Before I give my opinion on the political impasse in Abia State, I wish to state here that I do not have special interest in who rules Abia State. If you ask my sincere opinion, I would pray that Alex Ottih be allowed to be governor of Abia State. However my interest is to interpret the law as I know it, irrespective of who my view goes against. I owe a duty to the citizens of Nigeria in a period of serious legal confusion to air my opinion. Not to impose my view on people, but to give reasons why they should believe my deductions on the matter.
I have read different opinions on this matter, but my interest is on the failed attempt to make Uche Ogah governor while the incumbent has not exhausted his right of appeal. I do not intend to delve into the merits of the case, which I know will end up at the Supreme Court. First I want to disagree vehemently with the view of my revered heros Femi Flana and Olisa Agbakoba SAN that Governor Okezie Ikpeazu SAN has ceased to be governor of Abia State. By that assertion, the two legal Dons, may be suggesting that possession of Certificate of Return from INEC is an automatic conferment of the office of governor. This is false. There can be no two governors at the same time. And the position as to who is the governor of a state is automatically triggered by the swearing in by only the Chief Judge of a State. In the case of vacancy, the Speaker of the House of Assembly automatically steps in pending such period where INEC must conduct a fresh election. In Abia State, until the Chief Judge of Abia State swears in Uche Ogah, it is wrong for anybody to say he is the current governor of Abia State or for someone to claim that there is vacany in Abia Government House.
For me, the attempt by INEC to give Uche Ogah Certificate of Return in a haste is a coup attempt. I must concede also that Uche Ogah came close to occupying the office of the Governor of Abia State, only if they had co-opted the Chief Judge of Abia State into the mischief of swearing him in, before Governor Okezie Ikpeazu would have the chance to serve INEC the motion for stay of execution. But having failed to secure the Chief Judge’s nod to swear him in, Nigerians deserve to know what led to this whole confusion.
There is no gainsaying the fact that service of a motion for stay of execution amounts to a stay on further actions to execute a judgment. Once parties have been served a copy of the application for stay of execution, all parties must stay action that is likely to alter the “Res”, which in law means the subject matter of the suit. The INEC seem to agree to this position when they posited in defence of their hasty action that would have plunged Abia into crisis, that only a Notice of Appeal was served on them. INEC was quoted saying that no motion for stay of execution was served on them. We don’t have a denial or confirmation from Uche Ogah if he was served with the motion for stay of execution or not. If Uche Ogah was served the motion for stay of execution, he would have acted in contempt of court to have honoured the invitation of INEC come and receive a certificate of return.
In any case, we must note here that Uche Ogah’s case has gone down in the history of our evolving political experience as the first time INEC has issued a Certificate of Return which did not automatically trigger a consequential action of a waiting Chief Judge, prepared to swear in the incoming governor or governor-elect. The summary that will follow will convince any doubter that the action of granting of Certificate of Return to Ogah by INEC was done malafide (in utmost bad faith).
Never in the history of our political experiment has INEC issued a Certificate of Return to a Governor-elect without the out-going Governor vacating without hesitation. When Rotimi Amaechi ousted Omehia via a verdict of the Supreme Court, Omehia was never in doubt about his fate and the Chief Judge of Rivers State had only one decision to make, which was to swear in Rottimi Amaechi. In Anambra State which was also a pre-election matter, Andy Ubah willingly vacated the Government House and there was no difficulty or interpretation hurdle in allowing Peter Obi complete his tenure.
We must ponder as to what led to this entire impasse. When INEC issued guidelines for 2007 elections in Anambra State, then Governor Peter Obi protested. He argued that his tenure had not elapsed since his swearing in did not take place on the 29th May, 2003. He lost at the Federal High Court and proceeded on appeal. He emerged victorious at the Court of Appeal but Peter Obi and his lawyers never disturbed Andy Ubah to execute the judgement in a hurry, even when he didn’t need INEC to issue him a Certificate of Return to do so. There was no debate as to whether Andy Ubah had filed a motion for stay of execution or not. Peter Obi was patient until the Supreme Court laid the matter to rest and Andy Ubah vacated willingly.
In Rivers State, also a pre-election matter, Rotimi Amaechi had filed a suit challenging the nomination and substitution of his name replacing it with Celestine Omehia as PDP governorship flag bearer. While he was on exile, the matter suffered serious setback leading to Omehia winning and being sworn in as governor of Rivers State. There was no debate as to whether Omehia must file a motion for stay of execution. They simply went on appeal and Ameachi argued his case until the Supreme Court gave its final verdict. When the verdict came, even Omehia gave way without resistance and the Chief Judge had no difficulty performing his duty.
I have used the Peter Obi and Amaechi case to point out that the argument of whether INEC was served a motion for stay where a sitting governor has filed an appeal applies to election matters where the “RES” is too sensitive to deal with than to serve the interest of one man is correct. As in the case of many pre-election cases at the Senator Joy Emodi, Senator Anie Okonkwo and many others in the Senate, Reps, the people occupying the office are not disturbed as long as they have their right to appeal. The reason is that government policies must be allowed to go on. Our judicial system is not structured in a way for people to be sworn in and re-sworn in on their way to a final determination in the Supreme Court. It does not support the National Assembly inauguration and re-inauguration of parties who won at the Federal High Court, or Court of Appeal. It is when the matter is settled and the person occupying the sit has no chance again that a fresh person is allowed in. This is our law as it is.
But by INEC’s defence, it is clear that they moved in to issue the Certificate because they believe a motion for stay of execution was not filed. That is the mischief. INEC and those sponsoring them clearly intended to embarrass the sitting governor. They planned to move swiftly and get him out without allowing him pursue his right to appeal up to the Supreme Court while in power. This is the reason for this crisis and not whether a motion for stay of execution was filed or not filed.
I wish to also disagree with those who have laboured to distinguish a pre-election matter from an election petition matter. A pre-election matter that intends to change the status of who won the election conducted by INEC is in all degrees same with an election petition matter. The only difference is practice and procedure Rules. Both are sui generis. They cannot last after the tenure of the occupier had elapsed. Both are targeted at the winner of the election and not those that failed. The Res are the same. In Abia case, the res is the allocation, people, resources, aspirations, infrastructure of the people of Abia State. It is not our law that Uche Ogah be sworn in, then if he loses on Court of Appeal Okezie Ikpeazu gets re-sworn in, and at Supreme Court another person gets re-sworn in. Those who want to re-write our law and convention regarding this should think again. Our legal system only permits for the person who has occupied the office to be allowed to exhaust his right of appeal. This position helps for certainty of government policies. It streamlines our legal system and allows for sanity in the management of people;s resources. The law cannot author confusion and that is why the Chief Judge of Abia State has acted with restraint to allow sanity prevail in view of INEC’s self-serving action that has led to this entire debate.
Okay assuming Uche Ogah is allowed in. He changes new policies, cancels contracts, appoints new Commissioners, SAs, Chief of Staff, SSG etc. Then if the Court of Appeal says Ikpeazu wins, Ikpeazu will come back, appoint new Commissioners, cancel contracts by Ogah, starts new programs. Then Supreme Court decides and we change again. Where has it happened before? People just want to change the law because of their personal interests?
It is therefore wrong for anyone to bring the argument of stay of execution in land or contract matters to questions regarding the office of the Governor or President of Nigeria as to where he should be while he exercises right of appeal over decision of a lower court ousting him from office in the first instance. These situations are clearly distinguishable, unless we try to bring our personal interests into it. Mr Sampson Uche Ogah must be patient and allow the law run its course, because allowing him assuming office while Governor Okezie Ikpeazu pursues his appeal would be too costly than him being patient to take over after the final pronouncement of the Supreme Court of Nigeria. This is what determines whether a motion for stay should be granted or not.
Kissinger Ikeokwu
Is a Legal Practitioner and writes from Owerri.
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