The answer will depend on whether INEC was given notice of the pendency of an appeal together with a motion for stay of execution.
The Abia State Government in a statement issued by the State Attorney-General, Mr. Umeh Kalu, said thus:
“It’s unfortunate that INEC said that it was not served. But the truth is that they were served. I have a proof to that.
“Saleh N. Ibrahim, Senior Clerical Officer at the Legal Services Department of the Commission’s Headquarters, Abuja, who (sic) stamped the Notice of Appeal and Injunction with the Commission’s official stamp by 12.50pm on Wednesday, June 29, 2016.”
In an explanation to an online newspaper, Premium Times, on Friday July 1, 2016, Nick Dazang, spokesman for INEC, said Mr. Ikpeazu’s failure to provide a stay-of-execution order left the commission with no choice than to issue the certificate of return to Mr. Ogah.
He said since Mr. Ikpeazu’s notice was not deemed sufficient, it had to, as a matter of policy, execute the judgment of the high court.
“I discovered that INEC received Mr. Ikpeazu’s notice. However, it did not contain a motion or order of stay of execution.
“In the circumstance, and in deference to the previous court order, INEC as a responsible regulatory body has no recourse than to issue Mr. Ogah the certificate of return,” Mr. Dazang said.
It is apparent that one of the parties, between the Abia State Government and INEC, is either outrightly mendacious or economical with the truth. So who is right?
I have carefully examined the proof of service (affidavit of service) published by Ikpeazu on his Facebook page and circulated to the media by the Abia State Government, there is no mention of motion for stay of execution in the said affidavit.
Only Notice of Appeal is mentioned.
Putting it differently, there is nothing evidencing that INEC was served with an application by Ikpeazu seeking a stay of execution of the judgment delivered by Justice Okon Abang on Monday the 27th day of June, 2016.
In my quest to unravel the truth and facts of this case, I made spirited efforts to reach the Chief Press Secretary to Ikpeazu (through phone calls and sms) in the afternoon of Friday 1st July, 2016 for him to furnish me with evidence that there is indeed a motion for stay of execution.
He did not reply.
The only sensible and logical inference to be drawn from the non-production of evidence of the existence and service of motion for stay of execution is that none is available.
He who alleges must prove. The maxim is ‘ei incumbit probatio qui dicit’. See Section 131 of the Evidence Act 2011.
The burden is on Ikpeazu to prove beyond unsubstantiated press statements, that INEC had notice of not only his appeal but very importantly, his motion for stay of execution prior to the issuance of a certificate of return to Ogah.
I have seen a copy of the interim order (ex parte injunction) obtained by Ikpeazu dated Thursday the 30th day of June, 2016 from the High Court of Abia State, Osisioma Ngwa presided by Justice Chibuzor Ahuchaogu, restraining INEC from issuing a certificate of return to Ogah and his swearing-in by the Chief Judge of Abia State or by any judicial officer in Abia State.
The injunction to say the least is a gross abuse of judicial cum court process and not binding for two principal reasons.
Firstly, the High Court of Abia State cannot give an order which purports to vary or render nugatory the order(s) of the Federal High Court.
The simple reason is that both courts have concurrent jurisdiction.
Only a superior court (the Court of Appeal or the Supreme Court) can interfere with the orders given by Justice Okon Abang.
The Supreme Court in a recent decision in the case of Orji Uzor Kalu v. Federal Republic of Nigeria (Unreported Appeal No. SC/215/2012) delivered on March 18, 2016 emphatically sounded a warning to the effect that courts of concurrent jurisdiction cannot police each other and that they are not bound by each other’s decisions.
In the case cited supra, a former governor of Abia State, Orji Uzor Kalu, had obtained an ex parte order from the High Court of Abia State restraining the Economic and Financial Crimes Commission (EFCC) from arresting, detaining or prosecuting him.
The Supreme Court held that the Federal High Court where Mr. Kalu was arraigned is not bound by the injunction given by the High Court of Abia State.
Thus, the case was remitted back to the Federal High Court for commencement of Kalu’s trial.
Other authorities on this position includes: Olutola v. University of Ilorin (2004) 18 NWLR (Pt. 905) 452 and Uwazuruike v. Attorney General of the Federation (2008) 10 NWLR (Pt. 1096) 444 at 459-59.
The second reason why the injunction granted on Thursday the 30th day of June, 2016 by Justice Ahuchaogu of the Abia State High Court is defective is that it sought in part, to restrain a completed act.