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Olusegun Adeniyi: The message in Abia Palaver

A high-stake drama with serious implications for democracy and the rule of law in Nigeria has been playing out in Abia State for one week now. As things stand, two persons are laying claims to the governorship position, following the decision by the Independent National Electoral Commission (INEC) to comply with the ruling of a Federal High Court, Abuja, to issue a certificate of return to Sampson Uche Ogah, as the duly elected governor.

Apparently to arrest the order, Governor Okezie Ikpeazu rushed to the Abia High Court, sitting in Osisioma Ngwa where he obtained an exparte injunction restraining Ogah from being sworn in, before sending the whole state on holiday, in a cynical exploitation of the death of Chief Ojo Maduekwe whom he claims to be mourning. But the case is back to the Federal High Court even though the ruling that was supposed to be delivered today has now been overtaken by the “supplementary” public holiday declared by the Federal Government for the celebration of Eid-el fitr. But what is the issue in contention?

There are two types of election cases prosecuted in courts. First, is the pre-election case which relates to violation of the Electoral Act or a Party’s Constitution/Guidelines at the primaries. Second, is violation arising from the conduct of elections by INEC. The former is prosecuted by the regular courts while the latter is prosecuted by Election Petition Tribunals and the Court of Appeal. The Abia case is purely a pre-election matter while the issue in contention was the eligibility of Dr. Ikpeazu to contest the 2015 Governorship Elections. To understand the legal issues.

Governor Ikpeazu has, however, been crying foul and he has a point. “I can’t imagine that somebody who never contested election is seeking to be made a governor through the back door. I can’t understand the rush by INEC to issue Uche Ogah a Certificate of Return. I also can’t comprehend the rush to swear him in. Are you telling me that I don’t have a right to appeal a judgment against me? Or are you telling me that if it was a death sentence, I should be killed before appealing?” Ikpeazu reportedly asked when he met with members of the state EXCO on Monday. This is a valid question which Justice Okon Abang of the Federal High Court, Abuja would have to consider whenever he makes his ruling on the stay of execution proceeding.

However, having investigated the whole case, it is not as simple as being presented by those who are whipping up needless sentiment. The background to the crisis can be located in the 8th December 2014 Abia State gubernatorial primaries of the then ruling Peoples Democratic Party (PDP) which Ikpeazu won. Not satisfied with the outcome, Ogah, who came second, sought legal redress, on the grounds of Section 34 of the Electoral Act which confers locus standi on any citizen to ask either the federal or state high court to disqualify any candidate who makes a false declaration in his nomination form. Alleging that Ikpeazu falsified his tax returns, Ogah challenged his nomination as PDP gubernatorial candidate at the federal high court which declined to hear the suit but rather ordered that it be transferred to the Abia state high court. Dissatisfied with the ruling, Ogah sought redress at the Court of Appeal where the ruling of the federal high court was affirmed.

Further dissatisfied with the decision, Ogah took the matter to the Supreme Court which set aside the decisions of the two lower courts. The apex court also directed the federal high court to assign the case to another judge to hear it de novo (afresh). But even though the highest court in the land ordered accelerated hearing, the case was stalled with all manner of preliminary objections which eventually led to it being reassigned from Justice Adeniyi Ademola.

That was how the case ended up in the court of Justice Abang which last week Monday found Ikpeazu to be in violation of Section 31 (5) and (6) of the Electoral Act. The court then ordered Ikpeazu to vacate office, voided the votes he obtained at both the PDP primaries and the election proper and further directed INEC to issue Ogah a Certificate of Return as the elected governor of Abia State. Last Thursday, INEC complied with the Order.

Before going further, there are two issues worth looking at. One, on the matter of tax compliance as qualification for seeking elective office, the Abia State PDP said last weekend that the tax certificate submitted to INEC by Ikpeazu was done in error. “Nigerians should be informed that there is no requirement for payment of tax at all or as and when due in the constitution, Electoral Act or INEC nomination form. The tax documents were included in the documents accompanying his nomination form by Dr. Ikpeazu’s aides by mistake,” the statement said.

I find that statement very curious. For instance, a university degree has never been a prerequisite for any political office in Nigeria. But once my friend, Salisu Imam Buhari, filed University of Toronto in his INEC form in 1999, he had to prove how he obtained the certificate. That was the slippery slope that eventually led to his forced resignation as Speaker of the House of Representatives as well as trial and conviction for forgery before he was pardoned by President Olusegun Obasanjo. So, that someone made “a mistake” in filing tax returns cannot be an excuse in law, what Ikpeazu has to prove is that the said document was genuine. Besides, the PDP guidelines actually made tax certificate prerequisite for seeking gubernatorial nomination.

Two, another interesting issue is the statement credited to the Chairman of the Abia State Internal Revenue Service, Mr. Udochukwu G. Ogbonna that the tax returns filed by Ikpeazu were “neither false nor fake and cannot be said to amount to fraudulent payment of taxes”. In raising questions about the judgment, Ogbonna said “the taxes for the years 2011, 2012 and 2013 were PAYE (Pay As You Earn) taxes deducted at source from his (Ikpeazu’s) personal emoluments by his employers (Abia State Passengers’ Integrated Manifest Scheme and Abia State Environmental Sanitation Authority respectively) and remitted to the service in the relevant tax years” while “the dates on the tax receipts of the relevant years (2011, 2012 and 2013) did not suggest that they were paid on those dates, but only reflected the date he applied to be issued with the receipts, because that was when he needed them.”

In disputing that claim yesterday in Vanguard newspaper, Ogah’s counsel, Mr. Monday Onyekachi Ubani, a former Nigeria Bar Association (NBA) chairman, Ikeja Chapter, said: “There were so many lies on the face of his (Ikpeazu’s) tax papers. One of the things we discovered was that he was alleged to have started paying tax when he was not yet in the employment of the Abia State Government. Two, the serial numbers on his tax receipts were evidence of deception. The 2013 serial number showed as if it was the beginning of the tax payment, whereas, the 2011 receipt showed as if it was the last payment. The serial numbers were conflicting. The conflict showed that Ikpeazu had not paid his tax as at when due in accordance with the law. Third, was the issue of figures. Let us assume he was supposed to earn N500,000 per annum but in his tax papers, it was showing above N1million. He said his tax was being deducted at source but the question is, if that was so, why the discrepancies in your taxable income? Is it not what he was earning (that) he should be taxed on? We found so many discrepancies in his tax certificate.”

However, since much of the public discourse has been dominated by the propriety or otherwise of INEC’s action in promptly complying with the judgement, I see nothing wrong in what the commission did, especially after going through the tactics employed by Ikpeazu’s lawyers to frustrate this case from the time it was first filed. Incidentally, before the Abia Governorship case, INEC had withdrawn the Certificate of Return to one Dennis Amadi, a member representing Udi/Ezeagu Federal Constituency of Enugu State based on a similar court order. It was also a pre-election matter. The Certificate of Return was instead issued to Chief Ogbuefi Ozomgbachi.

Perhaps the more noteworthy is the case in 2014 of the former Governor of Adamawa State, Mr. Bala Ngilari. A Federal High Court presided over by Justice Adeniyi Ademola held that Ngilari did not submit his resignation as Deputy Governor to ousted Governor Murtala Nyako as required by the Constitution but to the Speaker of the State House of Assembly, Alhaji Umaru Fintiri who, acting a script, made himself the acting Governor of the State while plotting to contest the office. The Court ordered Ngilari’s reinstatement on 8th October 2014 and he was sworn-in within hours even though Fintiri’s counsel, Chief Bayo Ojo, SAN, had filed a motion for stay of execution and appeal against the judgement.

Therefore, without prejudice to the ongoing case, a prompt obedience to court order will make the political parties wake up to the reality that they cannot nominate just any candidate or “mistakingly” submit any documentation without consequences, especially given that INEC has no power under the current Electoral Act to disqualify candidates nominated by the parties. But I am also worried that a man who did not contest election would become governor. It is not good for our democracy and I had thought the several constitutional amendments on which the National Assembly had expended so much money and time would take care of that. But unfortunately it has not.

For sure, there are many things that are very disturbing in the Abia debacle. One, what happens if Ogah loses at Appeal? And to stretch it further, what happens if Ikpeazu wins on appeal but loses at the Supreme Court? Would INEC keep giving and withdrawing Certificates of Return? INEC National Commissioner in charge of the South East, Mr Lawrence Nwuruku said the commission would gladly do that. “If the court tomorrow issues another order, we would obey the same. By the grace of God, I am the INEC Commissioner in charge of South East. I was the person who gave the Certificate of Return to Governor Ikpeazu as he was declared winner. Now, the court has said otherwise. One thing we know is that we are not above the law and we cannot disobey the laws of the land. After the court, another person we obey in our land is God and my conscience is my God. Another thing that guides us is the court and we must obey its order with immediate effect. If you were in the court that day, and I urge you the media, to go and study the court ruling very well, it was wonderful; it was direct”, he said.

Wonderful? “Olopa e wo ni t’epe?” as the Yoruba would say. Iwuruku seems too excited about this Abia matter for my liking and I hope Justice Abang will also be mindful of the implications of his ruling on the governance and public order in the state. Nevertheless, whatever may be the misgivings in INEC’s speedy compliance with respect to Abia, the import is that no party can use court injunction to frustrate to keep ineligible candidates in public office until the end of their tenure. This has been the practice in the past.

For instance, the court process between the late Dr Olusegun Agagu and Segun Mimiko in Ondo State, like the one involving Mr. Olagunsoye Oyinlola and Mr Rauf Aregbesola in Osun State, lasted for nearly the end of tenure of the then incumbent Governors. Dr Chris Ngige also spent almost three years in office before the court declared that it was Mr Peter Obi who won the election as Anambra State Governor. There is also a case similar to that of Abia State where someone is challenging the qualification of Mr. Sullivan Chime to contest the 2011 Governorship election in Enugu State which is still pending at the Court of Appeal. Meanwhile, Chime has since finished his tenure.
More pathetic is the case of Alhaji Alhassan Abubakar Badakoshi, a retired Permanent Secretary who contested the 1983 Governorship election in Niger State on the platform of the late Dr Nnamdi Azikiwe-led Nigerian Peoples Party (NPP). He lost to Alhaji Auwal Ibrahim (the current Emir of Suleja) of the defunct National Party of Nigeria (NPN) in a controversial manner. Badakoshi challenged the election from the High Court to the Court of Appeal and eventually to the Supreme Court. 20 years after the election, and 19 days after his death on 16th March 2003, the Supreme Court declared Badakoshi the rightful winner of the 1983 governorship election in Niger State. What manner of justice is that?

To the extent that our politicians have perfected the art of unnecessarily prolonging cases in court with frivolous applications so that the best those who challenge them can get is judgement and not justice, I can understand the basis for INEC decision, even if I disagree with the idea of making a man who did not contest any election to become governor of a state. But if that is the only way to put a stop to judgements that offer little or no comfort to winners, then so be it. Last November, the Supreme Court decided a case involving a woman in Onitsha whose in-laws sought to disinherit her based on some cultural practices. It took 35 years after she was widowed to get justice while the case of a judge who is challenging his removal 12 years ago is still at the Court of Appeal on an interlocutory point!

However, while the legal and procedural matters rage in the Abia State gubernatorial tussle, and I hope Ikpeazu would be availed all his rights under the law, it is important for us to also look at the moral propriety of the matter. Those who seek high public office must fulfil their civic responsibilities in order to serve as credible exemplars to the rest of society whom they seek to lead. If someone who aspires to the high office of state governor cannot pay his taxes as and when due while expecting to compel other citizens to fulfil this obligation when elected, there is something fundamentally wrong there. To go to the extent of cooking up dodgy documents to cover up this irresponsibility is even more criminal.

For too long, Nigeria has been a society of ‘anything goes’. And in the context of the overall change which we all seek but dread, the judiciary has a responsibility to use the law to assist us in re-establishing the beacons of right versus wrong. The critical institutions of state like INEC must also help in obeying court orders so that people do not continue to exploit the delay in justice administration in our country to commit criminality. This is of course without prejudice to the right of the aggrieved to seek redress through the appeal process.

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