Why INEC Should Await Umahi’s Appeal

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By Emmanuel Onwubiko

I need to make my self very clear from the beginning that I do not know Mr. Dave Umahi the governor of Ebonyi State and does not hold his brief.

I write as an independent observer who loves the constitution and as a lover of democracy.

My take on the hullabaloo that is building up from the circumstances connected to the recent judgement of the Federal High Court in which the Court in its wisdom found that the decision of the Ebonyi State Governor Mr. Dave Umahi to crosscarpet to the All Progressives Congress from his original political platform which is the Peoples Democratic Party means that he needs to quit being the governor of that state since according to the Court, the votes the governor received during the election do not belong to him as a person but to the political party that sponsored him.

The governor of Ebonyi State, his deputy and the 16 House of Assembly members affected by that judgment have filed appeals at the court above. The appellants are also before the Federal High Court to seek an order of stay of execution of the judgment and all parties have exchanged pleadings or are aware that these key steps have been taken.

However there is a controversy on what should be done in the interim whilst the appeals are dispensed with. The body responsible for deciding what is to be done with the Judgment of the Federal High Court is the Independent National Electoral Commission.

The Independent National Electoral Commission INEC said it would meet this week to deliberate on the Federal High Court’s sack of Ebonyi state Governor, Engr. Dave Umahi and come up with an appropriate position on the matter.

INEC’s National Commissioner and Chairman of its Information and Voter Education Committee, Barr. Festus Okoye disclosed this in a late Thursday statement.

He said the commission had met on Thursday and deliberated on a wide range of issues, including the rising tide of litigations that do not directly involve the Commission, but in which the principal parties joined it.

According to him, the Commission was briefed by its Litigation and Prosecution Department, including an update on litigations, showing that in the last three months, the Commission has been joined in 71 new cases in various Courts across the country.

He said most of these cases, including the widely discussed one on Ebonyi State, involve either intra-party issues or litigants seeking various reliefs from the Courts that entail consequential orders that are binding on the Commission.

On Ebonyi said; “The Commission today listed this matter for deliberation. It involves Court cases on the defection of the Governor and Deputy-Governor of Ebonyi State and sixteen members of the State House of Assembly from the Peoples Democratic Party PDP to the All Progressives Congress APC.

“The Commission has been served with nine separate Orders and Motions from various Courts on this matter. Just as the Commission was about to commence deliberation on them, its attention was drawn to additional Court processes served today in respect of the matter.

“Consequently, the Commission decided to defer its deliberation on the Ebonyi cases and stepped down the listed Memorandum to enable its Legal Services and Clearance Committee to study the new processes in the light of the previously served ones and advise the Commission comprehensively. The Commission will meet again next week to deliberate on the matter and thereafter make its decision.

The Peoples Democratic Party wants the Independent National Electoral Commission to recognise her candidates as governor and deputy governor in line with the Judgment of the Federal High Court. That judgment has been appealed against. Also the parties have filed application for stay of execution of the judgment. What exactly did experts in law say is the essence of appeal?

One of the finest opinions I have read so far is the one that states clearly that appealing a judgment is simply a process of inviting a higher court than the lower court, which adjudicated and gave judgment on a matter to review such decision. The process entails finding out whether the lower court arrived at a correct decision after evaluating and considering the evidence before it and the applicable laws. This write up seeks to give a brief overview of the appellate procedure and how to appeal a judgement in Nigeria.

This legal expert whose views are very much reputable says that appeals involve proceeding from the judgment of a trial court to an appellate court or from one appellate court to another appellate court. Appeals are important because it affords a litigant who is not satisfied with a judgment given or whose judgment given is affected to appeal such a decision(s). Thus, appeal creates an opportunity to give another set of judges the right to assess the decision of a lower judge. A party who files an appeal is called an Appellant and the party whom it is filed against is called the Respondent. I must admit that I have struggled to get the source of these opinions but I got some of them mixed up because of the sheer volumes of materials that I consulted for this piece.

The law scholar say that the main laws governing appeals in Nigeria are; the Constitution of the Federal Republic of Nigeria 1999 (as amended), the Supreme Court Act, the Court of Appeal Act, and the rules of various courts.

The expert delved into the nitty-gritty of the Party to an Appeal matter just as the scholar cited Section 243(1) (a) of the 1999 Constitution provides for only two (2) categories of persons who can exercise the right of appeal in civil cases. They are:

Any party on record, which is the party to the proceeding whose name appears on the process.

Any non-party interested in the matter with leave of the trial Court or Court of Appeal. In this instance, where a party claims to be an interested party, he must show that his interest is affected by the decision he wants to appeal against. Failure to obtain leave of Court before appealing as a non-party having an interest in the matter renders the appeal incompetent.

On the right to file an Appeal in Nigeria, this top quality law scholar said the right of a litigant to file an appeal at the appellate Court is divided into two categories which will be briefly discussed, namely;

Appeal as of Right, and, Appeal with the leave of Court (that is with the leave or consent of either the lower or appellate Court). The expert says Where the ground of appeal involves questions of law alone arising from any civil or criminal proceeding. It is immaterial whether the decision was final or not. On the decisions on interpretation or application of the 1999 Constitution, the writer says decisions as to whether any provisions of Chapter IV of the 1999 Constitution has been, is being or is likely to be contravened in relation to any person.

The appropriate time to commence and file an appeal for an interlocutory decision is within fourteen (14) days after the decision as provided by Section 24(2)(a) Court of Appeal Act and in the case of a final judgement, the appropriate time to file an appeal is within 3 months after the judgment was delivered, says the expert.

On the Effect of Filing an Appeal, the author says this is provided by Order 4 Rule 11 of the Court of Appeal Rules to, the effect that “after an appeal has been entered and until it has been finally disposed of, the Court of Appeal shall be seized of the whole proceedings as between the parties thereto and except as may be otherwise provided by the Court of Appeal Rules, every application made in the proceedings shall be made to the Court of appeal and not the trial court”.

Recall that the Independent National Electoral Commission (INEC) says the ruling which sacked Governor David Umahi of Ebonyi State is currently being reviewed.

A Federal High Court Abuja division had ordered Umahi’s removal over his defection from the Peoples Democratic Party to the ruling All progressives Congress (APC).

The court held that votes cast in the 2019 election were for the PDP and Umahi could no longer hold office after leaving the party.

Commenting on this development, a National Commissioner and Chairman, Information and Voter Education Committee of INEC, Festus Okoye, said the commission was being joined in frivolous cases.

He said at the commission’s management meeting, on Thursday, the electoral body deliberated on a wide range of issues, including the rising tide of litigations that do not directly involve the commission, but in which the principal parties joined it.

“The commission was briefed by its Litigation and Prosecution Department, including an update on litigations, showing that in the last three months, the commission has been joined in 71 new cases in various courts across the country.

To be very candid, the Independent National Electoral Commission would have to await the decision of the appeal courts to be in a very good ground to make an informed decision grounded in law. What is the essence of rushing to give recognition to the PDP candidates as governor and deputy when no higher decisions on the judgement of the court of first instance is still being awaited? The best bet is to take the most legal steps so the courts of law are not turned into courts of jesters by the Independent National Electoral Commission.

I will conclude with a great essay on the import of appeal as recorded in www.Mondaq.com. The author says the need for an efficient and effective administration of justice has made the establishment of hierarchy of courts and provision for appeal from one court to the other, within the hierarchy, very desirable. According to Irikefe J.S.C., the possibility that a decision of an inferior court may be scrutinised on appeal by a higher court, at the instance of an aggrieved party is, in itself, a safeguard against injustice as it acts as a curb against capriciousness or arbitrariness. An appeal has been defined as an invitation to a higher court to find out whether, on proper consideration of facts placed before it, and the applicable law, the lower court arrived at a correct decision.

It is trite that an appeal does not, ipso facto, operate as a stay of proceedings of a court. Therefore, an appellant desirous of appealing the judgement of a lower court must take a further step by filing an application to stay the proceedings execution of judgment complained against pending the outcome of an appeal. An appeal, though, a constitutionally allowed right, is however, being used by unscrupulous litigants as a means of frustrating the other party to the suit as it causes delay in adjudication. It has been observed that the average lifespan of cases in Nigerian courts nowadays is 15 years with appeal processes taking over 60% of this time. However, political cases under the administration of criminal justice Act of 2015 do not linger for too long. The chances of using the appeal period as delay tactics is very remote.

*EMMANUEL ONWUBIKO is head of the HUMAN RIGHTS WRITERS ASSOCIATION OF NIGERIA (HURIWA) and was federal commissioner of the NATIONAL HUMAN RIGHTS COMMISSION OF NIGERIA.

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