On Monday 27th June, 2016 the Federal High Court in Abuja presided over by Justice Okon Abang delivered judgment in a pre-election case brought by a gubernatorial aspirant of the Peoples Democratic Party (PDP) in Abia State in the 2015 election, Uche Sampson Ogah, against Mr. Okezie Ikpeazu, the governor of Abia State.
The learned judge in his judgment declared that Ikpeazu was not qualified to present himself for the primary election conducted by his party, the PDP, and that he was equally not eligible to contest for the 2015 governorship election due to his failure to meet the mandatory legal requirement on payment of taxes for the three years preceding the election.
His Lordship found that Ikpeazu perjured by lying in his election papers about his eligibility.
Sequel to the above findings, Justice Abang inter alia, declared Ogah as the duly elected governor of Abia State being the person who scored the second highest number of votes at the December 2014 primary election of the PDP.
He ordered the Independent National Electoral Commission (INEC) to immediately issue Ogah a Certificate of Return and also ordered the Chief Judge of Abia State to immediately swear in Ogah as the elected governor of Abia State.
On Thursday June 30th, 2016, while purporting to act in compliance with the said order(s), INEC National Commissioner in charge of the South East, Ambassador Lawrence Nwuruku issued Ogah with a Certificate of Return.
Abia State is currently enmeshed in an avoidable constitutional crisis following the conflicting claims to the governorship seat by the two contenders.
While Ogah in whose favour the judgment of the Federal High Court was given is seeking to be sworn-in in conformity with the orders of Justice O. Abang, the incumbent, Ikpeazu is holding tight to the office on the basis that he has appealed the said judgment and is therefore entitled to remain in office pending the determination of his appeal.
Divergent views have been expressed on the propriety of the issuance of a certificate of return to Ogah and the solution to the imbroglio.
What precisely is the position of the law on the subject?
I do not intend to examine the correctness of the judgment delivered by Justice Okon Abang. That may be done subsequently.
This essay is intended to extensively dissect the law on the controversy over the governorship seat of Abia State sequel to the issuance of a certificate of return to Ogah.
As a prelude, two points are worthy of note.
Firstly, by virtue of Section 287 (3) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), all authorities and persons (INEC inconclusive) have a duty to observe and enforce the decisions of the Federal High Court.
It is settled law that the judgment of a court, no matter how perverse, is valid and binding until same is set aside on appeal by a superior court.
For reference, see the decision of the Supreme Court in Agbogunleri v. Depo (2008) 3 NWLR (Pt. 1074) 217.
Secondly, a successful litigant is entitled to enjoy the benefits and reap the fruits of his judgment and nothing ordinarily should be done to obstruct this right.
In the words of Niki Tobi , JCA (as he then was) in Lijadu v. Lijadu (1991) 1 NWLR (Pt. 169) 627 at 644, nothing should be done to make the victorious party leave the court in “victory” without victory.
Notwithstanding the above postulations on the validity and enforceability of subsisting judgments of superior courts, there is a legally recognisable circumstance by which adherence to, and enforcement of a judgement may be put in abeyance (suspended momentarily).
A judgement or decision of a court will not be enforceable where a stay of execution of the judgment is ordered either by the trial court that delivered same or by an appellate court.
Section 18 of the Court of Appeal Act Cap. C37 L.F.N. 2004 expressly states that “An appeal under this Part of this Act shall not operate as a stay of execution, but the Court of Appeal may order a stay of execution either unconditionally or upon the performance of such conditions as may be imposed in accordance with rules of court.”
Essentially, this implies that the mere filing of a Notice of Appeal by a party will not as a matter of course stay the execution of a judgment. This is beyond dispute.
For emphasis, the decision of the court in TSA Ind. Ltd. v. Kama Inv. Ltd. (2006) 2 NWRL (Pt. 964) 300 at 316 is apt on the point.
However, a party seeking to stay the enforcement of a judgement must in addition to his Notice of Appeal, file a motion (an application) for stay of execution and serve same on the other party.
A stay of execution ensures that a fait accompli is not foisted on an appellate court by rendering its judgment in the substantive appeal nugatory.
In the present case of Abia State, did INEC act within the bounds of the law in issuing Ogah with a certificate of return?