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CAN THERE BE TWO GOVERNORS IN A STATE? ABIA STATE CONUNDRUM AS A CASE STUDY

The streets of Abia State is plagued with one story, which is- is Dr. Okezie Ikpeazu still the Governor?  Indeed every legal practitioner of note in the country has had one say or the other concerning this debacle. To Festus Keyamo, Governor Ikpeazu is not the legitimate Governor of Abia State. To distinguished silks- Olisa Agbakoba and Femi Falana, INEC did the right thing by issuing a certificate of return to  Mr. Uche Ogah. From the office of the Attorney-General of the Federation, parties should await the judgment of the Court of Appeal. According to the Office of the President of the Nigerian Bar Association, parties should maintain status quo and follow due process and since the notice of appeal including a motion for stay of execution has been filed and served, parties should wait for the decision of the Court of Appeal.

How did we find ourselves in this maze? I’ll briefly give a short introduction on that. On the 27th of June 2016, Justice Okon Abang of the Federal High Court sitting in Abuja disqualified the candidacy of Dr. Ikpeazu as the winner of the PDP Ticket for the last Gubernatorial Election in Abia State, and consequently ordered Independent National Electoral Commission (INEC) to issue a  certificate of return to Mr. Uche Ogah and withdraw the one issued to Dr. Ikpeazu who currently sits as the incumbent Governor of Abia State. The reason given by the court among other things is that Mr. Ikpeazu perjured when he said he paid all his taxes for three (3) years preceding the election. Acting on the Order of the Court, INEC issued a certificate of return to Mr. Uche Ogah on the 30th of June 2016.Though, he was issued a certificate of return, he was not sworn in as the Governor.

In a calculated legal step, Mr. Ikpeazu’s lawyer allegedly served INEC a notice of appeal and stay of execution of the Judgment of the Federal High Court on the 30th of June 2016, an allegation denied by INEC. The question arising from this entire scenario is whether or not Ikpeazu remains the Governor of Abia State when INEC had already issued a certificate of return to Mr. Ogah.

This article will not dwell too much on the merit of Justice Abang’s Judgement but suffice it to say that the decision seems to be in tandem with the Supreme Court’s decision in JEV v. IYORTOM (2015) 15 N.W.L.R (Pt. 1483) at 484 pgs 507-512. In this case the Supreme Court per Mohammed, C.J.N (as he then was) held that;

“….in this respect, having regard to the very clear wording of section 141 of the Electoral Act, I am of the very strong view that the Federal High Court, the High Court of a State and FCT High Court engaged in the hearing and determination of pre-election disputes between parties aspiring to contest elections in exercise of their special jurisdiction under section 87(9) of the Electoral Act, are not bound by the provision of section 141 of the Act which only comes into play after a successful conduct of elections….”

In other words only an Election Tribunal or Court of Appeal (in case of election petition arising from the presidential election) is bound by the provisions of section 141 of the Electoral Act. A court sitting on a pre-election dispute is not envisaged under section 133 (2) of the Electoral Act, hence not bound by it.

Under section 141 of the Electoral Act, the court or tribunal cannot declare a person a winner at an election in which such a person has not fully participated in all the stages of the said election. However this section does not apply to pre-election matters. Indeed the Supreme Court had earlier applied this principle in GBILEVE v. ADDINGI (2014) 16 N.W.L.R (Pt. 1433) at 394 pg. 422-423 thus;

“Where a party abides by the electoral Act and party guidelines to conduct its primaries and a candidate emerges as the winner of the said primaries, the party or any of its officials cannot whimsically substitute the candidate who emerged the winner of the primaries. If that happens, the candidate substituted has a legal right to go to court. Where it happens as it transpired in the instant case, that the court is unable to rule on the illegal substitution before the actual election takes place, if the candidate who became the beneficiary of the substitution wins the election, the candidate substituted can be declared the winner of the election

The cases mentioned above seem to be the right position of things as far as pre-election matters and section 141 of the Electoral Act is concerned; hence, the decision of Justice Abang to declare Mr. Ogah the winner of the Abia State Governorship election is correct since the Nigerian electoral law recognizes the party and not the candidate. Section 177 of the Constitution outlines the conditions that a person must fulfil to be qualified for election to the office of the Governor of a state.;

We vote the party, the party votes the candidate, and if the votes that brings the candidate as the flag bearer of the party is defective and contrary to the provisions of the constitution, then the right candidate should be given the mandate of the party.  It is submitted that the vote cast at the general election is for Peoples Democratic Party (PDP) and not a particular candidate, in this case, Dr. Ikpeazu.

INEC issued the Certificate of Return to Mr. Ogah on the 30th of June 2016, the notice of appeal and stay of execution was allegedly served on INEC the same day. The contention is whether upon the issuance of the Certificate of Return to Mr. Ogah, the incumbent Governor seizes to be the Governor of Abia State.

Some commentators on this issue are of the opinion that section 143 of the Electoral Act will apply in this matter. From the two decisions cited above, it is clear that Part VIII of the Electoral Act which covers sections 133-145 of the Act does not apply to pre-election matters since section 133 already defined the Court and Tribunal affected by that part of the Act. Thus it is safe to say, section 143 of the Act cannot affect the decision reached by a court which does not fall within the contemplation of  the definition of Court under section 133. Succinctly put, the period of 21 days in which to appeal an election petition decision does not apply to pre-election decisions as well. The point therefore is that, Mr. Ikpeazu does not have 21 days within which he can appeal the decision of the Federal High Court. The normal period for appeals to the Court of Appealfrom the decision of the Federal High Court will apply to wit……..  

It is trite law that a party can file for stay of execution of a  decision of a court. However, filing and serving a stay of execution does not ipso facto constitute a stay of that decision. Nevertheless, the rules of practice leans heavily on a party who has been served with a motion for stay of execution to exercise restraints and wait for its determination and until such is determined, the decision may not be executed. Ikpeazu allegedly filed a stay and a notice of appeal which was served on INEC the same day the certificate of return was issued. INEC has however refuted this claim stating  that the notice of appeal came after the Certificate had been issued. However, since a stay of execution has been filed and served, it is expedient for the parties to stay their course and wait for the decision on the application for stay.

Another thing to consider is the provision of the Constitution on when a person becomes the Governor of a State. Section 180 (1) (a) of the Constitution states that;

“Subject to the provisions of this constitution, a person shall hold the office of Governor of a state until (a) when his successor in office takes the oath of that office”

The wordings are very clear; an incumbent remains the Governor until his successor takes the oath of office. Permit me to say that a certificate of return is the recognition of the people’s mandate because we are in a democratic setting; however the Oath of Office and swearing-in is the recognition of the people’s mandate by the State. A person needs both to be a Governor of a State, although one precedes the other, the latter is however recognized by the constitution.

In furtherance to the above, section 185 (1) of the Constitution provides that;

“A person elected to the office of the Governor of a state shall not begin to perform the function of that office until he has declared his assets and liabilities as prescribed in this constitution and has subsequently taken and subscribed the Oath of allegiance and Oath of Office prescribed in the seventh Schedule to this constitution”

There is no ambiguity whatsoever to the above sections of the Constitution. If the certificate of return was a condition for performing the function of the office of the Governor of a state, same would have been included. It is trite that the express mention of a thing is to the exclusion of the others-expressio unius est exclusion alterius. Thus, issuance of the certificate of return does not automatically remove Dr. Ikpeazu from the exalted seat of the Governor of Abia State.  Mr. Ogah must take the Oath of that Office to become a legally cognizable occupant of the seat of the governor of Abia State..

One must separate the present situation from that of Rotimi Amechi. In Amechi’s case, he actually won the primaries; his name was just substituted, while in this case Ogah’s name was not substituted. Even at that, Amechi had to get the decision of the Supreme Court to be the Governor of Rivers state, and through his journey to that office, Omehia remained the governor until the former was sworn in.

It is our submission that a certificate of return is not the only requirement for being a Governor, and to the credit of the Judge, he made the necessary order for Ogah to be the Governor. There is no gainsaying that when a stay has been filed and there is a notice of appeal on a particular decision (even though a notice of appeal does not function as a stay), parties should maintain their course; that’s the proper way to go in a society governed by rule of law In conclusion, we can safely submit in line with the foregoing that there are no two Governors in Abia State; for now, there is only one governor and that is Dr. Ikpeazu until Mr. Ogah takes the oath of office and is duly sworn in according to the Constitution.
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