The Supreme Court will today entertain arguments from parties as it opens hearing in an appeal filed by Imo State Governor Rochas Okorocha against a Court of Appeal decision in favour of his predecessor, Ikedi Ohakim.
Okorocha is, with the appeal, challenging the propriety of the ruling by Justice Hussein Mukhtar of the Court of Appeal, Owerri, joining Ohakim as an appellant in an appeal by Ifeanyin Ararume of the Action Congress of Nigeria (ACN).
In what appeared a repeat of history in 2011, the Independent National Electoral Commission (INEC) on April 26, 2011 declared that year’s governorship election in Imo State “inconclusive” on the ground that election did not hold in four local government areas namely Ohaji Egbema, Oguta, Mbaitoli and Ngor Okpala.
INEC in exercising it powers conducted supplementary elections in the four local government on May 6, 2011. Ohakim participated in the supplementary elections, but lost.
Dissatisfied, his party, the PDP, acting for Ohakim challenged the outcome of the election at the tribunal, arguing among others, that the supplementary election was illegal on the ground that it held outside the 30 days stipulated by the Constitution for the successor of an incumbent governor to be elected.
The election tribunal held against the PDP, prompting it to appeal to the Court of Appeal and subsequently, the Supreme Court and lost at both courts.
Rather than abide by the decision of the apex court, Ohakim saw an opportunity to re-argue his case in the appeal by Ararume before the Court of Appeal, Owerri and applied to be joined as a party.
Ararume, who was an ACN candidate in the 2011 election, had also challenged its outcome. But rather than go before the election tribunal, he went before the Federal High Court, Owerri.
The court dismissed the suit on the ground that the subject matter of the case was a post-election matter, which ought to have been submitted to election tribunal for adjudication.
Dissatisfied, Ararume and his party appealed to the Court of Appeal in Owerri.
While the appeal was pending, Ohakim sought to be joined, even though he was not part of the suit from the High Court. He urged the appellate court to give him an opportunity to challenge the judgment of the High Court.
Okorocha objected to Ohakim’s application to join on the ground that having not been a party before the High Court, he could not now seek to challenge the decision of the court.
Despite Okorocha’s opposition to Ohakim’s application to join, the Court of Appeall, in the ruling by Justice Mukhtar, dismissed the objection and consequently made Ohakim an appellant in the case.
Dissatisfied, Okorocha, through his lawyer, Adeniyi Akintola (SAN) appealed to the Supreme Court.
Okorocha is by his appeal, arguing that Ohakim, through his party, the PDP, had earlier challenged the subject matter of the suit at the election petition tribunal and lost.
He is contending that the PDP challenged the decision of the election tribunal up to the Supreme Court and lost. And that, to allow Ohakim to challenge the High Court’s judgment on appeal, is to afford him the opportunity to pursue two remedies against the same infraction in two courts at the same time.
Specifically, he wants the court to pronounce on whether a candidate whose case has already been heard and decided by the governorship election petitions tribunal, the Court of Appeal and the Supreme Court can re-open such a case, and whether such a case constitutes an abuse of court process as the issue that were decided on by the tribunal and Court of Appeal are one and the same.
Okorocha particularly raised two issues for determination:- Whether by the combined effect of Section 233(1), (2) & (7) of the Constitution and Section 133 (1) of the Electoral Act, 2010 (as amended), as well as the relief sought at the lower court by
1st respondent ( Ohakim) in his notice of appeal, the Court of Appeal has jurisdiction to entertain his appeal and grant the relief sought while not sitting as an election petition appellate court.
The second issue is, whether the lower court has jurisdiction to hear the appeal of the 1st respondent, the subject matter and the relief being sought having been heard and determined by the Supreme Court on March, 2, 2012 in an election appeal No. SC/17/2012 – PDP Vs Okorocha and others.
Responding, Ohakim through his lawyer, Wole Olanipekun (SAN) filed an objection, with which he is asking the apex court to dismiss Okorocha’s appeal.
He argued that it was mandatory for Okorocha to first seek and obtain the leave of either the court of Appeal or the apex court before filing the case, being an appeal against the exercise of the lower court’s discretionary power.
Ohakim contended that Okorocha failed to obtain the leave of either the Court of Appeal or that of the Supreme Court before filing the appeal.
“Being an appeal against the exercise of the lower court’s discretionary power, leave of either the said lower court or this court is mandatory required before filing the appeal,” he argued
A similar scenario played out in the state in 2007 which Ohakim incidentally became the beneficiary.
On April 14, 2007, INEC also in exercising its powers, cancelled the governorship election in Imo State. The candidate of the All Progressives Grand Alliance (APGA), Martins Agbaso, as Ohakim did during the 2011 cancellation, cried foul, but participated in the rescheduled election of April 28, 2007.
With INEC declaring Ohakim winner, Agbaso went to court to challenge the cancellation after he lost the rescheduled election to Ohakim.
Agbaso failed in his attempts to upturn Ohakim’s victory as he lost at both the election tribunal and the regular courts.
It was part of the court’s decision that it was wrong for someone, who took part in an election and lost to turn round to say that the organiser of the election did not have the powers to cancel and reschedule the elections.
In the 2007 election, Ohakim ran under the Progressive People Party (PPP), but later defected to the PDP. But while Agbaso gave up fighting after losing at the apex court, Ohakim now seem reluctant to let go.
