It is an established fact that Ikpeazu only obtained the said injunction after INEC had already issued Ogah with a certificate of return.
It was totally wrong for the court to issue an order to stop what had already been done.
The order is offensive to the spirit and letters of the law as stated by the Supreme Court in the case of Okafor v. Attorney General of Anambra State (1992) 2 SCNJ 219 to the effect that injunction cannot lie against a completed act.
Before I conclude, let me respond to an erroneous argument that has been canvassed on this issue.
It has been vigorously contended by some lawyers that based on the provisions of Section 143 of the Electoral Act 2010 (as amended), Ikpeazu being the incumbent governor of Abia State, is entitled to remain in office pending the determination of his appeal.
Agreed that by virtue of Section 143 of the Electoral Act, where the Election Tribunal or Court, as the case may be, determines that a candidate returned was not validly elected, the invalidly elected candidate shall continue to remain in office pending his appeal and is also entitled to remain in office for a duration of 21 days within which he is to appeal.
This provision does not apply to pre-election cases like the instant case of Abia State. Why?
The “Election Tribunal” or “Court” referred to in the preceding paragraph is defined in Section 133 (2) of the Electoral Act to be the Court of Appeal where it sits over Presidential or Governorship election petitions and the election tribunal established by the Constitution or the Electoral Act.
This interpretation also applies to Section 141 of the Electoral Act which forbids an Election Tribunal or Court from declaring any person who did not fully participate in all stages of the election as the winner of the election.
Mention should be made that the Federal High Court in Suit No. FHC/ABJ/CS1/2011 between Labour Party and Attorney General of the Federation, delivered on 21st July, 2011 had annulled Section 141 of the Electoral Act 2010 (as amended).
Interestingly, the injunctive orders granted by the Abia State High Court in favour of Ikpeazu were made pursuant to Section 143 of the Electoral Act.
With due respect to the judge, the orders are not only legally indefensible but amounts to an affront on the position taken by the Supreme Court on the non-applicability of those provisions to pre-election cases.
This is another reason why the said injunction cannot command respect.
Both Sections 141 and 143 of the Electoral Act are not applicable to the Federal High Court, the Court of Appeal and the Supreme Court in pre-election cases.
Any doubt on this submission can easily be resolved by reference to the recent landmark decision of the Supreme Court in Jev & Anor v. Iyortom & Ors (2015) LPELR-24420 (SC) where the Apex Court pronounced on the issue in vivid terms.
The legal significance of the (mere) filing of a motion for stay of execution (pending appeal) has been highlighted in plethora of locus classicus.
In Vaswani Trading Co. v. Savalakh (1972) 12 S.C. 77, the Supreme Court held inter alia @ page 87 line 30:
“Any action or conduct of one or the other of the parties to the action taken whilst an application for a stay of execution is pending in this court, for the obvious or subtle purpose of stultifying the exercise by this court of its jurisdiction, and indeed its duty to consider the application on the merit, must not be countenanced by this court”.
In conclusion, it is submitted that since there is at present no evidence that Ikpeazu had file a motion for stay of execution of the judgment along with his Notice of Appeal on or before Wednesday the 29th day of June, 2016 and serve same on INEC, the issuance of a certificate of return to Ogah on Thursday the 30th of June, 2016 cannot be legally faulted.
Strictly, INEC acted within the law.
Neither the Notice of Appeal (without a corresponding motion for stay) nor the injunction by the High Court of Abia State can be invoked to puncture INEC’s action.
Without prejudice to the above submission, I need to observe that INEC may have acted mala fides (in bad faith) by waiting for three days to elapse before complying with the order of the court.
While it is true that Section 75 of the Electoral Act gives the Commission 7 days to issue a Certificate of Return, that leverage cannot avail it in the instant case because the tenor of the judgment demanded immediacy.
The order was made on the 27th of June, the issuance of the certificate of return on the 30th of June was belated; not immediately as ordered.
Instead of dissipating resources on trivialities such as media propaganda; sponsorship of protests and unjustifiable declaration of public holidays, Ikpeazu is advised to immediately file a motion for stay of execution of the judgment and serve same on INEC and Ogah.
If that was or has been done, let it be published publicly for the world to see.
Where this is done, INEC should cancel and withdraw the certificate of return issued to Ogah pending the determination of Ikpeazu’s appeal.