Thursday, June 30, 2016 10:16 pm
By Jiti Ogunye
The Abia State situation is generating a needless controversy.
Following the judgment of Justice Okon Abang of the Federal High Court, sacking Governor Ikpeazu from office, the Independent National Electoral Commission (INEC) has issued a certificate of return to Dr. Uche Ogah.
For sure INEC is mischievous and hasty in issuing the certificate of return. But INEC can rely on section 287 of the Constitution of the Federal Republic of Nigeria to argue that it has done no more than comply with a court order; and that it could only be blamed if it defies a court order.
We will argue that the issuance of a certificate of return to Dr. Ogah, INEC does not immediately confer on him the right to be sworn into office. He will have to wait until the Appeal that is filed against the judgment by Dr. Okezie Ikpeazu is determined. Dr. Ikpeazu filed an appeal after the judgment.
An appeal without more does not operate as a stay of execution. See section 17 Court of Appeal Act. However, when an application for a stay of execution is filed with a Notice of Appeal, it opearates as a stay of execution until the Application is decided one way or the other.
Presuming that an application for stay of execution together with a Notice of Appeal has been filed by Dr. Ikpeazu, the judgment has been stayed to that extent. In any case, section 143(1) of the Electoral Act provides that : ‘ if the election tribunal or the court, as the case may be , determines that a candidate returned as elected was not validly elected, then if notice of appeal against that decision is given within 21 days from the date of the decision , the candidate returned as elected shall, notwithstanding the contrary decision of the election tribunal or the court, remain in office pending the determination of the Appeal”.
Section 143 (2) also provides that the candidate shall remain in office pending the expiration of the period of 21 days within which an appeal may be brought, even though an appeal may not be filed. Although the decision of Justice Abang is a pre- election matter and not an election petition or post election matter, we submit that the provision of Section 143 of the Electoral Act is applicable to the Ikpeazu appeal.
Even if it is argued that Section 143 of the Constitution does not apply, and that the Ikpeazu appeal is not an election appeal but a pre- election appeal, the filing of an appeal and an application for stay of execution of judgment within the three month period for filing an appeal stipulated by the Court of Appeal Act, Volume 4, Cap C 36 , Laws of the Federation of Nigeria, entitles Ikpeazu to remain in office without harrassment and intimidation. This is the rule of law that we know.