By Friday June 29, the Federal High Court sitting in Abuja will deliver judgement in the suit filed to unseat the Kogi State Governor Idris Wada.
The winner of the January 2011 Peoples Democratic Party (PDP) primaries, Jibrin Isah and a governorship aspirant, Oyebode Makinde had concurrently instituted suits asking the trial court to declare the swearing-in of Wada as governor of Kogi state invalid.
However, the political atmospheric space in the confluence state has been laden with fears on whether a presiding judge of the Federal High Court, Justice Abdu Kafarati will on Friday simply adopt the judgement of the Supreme Court in the appeal filed by ex-governor Timpre Sylva against the election of Seriake Dickson in Bayelsa state.
On the other hand, is whether Justice Kafarati who is next most senior justice of a Federal High Court will differentiate the two suits and go ahead to set aside the swearing-in of Wada and direct the Independent National Electoral Commission (INEC) to conduct a fresh election in Kogi state.
Depending on the side of the divide a political stakeholder in Kogi state belongs, the arguments at the public or market squares have been that Sylva and Echocho suits are one and the same.
Yet, the major counter is that even if they are as close as sesame twin, they differ by virtue of legal faults they seek to remedy just as the individual sesame twin bears different name as well as the fact that they were delivered at the different times from same womb.
The issue is simply between the primaries conducted and won by Echocho and that which was won by Wada despite protest by the former that his ticket was still subsisting. He therefore asked the court to validate the January 9, 2011 PDP governorship primary election which he won.
And in Bayelsa, Sylva was challenging his exclusion by the PDP in the second governorship primaries won by Dickson.
The Supreme Court had dismissed Sylva’s suit for lack of jurisdiction on the grounds that the issue of primary election is the exclusive affairs of the party.
The question is, to what extent are the two suits similar or different from each other? And how would the differences or similarities legally affect the decision of the trial court in one way or the other?
Before the emergence of Wada as the standard bearer of the PDP in the Kogi state governorship election of December 3 ,2011, Jibrin Isah was elected the governorship candidate of the party at the January 9, 2011 governorship primary election held at the Lokoja township stadium and was so returned as the flag bearer of the party for the April 26,2011 General elections.
But the victory of Echocho was short lived as the Federal High Court sitting in Abuja on February 23,2011 had elongated the tenure of five state governors beyond May 29,2011,Kogi state inclusive.
The Court of Appeal had also ruled that the tenure of five governors including Kogi state had not expired, hence the postponement of the general election in Kogi State and four other states of Adamawa,Bayelsa, Sokoto and Cross River.
However, INEC evoked the jurisdiction of the Supreme Court in Appeal No:SC/357/2011 vide it’s notice of Appeal dated July 14, 2011 asking the court not only to set aside the judgements of the Federal High Court and the Court of Appeal elongating the tenure of the Governors but also to dismiss their claim.
The Supreme Court acceded to INEC’S appeal and granted all her reliefs/prayers on the January 27, 2012,stating clearly that the tenure of former Governor Ibrahim Idris and four others ended on the May 2011.
Following the judgement of the apex court, Kogi state had swung into action by swearing in Wada as the duly elected governor of the state in the December 3 governorship poll.
This led Echocho to court who had through his counsel, Chief Wole Olanipekun, SAN, asked the court to determine whether having regard to the combined effects of Sections 26(1), 26(2), 87(1) 87(2) (3) and (4)(b) of the Electoral Act 2010 as amended, the valid and due nomination of the plaintiff (Isah) and submission of his name by the PDP, 1st defendant, to the Independent National Electoral Commission (INEC) as the party’s governorship candidate in the Kogi State 2011 governorship election can be vitiated by the postponement of the election from April 26 to December 3, 2011?
He also asked the court to determine whether the PDP could validly have conducted another special state congress for the governorship primary election in September 2011 for governorship election having sent his name to INEC as its candidate? He posited that he cannot be substituted with any other name except as provided in Section 33 of the Electoral Act as amended.
While replying to the reliefs sought by Echocho, Chris Uche (SAN), counsel for Governor Wada said, “there is nothing unique about the plaintiff’s case because there is a precedence of a similar misadventure which recently ended in misfortune at the Supreme Court.
Citing the recent case of Sylva v PDP, Uche (SAN) maintained that every right claimed by Echocho for having won the January primaries has been extinguished by the Supreme Court judgment as the two cases were similar in every material particular.
A cursory glance at the suits shows that the cause of action, in other words the reasons for approaching the courts are not the same. But the crux of the matter is that are the differences substantial enough to sway the trial judge to decide differently from the Supreme Court judgement in the Sylva’s case?
According to Ade Okeaya-Inneh (SAN), there is a big distinction between the two suits which in law is cogent enough to assuage a learned judge to decide differently.
‘’In Sylva’s case, the primaries election was cancelled the PDP which was why the apex court excused itself from going into the merit of the case. But in Echocho’s case, the primaries election was never cancelled. While INEC’s Appeal was pending at the apex court, it went ahead to conduct an election in Kogi State to elect a Governor’’.
In otherwise, Sylva’s dispute was against the PDP for refusing to allow him to contest the party primaries of November 19, 2011 for the general elections of February 12 while Echocho’s case challenged INEC’s action of conducting an election during the pendency of its own suit against the tenure elongation.
Sylva’s cause of action therefore was hinged on refusal of his party to publish his name as an aspirant for the primary election, hence the Supreme Court labelled it a pre-primary election matter.
It was also argued Echocho’s legal team that while Sylva was involved and benefitted from the tenure elongation case which led to the re-scheduling of the April general elections. Echocho was at no time a party to the tenure elongation suit.
Moreso, Sylva’s case was not hinged on the January 27 judgment of the Supreme Court which voided the tenure elongation and therefore it was fundamentally different.
Besides, Kogi is the only state where the sitting Governor did not seek re-election among the five states involved in the tenure elongation case. So, none of the candidates was a part of the tenure elongation suit.
They further stated that after INEC had filed a notice of Appeal at the Supreme Court on the July 14, 2011 and yet directed the parties to conduct another primary on 22nd September 22, 2011.
And that, while the same INEC addressed the Justices of the Supreme Court on the November 29, 2011 asking the Jurists at the Supreme Court to dismiss the judgment of both the High Court and the Court of Appeal, but four days later, it conducted elections in Kogi on the December 3, 2011.
But the Counsel to INEC, Adegboyega Awomolo (SAN) in Echocho’s suit submitted that the court lacks the jurisdiction to entertain the matter because the plaintiff is asking the court to interprete the judgement of the Supreme Court on tenure elongation and also asking it to give a consequential order.
He further submitted that Section 251(1)(q)(r)(s) of the 1999 Constitution did not permit the court to do such a thing adding that the court has no power or right to interpret what the constitution will imply in the judgement of the Supreme Court.
Whether the trial court would depart from the Supreme Court judgement in the Sylva’s case is just for some days to tell. The chief justice of Nigeria (CJN), Dahiru Musdapher recently said that even the Supreme Court is at liberty to depart from its earlier judgement. That is where issues are similar or nearly the same
Therefore, where matters are at variance with each other with recourse to cause of action, perhaps the court’s justifiable choice is justice. But one thing is crystal clear at the moment in Kogi state, and that is that the political atmosphere is laden with anxiety to the extent that it could be cut to slice with table knife.
This is not just happening within the PDP, but it is the same condition in the opposition parties in the state. This is because, if Justice Kafarati set aside the swearing-in of Wada and order a fresh election, political stakeholders in Kogi state would begin to sing a new tune and perhaps prefer such situation that allow them to go back to the drawing board.
And such decision would extinguish the substance of Prince Abubakar Audu’s appeal pending at the governorship election appeal petition tribunal contesting Wada’s victory at December 3, 2011 poll. Of course, Wada would not be the PDP governorship candidate this time around, but Echocho, which is the hallmark of the dispute.