The Court of Appeal sitting in Abuja will today hear the motion for stay of execution filled by the embattled Governor of Abia State Dr Okezie Ikpeazu against the judgment of Justice Okon Abang of FHC Abuja which ordered that he should vacate office as Governor. As the case comes up, attached is the Principles guiding the grant of such a stay of execution pending appeal. Read and be Enlightened as I wish them luck. May the best man win at the end.

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At the end of the day.

Ikpeazu is a goner. Methinks he just bought some days,so as to clean as much cash as he can before leaving.

There are some fights you lose from the onset,this is one of those fights.

The Law is on Ogah's side on this.

Let me see anyone type nonsense here.

For me, let the rule of law and the wish of the people prevail.

Please allow me to share my legal opinion via this medium.

The CJ is supposed to swear Ogah in for two reasons:

1. The State High Court lacks powers to halt or suspend a Federal High Court Decision. There is no order for Stay of Execution from the Appeal Court and so there is no reason for her to ignore the action of INEC which she is duty bound to conclude. She is therefore currently in Contempt of a substantive court order.

2. Ogah currently has the certificate of return issued by INEC. Ikpeazu, without such a valid certificate of return now becomes a persona non grata in the governors office and is an inteloper and usurper. The Governor-Elect, Ogah, must be sworn in with immediate effect.

Now to the main issue. Does INEC have the right to issue certificate to Ogah without waiting for an appeal? And why should that be valid?

Fine.

Ogah took three people to court (three defendants); INEC, PDP, and Ikpeazu.

The court said Ogah should have been the governor elect and ruled that he must be immediately sworn in right away.

Out of the three defendants, one decided "I won't appeal, I will agree and obey"..that was INEC.

The other two (Ikpeazu and PDP said they won't agree, they will appeal)

Fine.

But if INEC refuses to appeal, then that judgment is now binding on INEC to invalidate whatever election announcement was made in April 2015 and give it to Ogah. So, INEC, having stopped their own disagreement with the plaintiff, now have every right to comply with the judgment without looking to the Court of Appeal.

Now that Ogah has become the new Governor Elecct. It becomes sensible for Ikpeazu to march to the court of appeal, dragging both OGAH and INEC as Respondents..and even PDP who naturally should also follow INEC in accepting their new candidate...Ogah.

If the CJ refuses to swear the man INEC has now accepted as being anointed, then she is claiming to be loyal to Ikpeazu instead of to whoever has an authentic certificate of return.

Mind you, INEC has every right by law to withdraw a certificate of return from anyone if found to have been in error, and it is your duty to go to court, but that does not invalidate or delay whatever INEC deems fit in the eyes of the law.

The CJ either obeys or risks being petitioned.

Day of judgment loading....

CACAWA:
And why will Lalasticlala not make this an FP material?

Coming I think...

HungerBAD:
At the end of the day.

Ikpeazu is a goner. Methinks he just bought some days,so as to clean as much cash as he can before leaving.

There are some fights you lose from the onset,this is one of those fights.

The Law is on Ogah's side on this.

This case doesn’t look good at all and the embattled Governor knows this and that is why they are trying to buy time to see if a miracle would happen.

See, It was Justice Ogbuagu [JSC] who held thus:-

"It is settled that the fact that an Appellant has wonderful, substantial, impressive and arguable grounds of appeal is not a special circumstance for granting a stay. In other words, it is not every case where grounds of appeal raise point or points of law that Stay of Execution will be granted."

There is nothing cited from the posted recommendations that relates to electoral matters hence I don't see what or how it got to do with depriving the litigant the fruit of his Labour since Uche Ogar is not the only one challenging Dr Ikeazu in court on the same matter hence swearing in Mr Ogar as Abia State Governor is not his exclusive right rather disqualify the Governor from being a candidate is.

Secondly, the tradition where a sitting Governor is allowed to exhaust his right to fair hearing while still on the seat has become the norm hence I am of the opinion the Court of appeal will relate this case with Electoral Law proper since it involves elections and seat of Government.

MadamExcellency:
There is nothing cited from the posted recommendations that relates to electoral matters hence I don't see what or how it got to do with depriving the litigant the fruit of his Labour since Uche Ogar is not the only one challenging Dr Ikeazu in court on the same matter hence swearing in Mr Ogar as Abia State Governor is not his exclusive right rather disqualify the Governor from being a candidate is.

Secondly, the tradition where a sitting Governor is allowed to exhaust his right to fair hearing while still on the seat has become the norm hence I am of the opinion the Court of appeal will relate this case with Electoral Law proper since it involves elections and seat of Government.

Madam this is the general principle for granting a stay in any case at all be it Electoral or whatever. Secondly the right of appeal of the governor mentioned in 143 of the Electoral act does not apply here. Like I argued elsewhere -

Agreed that by virtue of Section 143 of the Electoral Act, where the Election Tribunal or Court, as the case may be, determines that a candidate returned was not validly elected, the invalidly elected candidate shall continue to remain in office pending his appeal and is also entitled to remain in office for a duration of 21 days within which he is to appeal.

This provision does not apply to pre-election cases like the instant case of Abia State. Why? The "Election Tribunal" or "Court" referred to in the preceding paragraph is defined in Section 133 (2) of the Electoral Act to be the Court of Appeal where it sits over Presidential or Governorship election petitions and the election tribunal established by the Constitution or the Electoral Act. This interpretation also applies to Section 141 of the Electoral Act which forbids an Election Tribunal or Court from declaring any person who did not fully participate in all stages of the election as the winner of the election.

Mention should be made that the Federal High Court in Suit No. FHC/ABJ/CS1/2011 between Labour Party and Attorney General of the Federation, delivered on 21st July, 2011 had annulled Section 141 of the Electoral Act 2010 (as amended).

http://www.vanguardngr.com/2011/07/court-rejects-sections-of-2010-electoral-act/

https://www.nairaland.com/2720972/clarification-section-140-2-141

Interestingly, the injunctive orders granted by the Abia State High Court in favour of Ikpeazu were made pursuant to Section 143 of the Electoral Act. With due respect to the judge, the orders are not only legally indefensible but amounts to an affront on the position taken by the Supreme Court on the non-applicability of those provisions to pre-election cases. This is another reason why the said injunction cannot command respect.

Both Sections 141 and 143 of the Electoral Act are not applicable to the Federal High Court, the Court of Appeal and the Supreme Court in pre-election cases. Any doubt on this submission can easily be resolved by reference to the recent landmark decision of the Supreme Court in Jev & Anor v. Iyortom & Ors (2015) LPELR-24420 (SC) where the Apex Court pronounced on the issue in vivid terms.

F

[quote author=Category1 post=47184464][/quote]
The way these governors keep fighting for seats, they are not even fighting for the pple, they are just fighting to put theirselves higher, cos I'm sure that most abians don't even care for who should be in the sit or nah. All they want is good governance.

The way these governors keep fighting for seats, they are not even fighting for the pple, they are just fighting to put theirselves higher, cos I'm sure that most abians don't even care for who should be in the sit or nah. All they want is good governance.

kahal29:


Madam this is the general principle for granting a stay in any case at all be it Electoral or whatever. Secondly the right of appeal of the governor mentioned in 143 of the Electoral act does not apply here. Like I argued elsewhere -

Agreed that by virtue of Section 143 of the Electoral Act, where the Election Tribunal or Court, as the case may be, determines that a candidate returned was not validly elected, the invalidly elected candidate shall continue to remain in office pending his appeal and is also entitled to remain in office for a duration of 21 days within which he is to appeal.

This provision does not apply to pre-election cases like the instant case of Abia State. Why? The "Election Tribunal" or "Court" referred to in the preceding paragraph is defined in Section 133 (2) of the Electoral Act to be the Court of Appeal where it sits over Presidential or Governorship election petitions and the election tribunal established by the Constitution or the Electoral Act. This interpretation also applies to Section 141 of the Electoral Act which forbids an Election Tribunal or Court from declaring any person who did not fully participate in all stages of the election as the winner of the election.

Mention should be made that the Federal High Court in Suit No. FHC/ABJ/CS1/2011 between Labour Party and Attorney General of the Federation, delivered on 21st July, 2011 had annulled Section 141 of the Electoral Act 2010 (as amended).

http://www.vanguardngr.com/2011/07/court-rejects-sections-of-2010-electoral-act/

https://www.nairaland.com/2720972/clarification-section-140-2-141

Interestingly, the injunctive orders granted by the Abia State High Court in favour of Ikpeazu were made pursuant to Section 143 of the Electoral Act. With due respect to the judge, the orders are not only legally indefensible but amounts to an affront on the position taken by the Supreme Court on the non-applicability of those provisions to pre-election cases. This is another reason why the said injunction cannot command respect.

Both Sections 141 and 143 of the Electoral Act are not applicable to the Federal High Court, the Court of Appeal and the Supreme Court in pre-election cases. Any doubt on this submission can easily be resolved by reference to the recent landmark decision of the Supreme Court in Jev & Anor v. Iyortom & Ors (2015) LPELR-24420 (SC) where the Apex Court pronounced on the issue in vivid terms.

You sabi jor! But prof on a lighter note biko ''don't be silly'' o bu nkata ka o bu iwe?

Category1:

The way these governors keep fighting for seats, they are not even fighting for the pple, they are just fighting to put theirselves higher, cos I'm sure that most abians don't even care for who should be in the sit or nah. All they want is good governance.

You are very correct

lionduke:

You sabi jor! But prof on a lighter note biko ''don't be silly'' o bu nkata ka o bu iwe?

Onweghi nke o bu oh but on a lighter note too oh.... I no be Prof oh

We await the verdict of Appeal Court though I must admit that Ikpeazu is on a tight rope

MadamExcellency:
There is nothing cited from the posted recommendations that relates to electoral matters hence I don't see what or how it got to do with depriving the litigant the fruit of his Labour since Uche Ogar is not the only one challenging Dr Ikeazu in court on the same matter hence swearing in Mr Ogar as Abia State Governor is not his exclusive right rather disqualify the Governor from being a candidate is.

Secondly, the tradition where a sitting Governor is allowed to exhaust his right to fair hearing while still on the seat has become the norm hence I am of the opinion the Court of appeal will relate this case with Electoral Law proper since it involves elections and seat of Government.

More on this issue - An interesting case just recently decided comes to mind.


In the case of Jev v. Iyortyom (2014) All FWLR (Pt. 747) 749 @ 758-9, ratio 12, Okoro, J.S.C stated, “The truth of the matter is that the 1st appellant cannot continue to maintain his seat at the House of Representatives, having found his way into House unlawfully…At the same time, the 1st respondent cannot be ordered to be sworn in immediately because section 141 of the Electoral Act, 2010 (as amended), forbids such an order since the 1st respondent did not participate in all stages of the election”.

Similarly, in a later case the same year: Eligwe v. Okpokiri (2015) Vol. 240 LRCN 28 @ 36, ratio 5, Ngwuta, J.S.C stated, “It is contestable to argue that a pre-election matter must abate once the election is held and the winner sworn or that the mere fact that the election had been held and the winner inaugurated as a member of the legislative house for which the election was conducted, the Court has no jurisdiction in the pre-election matter relating to same but that is not the case in view of section 87 (9) of the Electoral Act, 2010 (as amended)…If the 1st Respondent succeeds in the Court below, he would not, thanks to section 141 of the Electoral act, be declared winner of the election in which he did not actually participate. His remedy will have the election declared null and void and a fresh election in which he will contest as his party’s candidate ordered”.


This confusion was finally cleared and laid to rest in the same case of Jev via a subsequent application by the appellant to the Supreme Court after it had earlier decided the appeal to revisit the judgment and amend or set aside its consequential order made pursuant to the provisions of section 141of the Electoral Act, 2010 (as amended).

Okoro, JSC who read the Lead Ruling stated, “But having a closer look at section 141 of the Electoral Act reproduced above, it is clear that the said section refers to courts for which the Supreme Court is not part of…Thus this court not being one of the courts mentioned in Section 133(2) of the Electoral Act is not one of the courts to which section 141 regulates. This is much more so since the issue for consideration was not an election petition appeal but a pre-election matter. In appropriate cases, this court has exercised its power to order successful litigants to be sworn in immediately without the rigour of having to go through another election. The applicant herein should not be an exception. Clearly, the definition of “tribunal or court”does not include the Supreme Court or the Federal High Court hearing and determining pre-election matters”. See (2015) 2 KLR (Pt. 359) 601 @ 611, C-H.

TonyeBarcanista:
We await the verdict of Appeal Court though I must admit that Ikpeazu is on a tight rope

Goodmorn boss

kahal29:


Madam this is the general principle for granting a stay in any case at all be it Electoral or whatever. Secondly the right of appeal of the governor mentioned in 143 of the Electoral act does not apply here. Like I argued elsewhere -

Agreed that by virtue of Section 143 of the Electoral Act, where the Election Tribunal or Court, as the case may be, determines that a candidate returned was not validly elected, the invalidly elected candidate shall continue to remain in office pending his appeal and is also entitled to remain in office for a duration of 21 days within which he is to appeal.

This provision does not apply to pre-election cases like the instant case of Abia State. Why? The "Election Tribunal" or "Court" referred to in the preceding paragraph is defined in Section 133 (2) of the Electoral Act to be the Court of Appeal where it sits over Presidential or Governorship election petitions and the election tribunal established by the Constitution or the Electoral Act. This interpretation also applies to Section 141 of the Electoral Act which forbids an Election Tribunal or Court from declaring any person who did not fully participate in all stages of the election as the winner of the election.

Mention should be made that the Federal High Court in Suit No. FHC/ABJ/CS1/2011 between Labour Party and Attorney General of the Federation, delivered on 21st July, 2011 had annulled Section 141 of the Electoral Act 2010 (as amended).

http://www.vanguardngr.com/2011/07/court-rejects-sections-of-2010-electoral-act/

https://www.nairaland.com/2720972/clarification-section-140-2-141

Interestingly, the injunctive orders granted by the Abia State High Court in favour of Ikpeazu were made pursuant to Section 143 of the Electoral Act. With due respect to the judge, the orders are not only legally indefensible but amounts to an affront on the position taken by the Supreme Court on the non-applicability of those provisions to pre-election cases. This is another reason why the said injunction cannot command respect.

Both Sections 141 and 143 of the Electoral Act are not applicable to the Federal High Court, the Court of Appeal and the Supreme Court in pre-election cases. Any doubt on this submission can easily be resolved by reference to the recent landmark decision of the Supreme Court in Jev & Anor v. Iyortom & Ors (2015) LPELR-24420 (SC) where the Apex Court pronounced on the issue in vivid terms.

Come to think of it, what were the prayers of Uche Ogar at the High Court because I know for a certainty that he rejected the PDP primaries and stormed out of the venue and moreover, he wasn't alone in calling for Dr Ikeazu's disqualification hence he demanded for a rerun and never that he be declared winner.

What I am saying is that the fruit of Labour of the successful litigant as cited is not being sworn in as a governor rather repeat of the primary election as it is obvious that the judgment given by the Judge was obviously flawed.

I don't believe that any sitting Governor can be removed from office while he fights for a comeback from outside except on impeachment. There is no precedence to that effect and I believe the High court is not in a position to set such hence the Appeal Court may and will grant the stay of execution today.

MadamExcellency:


Come to think of it, what were the prayers of Uche Ogar at the High Court because I know for a certainty that he rejected the PDP primaries and stormed out of the venue and moreover, he wasn't alone in calling for Dr Ikeazu's disqualification hence he demanded for a rerun and never that he be declared winner.

What I am saying is that the fruit of Labour of the successful litigant as cited is not being sworn in as a governor rather repeat of the primary election as it is obvious that the judgment given by the Judge was obviously flawed.

Madam, can't expressly state them now BUT one thing I know for sure is that the court would not grant him what he did not ask for.

Lalasticlala.... Front page oh. It's worth it

kahal29:


Madam, can't expressly state them now BUT one thing I know for sure is that the court would not grant him what he did not ask for.

Salami did that as Appeal Court judge granting both Fayemi and Aregbesola what they never expressly asked for hence the amendment to extend the Governorship election litigation to Supreme court.

I believe this judgement has gone beyond judicial interpretation to a political undertone in the presidency where the peace of Abia State is secured by the statuesque and justice is seen to be served and rule of law followed by allowing the Supreme court to make the ultimate decision after Dr Ikpeazu has exhausted all available options according to our laws - His right to appeal while maintaining his seat as the governor.

kahal29:

Goodmorn boss

Morning bro, you are doing a nice intellectual job my learned boss.

MadamExcellency:


Salami did that as Appeal Court judge granting both Fayemi and Aregbesola what they never expressly asked for hence the amendment to pushed the Governorship election litigation to Supreme court.

I believe this judgement has gone beyond judicial interpretation to a political undertone in the presidency where the peace of Abia State is secured by the statuesque and justice is seen to be served and rule of law followed by allowing the Supreme court to make the ultimate decision after Dr Ikpeazu has exhausted all available options according to our laws - His right to appeal while maintaining his seat as the governor.

In 2007, Amaechi never expressly asked to be declared winner and sworn in, the SC(where he won)in their discretion ruled to that effect.



I think we all should wait for the CoA today and come back to discuss after a new development.

TonyeBarcanista:
We await the verdict of Appeal Court though I must admit that Ikpeazu is on a tight rope

My brother, there is no tight rope here. No way the law can be twisted to favour ikpeazu as this is a pre election matters.

Similar cases like this have been decided by the supreme court.

Moreso the justice of the Appeal court to whom the matter was assigned to has ruled severally in similar cases to favour the Respondents.

I see ikpeazu vacating office today and subsequently he will be arreted to face a case of forgery.

One would have expected ikpeazu to honourable hand over to Uche Ogah and seal a deal with him not to allow him arrested.

I see ikpeazu ending up in jail.

kahal29:


Madam, can't expressly state them now BUT one thing I know for sure is that the court would not grant him what he did not ask for.

Check well brother, Courts have done that repeatedly....

For instance, Amaechi Vs Omehia/PDP/INEC 2007

In my opinion, the reason behind the judgement is because since it is believed that the party has won the election and no provision for a Primary after the main election had been concluded, the Justices expressly award litigants beyond their prayers after proving his case that the defendant was unqualified in the first instance being that the supposed runner up(litigant) becomes the legitimate candidate.

TonyeBarcanista:

In 2007, Amaechi never expressly asked to be declared winner and sworn in, the SC(where he won)in their discretion ruled to that effect.



I think we all should wait for the CoA today and come back to discuss after a new development.

The perception that the judgement was wrong elicited the amendment to Amaechi's case.

If the judgement was as clear as we are meant to believe, the Security details of the Governor would've been withdrawn by now without a second thought after the cancellation of his certificate of return by the INEC.

As we await the Appeal Court decision today, I believe this issue will drag on to supreme court because diplomacy involved in keeping the peace in Abia State is being considered.

franchizy:


My brother, there is no tight rope here. No way the law can be twisted to favour ikpeazu as this is a pre election matters.

Similar cases like this have been decided by the supreme court.

Moreso the justice of the Appeal court to whom the matter was assigned to has ruled severally in similar cases to favour the Respondents.

I see ikpeazu vacating office today and subsequently he will be arrested to face a case of forgery.

One would have expected ikpeazu to honourable hand over to Uche Ogah and seal a deal with him not to allow him arrested.

I see ikpeazu ending up in jail.

I have chosen to remain a neutral party in this drama but awaiting the pronouncement of CoA today.

MadamExcellency:


The perception that the judgement was wrong elicited the amendment to Amaechi's case.

If the judgement was as clear as we are meant to believe, the Security details of the Governor would've been withdrawn by now without a second thought after the cancellation of his certificate of return by the INEC.

As we await the Appeal Court decision today, I believe this issue will drag on to supreme court because diplomacy involved in keeping the peace in Abia State is being considered.

Well rightly or wrongly, the verdict of the SC becomes an authority except the same SC reverse itself.

The issue whether the Appellate court will grant stay of execution is what is on ground, and that would be determined today.


Let's chill

TonyeBarcanista:

Morning bro, you are doing a nice intellectual job my learned boss.

Lol

TonyeBarcanista:

I have chosen to remain a neutral party in this drama but awaiting the pronouncement of CoA today.

Same neutrality is what I am adopting with a little bit of diplomacy where the peace in Abia State is maintained and the tribal division is not widened beyond reconciliation and this is achievable if the supreme court is the one to sack Dr Ikpeazu after he has exhausted his right of fair hearing.

Regards.