By Anayo Okoli, Ikechukwu Nnochiri & Francis Igata
ABUJA—Respite came the way of Governor Okezie Ikpeazu of Abia State, yesterday, as the Court of Appeal, sitting in Abuja voided the high court judgment that sacked him from office.
In a unanimous decision, a five-man panel of Justices of the appellate court, led by Justice Morenike Ogunwumiju, vacated the June 27 verdict of Justice Okon Abang of the Federal High Court in Abuja.
The court further knocked Justice Abang, who it said “stood the law on its head”, as well as adopted a “hostile proceeding” against Ikpeazu and the Peoples Democratic Party, PDP.
The appellate court noted that allegation of forgery and tax evasion levelled against Ikpeazu by Mr. Sampson Ogah were “very contentious”, saying Justice Abang was wrong to have determined the case on the basis of an Originating Process instead of Writ of Summons.
It said that Justice Abang “spoke from two sides of his mouth”, when in one breadth, he said that the case before him bordered on Ikpeazu’s submission of forged tax certificate, and on another breadth, insisted that he was invited to try a forgery case.
“You cannot say that a document is forged and still say that the matter is different from making a forged document under the criminal code”.
The appellate court stressed that though Justice Abang said the case was not about forgery but submission of false information in Form CF001, he still went ahead and found Ikpeazu guilty of perjury.
It said that perjury, being a criminal offence, was required to be proved beyond every reasonable doubt.
Justice Ogunwumiju, who delivered the lead judgement, held that the burden was on Ogah to substantiate his allegation against Ikpeazu.
The court observed that Ogah’s contention was not that Ikpeazu did not pay his tax, but that the tax papers given to him by the tax office in Abia State were forged.
It, however, wondered why Justice Abang refused to listen to one Mr. James Okojie, who is a Director in Abia State Board of Internal Revenue Service, whose evidence, it said, would have been subjected to cross-examination.
The appellate court, while noting that the taxes of public officers were withdrawn from source, said it would have been a valid argument if there was proof that Ikpeazu, being a public officer, operated a viable business but failed to properly pay his tax.
“If the learned trial judge cannot understand how civil servants present their tax clearance certificates, does not mean that they are forged?”, Justice Ogunwumiju queried.
Besides, the court noted that there was nowhere in 2014 Guidelines of the PDP that it was provided that one of the qualifications for every aspirant was payment of tax “as at when due”, saying the phrase was imported by Justice Abang from “the figment of his imagination”.
The appellate court said the lower court judgment, if allowed, would amount to “rape on democracy”, adding, “that certainly cannot be justice”.
It said the trial judge “sat in the comfort of his chamber” and made findings that could not be supported by evidence.
“I found with the greatest respect, the reasoning of the trial learned judge ridiculous. How does the submission of tax papers on a Saturday, under section 31(5) of th Electoral Act, amount to forgery? For crying out loud, must we trivialise everything?” Justice Ogunwumiju queried.
She said that having appraised the tax papers Ikpeazu submitted, “I did not see anything spectacular or irregular in it I cannot see my way to agree that the tax papers submitted by the 1st respondent is irregular or ipso facto forged”.
Besides, the court maintained that though tax evasion was a criminal offence, it was not a ground for the disqualification of a candidate that had not been convicted.
Abang’s violence against justice
“His Lordship committed a grave violence against one of the pillars of Justice which is audi alteram partem”(fair hearing), the appellate court held.
Relying on section 131(1) (2) of the Electoral Act, the court said only when election had been challenged at tribunal and annulled that Certificate of Return could be retrieved.
It cited the case of Ameachi vs INEC, saying the Supreme Court only ordered that Ameachi should be sworn in and not issued a fresh Certificate of Return.
“The Judgement of Okon Abang J. is hereby set aside, the order made therein is also set aside. The cost of N100, 000 is hereby awarded against the 1st respondent”, Justice Ogunwumiju held.
In his concurring verdict, Justice Abubakar Yahaya held: “From whatever angle the issue is looked at, the decision of the trial court is grossly erroneous”.
Earlier, the court also berated Justice Abang over his refusal to stay the execution of the judgment against Ikpeazu even when he was notified that an appeal had been lodged against it.
The appeal court panel nullified the ruling Abang delivered on July 8, saying that he over-reached his powers by wrongly interpreting the Appeal Court Rules.
Ikpeazu had in his first appeal marked CS/S/390B/2016, urged the appellate court to determine whether Justice Abang was right to have proceeded with the ruling when he was fully aware that the appellate court was already seized of facts of the case.
He argued that Justice Abang was wrong to have gone ahead to interpret Order 4 Rules 10 & 11 of the Court of Appeal Act, after the record of appeal had been duly transmitted to the higher court.
He maintained that the lower court ought to have suspended proceedings before it to abide by decision of the appellate court.
In a unanimous decision, the appellate court panel faulted Justice Abang for not according due respect to judicial hierarchy, saying he refused to tow the line of laid down precedents.
According to Justice Philomena Ekpe, who delivered the lead verdict: “It appears the lower court made somersault of the law. Once an appeal has been entered, there is indeed nothing to be heard or determined once the record of appeal has been transmitted.
“The lower court had no jurisdiction or business to interpret the rules of a high court when the rules are clear and unambiguous. I am in agreement with argument of learned counsel to the appellant that the trial lower court judge acted ultra-vires his powers”.
The appellate court held that Justice Abang abused his powers when he refused to hands-off the matter for the higher court.
It allowed Ikpeazu’s appeal and also awarded N100, 000 against Ogah.
Similarly, the court dismissed as lacking in merit, contention by another governorship aspirant of the PDP, Mr. Friday Nwosu that he should be sworn in to replace Governor Ikpeazu.
Nwosu had argued in his appeal that Ogah ought not to benefit from the December 8, 2014, primary election of the PDP since he publicly condemned the exercise which he said was rigged in favour of Ikpeazu.
Besides, Nwosu, who came fourth at the said primary election, argued that since Ogah, who emerged second, refused to sign the result, the high court ought to have declared him as the bona-fide replacement for governor Ikpeazu.
However, in a unanimous judgment, the appellate court dismissed Nwosu’s appeal, even as it awarded N100, 000 against him but in favour of Ogah.
The court held that any person that participated in a primary election of a political party has the locus-standi to reject or challenge the outcome of such exercise, saying “there are various means of protest”.
It held that Ogah’s protest against the nomination of Ikpeazu as flag bearer of the PDP in Abia state did not rob him of his legal right under section 87(a) of the Electoral Act.
In another judgment, the appellate court held that Justice Abang was wrong to have assumed jurisdiction to entertain suit that was filed against Ikpeazu by two PDP members in Abia state, Obasi Uba Ekagbara and Chukwuemeka Mba.
Justice Abang had in a separate judgment on June 27, sacked Ikpeazu on the basis of the plaintiffs’ suit.
The duo had argued that Ikpeazu was not qualified to become governor considering that he submitted false information in his tax papers.
However, the appellate court, in a lead judgment by Justice Bidiya Shata, held that the originating summons the plaintiffs lodged before the lower court was ab-initio null and void, stressing that it was signed in a manner not known to law.
The appellate court said the originating processes were not signed by any identifiable legal practitioner, saying “the court below lacked jurisdiction to entertain the case”.
The court said it was “an unfortunate situation” that Justice Abang, while ruling on preliminary motions, made comments that touched on merit of the substantive suit, an action it said was in breach of the constitutional provision for fair hearing.
It held that Ikpeazu was denied fair hearing by the lower court and accordingly set-aside the June 27 judgment, just as it also awarded N100, 000 cost against both Ekagbara and Mba.
Aside Ikpeazu, the court also allowed appeal the PDP filed against the judgment, even as it also awarded another cost of N100, 000 against the two respondents.
Abang’s sack of Ikpeazu
Trial Justice Okon Abang had on June 27, ordered Ikpeazu to immediately vacate the governorship seat, even as he directed the Independent National Electoral Commission, INEC, to issue fresh Certificate of Return to Mr. Sampson Ogah, who came second in the gubernatorial primary election of the PDP, conducted in Abia State on December 8, 2014.
Justice Abang said he was satisfied that Ikpeazu perjured by giving false information in the Form CF001 and documents accompanying it, which he submitted to both PDP and the INEC.
However, Ikpeazu, through his team of lawyers led by Chief Wole Olanipekun, SAN, challenged the judgment, contending that the only power, authority and order exercisable by the trial court was to disqualify a candidate from contesting election based on section 31(6) of the Electoral Act 2010.
Ikpeazu faulted Justice Abang for arriving at the conclusion that he did not pay his tax for the years 2011, 2012 and 2013, as at when due.
He said the high court judge got it wrong considering that he was a public officer whose tax deduction was under Pay As You Earn (PAYE) scheme, where tax deductions were from the source of his monthly salary by the tax authorities, who issued all the tax receipts and certificates.
Ikpeazu told the appellate court that Abia State Board of Internal Revenue Services that issued tax certificates to him had not declared the certificates forged.
He maintained that trial Justice Abang violated his right to fair hearing by embarking on judicial investigation without granting him the opportunity to address the court on the issue.
He argued that the judge had no duty to investigate contents of documents that were merely dumped on the court by the plaintiff.
Ikpeazu also rejected decision of the high court that he was not qualified to be nominated at the primary election that was conducted by the PDP, because he supplied false information to INEC.
He told the appellate court that INEC Form CF001, which the judge relied on, was not one of the grounds of qualification to contest the primary election of PDP.
Meanwhile, Ogah, through his lawyer, Dr. Alex Iziyon, SAN, prayed the appellate court to dismiss all the appeals and affirm the trial court judgment.
Iziyon stressed that PDP had at the lower court, admitted that it submitted Ikpeazu’s tax papers to INEC in error.
He argued that issue of payment of tax as at when due was immaterial since information on the tax document itself was false.
Ogah further accused Ikpeazu of abusing judicial process by taking the subject matter of the case before an Abia State High Court despite the pendency of his appeal.
Ikpeazu, PDP react
Governor Ikpeazu in his reaction to yesterday’s victory, said the judgment would energize him for more service to the people.
Speaking to journalists at Government House, Umuahia, shortly after receiving report of the judgment, Ikpeazu expressed joy that his mandate had been restored by the Appeal Court.
“The news ahead of us is a wonderful one. Our mandate has been affirmed by the Appeal Court, Abuja. We will be reinvigorated in our service to Ndi Abia.”
Flanked by his Deputy, Chief Ude Okochukwu and Speaker of the State House of Assembly, Mr. Martins Azubuike; Governor Ikpeazu commended the judiciary for restoring his mandate and “those who prayed and are still praying for the victory.”
In his remarks, PDP BOT chairman, Senator Wakil Jubril, said the party hierarchy was confident that the governor would win the case and expressed the confidence that Ikpeazu would govern Abia well.
Jubril, who was leading the entire BoT members to the burial of late Ojo Maduekwe in Ohafia, said the victory was long expected, pointing out that they never expected in their mind that Ikpeazu would lose as, according to him, the party has made up its mind to put him as the party’s candidate in the state.