The dust is yet to settle over his controversial ruling on the PDP National convention. In fact he now has several such rulings and judgments to his credit. But, for his decision in the Abia State governor­ship tussle between Governor Okezie Ikpeazu and Samson Ogah of the Peoples’ Democratic Party (PDP), the Court of Appeal gave Hon. Justice Okon Abang some bashing. AMEH EJEKWONYILO reports.

August 18, 2016, may remain a dark chapter for Hon. Jus­tice Okon Abang of Federal High Court, Abuja, if the Supreme Court does not upturn the verdict of the Court of Appeal, which saw a five-man panel of the appellate court, tongue-lash him for arriving at a verdict that removed the Abia State governor, Okezie Ikpeazu from office over alleged false tax information.

The appellate court’s panel headed by outspoken Hon. Justice Helen Mo­ronkeji Ogunwumiju had descended heavily on Justice Abang for “turning the law on its head” in his interpreta­tion of some of provisions of the Elec­toral Act.

Over the years, the judgment of the appellate court is often meant to either uphold or upturn the decision of the trial court, but this time, the appel­late Justices, apparently piqued by the controversy that had dogged Justice Abang in the wake of some rulings he churned out in recent times, pum­melled his personality as they took turns to dress him down.

The Court of Appeal, Abuja division restored Ikpeazu as the duly elected governor of Abia State and set aside Abang’s judgment which on June 27, 2016, removed him from office.

Delivering judgment in one of the several appeals emanating from Fed­eral High Court, Abuja, Justice Ogun­wumiju held that Justice Abang was speaking from both sides of his mouth when he held that the Abia governor was not involved in forged tax papers, but turned around to say he supplied false tax information to the Indepen­dent National Electoral Commission (INEC). “The 1st respondent (Samson Ogah) cannot allege falsehood of the documents in one breath and then in the other breath claim that this is not an accusation of forgery or making false documents. “The learned trial Judge was speaking from two sides of the mouth and prevaricating. You cannot say a document is false and then say that that incident is different from making a false statement under the Criminal and Penal Code.”

Justice Ogunwumiju also chided the trial judge for refusing to evalu­ate several affidavits of evidence that were tendered by Governor Ikpeazu. “Several affidavits evidence, e.g, PDP 1 and PDP 2 were acknowledged as having been filed by the Appellant to rebut the allegations in the originating summons, but the court was not pre­pared to consider and evaluate them to weigh them on the scale of justice.

I cannot find merit in the refusal His Lordship to evaluate the evidence of the adverse party in the circum­stances of this case. In my humble view, His Lordship committed great violence against one of the twin pillars of the temple of justice which is – audi alteram partem (a Latin phrase mean­ing “listen to the other side”, or “let the other side be heard as well). Indeed, justice has not been served by the fail­ure of the learned trial Judge to con­sider the case of the other side. I wish to add that the most important issue which strikes at the root of one of the twin pillars that holds up the temple of justice – which are fair hearing, is the one to do with nemo judex in causa sua – the rule against bias in any form.

“Where on a preliminary point before reviewing the evidence of the parties on the substantive case, the learned trial Judge already referred to the tax papers under contention as ‘false’, ‘offensive,’ gives the impres­sion to an independent observer that the learned trial Judge was leaning unfairly against the appellant and had prejudged the issue. I am of the view that this judgment which clearly shows that there cannot be confidence in it must be set aside for violating the constitutional provisions relating to fair hearing.”

In his contribution to the foregoing lead judgment, Justice Abubakar Ya­haya said: “The learned trial Judge had failed to consider the affidavit of Mr. James Okoji, a director in the Abia In­ternal Revenue Service, but yet com­mented that it was an afterthought. It simply means that he was unfair in that vein, to the appellant (Ikpeazu) and had dismissed a golden oppor­tunity, to properly evaluate the docu­ments before him. Had he done so, he would have found explanation that would enable him arrive at a just de­cision, instead of his strained posture. He was wrong and his entire findings in that regard are set aside, for they have occasioned miscarriage of jus­tice,” he declared.

Justice Ibrahim Shata Bdliya who delivered one of the lead judgments in an appeal filed by Ikpeazu, held that Justice Abang erred in law by as­suming jurisdiction in an originating summons that was not signed by any identifiable legal practitioner among the three lawyers that issued the said summons. “The name of who among the three counsel who signed the orig­inating summons… cannot be ascer­tained. It is not the duty of the court to do so.”

The Court held in a unanimous judgment that, the Federal High Court judgment delivered on June 27th was not competent having been based on an originating summons that was in­valid, null and void. Apart from not signing the originating summons, the Appeal Court also held that the suit filed by Dr. Samson Ogah did not disclose any cause of action because it was filed even before the appellant (Ikpeazu) submitted his documents to the Independent National Electoral Commission (INEC). “The law is trite, any action initiated or instituted before the accrual of the cause, cannot be valid. For there cannot be a compe­tent action before the accrual of cause of action.

Therefore, the suit filed by the 1st and 2nd respondents (Obasi Ekeagbara and Chukwuemeka Mbah) on 26/12/2014, cannot be competent. Where an action or suit is initiated or commenced without cause of ac­tion, it is incompetent, and liable to be struck out.

‘Consequently, having struck out suit No. FHC/ABJ/CS/1086/14, the entire proceedings including the judg­ment of that court, are but a nullity, same can be struck out for there is nothing it can stand on.”

Justice Bdliya agreed with counsel to the governor Chief Wole Olanipe­kun (SAN) that it was not the duty of the court to begin to search for the signatory to the originating summons to authenticate it as required by law. Besides, the Appeal Court also held that although the Originating Sum­mons was later amended, an amended Originating Summons cannot cure a defective and incurably bad Originat­ing Summons being the foundation of the suit.

The Appeal Court further agreed with Olanipekun (SAN) that Justice Abang erred in law by making find­ings at the interlocutory level of case by taking a stance on issues in the main suit. “He ought not to have given the final findings at the interlocutory
level and his conclusion at the in­terlocutory level was a breach of fair hearing against the appellant (Ikpea­zu) who was not given opportunity to use the substantive suit to prove his case.

The court also upheld the submis­sion of Olanipekun that because of the circumstances of the issues in the suit, the suit ought to have been Instituted through the use of Writ where wit­nesses can be called to make clarifi­cations on the disputed issues, rather than using originating summons that does not require the calling of wit­nesses. In another Judgment by Justice Helen Moronkeji Ogunwumiju, the appellate court held that Justice Abang raped democracy in his order that the Independent National Electoral Com­mission (INEC) should issue a cer­tificate of return to Dr. Samson Ogah when there was no evidence of forgery of criminality against the appellant.
According to the court, the judg­ment of Justice Abang was grossly erroneous because it was based on in­adequacy of tax receipt that cannot be visited on the appellant (Ikpeazu).

“The learned trial Judge in his chambers decided the assessable in­come of the appellant (Ikpeazu) and concluded that what the tax office as­sessed was false. How can a learned trial Judge engage in such cloistered justice? A court is not entitled to spec­ulate on what the appellant earned between 1st January 2011 to 17 July 2011, before he took up appointment for Abia State Passengers Integrated Manifest
Scheme. The tax office as they have a right to do, had assessed him for the whole year 2011 including the begin­ning of the year 2011 and they were satisfied that his taxable income was the amount stated on which he paid tax for the entire year 2011. The ap­pellant was blamed by the trial Judge for apparently paying more tax than the amount he earned in 2011. I found the reasoning of the learned trial judge quite ludicrous, I am sorry to say.

“I took a look at the tax documents. I wanted to see a glimmer of the false­hood the trial court saw in them. There was a receipt for N38,775.00 based on the gross emoluments of N607, 410.00. However, in the Tax Clearance Certifi­cate issued for 2013, the total income was put at N1, 175,148.00 and the total tax deducted was N75, 017.76K. How do we as judges query either docu­ment while refusing to accept any explanation from the tax authorities of two documents obtained thesame day from the tax authorities?”

Justice Ogunwumiju also agreed with Olanepekun SAN that the Fed­eral High Court Judge turned the head of the law upside down in his conclu­sion that it was the appellant that should bear the burden of proof on the allegation made by Ogah.
“With respect, we disagree with him (Judge) in this conclusion because it is the person that makes allegation of falsehood that must prove it.”

The Appeal Court equally held that Abang erred when he imported the phrase ‘as at when due’ into the PDP 2014 guidelines.
“The Judge would not have im­ported the phrase into his findings if he had seen the copy of the PDP guideline. In this case, he violated the PDP guideline. From whatever angle one looks at the judgment of the trial Judge, the decision of his court was grossly erroneous. The inadequacies of the tax receipt cannot be visited on Ikpeazu who scored the highest votes in the 2015 governorship elections as doing so will amount torape of de­mocracy.”

In all, the appeal court set aside the judgment of Justice Abang delivered on June 27 for being a nullity and a miscarriage of justice that must not be allowed in law.


[REGISTER] 2023 IDRI Programmes On Arbitration, Mediation And Negotiation