By Achilleus-Chud Uchegbu
There are some quite interesting details to note from the judgment of Justice John Tsoho which declared Dr. Obiora Okonkwo as Senator for Anambra Central Senatorial district of Anambra state.
First, the matter was instituted on 22 December 2014, through an originating summon, in the aftermath of the primary election of the Peoples Democratic Party (PDP), conducted to elect a candidate that would stand for election on in March 2015. This makes it a pre-election matter. The action followed the action of PDP in refusing to affirm Dr. Okonkwo as winner of the primary election wherein he polled 204 valid delegate votes. 294 delegates were accredited for the election with Okechukwu Akachukwu as returning officer.
Sen. Annie Okonkwo, Sylvester Okonkwo, Uche Ekwunife and Kodilichukwu Okonkwo all contested in the primary election. Rather than uphold Dr. Obiora Okonkwo’s victory at the primary, the PDP announced Ekwunife as winner. This prompted the litigation. In other words, the matter has been in court since December 2014, three months before the election was held.
In his legal challenge, Okonkwo had PDP, then PDP national Chairman, Adamu Muazu, Independent National Electoral Commission (INEC) and Uche Ekwunife as defendants. The matter was not before an election petitions tribunal but before the Federal High Court. This was so because Election Petitions Tribunals do not busy themselves with pre-election matters.
The defendant, PDP, PDP national Chairman, Ekwunife all entered defence in the matter. INEC was always represented in court by a lawyer who always announced presence but never filed and papers either in support or in opposition to the suit. On several occasions, INEC informed the trial judge, when asked, that the matter was an internal party issue and it had no interest in how PDP resolved it. INEC also told that court that it did not file any defence because as in impartial umpire, it was bound by the decision of court.
In the course of trial, the matter suffered several hiccups. Several of Dr. Okonkwo’s co-aspirants joined in the matter but were defeated. The last hurdle was Ekwunife who put up a dogged fight to prove that indeed, she was validly nominated by the PDP to contest the election.
The matter also suffered tactical delays as three different judges washed their hands off the matter once they approached critical junctures where a judicial pronouncement was expected. The judges include Justice A.R Mohammed, Justice Okon Abang and Justice Quadri. Several preliminary objections in the suit were also entertained and defeated. So, Justice Tsoho was the fourth judge to entertain the matter in the Federal High Court.
Issues canvassed in court were for the court to determine who the validly nominated candidate of the PDP for the 2015 senatorial election for Anambra Central was between Okonkwo and Ekwunife.
Relief and consequential orders which Okonkwo asked from the court were: That Dr. Okonkwo is the validly nominated candidate of the PDP at the 7th December 2014 PDP primary election to nominate its candidate for Anambra Central Senatorial District at Ekwueme Square Awka, Anambra state, whose political party contested and won the national Assembly election that was held on the 28th of March, 2015.
That INEC, the third defendant/respondent cancels the certificate of return (if any is subsisting) issued to the fourth defendant/respondent (Chief Mrs. Uche Ekwunife).
That INEC issues a certificate of return to Dr. Obiora Okonkwo forthwith as the Senator Representing Anambra Central Senatorial district of Anambra State.
That the Senate President of the Federal Republic of Nigeria swears in the plaintiff (Dr. Obiora Okonkwo) forthwith as the Senator representing Anambra Central Senatorial district of Anambra state in the senate of the National Assembly of the Federal Republic of Nigeria.
That arrears of emoluments, salaries and other perquisites of office be paid to the plaintiff/Applicant (Dr. Okonkwo) from 7/12/2015 up to the date he is sworn in as Senator representing Anambra Central Senatorial district.
In the course of trial on the matter, Chairman of the PDP Primary Election Committee, Alaye Tremie, who had refused to authenticate the primary election result citing ‘orders from above’, testified in court that indeed, Dr. Okonkwo won the primary election. He testified personally and was cross examined by other lawyers on the defence. Under cross examination, Tremie affirmed that the result sheet presented by Okonkwo was the authentic result sheet.
When the matter came up before Justice Tsoho, a new twist emerged. The defendants appeared before the judge and in a dramatic twist, told the court that they no longer want to challenge the matter and would be submitting to judgment. In fact, Ekwunife, through a sworn affidavit, told the court that she was withdrawing her challenge to the suit and submitting to judgment. PDP and its National Chairman also withdrew defence and submitted to judgment. INEC also informed the court that it was submitting to judgment.
On this note, Sebastine Hon SAN, lead counsel for Dr. Okonkwo informed the court that when defence withdraws and submits to judgment, the court was bound to give judgment in accordance with plaintiff reliefs. He cited several authorities to back his arguments. He also cited Supreme Court authorities to support argument that victory in an election does not belong to an individual but to the political party.
In this instance, he argued strongly that though the Election Petition Tribunal disqualified Ekwunife as PDP’s candidate, on the strength of an election petition by APGA, the tribunal did not at any point invalidate result of the March 2015 senatorial election for Anambra central. According to the Senior Advocate, the result which was also validated by the Tribunal when it ordered a recount, is still intact and valid and ought to be enjoyed by Dr. Okonkwo if the court upholds argument that he was indeed the validly nominated candidate of the PDP.
With all the defence submitting to judgment, Justice Tsoho entered judgment in favour of Dr. Okonkwo and granted the relief he asked for alongside the consequential orders.
A consequence of the judgment is that even if INEC insists that there must be a rerun election, PDP now has a candidate who must stand as candidate in the election. Refusal to join him would amount to exclusion which is enough ground to invalidate the rerun. So, the Justice Tsoho judgment binds INEC also.
COURT OF APPEAL ANGLE…
The Court of Appeal had ordered a rerun election within 90 days. As a consequence, INEC fixed January 13, 2018 for the election.
However, the Court of Appeal matter is a consequence of a post-election matter which emanated from an action that took place in March 2015.
Also, Dr. Okonkwo was not joined in the matter as defendant as it was the offshoot of an APGA challenge of Ekwunife’s victory.
In the APGA challenge at the Election Petitions Tribunal, APGA candidate, Victor Umeh, argued that Ekwunife was not the validly nominated candidate of PDP. He also sought a recount to show that he actually won the election. Umeh further asked that he be declared winner of the election.
The Tribunal obliged him. It found that Ekwunife was not validly nominated as PDP candidate. The tribunal also ordered a recount the outcome of which further reduced Umeh’s votes as more invalid votes were found to have been counted for him. At the end of the exercise, PDP still led APGA and Umeh with over 20,000 votes. But the tribunal disappointed Umeh by refusing to declare him winner as prayed.
Common logic indicates that if Umeh actually won the election, the tribunal would have invalidated PDP’s votes and declared APGA and Umeh winner being the runner-up. But the tribunal declined. It also did not invalidate PDP’s votes, and action which is unchallenged before any court in Nigeria.
As it is, PDP’s votes in the March 2015 senatorial election for Anambra Central is valid and intact. However, what the FHC as per Justice Tsoho upheld, was that Dr. Obiora Okonkwo is the valid candidate of the PDP who must enjoy PDP’s votes from the March 2015 election. This is a pre-election matter which takes precedence over a post-election matter.
In the eyes of the law, a pre-election matter is foundational and as such, no structure can be built without a foundation. That is why Hon SAN said soon after the judgment that “this judgment supersedes whatever previous decision there have been on Anambra Central because it is a pre-election matter”. He also said the January 13 date becomes mere academic exercise as a winner has been declared by the court and consequential orders made withdraw the certificate of return from whoever it was issued in the past and issue a new one to Dr. Okonkwo.
Essentially, this is not a matter of a High Court giving an order contrary to what the Appeal court had ordered. No. These are two different issues argued as pre-election and post-election matters. The two have different levels of importance in the electoral system.