. Says Justice Abang sacking of Ikpeazu inappropriate
The Court of Appeal, Abuja Division, Thursday, affirmed the election of Abia State Governor, Okezie Ikpeazu.
The verdict of the court set aside the June 27 judgment of Justice Okon Abang of the Federal High Court,Abuja, which ordered Ikpeazu to vacate his seat as governor of Abia.
In its ruling the Appeal Court held that it was wrong for the High Court to have quashed Ikpeazu’s election based on alleged irregularities in his tax receipts he submitted to his party – Peoples Democratic Party – for the 2014 primaries in the state.
In all the suits arising from the June 27 judgment of Justice Abang and which were all decided Thursday by the Appeal Court, amost of them were resolved in favour of Ikpeazu.
Justice Abang had on June 27, ordered Ikpeazu to immediately vacate the governorship seat, even as he directed the Independent National Electoral Commission (INEC), to issue fresh Certificate of Return to Sampson Ogah, who came second in the gubernatorial primary election the Peoples Democratic Party conducted in Abia State on December 8, 2014.
Justice Abang had said he was satisfied that Ikpeazu perjured by giving false information in the Form CF001 and documents accompanying it, which he submitted to both PDP and the INEC.
On the tax certificate issue on which Abang quashed Ikpeazu’s election, the Appeal Court held that the lower court
“committed great violence against Ikpeazu”, when he made Ikpeazu to bear the punishment of mistake of the tax certificate issuing authorities.
In a unanimous decision, the five Justices of the appelate court described the nullification of election of Ikpeazu as gross miscarriage of justice.
The judgment read by Justice Morenike Ogunwumiju, the court held that the burden of proof which laid on the applicant, Ogah, was not followed in the case.
It asserted that Ogah ought to have proved before the court that the tax certificate was forged by Ikpeazu before the case of perjury could be established against him, noting if there was mistake on the receipt, it was Ikpeazu that should be held responsible but the issuing authorities.
It further noted that Ikpeazu was a civil servant before contesting for the election saying if he was into business before the primaries it could be said that he did not declare his true earnings but “being a civil servant whose tax was deducted at source and was issued receipts to that effect could not be said to have forgeg the certificate which there was an affidavit sworn to that it was issued by Abia State Tax Board. In such instance, could it be said the accused forged the Certificate. In our view Ikpeazu cannot be punished for what he did not do. Going through there was nothing spectacular irregular about the receipts”
On the issue of ordering INEC to give Certificate of Return to Ogah, the appelate court faulted the decision of the lower court, saying the Electoral Act says a person who did not take part in an election cannot be issued with Certificate of Return.
Citing the case of Rotimi Amaechi vs PDP, the court held that the Supreme Court did not order INEC to give Certificate of Return to Amaechi but asked that he be sworn in.
On the suit challenging the ruling of Abang on July 6 that he has jurisdiction to entertain a matter before the Appeal Court, the five-man panel of Justices said, Abang aired in his decision.
The court said once an appeal has been entered into and transmitted to the upper court, it is deemed to have started and the trial Judge ceases to have jurisdiction over the matter.
“The High Court made a somersault and acted most inappropriately and was wrong to have assumed jurisdiction over the matter. All it needed to have done was to transmit all records to the Appeal Court. This is because if a decision is already arrived at by the lower court, there would be nothing for the Appeal Court to decide. So, the appeal is deemed meritorious and decision of the lower court is thereby set aside”, the court ruled.
The panel unanimously agreed in their judgment that Justice Abang erroneously assumed jurisdiction to hear the motion and adjourned it till a later date.
Justice Philomina Ekpe, who read this lead judgment, held that what Justice Abang ought to have done in line with time-honoured doctrine of “stari decisis” was to have transferred the motion to the Court of Appeal for determination.
She also held that the Justice Abang wrongly interpreted the provisions of Order 4(10) and (11) of the Court of Appeal rules when he held that the said provisions were only applicable to an interlocutory ruling of the lower court and when a final judgment in a suit had been delivered.
She also held that Justice Abang lacked jurisdictions to interpret the provisions of the Court of Appeal being the rules of a superior court.