By Achilleus-Chud Uchegbu
The Independent National Electoral Commission (INEC) has fixed January 13, 2018 for the conduct of a court-ordered election into the contentious Anambra Central Senatorial district seat. In fixing the date, INEC stated in its press statement dated November 23, 2017 and signed by Mohammed Kudu Haruna, listed as National Commissioner and Member, Information and Voter Education, that “INEC has decided that all encumbrances to the conduct of the re-run election have now been removed”. In its background to the position it had taken, INEC stated that “the 2015 election to fill the seat was nullified by the Election Tribunal”.
In response to the above, Onyinyechi Okeke, who was counsel to Hon. Uche Ekwunife, whose purported election was voided by the tribunal on grounds that she was not the proper candidate to contest the 2015 election, faulted INEC saying there is a pre-election matter still pending before the same Court of Appeal that made the order on INEC to conduct the election within 90 days.
Okeke listed Dr. Obiora Okonkwo vs PDP with suit number FHC/ABJ/1092/2014, which is also at the Court of Appeal as CA/ CA/A/608/2017 among others. The above falsifies INEC’s position that “that all encumbrances to the conduct of the re-run election have now been removed”. Besides, PDP has gone on appeal to the Supreme Court against the decision and has also filed an application for stay of execution. Therefore, INEC is wrong in its position.
In arguing that INEC cannot go ahead with the January election, Okeke said that “as is clearly evident from the listed cases, INEC is a named party in all these matters and would be directly bound by the decisions of the respective courts. It would therefore be inappropriate to preempt the decision of the courts in these cases by proceeding with any election prior to the final determination of these actions. This would invariably result in a situation where INEC, through its conduct, will be foisting a fait accompli on the courts and rendering the court judgments nugatory”.
According to Okeke, “in the light of th foregoing, and given INEC’s constitutional responsibility to determine the timing and conduct of general elections, we hereby respectfully request that INEC hold off on scheduling any election in Anambra Central Senatorial district pending the determination of these lawsuits. To do otherwise would be to create a situation whereby INEC, an agency of the Federal government, would be perceived as impugning the jurisdiction of the courts of the Federal Republic of Nigeria by foisting a situation of helplessness on the courts”.
By scheduling the rerun election, INEC has deliberately feigned ignorance of the existence of the above suits in which it has entered appearance. For instance, INEC was in the Court when an application for accelerated hearing in the matter of Dr. Obiora Okonkwo v PDP was entertained at the Court of Appeal in Abuja. It also did not object to the application for accelerated hearing at which the Court made the order as prayed. It is therefore absurd that the same INEC would issue a statement conveying information that seeks to mislead the public.
In the pre-election matter instituted by Dr. Okonkwo against PDP, in which INEC is a party, Dr. Okonkwo, who contested the primary election of the PDP and was returned winner with 204 delegate votes, contends that he is actual winner of the primary election and ought to be the PDP candidate for the senatorial election, and not Ekwunife. The imposition of Ekwunife as candidate backfired at the election petition tribunal where she was found not to be the proper candidate of the party. For this reason, she was removed. She challenged the decision and failed all the way up.
However, in sacking Ekwunife as candidate of the PDP, the tribunal did not nullify the fact that the 2015 election was won by the PDP. In other words, PDP’s victory at the election subsists. The basic prayer in Dr. Okonkwo’s suit therefore is that the courts ought to declare that he is the rightful candidate to occupy the senatorial seat of Anambra central on the strength of the outcome of the 2015 senatorial election. That matter is still pending in court. It is a pre-election matter and is foundational to resolving the logjam in Anambra Central.
The history of adjudication on the civil suit showed that three judges have washed their hands off the matter. Curiously, they all did so at critical junctures when bold judicial declarations and pronouncements ought to have been made. The last judge that entertained the matter had brought it to judgment. He adjourned for judgment but has withheld same. No one knows reasons for these gymnastics from the judiciary even when presented with Superior court decisions that Ekwunife ought not to be entertained in any suit over the issue of Anambra central Senatorial election.
Prior to adjourning for judgment date, Okonkwo filed a motion on notice reminding the court that Ekwunife lacked locus to be joined in the suit, ab initio, on the grounds that a superior court had given judgment against Ekwunife to the effect that she was not validly nominated to contest in the election and as such sacked her from the senate as well as barred her from recontesting. Ekwunife also challenged the judgment and lost all through to the Supreme Court. For this, she was not even entitled to be heard in the matter, or any matter that has to do with the Anambra Central Senatorial Primary Election.
Recall that Victor Umeh had challenged Ekwunife’s election, and the Court of Appeal in Enugu in a well considered judgment held that Ekwunife was not the validly nominated/elected candidate of the PDP as per the Primary election of December 2014 and as such ought not to have been on the ballot in the first place. Following this, the court ordered her out of the Senate. The case is marked as Victor Umeh & Anor vs PDP & Ords CA/EPT/28/2015.
Ekwunife had also left the PDP for All Progressives Congress (APC) and as such lost the grounds to even join in the re-run election if it ever comes to be.
Implication of the development is that Dr. Okonkwo is the PDP candidate for the 2015 Senatorial election and should be declared as such. If the declaration is made, it means that Dr. Okonkwo will become the beneficiary of the victory of the PDP in the 2015 Anambra Central Senatorial election, a victory that is not nullified by any court in Nigeria. But as it is, the Federal High Court has literally refused to determine the matter.
This is why the matter is still pending at the same Court of Appeal in Abuja. In the relief sought at appeal, Okonkwo is asking the court to determine “whether the FHC was right in refusing to hear, and determine, Okonkwo’s motion on notice of 20th June 2017 and suspended ruling reserved for 3/7/2017 and which motion on notice also challenges Ekwunife’s locus to file any further processes in the suit; strike out Ekwunife’s name from the suit; enter judgment in favour of Okonkwo”. There is also a request asking the Court of Appeal to determine whether the FHC breached Okonkwo’s fundamental right to fair hearing when it refused to hear and determine the suit he brought before it on issues contained in above.
The issue of Ekwunife’s non-involvement in the matter is settled. A Supreme Court decision in Mobil Oil Producing Unit vs Chief Monokpo & Ords settled it in Okonkwo’s favour. In the judgment, the Supreme Court held that “the prevailing view is that even when a judgment has been prepared but before it is delivered, a motion is brought which may be relevant to the substance of that judgment, the motion should be considered and determined before the judgment may or may not thereafter be delivered”.
Why the situation has worked differently at the Federal high Court for Dr. Okonkwo is difficult to fathom. This is irrespective of the fact that the Supreme Court position is a precedence which the lower court is bound to uphold and follow. The trial court ought to know how jealously the judiciary guard precedence set by higher courts.
The power of judicial precedence was again re-affirmed by the Supreme Court in Dakan vs Asalu where it held that “the Court below should have followed the decision of this court as the same is relevant and binding on it. This matter in which the court below should have appreciated that the doctrine of judicial precedent, otherwise referred to as stare decisis is well rooted in our jurisprudence. It ought to be strictly followed by all lower courts. There is sense in it to avoid confusion. It is not proper to refuse to the decision of a superior court. A lower court should toe the line as it were”.
Why, therefore, has the lower court refused to give judgment in a motion on notice brought prior to a judgment? The answer is still being awaited. Meanwhile, the subject matter of the motion on notice has become a judgment in rem which according to the Supreme Court is binding on the lower courts. The Supreme Court said in Ogboru v Uduaghan that “the feature of a judgment in rem is that it binds all persons whether a party to a proceeding or not. It stops anyone from raising the issue of the statue of persons or things or the right or title to property litigated before a competent court. It is indeed conclusive against the entire world in whatever it settles as to status of the person or property. All persons whether party to the proceedings or not are stopped from averring that the status of persons is other than the court has by such judgment declared or made it to be”.
