Hon. Okechukwu Igwe V. Independent National Electoral Commission (INEC) & Anor (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UWANI MUSA ABBA AJI, J.C.A. (Delivering the Leading Judgment)

This appeal is against the decision of the Federal High Court sitting at Owerri presided over by Hon. Justice F. A. Olubanjo delivered on the 6th day of June, 2011 in suit No. FHC/OW/CS/72/2011, whereby the Plaintiff (now Appellant) on the 14th day of March, 2011 by way of an originating summons, posed the following seven (7) questions for determination by the Court, to wit:

1. Whether by virtue of the judgments in Suit No. FHC/ABT/CS/168/07 Hon. Chief Lawrence Agbasoga v. Independent National Electoral Commission & Hon. Gerald Irona Suit No. HOW/141/2007. Engr. A. Gerald Irona v. Barr. Ken Uzoechi & Ors; Petition No. EPT/NA/IM/01/2007, PASCHAL Ikenna Ejiogu v. Hon. Alphonsus G. Irona & Ors and Appeal Nos. CA/PH/EPT/400/2007 & CA/PH/EPT/464/2007, Paschal Ikenna Ejiogu v. Hon. Alphonsus Gerald Irona & Ors. The status of the Government white paper indicting Alphonsus Gerald Irona has been determined by the pronouncement of the Court of Appeal in Appeal No. CA/A/159/2007, Hon Gerald Irona vs. Hon. Lawrence Agbasoga vs. Ors.
2. Whether the Administrative Panel of Inquiry set up by the Imo State Government in 2006 to investigate the allegations of fraud against Engr. Alphonsus Gerald Irona as the suspended Chairman of Oguta Local Government Council was fact finding Panel and was not politically motivated.
3. Whether the indictment of Engr. Alphonsus Gerald Irona was accepted by the Imo State Government.
4. Whether the three year statutory tenure (2004 to 2007) of Engr., Alphonsus Gerald Irona as the Chairman of Oguta Local Government was terminated in 2005 by impeachment.
5. Whether the expiration of tenure was the reason why Engr. Alphonsus Gerald Irona left office as the Chairman of Oguta Local Government Council in 2006.
6. Whether the taking of Oath of Office by Hon. Ndukwe Ottih as the successor of Engr. Alphonsus Gerald Irona on 18th August, 2006 effectively marks the end of the tenure of Engr. Alphonsus Gerald Irona as Chairman of Oguta Local Government Area Council.
7. If any of the questions 4, 5 and 6 above are answered in favour of the Plaintiffs, whether Engr. Alphonsus Gerald Irona submitted false information to the Independent National Electoral Commission in part B Paragraph D(1) titled Working Experience with dates and Part B Paragraph E Titled General, Sub Paragraph 6 (b) of the Affidavit sworn in support of personal particulars of persons seeking election to the office/membership which is Form CF001 and ought to be disqualified from contesting the 2011 general election.

The Plaintiff (Appellant herein) now sought the following reliefs,

1. A declaration that by virtue of the judgment in Suit No. FHC/ABJ/CS/168/07; Hon. Chief Lawrence Agbasoga v. Independent National Electoral Commission & Hon. Gerald Irona; Suit No. HOW/141/2007, Engr. A. Gerald Irona v. Barr. Ken Uzoechi & Ors; Petition No. EPT/NA/IM/2007 Paschal Ikenna Ejiogu v. Hon. Alphonsus G, Irona & Appeal Nos. CA/PH/EPT/400/2007 & CA/PH/EPT/464/2007 Paschal Ikenna Ejiogu v. Hon. Alphonsus Gerald Irona & Ors; the Status of the Government White Paper indicting Alphonsus Gerald Irona has been determined by the pronouncement of the Court of Appeal in Appeal No. CA/A/159/07, Hon. Gerald Irona vs. Hon. Lawrence Agbasoga & Ors.
2. A declaration that the Administrative Panel of Inquiry set up by the Imo State Government in 2006 to investigate the allegations of fraud against Engr. Alphonsus Gerald Irona as the suspended Chairman of Oguta Local Government Council was a fact finding panel and was not politically motivated.
3. A declaration that the indictment of Engr. Alphonsus Gerald Irona was accepted by the Imo State Government.
4. A declaration that the three year statutory tenure (2004 – 2007) of Engr. Alphonsus Gerald Irona as the Chairman of Oguta Local Government was terminated in 2006 by impeachment.
5. A declaration that the expiration of tenure was not the reason why Engr. Alphonsus Gerald Irona left office as the Chairman of Oguta Local Government Council in 2006.
6. A declaration that the taking of Oath of office by Hon. Ndukwe Ottih as the Successor of Engr. Alphonsus Gerald Irona on the 18th August, 2006 effectively marks the end of the tenure of Engr. Alphonsus Gerald Irona as Chairman of Oguta Local Government Area Council.
7. A declaration that Engr. Alphonsus Gerald Irona submitted false information to the Independent National Electoral Commission in Part B Paragraph D (1) Titled Working Experience with dates and Part B Paragraph E Title General, sub paragraph 6(b) of the Affidavit sworn in support of personal particulars of persons seeking election to the office/membership which is Form CF 001 and ought to be disqualified from contesting the 2011 General Election.
8. An order pursuant to Section 31 (9) of the Electoral Act 2010 disqualifying, Engr. Alphonsus General Irona from contesting the 2011 General Election owing to the false information contained in Form C, F. 001 which is the Affidavit sworn in support of personal particulars of persons seeking Election for membership to the House of Representative of Ohaji/Egbema/Oguta/Oru West Federal Constituency filed at the High Court Registry Port-Harcourt on the 28th day of January by the said Engr. Alphonsus Gerald Irona and submitted to the Independent National Electoral Commission (INEC).

Consequent upon the objection by Counsel to the 2nd Respondent, regarding the propriety of commencing the contentious suit by way of originating summons, the Lower Court on the 31st of March, 2011 ordered that pleadings be exchanged by the parties. Parties compiled with this order of Court, save the 1st Respondent, who appeared only once and did not participate any further in the proceedings nor were any processes filed on its behalf.

Having joined issues, the matter went to trial and the 1st Appellant, who was the sole witness for the Plaintiffs, adopted his sworn depositions and tendered a total of nine Exhibits i.e. Exhibits A, B, C, D, E, F, G, H and I. (See page 568 – 575 of the Records).

The 2nd Respondent also testified for himself and tendered six Exhibits to wit, Exhibits J, K, L, M, N and O. (See pages 576 -627 of the Records).

In a considered judgment delivered on the 6th day of June, 2011, the Lower Court dismissed the Suit filed by the Appellant. At pages 354 – 355 of the Records the lower Court held inter alia.

“After considering the evidence and submissions of Counsel, I am unable to find that the 2nd Defendant presented false information to the 1st Defendant in Exhibit A within the circumstances of this case and this is even in the light of Exhibits B, C, K, L, M, N and O. I am furthermore of the view that even though this is a pre-election Suit, the issue of qualification has been overtaken by the event of the General Election of April, 2011 in which the 2nd Defendant was returned by the 1st Defendant as being duly elected into the seat of member representing Ohaji/Egbema/Oguta/Oru West Federal Constituency in the House of Representatives.

By virtue of Section 138 (1) (a) of the Electoral Act 2010 (as amended.) the proper venue or forum for the battle as to whether or not the 2nd Defendant is qualified to contest the election has now shifted from this Court to the Election Petition Tribunal. It is the said Tribunal which is now competent to adjudicate and declare the 2nd Defendant qualified or disqualified as the case may be. I no longer have the power to declare him disqualified … The Plaintiffs claim fails and this Suit is accordingly dismissed.”

It is against this decision that the Appellant appealed to this Honourable Court, vide a Notice of Appeal filed on the

5th day of August, 2011 upon the following eight (8) grounds of appeal, which are hereunder reproduced without their particulars.

GROUNDS OF APPEAL

1. The Learned trial Judge erred in law when he held that the issue of qualification has been overtaken by the General Election of April, 2011.
2. The Learned trial Judge erred in law when he held that the venue or forum for the contention as to whether or not the 2nd Defendant is qualified to contest the election has shifted to the Election Petition Tribunal.
3. The Learned trial Judge misdirected himself in his evaluation of fact when he held in page 18 of his judgment that “it would not be false for the 2nd Defendant to state in Paragraph E sub Paragraph 6(1) (11) that his indictment was politically motivated and was rejected by the state government” and on Rage 20 of the same judgment held that “I agree with my learned brother on the judgment in Exhibit E that the ghost of the indictment can only be permanently laid to rest by a decision of an Appellate Court.”
4. The Learned trial Judge erred in law when he proceeded to place reliance on and interpreted Exhibit L (Judgment in Suit No. HOW/141/2007 Engr. Alphonsus Gerald Irona v. Barr. Ken Uzoechi & Ors) in pages 17 to 18 of the judgment to the effect that the white paper never existed despite conceding and holding in pages 19 and 20 of the same judgment that he agreed that he had no powers to interpret the judgment of his learned brothers in Exhibits C, E, F, G, K and L or to sit on appeal over them.

The Learned trial Judge held:

“By virtue of the Supreme Court decision in INAKOJU (supra) that judgment in Exhibit K and L would be that the impeachment of 2nd Defendant is deemed to have never existed and the White Paper which took into account the indictment and suspension also never existed.”