By Michael Oche, Abuja
Contrary to accusations in some quarters that the Independent National Electoral Commission (INEC) has deliberately refused to issue a certificate of return to Dr Obiora Okonkwo as the “authentic winner” of the Anambra Central Senatorial Election, checks have revealed that the case is not simply one of obeying the orders of the High court.
Supporters of Obiora Okonkwo argue that Justice Tsoho of the Federal High court Abuja had granted relief sought by Dr. Okonkwo, to the effect that he is the validly nominated candidate of the PDP for the March 2015 senatorial election for Anambra Central and as such should enjoy the victory of PDP at the said 2015 election.
Investigations however reveal that the judgement is at variance with the orders of the Court of Appeal in two judgements CA/A/160/2016 and CA/A/165/2016 both of them dated 20th November 2017 delivered before Justice Tsoho’s judgement.
It was gathered from sources familiar with the case that there has never been any legal advice to INEC to obey the judgement of the High Court and to ignore that of the Court of Appeal unlike what supporters of Obiora would have people believe.
Besides, no lawyer can canvass this position in violation of Sec. 287 of the Constitution. Hence, our investigation reveals that INEC is only abiding by the judgements of a superior court which is conveniently ignored here.
In all the issues raised so far by supporters of Okonkwo, no reference has been made to subsisting judgements of the Court of Appeal (a superior court) on the same issue dated 20th November 2017, thereby creating the impression that the only judgement is that of the High Court dated 13th December 2017.
It was reliably gathered that on Friday 22nd December 2017, INEC approached the same High Court to draw its attention to the judgements of the Court of Appeal on the same issue which the lower court is bound to obey by virtue of Sec. 287 of the 1999 Constitution (as amended). The Commission prayed the Court to vary its decision in the interest of justice. Okonkwo’s lawyer was duly served. It is therefore surprising that the legal team is claiming ignorance.
Also contrary to claims that the electoral Act stipulates 48-hours time frame for the handing over of a certificate of return to a winner as cited by supporters of Dr Okonkwo, the proviso only applies to the Supreme and appellate courts.
However, in this case, the appellate court (the Court of Appeal) has ordered the Commission to conduct re-run elections without the PDP and its candidate within 90 days while a Federal high Court is saying otherwise.
Furthermore, Sub-sec. 2 states: “Where the Commission refuses or neglects to issue a certificate of return, a certified true copy of the order of a court of competent Jurisdiction shall, ipso facto, be sufficient for the purpose of swearing-in a candidate declared as the winner by that Court”.
Many lawyers argue that putting pressure on INEC to press for the issuance of Certificate of Return is unnecessary since the law says that the certificate is not a requirement for swearing-in in this case.
Also, contrary to claims that the election was not nullified, checks revealed that the election was actually nullified. The Election Petition Appeal Tribunal said that no primary election in Anambra Central was conducted by the PDP and nobody can claim to be a product of what did not take place.
Ekwunife was disqualified because she was not validly nominated (CA/E/EPT/28/2015 of 7th December 2015). This should have ended all litigations. Sec. 246(3) of the Constitution confers finality to the judgements of the Election Petition Appeal Tribunal in all litigations involving legislative elections (Senate, House of Representatives and State Assembly).
Those knowledgeable on the matter argue that all courts are seized of jurisdiction on the matter. This constitutional provision has been affirmed on several occasions by the Supreme Court, including a case emanating from the same Anambra Central Senatorial District as contained in SC. 204/2016 of 10th February 2016.
It is clear that the PDP conducted fresh primary election and nominated Peter Obi which was rejected by INEC for being in contravention of the judgement of the Appeal Tribunal and the 60-day decline enshrined in the Electoral
Obi approached a Federal High Court in Abuja and won. INEC appealed in the interest of justice as the same principle was applied under similar circumstances in at least 5 States of the Federation. INEC won on appeal and the Court ordered the Commission to re-run the election in Anambra Central Senatorial District “without the PDP and its candidate within 90 days”. The judgement still subsists. That is why INEC has already fixed Saturday 13th January 2018 for the election.
Further checks also reveal that one of the candidates that participated in the in the 2014 PDP primary election which the Appeal Tribunal ruled did not hold, Barrister Chukwunweike (Chike) Maduekwe, approached the Federal High Court, Abuja (FCT/HC/CV/1110/2015) to press for the refund of the N4.5m he paid for the expression of interest and nomination form to the party. The Court ruled in his favour. There is therefore a subsisting judgement of another High Court, affirming the position of the Appeal Tribunal, that no valid primary election was held for the nomination of candidates in Anambra Central.
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