Legal Nigeria

Appeal Court reverses Ikpeazu's sack

The Court of Appeal in Abuja yesterday reversed the sack of Abia State Governor Victor Okezie Ikpeazu by a Federal High Court 52 days ago.
Last June 27, Justice Okon Abang of the Federal High Court, Abuja, had in two judgements on suits by Sampson Ogah and Obasi Ekeagbala, voided Ikpeazu’s election because he made false claims in his tax documents submitted to the Independent National Electoral Commission (INEC).
In four of the six separate judgements delivered, a five-man panel led by Justice Helen Moronkeji Ogunwumiju unanimously set aside the judgments because Abang’s findings and conclusions were wrong.
The appellate court held that the judge’s findings resulted “in miscarriage of justice.”
It reversed all the orders Abang made, including Ikpeazu’s sack and the issuance of Certificate of Return to Ogah by INEC.
The four appeals were filed by Ikpeazu and PDP against the two judgements of the Federal High Court, Abuja. The appeals were marked CA/A/406/2016, CA/A/406A CA/A/390C/2016 and CA/A/390D/2016
The court delivered judgments on six appeals including a third appeal by Ikpeazu against a July 8 ruling by the high court and an appeal by an aspirant in the 2014 primary of the PDP in Abia State, Friday Nwosu. The court dismissed Nwosu’s appeal for lacking in merit and awarded N100,000 cost against him.
In her lead judgment in the appeal marked CA/A/390/2016 brought by Ikpeazu against the judgment in Ogah’s case, Justice Ogunwumiju resolved five of the issues for determination in the governor’s favour.
“It seems clear to me that by the very nature of issues and facts posed to the learned trial judge, made it imperative for him to have set the case down for hearing by way of originating summons.
“The learned trial judge engaged in quasi justice by reconciling several pages of affidavit and counter-affidavits. The parties had no issues on the provisions of Article 4(a) in Part 4 of the Peoples Democratic Party (PDP) guideline, which speaks for itself. The parties were not even quarrelling about the interpretation of Section 87(4)(b)(1) of the Electoral Act, which also speaks for itself”.
The justice said the only area of divergence between the parties was whether or not the tax documents submitted by Ikpeazu were false or contained false information, adding that the  judge “ought to have ordered pleadings in this case.”
Justice Ogunwumiju, who noted that the court would have dismissed the appeal having held that the high court lacked jurisdiction to hear the case because it was wrongly started, said it elected to consider all issues raised since it was not the last court.
She faulted Abang for relying on the PDP guideline 2014 as the basis for resolving the question in controversy and for disqualifying Ikpeazu when the guideline was not exhibited by the plaintiff, by attaching it to the originating summons.
The justice noted that if the plaintiff had exhibited the PDP guideline, Abang would not have been misled into reading the phrase “ as at when due” to the provision of the guideline which simply said that a candidate must provide “evidence of tax payment”.
“The problem that has occurred here is that the learned trial judge imported the phrase ‘as at when due’ into the 2014 guideline, whereas it was absent on it (the guideline). Perhaps, if the strict letters of the law had been obeyed by the attachment of the PDP guideline, the learned trial judge would know precisely the section of the guideline he was trying to enforce so that there will not be unnecessary importation of the words that were not in the guideline,” she said.
She held that although the first respondent (Ogah was right to have challenged what he perceived as a violation of the PDP guideline by Ikpeazu, such challenge must be limited to all the constitutional requirements for election into the office which is being contested.
Justice  Ogunwumiju faulted Abang for holding that it was for Ikpeazu to prove that his tax information was not false.
She said: “the burden of proof does not shift, it resides with the person making the allegation,and in this case, Ogah”.
The upbraided Abang for closing his eyes to the affidavit-evidence provided by Ikpeazu as contained in a sworn affidavit by a director in Abia State Revenue Service, James Okonji, who explained the perceived irregularities in the tax documents.
Justice Ogunwumiju, however, agreed with Justice Abang that Ogah’s suit was not an abuse of court process just because another person had filed a similar suit.
The court gave similar reasons in upholding the appeal filed against the judgment by the PDP. It faulted the high court for blaming Ikpeazu for the perceived irregularities in his tax documents submitted to INEC.
The court held that although the falsification of tax documents or tax evasion are criminal offences on which a candidate seeking public office could be questioned, it could only form a basis for disqualification where the person had been convicted.
“All the issues about tax goes to no issue because the second respondent (Ikpeazu) was a civil servant and his tax was deducted from source.  The question is not that the second respondent did not pay his tax, but that the documents given to him by the tax office was false. I do not think that the learned trial judge was right to have found that it was the second respondent that gave false information.
“The situation would have been different if he had a private business, from which he earns revenue, but made false tax payment claims. There is nothing spectacularly irregular with the tax clearance receipts submitted by the second respondent. Why would the 2nd respondent be blamed for the tax recording system of the tax office?
“Without the facts of falsifying the documents to confer undue advantage, the perceived irregularities are of no moment,” Justice Ogunwumiju said.
The court, in upholding the appeals by Ikpeazu and PDP against the judgement in Ekeagbale’s case, set aside the verdict because the high court lacked jurisdiction to hear it because of many factors.
The factors include that it was wrongly initiated, having been started via originating summons as against writ of Summons; that the originating processes were not endorsed by a named and identifiable legal practitioner as required and that the judge, while considering the preliminary objection, prejudged the substantive issue by referring to the tax documents as “false” and “offensive” at the preliminary stage of his decision.
The appellate court dismissed Nwosu’s appeal, because it lacked merit.
In the first appeal considered which was filed by Ikpeazu against Abang’s decision to conduct a post-judgment proceedings when the record of appeal against the judgement had been transmitted and the appeal entered, the appellate court faulted his decision.
Other members of the panel are Justices Datti Yahaya, Ibrahim Bdliya and Tanko Husseini.
Source : The Nation