constitute enforcement of the appealed decision, which is prohibited by section 143 of the Electoral Act 2010.
Besides, section 141 of the Electoral Act 2010 says that under no circumstance shall a court declare a person as the winner of an election unless he participated fully in all stages of the election.
This is statutory reversal of the sound but unpopular decision in Amaechi v INEC. Mr Ogah does not appear to have participated in all stages of the 2015 elections as a candidate and prima facie cannot be declared the winner in Abia State, whether through the disqualification of Dr Ikpeazu or otherwise.
As I do not know the details of the decision, I do not believe it is appropriate to comment further.