Theodore Ahamefule Orji is a politician and the Governor of Abia State of Nigeria. He is not a legal practitioner or a judicial officer. But he has been offered the privilege of adorning the cover of this book entitled Abia Governorship Law Reports; a privilege rarely offered to members of the legal profession. And this privilege was offered by no less a person than the editor-in-chief, a Senior Advocate of Nigeria and a former Attorney-General of Imo State, Dr. Livy Uzoukwu, OON.
Another unique feature of the law reports is that all of the twelve decisions contained therein (eleven judgments and one ruling) concern election petitions and a pre-election issue arising from the 2007 and 2011 Abia State gubernatorial elections which each returned T.A. Orji as the Governor, and he was a party in each of them.
He was an appellant in two of the appeals; he won them. His political party then (Peoples Progressive Alliance, PPA) was an appellant in two of the other appeals; it won the appeals. Independent National Electoral Commission, INEC which conducted the elections in dispute was an appellant in two of the appeals arising from the 2007 election tribunal judgments; it won them. The Governor’s opponents in the 2007 elections, and the political party (Peoples Democratic Party, PDP) which sponsored them, were also appellants in two out of the eleven appeals reported; the two appeals were dismissed. Their attempt to set aside the judgment of the Court of Appeal delivered earlier in the principal appeal validating the 2007 election of the Governor culminated in a ruling, also reported, which dismissed the application.
There are three judgments in the law reports arising from the 2011 Abia State Governorship election in which Governor Orji stood for re-election and won. This time, he was the gubernatorial candidate of the PDP, unlike in 2007 when he was the candidate of the PPA.
Two of them were decisions of the Court of Appeal arising from appeals of Governor Orji’s opponents which were dismissed. The third and the latest, and the only one in the law reports delivered by the Supreme Court, is in respect of a pre-election dispute on the authentic gubernatorial candidate of the PDP initiated against the Governor by an aspirant who lost all the way from the Federal High Court to the Court of Appeal and, finally, at the Supreme Court.
It is significant to mention at this point that the Governor was victorious in all the decisions published in this volume; in other words, in all the election disputes arising from the 2007 and 2011 Abia State gubernatorial elections.
These decisions are now being presented to the public in an attractive, hard cover 576 page book, in honour of Dr. T.A. Orji, Governor of Abia State whose photographs adorn the front and back covers. Now, having served the appetiser, it is time to turn the pages and decipher the utility of the decisions reported in this volume. As noted earlier, nine of the decisions arose from the 2007 elections and the same parties were involved in all of them. Expectedly, the issues that arose in them were similar. Shorn of general principles of law expounded in them which I do not need to rehash, there are important points of law which are either recondite or of particular significance which the courts made pronouncements on.
One of them, perhaps the most interesting, was whether Governor Orji and his deputy at the time (Chris Akomas), being Chief of Staff to the Governor of Abia State and Commissioner in the Government of Abia State respectively, were “public officers” who should have resigned their appointments before contesting the election. Another equally interesting and important issue was whether Governor Orji was a member of a secret society; this arose from the allegation that he was a member of Okija secret society.
The Court of Appeal devoted considerable space in attending to these two issues in their judgments. In Orji v. Ugochukwu I, (2009-2012) AGLR 1, the Court held, after referring to relevant constitutional provisions, at page 79, thus:
It is apparent from the wording of the foregoing provisions that the offices of the Chief of Staff being the head of the personal staff of the Governor and the Commissioner of the State being offices respectively held in the erstwhile Government of Abia State by the 1st and 2nd Appellants are political office holders (who)… serve at the pleasure of the Governor of Abia State and accordingly not persons in the public service of Abia State. [Word in brackets added]
In INEC v. Orji I (2009-2012) AGLR 99, the Court said further on this point at page 120:
From the foregoing the only conclusion I can reach is to hold that the 1st and 2nd respondents (that is, Orji and Akomas) in this appeal are not public officers and therefore qualified to contest as Governor and Deputy Governor of Abia State. The decision of the lower tribunal on the point is set aside. The question of resignation 30days to the election will therefore not apply. [Words in brackets supplied]
In regard to the membership of Okija secret society, the Court held that the election tribunal was not a proper forum for determining whether Okija shrine was a secret society which was a condition precedent to determining whether the Governor was a member of a secret society. The Court made the point clearly in Orji v. PDP (2009-2012) AGLR 175 when it said at page 274:
From the cumulative deduction and parameter of the evidence before the lower tribunal, the summary is that the ascription of Okija shrine being a secret society has no foundational basis but a mirage. In the absence of establishing the shrine falling within the definition under section 318 of the Constitution there can be no imputation upon the 1st appellant being a member of a none existent such society designated as Okija secret society. The membership is solely dependent and subject upon the former which ought first be established, i.e. to say that the said Okija shrine is indeed a secret society having been prohibited and outlawed either by legal legislation or judicial pronouncement in the court of law.
The Court was more emphatic on the point when it held in P.P.A. v. Ugochukwu (2009-2012) AGLR 356, 401 that:
. . . by its definition a secret society is a secret body. Once any of its members brings to court evidence of its activities, then that society ceases to be a secret society. The evidence of PW5 who claimed to be the secretary general of Okija secret society and the subsequent tendering and admission of Exhibit “HS” was a clear indication that the activities at Okija shrine are not secret after all. To that extent I am of the firm view that there was no evidence before the Tribunal that Okija Shrine is a secret society.
These two issues were also treated elaborately in P.P.A v. PDP [2009-2012] AGLR 123, 168, 170.
It has been said that INEC filed two appeals from the decisions of the 2007 election tribunal. The tribunal had nullified the election of Governor Orji and his deputy on two main grounds which have just been discussed. Naturally aggrieved, their Excellencies and their political party (PPA) lodged appeals against the decisions. INEC also felt aggrieved, and lodged its appeals. The decisions of the Court of Appeal arising from the appeals are reported as INEC v. Orji I (2009-2012) AGLR 99 and INEC v. Orji 2 (2009-2012) AGLR 282 respectively.
At this time of the litigation, the neutrality of INEC had been a subject of disputation in some election petitions, leading to certain decisions of courts to the effect that INEC should not appeal against decisions of election tribunals which nullified elections conducted by the electoral body. Those decisions surely emboldened the respondents in the two appeals now being discussed to challenge the competence of INEC to initiate them. They prayed the Court of Appeal to strike out the appeals. The Court refused the prayers. It is needful to set down, in brief, the reasoning of the court.
In INEC v. Orji I supra, at pages 111-112, the Court said: “I have earlier on referred to and quoted pages 3671 -3672 of the Record of Appeal. When one looks at the above quoted one cannot fault the right of the Appellants to appeal in this matter. . . . Having said much I see no reasons why INEC in view of the pronouncement of the Tribunal should not appeal”. This decision was repeated in INEC v. Orji 2 at page 293. The thrust of the decisions is that where findings of facts are made against INEC, which are central to the issue under consideration, it would not be inappropriate for INEC to appeal against the findings, as the appeal is a constitutional right.
It is one thing to complain about the declaration or return made by INEC, but another to know how to upset it. The inability to provide the right quality of evidence to achieve this goal is the bane of many election petitions. It was the weak point in the petitions filed against the return of Governor Orji. The petitioners’ witnesses who tendered election results at the election tribunal had no personal knowledge of the contents of the documents. The respondents, therefore, contended that the documents were “documentary hearsay” which could not prove the allegations made against the conduct of the election. This argument found favour with election tribunal and the Court of Appeal.
This legal issue was given prominence in Ugochukwu v. Orji (2009-2012) AGLR 305 and PDP v. Orji (2009-2012) AGLR 331. In the former case, the Court held at pages 325-326 of the Report, thus:
The Tribunal found that these witnesses were not on the field where these documents were prepared. The decision to tender them through witnesses was for the opposing party to cross-examine the documents. The witnesses equivocation under cross-examination as shown in the record clearly shows that they neither know all their agents at the polling stations nor did they know what transpired at these stations. I therefore agree with the conclusion by the Tribunal when it chose not to accord the documents any probative value . . . This is an allegation of crime that the Cross-Appellants are required to prove beyond reasonable doubt. This can only be done by calling those who falsified the results or those who were present when the falsification was carried out.
In PDP v. Orji (2009-2012) supra, the Court reiterated the point at page 354 when it said inter alia:
. . . it is important to note that the statements of results tendered by the Petitioners were meant to challenge the results announced and declared by the 4th Respondent (INEC) by which the 1st and 2nd Respondents were declared winners of the said election. The statements of results were the documents PW1 who tendered them claimed to have received from some faceless party agents who in turn received them from unidentified polling agents. It may be an understatement, to say the least, to say that the evidence relied upon fell short of what was required to establish such allegation as was raised against the INEC results.
The last case that arose from the 2007 gubernatorial election in Abia State was the futile attempt in 2009 by the Governor’s opponents to set aside the judgment of the Court of Appeal which validated the election. The case is reported as Orji v. Ugochukwu 2 (2009-2012) AGLR 403. The application was predicated on eight grounds, two of which were alleged breach of fair hearing, and contradictory pronouncements in the judgment. The Court had no difficulty in dismissing the application.
The three cases that arose from the 2011 Abia State gubernatorial election, and reported in this volume, are Owanta v. INEC (2009-2012) AGLR 443, Ohajuruka v. Orji (2009-2012) AGLR 503 and Emenike v. PDP (2009-2012) AGLR 537. The first case, Owanta v. INEC, is about a gubernatorial candidate of a political party known as the Democratic Front For A People’s Federation who challenged the election of Governor Orji, but it happened that he, the petitioner, was not a properly nominated candidate of his party as he did not properly nominate a deputy governorship candidate. So, the respondents challenged his locus standi to present a petition. The tribunal upheld the objection and struck out the petition. His appeal to the Court of Appeal was dismissed in a judgment which is now reported. The Court held at pages 497-498 that: . . . the non-nomination of a running mate as Deputy Governor touches on the qualification of a candidate to contest an election under the Electoral Act 2010 (as amended) and is also a clear breach of the provisions of section 187(1) of the 1999 Constitution (as amended) which makes it mandatory for a person wishing to run for the position of a Governor of a State to first nominate another candidate as his associate who will occupy the office of the Deputy Governor which is a condition precedent to his running for the office of Governor. It is therefore beyond any realm of doubt that the nomination of a running mate by a Governorship candidate is a condition precedent to the valid nomination of a Governorship candidate.
The second case, Ohajuruka v. Orji, was an appeal arising from an election petition filed by the gubernatorial candidate of the Labour Party in 2011 election which was dismissed by the election tribunal. The appeal was also dismissed, but the Court made a pronouncement, of striking significance, on the nature of public documents admissible in evidence. At page 528 of the Report, the Court held:
. . . what is in issue is whether a public document can be admitted in its original form without being certified as such. A community reading of sections 102, 103, 104, 105 and 106 of Evidence Act 2011 clearly shows that a public document can be obtained from a public officer having custody of such document who shall certify such a document appropriately and it is such certified copy of the document that can be tendered. An uncertified public document in its original form does not pass the test of admissibility under the Evidence Act.
The third case, Emenike v. PDP, arose from a suit filed at the Federal High Court in which one Chief Ikechi Emenike sued the Governor, the political party and its acting National Chairman, and INEC claiming that he was the PDP gubernatorial candidate for the 2011 election having won a primary election conducted by the Abia State executive committee of PDP. The defence countered that the Governor became the candidate because he won the primary election conducted by the National Executive Committee (NEC) of the party. The issue for determination then became which of the elections was cognisable under the constitution of the party. The Federal High Court held in favour of the election conducted by the NEC; this was affirmed by the Court of Appeal, and reaffirmed by the Supreme Court.
The Supreme Court underscored the basis of the decision in these terms at page 562:
From the above, it occurs to me that for a complaint to come within the narrow compass of the above provision of the law and be cognisable by a court, the aspirant must show clearly and without any equivocation that the National Executive Committee of the political party conducted a primary election in which he was an aspirant and that the primary election was conducted in breach of specified provisions of the Electoral Act/Election Guidelines. It continued, thus:
Put in another way, the law provides that a candidate with the highest votes cast at a primary election organised by the National Executive Committee of the 1st respondent to the knowledge of the 3rd respondent can approach the court for redress if he is excluded by the party. There is no doubt that the above decisions bring to the fore some of the knotty issues which resonate through election petitions since the advent of the current civilian rule. It is, therefore, of crucial importance that due attention is paid to them by members of the legal profession, and the reading public. It is true, as expected, that the decisions were rendered in the lawyers’ language, but they are accessible to the ordinary mind.
