Kudos, knocks for INEC on Ogah’s Certificate of Return

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The Independent National Electoral Commission (INEC) got knocks and kudos, yesterday for issuing Mr. Uche Ogah a Certificate of Return. Abia State  Governor, Ifeanyi Ikpeazu had appealed Monday’s Federal High Court’s judgment which sacked him.
Constitution lawyers and rights activists yesterday, gave differing opinions on INEC’s action.
Besides, lawyers told Daily Sun that since Ikpeazu had filed a stay of execution, INEC should not have issued Ogah the certificate.  Belling the cat, Senior Advocate of Nigeria (SAN), Chief Ladi Rotimi-Williams and Mr. Ebun-Olu Adegboruwa faulted the issuance of the certificate.
Rotimi-Williams insisted that once a party has appealed a decision and filed an application for stay of execution of a judgment, all steps on the matter must be halted till the motion for stay was dispensed with.
He, however, said INEC cannot be blamed where there was no proof that it had been served with the notice of appeal and application for stay of execution.
“Without proper communication of the court processes,” he said, “the electoral umpire would simply be seen to be complying with the order of the Federal High Court directing it to issue Ogah a certificate.”
Adegboruwa insisted that it was wrong for INEC to issue Ogah the certificate when Ikpeazu has already appealed the court’s decision sacking him and has also applied for stay of execution of the judgment.
“On June 29, 2016, the sitting governor filed an appeal against the said judgment, together with an application for a stay of execution of the judgment of court. The said application is yet to be heard or determined by the court, the consequence of which is that the judgment of court cannot be enforced.
“It is well settled in our laws, up to the Supreme Court that once an appeal has been filed against a judgement and the appellant has also filed an application to stay the execution of the said judgment, that judgment cannot be enforced, until the application for a stay of execution has been heard and determined.”
To former national secretary of the Nigerian Bar Association (NBA), Dele Adeshina “as long as an appeal has been filed against the judgment and there is a  stay of execution, it will be totally wrong and illegal for INEC to issue Certificate of Return to another person. It will be premature for INEC to execute the judgment, it is a wrong step in the right direction.”
Rights activist and constitution lawyer, Fred Agbaje, argued that, “we are in a free society where anything goes.”
He said INEC’s action was an affront on the judiciary.  Since there is an appeal, the commission needs to have waited for the outcome of  the Court of Appeal on the matter before taking any step.
“INEC was supposed to wait for the Court of Appeal  to decide the fate of the man. The action of the commission is illegal and cannot stand the test of law. What the commission did was to donate power to the governor’s opponent. What if the Court of Appeal upturns the judgment? The action is unacceptable in law and it is illegal,” he said.
Edo State-born rights activist and legal practitioner, Dele Igbinedion shared a contrary view on the matter. He said once there is a judgment,  it  must be obeyed by the parties. “An appeal is not an excuse for not obeying court order. INEC’s action, based on the court judgment directing it to issue certificate of return to Ogah, is in line with the Constitution and it is legal because there was a court judgment to that effect.
“It is the right of the governor to file an appeal against the judgment but, that does not mean that the judgment was not in existence. The moment the court made a pronouncement on the matter, the judgment has come into existence. Besides, issuance of certificate of return to Ogah by  the  commission is legal.
“Nature does not allow a vacuum. Even our Constitution does not allow that. The judgment created a vacuum and somebody must fill that vacuum and issuance of certificate to Ogah was to fill the vacuum. Appeal or no appeal, illegality cannot be allowed to continue,” he said.
Meanwhile, constitution lawyer, Mr Sebastine Hone faulted INEC’s decision to issue Ogah the certificate.
Hone, who has written many books on the constitution, said INEC was wrong.  “INEC can’t do that since it has been served with the application for a stay of execution and a notice of appeal.
“The commission is wrong. If it is true that INEC has issued a certificate of return in spite of being served with a notice of appeal and the motion on notice for stay of execution by the governor’s legal team, that is most unfortunate.
“The Certificate of Return issued to Ogah is null and void because it was issued contemptuous  of the powers of the Court of Appeal over this matter.
“It should not be recognised by any law enforcement agent for purposes of enforcement of the terms of the said certificate.”
He called on President Muhammadu Buhari, the Attorney General of the Federation and Minister of Justice, Shehu Malami and Acting Inspector General of Police, Ibrahim Idris to respect the rule of law and disregard the purported Certificate of Return issued to Ogah.

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