2023 polls: Abia APC in dilemma over multiple court judgements

With a few months to the 2023 general elections, the Abia State chapter of the All Progressives Congress, APC, is in a state of uncertainty over who flies the party’s guber flag.

DAILY POST reports that on Friday, November 11, 2022, a Federal High Court sitting in Abuja sacked Chief Ikechi Emenike as the APC gubernatorial candidate in Abia State.

Emenike was the immediate past Pro-chancellor and Chairman of the Governing Council of the University of Nigeria, Nsukka, in Enugu State, as well as the past Secretary of Contacts, Mobilization and Strategy of the party.

The Abuja High Court presided by Honourable Justice Binta Murtala-Nyako, delivered judgement in the lawsuit filed by the immediate past Minister of State for Mines and Steel Development, Dr Uchechukwu Sampson Ogah (OON).

The court held that the indirect primary election which produced Emenike was in total disobedience to a letter forwarded by the national leadership of the APC to INEC that it would adopt a direct mode of primary election in the State.

According to the court, “other States where APC pointed out that it would adopt the direct mode of primary election include Osun and Benue.”

Justice Nyako in her judgement also held it was alien how APC notified INEC of its decision to adopt the direct primary mode in the State and abandoned it by according recognition to a candidate, Emenike who emerged from a purported indirect primary, saying such was invalid.

Citing the letter addressed to the Independent National Electoral Commission, INEC, and signed by the National Chairman of APC, Sen. Abdullahi Adamu and the Secretary, Iyiola Omisore, for which affidavit was also deposed, Justice Nyako wondered why a purported indirect primary still went ahead.

The court further held that the direct primary election of May 26th and 27th May 2022, which produced Dr. Uche Ogah, a former Minister of State for Mines and Steel Development was the only valid governorship primary election conducted by the APC in Abia and monitored by INEC, report of which was endorsed by the Resident Electoral Commissioner in charge of Abia State.

“Flowing from the above, I also hold that Plaintiff (Uche Ogah) having emerged as the 2nd Defendant’s (APC) Governorship candidate from the primaries conducted by the 2nd Defendant and monitored by the 4th Defendant (INEC) as shown in Exhibit INEC 1, the 2nd (APC) Defendant is under obligation to forward the Plaintifiř’s name to the 4th Defendant as its candidate for the 2023 Abia state Governorship election.

“Consequently, I find that the submission of the name of the 1st Defendant (Emenike) by the 2nd Defendant instead of the name of the Plaintiff to the 4th Defendant is wrongful, unlawful, null and void and is hereby set aside. “It is hereby Ordered as follows:

“That by virtue of Section 84(4) of the Electoral Act, 2022 the direct primaries held by the 2nd Defendant and monitored by the 4th Defendant on 26th May, 2022 was in substantial compliance with the provisions of the Electoral Act and therefore lawful and valid.

“That having conducted direct primaries in line with Section 84 of the Electoral Act and same having been monitored by the 4th Defendant, it was no longer open to the 2nd Defendant to conduct any other primary and in particular the purported indirect primaries that produced 1st Defendant as the purported candidate of the 2nd Defendant for the Abia State 2023 Gubernatorial elections.

“The 2nd Defendant shall forthwith forward the name of the Plaintiff to the 4th Defendant as its duly nominated candidate for the 2023 Abia State Governorship elections.

“The 4th Defendant shall substitute the name of the 1st Defendant earlier forwarded by the 2nd Defendant with the name of the Plaintiff as the duly nominated candidate of the 2nd Defendant for the Abia State 2023 Governorship elections,” the court ruled.

Recall that Ogah had on 26th of May, 2022, emerged as the Abia governorship standard bearer of the All Progressives Congress.

He was declared the winner of the primary elections after he scored 141,952 votes to beat his closest rival, Paul Ikonne who scored 27,054.

Other gubernatorial aspirants includes, Chief Ikechi Emenike who polled 9,446, Emeka Atuma with 7,429, Obinna Oriaku with 5,553, Alex Otti scored 2,41, and Daniel Eke who got 1,953 at the keenly contested direct primaries.

The parallel exercises took place at different locations in Umuahia, the State capital.

In total defiance of the outcries and outbursts by majority of party leaders, critical stakeholders, teeming members and supporters, the leadership of the APC submitted the names and details of Mr Ikechi Emenike as the gubernatorial Candidate in Abia State to the INEC.

Against this backdrop, Ogah approached the court to challenge Mr Ikechi Emenike’s eligibility and nomination, leading to the judgement by Justice Binta Murtala-Nyako in Abuja, which sacked Mr Ikechi Emenike, and affirmed the ex-minister, Ogah as the authentic candidate.

Currently, the verdict has become a subject of debate in public domains, especially among legal representatives of the warring parties in the suit.

Counsels to both parties, during the weekend, expressed divergent views about the judgement.

Hinting on the judgement, one of the legal representative to the plaintiff (Ogah), Okoli said, “Ikechi Emenike approached a State High Court (Umunneochi Division) and obtained judgement of court which mandated the APC and INEC to publish his name as Abia APC gubernatorial candidate. His claim before the court was that it was not a pre-election matter and for which the State high court was clothed with jurisdiction. He sued only the APC and INEC.

“Dr. Uche Ogah applied by seeking leave of Court of Appeal to appeal against the judgement as an interested party. The Court of Appeal refused the application because he applied after 14 days earmarked by the constitution for such application. The Court of Appeal Owerri did not affirm Ikechi Emenike as the candidate of the Abia APC at that level. It was just a mere application on Notice to appeal against the said judgement as an interested party. It would be recalled that Hon. Justice Benson Anya withheld the signed copy of his judgement longer than 14 days, which denied Dr. Ogah such a window.

“Hence, Dr. Uche Ogah was not a party to the suit or appeal, as the case may be. Even a kindergarten knows that a non-party to a case cannot be bound by a judgement he is not a party to. In other words, the judgement of the Umunneochi High Court and the Court of Appeal are not binding on Dr. Uche Ogah. There are several Supreme Court authorities on this sacred principle of law.

“See the cases of OYEYEMI & ORS V OWOEYE & ANOR (2017) LPELR-41903 (SUPREME COURT): Per Justice Sidi Dauda Bage: ‘The Effect of order (s) made against person not joined as a party is that such order is a nullity and of no effect’; In COTECNA INTL LTD V CHURCHGATE NIG LTD (2010) LPELR-897 (SUPREME COURT): Per Justice John Fabiyi: ‘It goes without saying that a judgement given with an order against a person who ought to be a party but was not duly joined is to no avail’.

“On the other hand, the judgement by the Federal High Court is binding on all parties, including Ikechi Emenike because he was a party to the suit.

“Again, assuming but without conceding that the Court of Appeal had affirmed Ikechi Emenike as candidate of the Abia APC as he is boasting about, why did he not raise it as a ground of abuse of court process in his preliminary objection to the Federal High Court suit? Because he knew that the Court of Appeal judgement was a non-starter in that necessary party (Dr. Uche Ogah) was not joined. Also, he admitted that it was not a pre-election matter. And as such, his head could not have been shaved in his absence.

“Sequel to the further Amended Originating Summons filed before the Federal High Court, Dr. Ogah sued Ikechi Emenike, APC, Abdullahi Adamu, INEC and Dan Eke; the latter joined upon his application to be joined as an interested party. By this, all necessary parties for the proper determination of the case were parties unlike Ikechi Emenike’s much-touted Court of Appeal judgement.

“All parties before the Federal High Court exchanged briefs and issues joined. Court arrived at its well-considered judgement after analysing all briefs of argument filed.

“Paragraph 4 of INEC Counter-Affidavit bares it all and the court further remarked under page 14 of its judgement: How can this court shut its eyes to the very clear, categoric and emphatic averments in paragraph 4 of INEC affidavit? The sum total and implication of the averments are to the effect that INEC, in the discharge of its statutory responsibility, did in fact monitor the direct primaries of 26th-27th May, 2022 that produced Dr. Uche Ogah as the candidate of the APC for the 2023 Abia State Governorship Elections”.

Continuing, Okoli further explained, “the court judicially affirmed that what the APC, indeed ordered for, was direct mode of primaries, as can be gleaned from Exhibit 1 attached to INEC Affidavit of fact. The court accorded the letter full weight, even as it further held that the letter which APC sent to INEC on direct primaries rendered Ikechi Emenike’s argument of indirect primaries under paragraph 1 of his final written address untenable. Therefore, it has been judicially affirmed that direct primaries were what took place in Abia State by the APC.

“The court further held that APC, by the direct primaries, monitored by the INEC, in full compliance with Section 84 of the Electoral Act, duly nominated Dr. Uche Ogah as its Governorship candidate for the Abia State Governorship election and that the direct primary was in substantial compliance with the provisions of the Electoral Act and therefore, lawful and valid.

“The court further held that having conducted direct primaries in line with Section 84 of the Electoral Act and same having been monitored by the INEC, it was no longer open to APC to conduct any other primary and in particular, the purported indirect primaries that produced Ikechi Emenike as the purported candidate of the APC for the Abia State 2023 Gubernatorial elections”.

“In sum, this Federal High Court judgement emanated from the suit where all necessary persons were parties and which sought to determine who, amongst the contending persons, is the rightful candidate for the party’s gubernatorial candidate. It has been judicially decided that Dr. Uche Ogah is the candidate.

“The judgement is full and enforceable forthwith in line with Section 287 (3) of the Constitution. And also, being majorly declaratory reliefs, it cannot be stayed. It can only be appealed against, just like some parties have already done.

“And if Ikechi Emenike believes he already has a Court of Appeal judgement in his favour as he has been bragging, he is challenged to not appeal against this judgement of the Federal High Court.

“There are conditions precedent before a superior court’s decision binds on a lower court. More than any other thing, aside from the fact that the parties must be the same, the issues must be one and the same. In Ikechi Emenike’s appeal before the Court of Appeal, the gravamen of the appeal was a non-pre-election matter, whereas the Federal High Court just decided on a pre-election matter”.

Also, Mr Chijioke Udeogu, a lawyer opined, “I wouldn’t have wasted time to talk on this but to allow one Mr Ojere to deceive unsuspecting reading public, will be most uncharitable.

“The Independent National Electoral Commission (INEC) can never monitor an exercise and fail to file an affidavit of fact. INEC’s affidavit of fact always has annexure as exhibit which is INEC report as per a particular Congress or primary that it monitored.

“In FHC/95/22 between Uche Ogah v Ikechi Emenike & 4 ors, INEC as 4th Defendant averred that it monitored only the direct mode of gubernatorial primary in Abia which produced Dr. Uche Ogah.

“If INEC monitored the indirect primaries as he wants us to believe, why Did their affidavit of fact not disclose that? Ikechi Emenike as 1st Defendant averred that he has INEC report but ended up filing uncertified correspondence between him and INEC where he applied to INEC for a report which INEC never has. The letter was merely acknowledged.

“While it is understandable to not be happy with the outcome of a court judgement, it is not nice to change the facts of a case just to massage your ego. Page 17 of judgement of court reads: ‘The report duly issued by INEC flowing from its monitoring of the APC direct primaries in Abia State has been highlighted and further established in OLLY v TUNJI & ors (2012) LPELR-7911 (CA): In the circumstance, once the results of the primaries election of the political parties is announced and record thereof taken by INEC, a production of the CTC from the custody of INEC is a conclusive proof of the party activities.’

“As regards how Uche Ogah will grapple with the limited time remaining before the general election, I suggest we leave that for the electorates to decide. In 2019, the same Ikechi Emenike caused a massive distraction to Uche Ogah’s electioneering campaign up to Supreme Court when it was just a few days to the general election. And when he lost, he asked his supporters to support the candidate of another political party against his own party’s candidate. Have we forgotten? Records are sacred.

“On this issue, it is not a question of limited time or no limited time. The objective is to have a judicial interpretation of the law as it applies to the issue on ground. I should suggest we allow sleeping dog lie for now”.

In his submission, the legal Adviser of a faction of the Abia chapter of the APC, V. C Nwankwo, opined that the ruling of Justice Binta Murtala-Nyako-led High Court in Abuja cannot be enforced or executed until the final pronouncement by the Supreme Court, as earlier verdict by Justice Benson Anya of Abia State High Court had affirmed the candidature of the respondent (Ikechi Emenike), and was equally reaffirmed by the Court of Appeal in two separate judgements.

His words: “Despite the judgement of the Federal High Court today, in the eye of the law, Ikechi Emenike still remains the candidate APC in Abia State. Firstly, the said judgement cannot be enforced or executed until the final pronouncement by the Supreme Court on the subject matter.

“Secondly, the judgement of the Abia State High Court by Justice Benson Anya of 24th of June, 2022, in Suit No HUM/31/2022:IKECHI EMENIKE VS APC @2 ORS affirmed the candidature of Ikechi Emenike. The judgement was affirmed by the Court of Appeal Abuja in two separate judgments and by the Court of Appeal Owerri.

“The law is trite that judgments of the Federal High Court cannot override and is not superior to the said three judgments of the Court of Appeal that affirmed Ikechi Emenike as the candidate of APC in Abia State.

“Contrary to the judgement of Justice Binta Nyako, the Court of Appeal and the Supreme Court had settled it in so many decisions that INEC and the court cannot determine who is the candidate of a political party where and when there are two competing primaries.

“Therefore, there is no cause for alarm. The mission to rescue and rebuild Abia State by High Chief Ikechi Emenike is unstoppable”.

Meanwhile, reacting to the recent court decision, a loyalist of the Abia factional leader of the APC, and frontline 2023 House of Assembly candidate for Umunneochi constituency seat in Abia State, Engr Ejike Chukwu, confirmed that the judgement of Justice Nyako-led court in Abuja, had been appealed.

Chukwu said: “Two courts had earlier decided in related matters. But I can confirm to you that our leader and gubernatorial candidate of our great party, APC, in Abia State, High Chief Ikechi Emenike has appealed against the purported judgement by Justice Nyako-led court. There is no cause for alarm as the status quo remains. The guber primary election was conducted by a committee set up by the national leadership, and equally was monitored by INEC”.

On his part, a party chieftain and ex- Speaker of Abia State House of Assembly, Rt Hon Stanley Ohazuruka, lauded the Court ruling which he asserted has restored the people’s confidence in Nigeria’s judicial system.

According to Ohazuruka, “I must state importantly, to ensure fairness, equity and justice in Abia State, the Governorship of Abia should ordinarily be the prerogative of people from Abia north Senatorial district.”

He described Abia as an APC State and expressed optimism that his party would win the governorship seat election in 2023.