Anxiety as Imo awaits verdict on governorship tussle
By Kodilinye Obiagwu
FOR more than two years now, the cancellation of the April 14 governorship election in Imo State and the subsequent election of April 28, 2007, that gave victory to Chief Ikedi Ohakim, have remained a subject of litigation. The case has gone from the tribunal to Abuja High Court and its Appeal Court of the Port Harcourt Division, then to the Appeal Court Abuja Division, up to the Supreme Court and back to the Appeal Court Abuja.
Ohakim has survived the legal battles from the election petition tribunal that sat in Owerri, and the Appeal Court in Port Harcourt, Rivers State. His first victory was against Senator Ifeanyi Araraume the governorship candidate of the Peoples Democratic Party (PDP).
Araraume's petition was finally dismissed on March 23, 2009, when the Appeal Court sitting in Port Harcourt, Rivers State confirmed the ruling of the Election Petitions Tribunal, which affirmed Ohakim's victory in the April 28, 2007 election.
With Araraume out of the way, Ohakim had to contend with Chief Martin Agbaso, the governorship candidate of the All Progressive Grand Alliance (APGA) who is taking the Independent National Electoral Commission (INEC) to task over the cancellation of the April 14 2007 governorship election and the rescheduled election of April 28, 2007.
Agbaso wants the courts to interpret whether the electoral commission is empowered by any law to cancel the said election, which held in virtually all the polling booths in Imo State with results collated at both the ward and council levels but was cancelled the next day April 15 by the State Resident Electoral Commissioner Austin Okogie on grounds of violence in nine councils out of 27 councils and identified irregularities. Agbaso also wants the court to declare him the winner of the April 14, 2007 election. He also wants to be declared winner of the said election.
Earlier, Agbaso had gone to an Abuja High Court to stop the April 28 election but was told after the election had held to take his case to the tribunal where it was struck out on technical grounds. He however participated in the election of April 28, which he said was an act of protest, having gone to court to stop the said election even as a candidate drafted by INEC.
INEC had cancelled the April 14, 2007 governorship election, citing violence and gross irregularities in some council areas. It however, conducted and declared results for the State House of Assembly elections, which held simultaneously with the governorship elections on the same day, with votes cast on the same ballot box and with the same INEC officials supervising.
The recurring mantra from Agbaso's legal team, led by Wole Olanipekun (SAN) and Patrick Ikwueto (SAN) are that, INEC does not have the constitutional mandate to cancel an election on the excuse that there were irregularities after the election had held at the polling booths with results collated at the ward and council levels and with results waiting to be announced. Only the courts, Olanipekun argued, have the constitutional and electoral mandate to cancel and make pronouncements on any election that has taken place. He also argued that the so-called violence that took place in nine local governments was countered by a Police/INEC joint report that gave Imo a clean slate. Again, Olanipekun insisted, if the violence, which INEC claimed did not affect the State House of Assembly elections, had claimed the votes cast in those nine councils, the results in the remaining 18 councils were good enough to give Agbaso victory and even if those votes in the nine councils were added to those of the nearest candidate to Agbaso.
According to him, issues of irregularities were for the candidates in an election to contest in a court, not for INEC to contest by outright cancellation of an election of a state governorship, in this context Imo, the only such case in the entire federation. As an example, it argued, the non-appearance of a candidate's name or photograph such as Araraume's, was a no issue, since the Electoral Act recognises a party's emblem, not the individual, for such purposes. At the Appeal Court Abuja, Agbaso attached the results of the Form E8C, representing the collated council results asking to be declared winner on its basis.
At the tribunal, Agbaso's petition was thrown out as a pre-election matter. The Appeal Court in Port Harcourt also threw out the appeal for want of jurisdiction insisting the power to hear the case lay elsewhere.
The INEC, on the other hand faulted Agbaso's call for him to be declared winner in the April 14 election because it was inconclusive and that no winner could have emerged. The commission therefore questioned the result Agbaso claims made him the winner. Both Araraume and Ohakim joined INEC at the Court of Appeal Abuja pleading abuse of court process. They added that the matter was no longer a live issue having been fully entertained and thrown out for lack of merit by the two courts.
Agbaso had argued that although he participated in the April 28 election, he did not forfeit his mandate of April 14 and that his participation in the April 28 election did not place legality on an illegal cancellation of the April 14 election since INEC had no statutory powers to cancel an election. He also pointed out that INEC conducted the April 28 polls in disregard of a pending case in court.
On February 26, 2009, the Court of Appeal in Abuja ruled that the April 28, 2007 election should not have held because of the pending action brought by Agbaso.
The court noted: "While there is a pending case in Court on the legality of cancellation of the election of April 14, 2007, is it competent for the first and second respondents to ignore the case and proceed to conduct another election? I do not think so.
"In the instant case since the cancellation of the said election of April 14, 2007, and the rescheduled election for April 28, 2007, are in dispute, it is therefore not appropriate for the first and second respondents to proceed and reschedule another election. They ought to have waited for the outcome of appeal in this court.
"The precipitate election held on April 28, 2007, was in disregard of the pending suit brought by the Appellant. The purported election held on April 28, 2007, by the first and second Respondents in Imo State was in disregard of the pending Judicial Review Proceedings."
As the case lingered, the appellate court ruled that the suit Agbaso instituted was competent enough to be heard just as it assumed jurisdiction to entertain the matter.
On March 15, 2009 INEC joined by Ohakim and Araraume went to the Supreme Court to challenge the ruling of the Abuja Court of Appeal on the issue of jurisdiction.
The trio argued that since INEC had cancelled the controversial April 14, 2007 election and Agbaso had participated in the April 28, election, the legal dispute arising from the cancellation of the April 14 election amounted to an academic exercise. According to INEC, it invoked its powers under the 1999 Constitution and Electoral Act 2006 to cancel the April 14, 2007 election on the account that it was a sham and inconclusive.
INEC argued: "It is common ground that Agbaso had filed an appeal asking the Court to compel INEC to announce the results of the governorship elections conducted in Imo State on April 28, 2007. It is also common ground that he contested the elections of April 14, 2007. He not only contested the election but also went ahead to challenge the results on the same grounds, which he lost at the tribunal and went on to the Court of Appeal Port Harcourt Division where he also lost.
On September 29, 2009 the Supreme Court ordered the Court of Appeal to hear and decide the Agbaso appeal on the April 14, 2007 election. The justices asked for an accelerated hearing at the Appeal Court.
Justice Dahiru Musdapher struck out the appeals of Ohakim and INEC challenging the February 26, 2009 ruling of the Court of Appeal, which held that it had jurisdiction to hear Agbaso's appeal.
In a unanimous decision, Justices Aloma Mukhtar, Ikechi Ogbuagu, Mohammad Commassie and Olufunmilola O. Adekeye led by Mustapher, said that INEC and Ohakim's lawyers should have allowed the Appeal Court to exhaust its hearing of the motion brought before it by Agbaso and APGA before rushing to the Supreme Court on the basis of jurisdiction.
On Thursday November 12, 2009, the Court of Appeal Abuja listened to the final arguments by counsel to the four major parties - INEC, Ohakim, Araraume, and Agbaso. While Agbaso has asked the court to declare him the winner of the April 14 election based on the results of the attached Form E8C to his brief, Araraume wants a fresh election without Ohakim, who having cross carpeted to PDP has no party platform, while Ohakim wants the April 28 election to be upheld. After they presented their briefs, the court adjourned sine die.
No doubt, the highly expected judgment would be a big test of the country's laws especially now that the issue of electoral reforms is in the polity's front burner.
As Imo awaits the judgment of the Appeal Court, the peculiarities of the case have raised anxiety and questions in Imo.
The resolution of the governorship election of April 14, 2007 will present an opportunity to test other issues regarding the powers of INEC in interpreting laws governing elections.
