The Proper Perspective And The Legality Of IKPEAZU’S Continued Stay In Office As Governor Of Abia State By O. O. NKUME

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I read with curiosity the thwarted and warped perspective of Festus Keyamo Esq., in respect of the above subject matter published in several dailies including the Nation Newspaper of Thursday July 14, 2016 at Pages 40 — 41, and became constrained to refute same herein with a view to stating the Proper Perspective and the Legality of Dr. Ikpeazu’s continued stay in office as the Governor of Abia State from the point of view of the factual situation, the present position and the state of the law.

1. ON DR. IKPEAZU’S TAX CLEARANCECERTIFICATE VIS-A-VIS JUDGEMENT OF THE FEDERAL HIGH COURT, ABUJA/FEDERAL HIGHCOURT, OWERRI:

In the First Instance, Festus Keyamo’s exposition was a deliberate misrepresentation and misstatement of the factual situation and not borne out of the scrutiny of the Judgement of the Federal High Court, Abuja in Suit No:FHCJABJ/CS/71/2016 — Dr. Sampson UchechukwuOgah Vs P.D.P & 3 Or. by Mr. Keyamo in that, to state that the case was that, Dr. Okezie Victor Ikpeazu apparently rushed to pay all his backlog of taxes just before the elections, sworn to false affidavit and supplied false information that he paid his taxes “AS AT AND WHEN DUE” resulting in the Nullification of his candidature, is intended to mislead the gullible public and weep up baseless sentiments in the matter.

(i) ​THE PROPER PERSPECTIVE:

It is obvious that there was an intentional concealment and suppression of material facts by Mr. Keyamo, but the indisputable fact and the common knowledge even in the Public Domain is that, Dr. Okezie Victor Ikpeazuhad not less than a period of 4 years prior to the primary election of the PDP in issue, been a Public Servant in Abia State as General Manager of ASPIMS and Deputy General Manager of ASEPA respectively (which fact has not been disputed in any quarters) and by that proven fact his taxation comes under Pay As You Earn “PAYE” which is deducted at source by the employer every month during payment of monthly salary, and remitted to the Abia State Board of Internal Revenue in which case, there cannot be any backlog of taxes which Dr. Okezie Victor Ikpeazu will rush to pay before the elections except to apply for his Tax Clearance Certificate for a period of 3 years proceeding the election from the Tax Body who duly issued same and has by a sworn affidavit and in the media owned up to the issuance of same and stated that there was no forgery or falsification of the Tax Clearance Certificate furnished by Dr. Okezie Victor Ikpeazu to the INEC on the basis of which the Federal High Court sitting at Owerri vindicated the Governor by dismissing the Suit of Friday N. Nwosu against Dr. Okezie Victor Ikpeazuin Suit No: FHC/OW/191/2015 — Friday N. NwosuVs. P.D.P & 3 Ors. and affirming that Dr. Ikpeazu’sremains the Governor of Abia State which is the latest Court’s decision on the vexed tax issue.

(ii) ​THE LEGAL PERSPECTIVE:

a. By the State of the Law, the maker of tax clearance certificate in question or issue, that is, the Abia State Board of Internal Revenue having not disowned the document as forgery or falsified and having owned up the genuineness of the said tax certificate, the authenticity remains unassailable and unimpeachable and any decision, inference, assertion or opinion to the contrary remains on realms of conjecture and amounts to a mere speculation without any Standing in Law.

b. By the State of the Law, where two Court’s of Cordinates Jurisdiction give a conflicting decision on a particular Issue as in the instant case, the decision of the Federal High Court, Abuja in Suit No:FHC/ABJ/CS/71/2016 — Dr. Sampson Uchechukwu Ogah Vs. P.D.P & 3 Ors. and the Federal High Court, Owerri in Suit No:FHC/OW/191/2015 — Friday N. Nwosu Vs. P.D.P & 3 Ors. wherein the Federal High Court, Abuja on the 27/6/2016 decided that there was falsification of tax document of Dr. Okezie Victor Ikpeazu and ordered his vacation from office and before execution of the Judgment, the Federal High Court, Owerri on the same set of facts and parties including Dr. Ogahon the 8th day of July, 2016 decided that there was no forgery or falsification of Tax document of Dr. Ikpeazu and that Dr. Ikpeazu remains the Governor of Abia State, the Legal position is that “the later in time prevails” that is the Judgement of Federal High Court, Owerri becomes the over-riding and grounds the Legality of Dr. Ikpeazu’s continued stay in office as Governor of Abia State until an Appellate Court resolves the conflicting decision, in which case, bothparties are duty bound to await the outcome of the decisions of the Appellate Courts or Court of last instance in this case as opined by the Learned Attorney General of the Federation in the whole conundrum.

2. ON OGAH’S CERTIFICATE OF RETURN:

In the Second Instance, Mr. Keyamo stated “albeit wrongly” on why Dr. Okezie Victor Ikpeazu must step down immediately as Governor of Abia State, that “it would have been permissible for Dr. Okezie Victor Ikpeazuto continue in office as Governor of Abia State pending the outcome of the Appeal despite the Judgement of the Federal High Court (and the nullification of his Certificate of Return) if Dr. Sampson Uchechukwu Ogah had not been issued a Certificate of Return Instantly”.

(i)​THE PROPER PERSPECTIVE:

a. Dr. Ogah was not issued a Certificate of Return Instantly but 3 days after the Judgement and after Dr. Ikpeazu had filed a Notice of Appeal and served same on the parties as Unequivocally, admitted by the parties including “INEC” publicly in media chart on AlT on Tuesday the 5th day of July, 2016.

b. The Judgement was delivered on the 27th day of June, 2016, Dr. Ikpeazu filed an Appeal on the 28th day of June, 2016 and served same on the parties and INEC on the 29th day of June, 2016 and INEC through its Staff one Saleh N. Ibrahim received same and acknowledged the receipt with INEC stamp on 29/6/2016 yet thereafter on the 30th day of June, 2016, INEC went ahead to issue Certificate of Return without any consideration or reference to Dr. Ikpeazu’s Appeal.

c. INEC’s hurried act of Issuance of Certificate of Return to Dr. Ogah after the receipt of the Notice of Appeal and Motion for Stay of Execution, apart from been despicable was apparently done in pursuance of conspiracy to execute a civilian coup de etat to unsitDr. Ikpeazu without due process of law and the said aborted coup Ignited the whole confusion and Quagmire in Abia State over the Governorship seat.

(ii) ​THE LEGAL PERSPECTIVE:

a. By the Issuance of the Certificate of return by INEC to Ogah both of whom are parties to the Suit after the knowledge and service of the Notice of Appeal in the circumstance of this matter, INEC and Dr., Ogah set out to stultify the Constitutional Right of Appeal of Dr. Ikpeazu and its prosecution and attempted to present the Appellate Court with a fait accompli which act amounts to an abuse of court process, a nullity and of no legal consequence as was decided by the Supreme Court in the case of Julius Berger (Nig.) Plc. Vs. T.R. Comm. Bank (2007) 1 NWLR (PT. 1016) 540 at 550 Paras C — D, where the Apex Court in a similar circumstance decided that;

“An appeal is a constitutional right, and its prosecution must not be stultified by the trial court or by any of the litigants. Therefore, to attempt to present the appellate court with faitaccompli, by pulling the carpet from off its feet would be an abuse of court process. Such an act would be a nullity and of no legal consequence.”

b. There was no Order for the Nullification of the Certificate of Return of Dr. Okezie Victor Ikpeazu (as wrongly stated by Keyamo) in the entire length and breath of the Judgement of the Federal High Court, Abuja and in particular, there was no Consequential Order for the swearing in of Dr. Ogah in the said Judgement which by my unassailable opinion means that Dr. Ogah’s Certificate of Return should remain in abeyance or limbo until an Order of Court nullifying the Certificate of Return duly Issued to Dr. Ikpeazuand an Order for the Swearing in of Dr. Ogah is made which lacunae can not be presumed or read into the Order of the Federal High Court, Abuja to effect the swearing in of Dr. Ogah when there is a sitting Governor with a Certificate of Return and who had been sworn in and taken an oath of office and oath of allegiance.

c. My aforesaid position is justified by the decision of the Supreme Court in the case of Jev. Vs. lyortom(2015) 15 NWLR (PT. 1483) 484 at 514, Para E in a similar circumstance where there was a sitting member of the Federal House who lost at the Court of Last instance and the Supreme Court held thus:

“It follows therefore that the proper consequential order which meets the justice of the case in the circumstances is one which directs INEC to Issue a Certificate of return to the 1stRespondent/Applicant forthwith and that the applicant be sworn in as a member of the Federal House of Representatives forthwith.”(Underlining mine for emphasis)

d. It is against this background, that the Suit pending before Justice Ahuchaogu on the issue of swearing in of Dr. Ogah not covered by the Judgement of the Federal High Court, Abuja is not a non-sequitor and the Interim Order of Justice Ahuchaogu of the High Court of Abia State restraining the Chief Judge of Abia State or any other Judicial Officer from swearing in Dr. Ogah should be applauded notwithstanding the Issuance of certificate of return in order to keep matters to Status quo pending the outcome of the Suit and the decisions of the Appellate Courts in the matter contrary to the contention of Mr. Keyamo without any legal basis.

3.​ON WHY DR. OKEZIE VICTOR IKPEAZU SHOULD REMAIN IN OFFICE AS GOVERNOR OF ABIA STATE AND NOT STEP DOWN IMMEDIATELY NOTWITHSTANDING INEC’S ISSUANCE OF CERTIFICATE OF RETURN TO DR. OGAH:

i. Dr. Okezie Victor Ikpeazu is a sitting Governor whose appeal against a decision affecting his office has been entered at the Court of Appeal and is pending at the Appellate Court with also a pending Motion for Stay of Execution of the Judgment which is unexecuted particularly with respect to Order for the vacation of office of the Governor by Dr. Ikpeazu and the swearing in of Dr. Ogah which demand that matters remain in Status quo while the parties do not take any further step that will stultify Dr. Ikpeazu’sConstitutional right to appeal and its prosecution or foist on the Appellate Court a fait accompli by attempting or shopping for a Judicial officer or Forum to swear in Dr. Ogahwithout any court order while Dr. Ikpeazu’sAppeal had not been determined in accordance with due process of law.

ii. Dr. Ikpeazu remains in office as the Governor of Abia State by law until the Appeal is determined because in the eyes of the law an appeal is a continuation of a matter instituted in a Court of law and when a matter is continuing in Court, it is sub-judice and caught up with the doctrine of li-pendis, which in effect means and implies that the parties to the pending suits are duty bound not to interfere with the subject matter in litigation as same will amount to contempt of court and that the existing rights of parties during the period of litigation are not transferrable.

iii. The Judgement of the Federal High Court, Abuja exhibits a big Lacunae without a consequential order for the swearing in of Dr. Ogah which can not be filled by public opinion or anybody or authority except by the Appellate Court and which makes it illegal to swear Dr. Ogah in without an enabling Order of Court in the face of a sitting Governor or in the circumstances.

iiii. There is a Subsisting Order of the High Court of Justice, Osisioma, Abia State restraining the Chief Judge of Abia State, any other Judge or Judicial officer from swearing in Dr. Ogah pending the determination of the Motion on Notice in the Suit which had not been set aside.

v. ​Dr. Ogah can not assume office of Governor of AbiaState while Dr. Ikpeazu remains in office as the Governor of Abia State until the machinery of Justice runs to in ultimate end with the exhaustion of the exercise, of the parties’ constitutional right of appeal in a Pre-election matter which terminates at the Apex or Supreme Court of Nigeria.

Therefore, the above is the scenario we have now in Abia State Governorship seat.

LET THE WHOLE WORLD know it today that Dr. OkezieVictor Ikpeazu is operating Legally and Lawfully as Governor of Abia State arid all his actions, orders and anything done in that capacity are valid, effectual and effective in law.

Dr. Ogah is not entitled to be sworn in immediately as the Governor of Abia State in the face of the restraining Order against his swearing in and until the determination of Dr. Ikpeazu’s Appeal which had been entered at the Court of Appeal now seised of the whole matter including the unexecuted judgement, and anything to the contrary, will not amount to a breach of rule of law but result to break-down of law and order, jeopardize the prevailing peace and tranquilityexisting in Abia State and endanger the life and property of the citizenry.

Thank You.

O. O. NKUME ESQ.,
(Legal Consultant)


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