Tag: Supreme Court

The Abia State governorship appeal is one of the first cases the Supreme Court will decide on resumption for the new legal year. Where will the pendulum swing? Eric Ikhilae reviews the case.

As the Supreme Court begins the new legal year on September 21, one of the major cases it will promptly attend to is that involving Abia State Governor Okezie Ikpeazu, Sampson Ogah and Friday Nwosu.

Ikpeazu was sacked as governor by Justice Okon Abang of the Federal High Court, Abuja, last June 27. Last month, Ikpeazu was re-instated by the Court of Appeal, which also upbraided Justice Abang for “turning the law on its head” with the June 27 verdicts.

 

Road to the June 27 judgments

 

The two suits that resulted in both judgments were instituted by Ogah, who came second behind Ikpeazu in the governorship primary of the Peoples Democratic Party (PDP), on December 8, 2014, and Obasi Ekeagbala (a member of the party).

The plaintiffs’complaints were similar. They revolved around their claims that Ikpeazu allegedly made false claims in relation to his tax information contained in the Form CF001 submitted to the Independent National Electoral Commission (INEC).

It was the plaintiffs’ contention that Ikpeazu, by allegedly providing false tax information, breached the provisions of Article 14(a), Part IV of the PDP Electoral Guidelines 2014, and was therefore, not qualified to participate in the party’s governorship primary.

They contended that, having allegedly presented false information to INEC, Ikpeazu violated Section 13(5) and (6) of the Electoral Act, and was unqualified to contest the PDP’s primary election and the subsequent governorship election held in April 2015.

Justice Abang, in his judgements, agreed with the plaintiffs and voided Ikpeazu’s election and ordered that Ogah be issued certificate of return by INEC and installed in place of Ikpeazu as governor on the grounds that he (Ogah) came second in the primary election.

Dissatisfied, Ikpeazu and the PDP appealed both judgements, which the Court of Appeal, Abuja division, set aside in its judgments on August 18, 2016, prompting Ogah and others to appeal to the Supreme Court.

As parties step into the final round of this dispute, observers are of the view that Ikpeazu holds the ace and has the upper hand with the victory at the Court of Appeal already safely secured in his kitty.

They argue that, with the exhaustive dissection and analysis carried out by the appellate court’s five-man bench   on the trial court’s judgments, and its verdict that they were replete with errors of judgment and deserved to be set aside, there may be nothing left for the apex court, but to ratify the Appeal Court’s decisions.

 

Court of Appeal’s findings and conclusions

 

Six appeals were filed against the two trial court’s judgments. The Court of Appeal’s decisions in the cases marked CA/A/390/2016 and CA/A/390A/2016 resolved the issues.

From the plethora of issues raised for determination by the parties, Justice Helen Ogunwumiju, who led the five-man panel and who read the lead judgments in both appeals, distilled five cardinal issues with which she resolved all questions in contention.

In resolving the first issue, the appellate court faulted the mode of commencement of the suits at the trial court. It held that because facts in issue were hotly contested by parties, the trial judge was wrong to have allowed the commencement of the suits by way of originating summons.

The court noted that where there was no dispute among parties as regard the provisions of Article 14(a) in Part IV of the PDP Guidelines and section 87(4)(i) &(ii) and 31 of the Electoral Act 2010, which the trial court was invited to interpret, the dispute was in relation to facts as to whether or not Ikpeazu’s tax documents were false.

“All the documents which the learned trial judge was asked to determine whether they were true or false were documents made by individuals, who were presumably alive and well during the trial. It is very clear that the very nature of the issues of fact posed to the learned trial judge made it imperative for him to have set the case down for hearing by writ of summons,” the court said.

Despite this major defect, which informed the dismissal of both suits, the court elected to proceed to resolve all other issues raised for determination.

On the issue of abuse of process, the appellate court upheld the decision by the trial court that the suits in Abuja do not amount to abuse of process despite the existence of a suit filed before the Umuahia division of the Federal High Court by Nwosu.

The appellate court held that each of the plaintiffs at the trial court was at liberty to challenge the information contained in Form CF001 submitted by Ikpeazu. It noted that while Nwosu alleged forgery in his suit, Ogah and Ekeagbaraalleged falsehood in respect of the tax information submitted by Ikpeazu.

In resolving the third issue, the Court of Appeal faulted the decision of the trial court to determine the issues in contention without the plaintiffs tendering copies of the PDP Election Guidelines 2014, even when the plaintiffs’ cases were built around the provision of the said guidelines, and both cases commenced via originating summons.

The appellate court noted that “the learned trial judge claimed he quoted and enforced the PDP Guidelines 2014, however, he kept making reference to provisions only present in the 2010 Guidelines, but absent in the 2014 Guidelines. His Lordship kept making reference to the failure of the appellant (Ikpeazu) to pay his taxes ‘as and when due,’ a phrase markedly absent from the PDP Guidelines in force – that of 2014 – when the cause of action arose.

“Such deliberate or unknowing importation of strange phrases or clauses into an instrument to be considered by the court is the reason why there has always been the necessity to attach the said instrument to the originating summons, particularly where the contents are not such where the court is enjoined by law to take judicial notice of.”

On issue four, the Court of Appeal held that although the plaintiffs had valid cause of action, the issue of alleged presentation of false tax documents to INEC did not fall within the constitutional grounds on which a candidate for election could be disqualified.

“There is no doubt that since the cause of cause of action as shown by the originating summons are not a challenge to any of the constitutional requirements for governor, there was no basis for the activation of Section 31(5) &(6) of the Electoral Act and orders and reliefs granted pursuant to Section 31(2) of the Electoral Act.

“The tenor of the decision of the Supreme Court is to the effect that there cannot be a disqualification of a candidate outside the reasons specifically stated by the Constitution,” it said.

In resolving the fifth issue, the appellate court faulted the trial court’s finding that Ikpeazu gave false tax information to INEC in his Form CF001.

It noted that it was wrong for the trial court to have shifted the burden of proof to the appellant (Ikpeazu) by insisting that it was for him to show that his tax information was true, when it is the law that he who asserts must prove.

Relying on the Supreme Court’s decisions in the cases of Lanto v. Wowo (1999) 7 NWLR Pt. 610 Pg. 227 at 236 and Ukachukwu v. PDP (2014) 17 NWLR Pt.1435Pg. 134 at 201 the appellate court held that the plaintiffs (Ogah and Ekeagbara) failed to discharge the burden of proof placed on them by law.

“The exasperating thing about this whole drama is that there is no shred of evidence preferred by the 1st respondent (Ogah) or any accusation that the appellant (Ikpeazu) ought to have paid N10,000 but paid N5,000 because he wanted to cheat the government of Abia State or that he colluded with the Tax Officer to cheat the government of Abia State.

“The whole thing is about the fact that the Tax Officer in Abia State have their own format of how they document and give out tax receipts and certificates to civil servants and public officers, who demand, when such need arises, proof of payment of tax, which had already been deducted from their salaries. I say again that the peculiar format of tax documents as made by tax officers does not make them false.

“In any event, by Section 59 of the Personal Income Tax Act (PITA), the court is bound by the assessment done by the Abia State Tax Office. Section 85(2) of the PITA also shows clearly that it is the tax authority that is vested with jurisdiction to verify the genuineness of any tax transaction.

“The inadequacy or otherwise of tax receipts as a reason to order the removal of the aspirant, who scored the highest vote at the primary election, who subsequently campaigned and was voted for by the electorate of Abia State at the general election would, in my humble view, be a rape on democracy and cannot be allowed.

“That cannot be justice, in the circumstance of this case, when the 1st respondent (Ogah) and the trial court both concede that there is no forgery or criminality involved in the making of these tax documents by the tax office.

“There was absolutely no basis in law and in fact for the finding of the learned judge that the appellant did not pay his tax in 2011, 2012 and 2013 and should be disqualified,” the appellate court said.

In his notice of appeal to the Supreme Court, Ogah faulted the decisions by the Court of Appeal and argued that the appellate court’s judgments were against the weight of evidence. He urged the apex court to set aside the decisions and restore the judgments by Justice Abang.

Ikpeazu and PDP are looking up to the apex court to uphold the exhaustive findings and conclusions made by the Court of Appeal, which they believe have effectively resolved the issues in contention.