An Appeal Court in Abuja, Nigeria’s capital city, has ruled that the removal of the Abia State Governor, Mr Okezie Ikpeazu, by a lower court was null and void.
The court on Thursday set aside the judgement of Justice Okon Abang of the Federal High Court, sacking Mr Ikpeazu over allegations of poor documentation.
In the lead judgement read by Justice Ibrahim Bdliya the Appeal Court insisted that the lower court lacked jurisdiction to hear the case and that any decision that flowed from it was null and void.
The five-man panel stressed that the law has laid down principles by which a case could be instituted.
Explaining that the process was wrong, Justice Bdilya said that on the motion which led to the appeal, three people indicated themselves as lawyers and signed the document while the law says only an identifiable legal practitioner can do so.
He added that it was not the business of the court to embark on a voyage of helping a litigant decide who filed his case.
Justice Bdilya said:”As such, the lower court erred in its deciding for the litigants,” he insisted.
“To this end the lower court lacked the jurisdiction to adjudicate on the matter because the initiation process of the suit was not properly done.
“Therefore any decision taken by it flowing from that suit is null and void”.
The Appeal Court ruled on three out of six appeals filed by the Peoples Democratic Party, under which Governor Ipeakzu won the governorship election.
According to the court, the issues are identical and as such it adopts the ruling of the previous judgement.
While reading the decision of the court, Justice Bdliya insisted that the evidence raised by the faulty originating summons could not have been easily resolved because they were contentious and hostile.
He said that an amendment could not have cured a faulty originating summons.
Explaining the court’s decision further he said that the orders made by the lower court could only be valid if the two issues raised were already decided to be valid.
“The lower trial judge was not right in his findings and decisions,” he insisted.
On whether the lower court delved into the main issue in deciding an interlocutory injunction, the Appeal Court said it was imperative to examine the record of the appeal.
The Justice also said that his findings showed that the outcome of the case would definitely affect the mind of the High Court Judge when he eventually goes to the main suit because he had taken a stand on the tax document submitted to inec to be faulty.
“A judge is expected not to take any position on any issues in the main suit because doing so will prejudice the main suit,” Justice Bdliya explained.
He further told the court that the burden of proof laid on the Governor who was the fourth respondent in the appeal to prove that what he submitted to the Independent National Electoral Commission as tax document was not faulty.
This, he said was because “it is he who alleges that should prove”.
“The issue of tax clearance which puts the burden of proof on the Governor on the tax issues, was not an issue, with regards to a civil servant or public officers whose tax is deducted at source and of which the first respondent was one.
his tax income will be assessed by the tax office.
“I do not agree with the trial judge that it is the second respondent that is the governor that supplied the information to the tax office.
“That would have been true if he had a private business on the side, for which he would have been required by law to declare to the tax office.
“But as a civil servant his tax is deducted at source and imputed by the tax office.
“If the trial judge cannot understand how civil servants tax clearance works he ought to have sought clarifications,” he stressed.
A Golden Opportunity
Explaining further, he pointed out that he could not agree that the tax documents submitted were irregular and false.
“The challenge in the originating summons in relation to tax clearance is not any where near the narrow view envisaged by the Electoral Act.
“There is no allegation of non-payment of tax but that the documentation was false. I therefore resolve this ground in favour of the pdp.
“It is my view that the judge committed a great injustice to the rules of natural justice by not listening to all sides In the case.
“By not listening to the Chief tax officer in defence of the Governor he had shut out their opportunity to defend themselves.
“By failing to consider the application of one James Okeji, a director in the Abia State tax office and on the other hand saying that it was an afterthought, the High Court Judge missed a golden opportunity to give all sides opportunity, thereby abandoning his training as a judge,” the Appeal Court held.
It also held that that except a person had participated in an election that he would not be issued a certificate of return and not that could not be decided by a court.
“That is why in the case of Rotimi Amechi the Supreme Court ordered that he should be sworn in and not issued a certificate of return.
“There is a laid down proceedings as to how a certificate of return should be issued to a person,” the Justice held.
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