The five-year-old protracted legal battle on the pre-election appeal brought to the Supreme Court by the former governorship aspirant of the Peoples Democratic Party (PDP) in the 2011 election in Enugu State, Dr Alexander Obiechina, against the immediate past governor, Sullivan Chime, once again, resonated at the apex court on Monday, September 26, 2016.
During the resumed hearing of the matter by a panel of five Supreme Court Judges led by Justice Bode Rhodes Vivour on Monday, the apex court, which was already uncomfortable with the undue delays in the case, however frowned at the unusual representation of the first respondent, the Independent National Electoral Commission (INEC) by two independent counsels, Ngozi Dimgba and M. A Nunghe, a development that created a mild confusion and drama in the court over which, none among the two counsels, has a bonafide power of attorney to appear for the electoral body in the case.
Justice Rhodes-Vivour, who was the presiding judge, however ruled that the issue of appearance in the case of INEC, must first be sorted out by the electoral umpire before the next adjourned date.
When Hon. Justice Dattijo Muhammad asked about the relevance of the suit considering that another general election had been conducted and somebody has been sworn into the office under contest, a Senior Advocate of Nigeria (SAN), Chief Nnoruka Udechukwu, who lead Prof Charles Ilegbune SAN, and announced appearance for the Appellant, Dr Alex Obiechina, told the court that under the provisions of section 6 (6) (b) of the 1999 Constitution as amended, the court has powers to determine the suit and that the Supreme Court has decided severally that conducting an election into an office with a pending suit does not vitiate the powers of the court to determine the suit more so for an office for which political relief is being sought is not time barred.
Udechukwu also reminded the court that INEC ought not to have proceeded with the conduct of an election to the Enugu governorship position until the subsisting pre-election case and all matters relating to it were duly dispensed with by the court. For instance, the case of Peter Obi vs Andy Uba in the Anambra governorship dispute in 2007 was perhaps a clear precedence that would have guided INEC in addressing a situation of similar nature. In this Obi vs Andy suit, the Supreme court seriously reprimanded INEC for conducting an election into an office with a pending suit and said that if the electoral umpire has respect for the rule of law, it would have acted otherwise and that her team of lawyers would have advised her that a party in a suit is not allowed to force a fait accompli on the courts.
In that landmark case, the Supreme Court ruled that Peter Obi’s mandate as governor of Anambra State was not voided by the conduct of that election, hence Andy Uba should vacate his seat as governor as his election was unknown to law since he won election when there was no vacancy. Udechukwu, in his final submission, therefore maintained that it was not the fault of Obiechina, that the appeal case had been unduly delayed for so long, contending that when a matter is before a court, it should not be rendered negatory by any party.
The spate of seeming diversionary occurrences in this Enugu governorship landmark appeal case, which has contributed to the prolonged delays in concluding the case, once and for all, has indeed rankled most keen observers of political developments in Enugu State and the country in general including the Supreme Court itself. It is therefore the view and strong expectation of the nation’s legal and political pundits and the ordinary citizens alike who are anxiously looking forward to the speedy resolution of such a novel political case with strong constitutional implications for the country and her democratic future, for the Supreme Court to do nothing but the desired justice to the appeal matter. Even the Supreme Court, in a recent show of indignation during the last hearing of the case on June 6, however vowed to deal with any staff of the apex court found culpable in frustrating the hearing of this pre-election appeal by Dr Alexander Obiechina against Sullivan Chime.
Justice Tanko Muhammed who presided during the June hearing at the apex court, issued the stern warning after it discovered what it described as “hanky panky” game by some staff in the registry unit to frustrate the hearing of the appeal. The Supreme Court, mid-year, commenced moves to restore the appeal which had earlier been struck out under controversial circumstances. The absence of the respondents at the time stalled the application in court. A mild drama played out then when the registrar initially claimed that there was no proof of service on the respondents. When the appeal was called at the court, none of the respondents – the Independent National Electoral Commission (INEC), Peoples Democratic Party (PDP) and Sullivan Chime, listed as 1st, 2nd and 3rd respondents, were present and were also not represented by their counsels in court. The registrar explained the absence of the respondents in court on the fact that there was no proof of service on them.
But counsel to the appellant, Chief Nnoruka Udechukwu (SAN), swiftly countered the claim, insisting that all the respondents were duly served with hearing notices. He tendered an affidavit of proof of service sworn to by the bailiff of the court. The court thereafter, summoned the bailiff, Mr. Micheal Akan, who confirmed in open court that he indeed effected service on the respondents and filed an affidavit to that effect. Akan told the court that the matter was adjourned for that day in June for hearing and that hearing notice was issued by the Registrar on April 11, 2016.
Despite the apparent hurdles on his route to obtain justice, Obiechina had doggedly challenged Chime in the courtroom over what he described as irregularities in the election of Chime as the governorship flagbearer of the PDP in that election. Records available to Obiechina and at the PDP headquarters in Abuja and now filed at the Supreme Court, show that Obiechina and not Chime, validly won the party primary conducted by PDP NEC in Enugu on January 9, 2011.
The leadership of the PDP, for inexplicable reasons, then threw away the result of that primary and conducted another one on January 12, 2011 in which Chime was declared the gubernatorial candidate for the PDP for that year’s general elections. Since that 2011, Dr Obiechina had been in courts seeking to be declared the governor of Enugu State.
Obiechina is however alleging that the gubernatorial primary re-conducted on January 12, 2011 by the PDP was riddled with legal flaws. Such flaws, he claimed, are that the PDP did not give the legally required 21 days’ notice to INEC before the conduct of that primary as stipulated in the Amended Electoral Act 2010. He equally alleged that the party did not give the seven days mandatory notice to the governorship aspirants as contained in the party guidelines for the conduct of that election. Interestingly also, INEC came to the High Court in that 2011 supporting Obiechina. INEC admitted they were given 21 days’ notice for the primary of 9th January 2011 which Obiechina won but was only given one day notice for the primary of 12th January, 2011 from where Chime emerged. In INEC’s, written submission to the High Court, she said the notice for the primary of 12th January 2011 is further legally flawed as it was given to her Resident Electoral Commissioner in Enugu and not to the commission itself as stipulated in law and that she would have rejected Sullivan Chime as PDP gubernatorial candidate for 2011 general election but for a section of the constitution that barred them from doing so.
Already, there are vociferous arguments on-going among constitutional legal
Luminaries on this. Some argue that granting the Appellant the relief he is seeking means that if a party wins a gubernatorial election, then her candidate can still be sworn-in even after a hundred years. To a few lawyers in this school of thought, this will be ridiculous and should not be allowed as it is against the public interest. However to many other constitutional lawyers, this argument does not hold water essentially because section 181(2) of the 1999 Constitution as amended, has clearly provided that if the persons elected governor and deputy governor die or are incapacitated or without legal hindrances, did not take the Oaths of office before the inauguration of the State Assembly, then INEC shall immediately conduct an election for the position of governor and deputy governor of that state. Thus this logic and its argument can only arise if a case is abnormally delayed in court. Secondly, if the appellant is not prosecuting the case seriously or did not approach the court early enough, the case shall be struck out by the court. But where he is diligently prosecuting his pre-election suit, the case cannot last more than a few years.
“One can only imagine such a scenario playing out in a decadent and unorganised society but certainly not in Nigeria!” quips Barrister Mike Umera, a constitutional lawyer. “It is a hypothetical argument and not practicable in our justice delivery system. Besides, why deny the Appellant his hard earned victory and rights because of speculation on future imaginary limitations of the courts? Or is it justice to deny a litigant who diligently prosecuted his suit his rights, if any, because of fear of possible limitations of a public institution? “.
Umera continued: “The constitutional responsibility that this imaginary absurdity does not occur rests squarely on our courts. And we must hail our courts because Nigerian courts are very effective! For the defendants to argue that this absurdity shall arise is a veiled attempt to mislead the Supreme Court into telling the public that the courts cannot discharge their duties effectively.
Another lawyer, Barrister Adebayo Olaoye maintains that “ argument that problems will be created where a different party wins the next general election, after four years, will also not stand as INEC has been severally warned by the Court not to conduct elections to an office with a pending suit to avoid forcing a fait accompli on to the court. And where INEC ignores this guide, the Election so conducted shall not jettison the powers donated to an Appellant Court in sections 233, 241 and 242 of our Constitution to determine all cases before her.