A legal opinion on ABIA State Governorship saga

Brief Facts
Mr Okezie Ikpeazu contested the primaries with 7 other candidates under PDP . He came out on top with about 487 votes to beat his rivals. His closest rival was Dr Uche Ogah with 103 votes. After the general election of 2015 was conducted, Mr Okezie Ikpeazu of the PDP was elected as the executive governor of Abia State.
Thereafter, Sir Friday Nwosu had shortly after the primary election won by Ikpeazu approached the Federal High Court accusing him (Ikpeazu) of forging the tax certificates he submitted to the electoral body. After a lot of legal tussle, the trial was finally presided upon by His learned Justice Okon Abang of the Federal High Court Abuja. After evidence were adduced, His lordship concluded that the case of Tax forgery has been established and the Mantle of leadership should be transferred to the 2nd runner up Dr Uche Ogah.
Mr Okezie Ikpeazu then immediately file a notice of appeal alone and served it on INEC
Issues for determination.
1. Whether a notice of appeal alone can operate as a stay of execution of judgment against the judgment debtor.
2. Whether INEC was right to issue Dr Uche Ogah a Certificate of Return.

Legal Arguments
Issue 1.
Whether a Notice of Appeal can serve as a stay of execution---
What is Stay of Execution? Simply speaking, a stay of execution can be defined as an application filled by the person that a court judgment is against (judgment debtor) to notify the court to not enforce judgment against him yet due to his plan to exercise his right to appeal against the said judgment. It should further be noted that Stay of Execution is usually filled along with a Notice of Appeal---See the case of Ofordeme vs Onyegbuna (supra)
What is Notice of Appeal ? Simply speaking, a notice of appeal is application filed at the court below (the court that gave the judgment appealed against) to notify them of a pending appeal against the judgment or ruling of the court in a higher court.
From the foregoing, it is crystal clear that Notice of Appeal and Stay of Execution are two different application. Where the former is talking about notifying a body of a pending appeal, the latter is to notify stop a body from enforcing a judgment. Normally, no court will want to grant a stay of execution as a matter of course and that is why an applicant seeking this discretion of the court in his favour must therefore show special or exceptional circumstances why the court must deprive a successful litigant, the fruits of his success---See the following cases SPDC v. Arlio-Joe (Nig.) Ltd. (2003) 1 NWLR pt 845 pg 19, Dada v. I.T.L (2005) 11 NWLR pt.936 pg 293
In the instant case, INEC has said that the Notice of Appeal served on them by Mr Okezie Ikpeazu does not have an Stay of Execution of judgment. If that position is true, then his legal counsel must have acted with negligence because the law is settled on this point that "an appeal per se does not operate as a stay of execution of judgment"---See the case of Ofordeme vs Onyegbuna (2006) NWLR Pt 974 at page 549, see also, Pavex International Co. Nig Ltd. v. IBWA Ltd. (2000) 4 SC pt 2 190.
It is my contention that the appeal that was served on INEC is just to notify them that they are appealing the decision of the trial court and not for them to be restricted from enforcing the judgment of the trial court. A Stay of Execution would have handicapped INEC from issuing a certificate of return to Dr Uche Ogah.
Issue 2.
Whether INEC was right to issue the the Certificate of Return to Dr Uche Ogah--- it is worthy of note that the matter at hand is a pre-election matter which can only be handled by a normal court and not a Tribunal. That is why the matter was instituted at the Federal High Court. INEC also is an also institution created by law which must at all time observe the principle of rule of law. In the instant case,the matter bothers on whether Mr Okezie Ikpeazu has the legal capacity to contest an election under the platform of PDP due to his forged tax clearance certificate. The court has given his decision and it is INEC's turn to follow.
“Note that a judgment takes effect from the day it is delivered and if you want to stay the hand of the law you have to file a notice for stay of execution. If you don’t do that it means you have allowed the judgment to take effect" in the instant case the counsel representing Mr Okezie Ikpeazu has fail to file and serve a Stay of Execution on INEC which was joined as a party to the matter. On this note, it is my humble submission that INEC was right to issue the Certificate of Return to Dr Uche Ogah.
It should also be noted that the reason why the certificate was issued to the 2nd runner up of the PDP primaries and not the 2nd runner up in the general election is because this is an in-house part situation that happened before the election. Just like the case of Rotimi Amaechi VS INEC and 2 ors where Omehia won the Rivers state election but was disqualified because he is not the rightful winner of the primaries. Therefore, Mr Okezie Ikpeazu is not the rightful winner as he does not have capacity to contest the election ab initio(from the beginning).
Conclusion.
The Independent National Electoral Commission has not breached any law but has been able to maintain the rule of law. I will humbly suggest that PDP should be grateful that this was not an issue raised by their opposition. Therefore, they should look for a way to reach an amicable settlement on their own rather than publicising the selfish interest of its members.


By: T.S Ogundaini. ESQ

Nice one..

DEAFandDUMB:
Nice one..

Thank you so much

andersonbaba:


Thank you so much

My question now goes thus; since Dr. Uche Ogah has the authentic CoR but yet to be sworn in due to an order from Osisioma SHC restraining the CJ from carrying on with the swearing in ceremony.. Since FHC and SHC are courts of coordinate jurisdictions, which of the order do you think the CJ of the state should obey? That of the FHC or SHC?.. State your reason and also its legal implication should the CJ goes against any of the court order..

More ink to your pen sir. #amicus curiae

DEAFandDUMB:

My question now goes thus; since Dr. Uche Ogah has the authentic CoR but yet to be sworn in due to an order from Osisioma SHC restraining the CJ from carrying on with the swearing in ceremony.. Since FHC and SHC are courts of coordinate jurisdictions, which of the order do you think the CJ of the state should obey? That of the FHC or SHC?.. State your reason and also its legal implication should the CJ goes against any of the court order..

Just as you have said Me lady, the High Court of the state does not have power to override the decision of the Federal High Court because they are courts of co-ordinate jurisdiction. Furthermore, the State High Court is only acting Malafide (in bad faith) they just want to frustrate the credible judgment of the Federal Judge. The only court that can say otherwise is a court of Higher jurisdiction.

andersonbaba:


Just as you have said Me lady, the High Court of the state does not have power to override the decision of the Federal High Court because they are courts of co-ordinate jurisdiction. Furthermore, the State High Court is only acting Malafide (in bad faith) they just want to frustrate the credible judgment of the Federal Judge. The only court that can say otherwise is a court of Higher jurisdiction.

Thank you my learned friend.. At this point I think am OK with the explanations so let me take a bow..
Take care dear..

From yu are saying,if ikpeazu file for a motion for stay of execution all these issue will die rite?

Ok,don't worry ikpeazu will do just that on monday.Now everybody should go home the mass has ended.

andersonbaba:


Just as you have said Me lady, the High Court of the state does not have power to override the decision of the Federal High Court because they are courts of co-ordinate jurisdiction. Furthermore, the State High Court is only acting Malafide (in bad faith) they just want to frustrate the credible judgment of the Federal Judge. The only court that can say otherwise is a court of Higher jurisdiction.

You are giving your own position and not that of the law.The high court at osisioma did not rule against the judgement of the FHC Abuja.It ruled on whether that judgement should be implemented immediately or wait until the appeal is exhausted.If Uche Ogah is not satisfied he can go ahead and appeal the high court's judgement.

BTW the appeal court is expected to rule on monday on the stay of execution filed byIkpeazu.So better ask Uche to relax.

frankline5:
From yu are saying,if ikpeazu file for a motion for stay of execution all these issue will die rite?

Ok,don't worry ikpeazu will do just that on monday.Now everybody should go home the mass has ended.

Very well sir. That is the normal procedure. Even so lawyers file it even on the day of judgment day on sensitive matters like this. In order to immediately serve it on the necessary parties.

kcnwaigbo:


You are giving your own position and not that of the law.The high court at osisioma did not rule against the judgement of the FHC Abuja.It ruled on whether that judgement should be implemented immediately or wait until the appeal is exhausted.If Uche Ogah is not satisfied he can go ahead and appeal the high court's judgement.

BTW the appeal court is expected to rule on monday on the stay of execution filed byIkpeazu.So better ask Uche to relax.

Sir you know that no court will deprive a judgment creditor the fruits of his labour. Without being sentimental about this we all know that ikpeazu has not done the proper thing. The high court' ruling was influenced. The supreme Court's position is on this and that is what I think the state high court should follow. The only want to use their judiciary to remedy their wrong

paragon40:
More ink to your pen sir. #amicus curiae

Thank you Sir