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This is a pre-election matter that commenced after the conduct of Peoples Democratic Party (PDP) primaries of 8th December 2014 for the selection of a candidate by the PDP for the 2015 Abia Gubernatorial election. It also has a sister case in Obasi Ekeagbara & anor vs. Dr Victor Okezie Ikpeazu which has the same claim and reliefs sought save for the difference in the plaintiffs.
The two cases, among other things, sought for interpretation of sections 31 and 87 of the Electoral Act (2010) as Amended, PDP Constitution and PDP Electoral Guideline 2014 in relation to the selection by the PDP of Dr Okezie Victor Ikpeazu as its flag bearer for that gubernatorial election. Both cases started as pre-election suits.
The plaintiffs, in the separate suits, commenced at the Federal High Courts (FHC) respectively, prayed the court for the following reliefs: that in view of the provisions of the relevant sections of the Electoral Act, PDP Electoral Guideline 2014 and the PDP Constitution, that INEC Form CF001, Tax Payment Receipts and Tax Clearance Certificate attached to the Form submitted to INEC by Dr Victor Okezie Ikpeazu through PDP be declared to contain false information, hence that Dr Okezie Victor Ikpeazu was not qualified to contest for the PDP primaries to select her candidate for the Abia State Governorship election and for an order of the Court banning the PDP from accepting Dr Victor Okezie Ikpeazu as a candidate to contest the said election amongst others. Hence, the fulcrum of the suits is that Dr Victor Okezie Ikpeazu submitted FALSE INFORMATION on FORM CF001 to INEC.
Dr Ikpeazu, upon receipt of the Plaintiffs’ claim filed before the court a preliminary objection via Motion on Notice and sought for an order of the court transferring the matter from the FHC to the Chief Judge of Abia State for assignment to a Judge of the State High Court (SHC) for the purpose of hearing and determination of the issues raised in this matter as, according to him, the court lacked jurisdiction. After hearing parties’ submissions, the Federal High Court Per Justice Ademola sitting in Abuja dismissed the application and ruled that FHC had jurisdiction.
Dissatisfied, the Defendants/Respondents appealed to the Court of Appeal where their appeal was allowed and the decision of the trial Court reversed. Aggrieved with the decision of the Court of Appeal, the Plaintiffs/Appellants appealed to the apex Court and in its judgment by five Supreme Court justices led by Justice Mohammed Muntaka -Coomassie, the Supreme Court faulted the decision of the Court of Appeal and affirmed the competence of the Federal High Court to try the case.
The justices then remitted the case back to the Federal High Court for the expedited trial of the tax fraud case challenging the eligibility of Ikpeazu to contest the PDP primary election 2014.
Supreme Court, in finding whether the Court of Appeal was right in holding that the trial court lacked jurisdiction, determined whether the learned Justices of the Court of Appeal rightly appreciated the case of the appellants against the respondents. Supreme Court held PER. M. S. MUNTAKA-COOMASSIE, J.S.C: “I want to, with respect, correct a misconception that the jurisdiction of the Federal High Court is only limited to items listed therein.
By this provision, the National Assembly may extend, expand or enlarge the jurisdiction of the Federal High Court to adjudicate over any matter not listed in Section 251 of the Constitution of the Federal Republic of Nigeria as amended. Hence to limit the jurisdiction of the Federal High Court to matters listed in Section 251 of the Constitution alone is erroneous. This power is derived from the Constitution itself.
The electoral Act 2010 (as amended ) is an Act passed by the National Assembly, and it expended and enlarged the jurisdiction of the Federal High Court, where it provides in Section 31 (5) thus:-“Any person who has reasonable ground to believe that any information given by a candidate in an affidavit or any document submitted by that candidate is false may file a suit at the High Court of a State or Federal High Court against such person seeking a declaration that the information contained in the affidavit is false.”
As a corollary, Supreme Court further held that, “where a candidate is alleged to provide false information in FORM CF001 submitted to INEC and which is being challenged,…the burden or onus is on the candidate to prove that his information was correct and not false.
All he needs to show and establish is that the documents he formulated and represented to the commission (INEC) are genuine and not false.” See Ekagbara v. Ikpeazu (2016) 4 NWLR PT 1503 at page 411.
At the FHC as ordered by Supreme Court, the matter was re-assigned to Justice Okon Abang as a result of a petition of likelihood of bias written against Justice Ademola who had ruled against Dr Okezie Ikpeazu’s preliminary objection challenging jurisdiction of the Court.
The jurisprudential basis upon which Justice Okon Abang determined the matter and delivered his judgment on 27th June 2016 is unassailable.
Therefore, the attack on Justice Abang is unwarranted. Being a pre-election matter, a golden opportunity presented itself for a foremost interpretation of relevant sections of our Electoral Law as a prelude towards sanitizing the Augean table of impunity, imposition and lawlessness characteristic of some political parties that sponsor all manner of persons for public offices in negation of legal requirements and qualifying factors.
Justice Okon Abang seized this golden opportunity and etched his name in gold. Supreme Court had directed the court below to determine one thing: whether or not the Form CF001 submitted by Dr Okezie Ikpeazu to INEC contained FALSE INFORMATION or not. Dr Okezie Ikpeazu, in his counter-affidavit admitted that the 2011 tax receipt which contained false information owing to conflicting figures on the tax receipt and on the tax clearance certificate for the 2011 column was submitted in error.
He therefore sought to substitute it.
Since FHC is a court of record, therefore, record of proceeding thereat would reveal this much. There is nothing contentious or hostile about this matter at the trial court when all that was required was for the court to, via affidavit and counter-affidavit evidence, look at the Form CF001 and the attached documents in determining the case.
The five justices of the Appeal Court led by Justice Ogunwumiju who overturned the judgment are the ones who committed grave error and debased the pillar of justice by allowing them to be misled in law and in fact. For instance, the under listed reveals that much:
Excerpts:
“ …the originating summons procedure should be used only where a deed, a will, enactment, written instrument are to be interpreted by the courts; that is to say, where the court is merely to determine the construction of such provision submitted by the parties. The procedure is not to be used to interpret bits and pieces of facts committed to paper which can be disputed or which may need to be explained.
The consequence of this resolution is that the originating summons be struck out as an incompetent mode of initiating the proceeding”.-PER CORAM HON. JUSTICE H. M. OGUNWUMIJU, JCA (Court of Appeal) in APPEAL NO.: CA/A/390/2016 IN DR OKEZIE VICTOR IKPEAZU V DR UCHECHUKWU SAMPSON OGAH & 3 ORS
Whereas in her earlier decision in CHRISTIAN ADABAH ABAH & ANOR VS HON. HASSAN ANTHONY SALEH & ANOR in appeal No.: CA/A/279/2015 delivered on 8TH FEBRUARY 2015 on the same interpretation of Section 31 of the Electoral Act, 2010 (as amended) pertaining to false information submitted by a candidate to INEC in FORM 001, Court of Appeal held that the originating summons was proper as the originating procedure
QUESTIONS FOR DETERMINATION:
IS COURT OF APPEAL NO MORE BOUND BY THEIR PREVIOUS DECISION ON SAME ISSUE OF SIMILAR FACTS AND CIRCUMSTANCES AND LAW?
IS COURT OF APPEAL NOW ALLOWED TO SUMMERSAULT?
EXCERPTS:
“…where a candidate is alleged to provide false information in FORM CF001 submitted to INEC and which is being challenged,… the burden or onus is on the candidate to prove that his information was genuine and not false. All he needs to show and establish is that the documents he formulated and represented to the commission (INEC) are genuine and not false.” (emphasis is mine). Supreme Court Per MUNTAKA-COMMASSIE, JSC in Ekagbara v. Ikpeazu (2016) 4 NWLR PT 1503 at page 411.
Suprisingly and Strangely too, HON. JUSTICE H. M. OGUNWUMIJU, JCA (Court of Appeal) in APPEAL NO.: CA/A/390/2016 held otherwise by saying: “In Ekeagbara v Ikpeazu (2016) 4 NWLR PT 1503 at page 411, the Supreme Court held that the burden of proof is on the candidate to prove that his information was genuine, not false.
However, the very wording of Section 31 (5) of the Electoral Act, 2010 (as amended) shows that it is the person making an allegation of falsehood that must prove it”- ”.-Hon. Justice H. M. Ogunwumiju, JCA (Court of Appeal) in APPEAL NO.: CA/A/390/2016 IN DR OKEZIE VICTOR IKPEAZU V DR UCHECHUKWU SAMPSON OGAH & 3 ORS
QUESTIONS FOR DETERMINATION:
WHERE IS THE STARE DECISIS PRINCIPLE THAT SAYS THAT A LOWER COURT IS BOUND BY THE DECISION OF A HIGHER COURT REGARDING A PRINCIPLE OF LAW?
IS COURT OF APPEAL NOW A SUPERIOR COURT TO THE SUPREME COURT?
EXCERPTS:
“…Throughout the enthusiastic analysis of the supposed false information on the tax documents, the learned trial Judge was unwilling to consider the explanation in the counter-affidavit sworn to by Mr Okoji the tax officer who signed the Tax Clearance Certificate.
That tantamount to saying that the court cannot allow amendment to pleadings that would rebut evidence led by the adverse party because that evidence should have been in the original pleadings.
That cannot be fair hearing. It can only be fair hearing if the evidence is considered and weighed with other contrary evidence and found insufficient to convince the judex.
An outright rejection of the evidence of the adverse party in this case because it should have been submitted with the Form 001 is perverse and unjust”.
– HON. JUSTICE H. M. OGUNWUMIJU, JCA (COURT OF APPEAL) IN APPEAL NO.: CA/A/390/2016 IN DR OKEZIE VICTOR IKPEAZU V DR UCHECHUKWU SAMPSON OGAH & 3 ORS
1. “…the 2nd Defendant (Dr Okezie Ikpeazu) tax receipt for 2011 ought to have been first in time before the serial number of his tax receipt for 2012 and 2013.
However, in this case, it is the serial numbers of the 2nd Defendant’s tax receipt for 2012 and 2013 that came first.
The 2nd Defendant claimed in his defence that exhibit OK6 (2011 tax receipt) was issued in error and that explained why his exhibit OK6 was later in time. The fact of the 2nd Defendant’s explanation here is an admission against interest that indeed the earlier 2011 tax receipt contains false information.
If indeed the 2nd Defendant’s 2011 tax receipt was issued in error and known to him, he ought to have explained this (via further affidavit) to INEC when Form 001 with attached documents were returned to INEC on 26th December 2014.
The court is only bound to examine documents attached to Form 001 and forwarded to INEC to see if they contain false information. Therefore, the defence of the 2nd Defendant on this issue has not discharged the burden placed on him by the Supreme Court in Ekeagbara vs Ikpeazu to prove that the documents he submitted to INEC do not contain false information”.
-Per Justice Okon Abang (Federal High Court) in Suit No.: FHC/ABJ/CS/71/2016 in Dr Uche Ogah vs Dr Okezie Ikpeazu
QUESTIONS FOR DETERMINATION:
i. Is it not a settled principle of law that an error or mistake in an affidavit by a particular deponent can only be corrected if re-sworn by the same deponent (Dr Okezie Ikpeazu) and not by another person (Mr James Okoji) before a Commissioner of Oath?
ii. Under the provisions of Section 31 Electoral Act, 2010 (as amended), is it not the fact, documents and information submitted to INEC at the time of the submission that remain and cannot admit alteration to prove the correctness of the truth therein except by another affidavit by the same deponent and any explanation by a third party which is not part of the initial facts, information and documents initially submitted to INEC will not hold?
iii. Between Justice H. M. Ogunwumiju of the Court of Appeal and Justice Okon Abang of the Federal High Court, who stood the law on its head?
The matter is now before the Supreme Court of Nigeria to do substantial justice to this case in accordance with the law.
Hassan writes in from Kaduna.
~~Thisday Newspaper.
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