By Ikechukwu Nnochiri,
It is no more news that Justice Abang had in a judgement he delivered on June 27, sacked Governor Ikpeazu from office over alleged tax infractions, even as he directed the Independent National Electoral Commission, INEC, to issue fresh Certificate of Return to Mr. Sampson Ogah who came second in the gubernatorial primary the Peoples Democratic Party, PDP, conducted in Abia State on December 8, 2014.
Governor Okezie Ikpeazu and Uche Ogah
Justice Abang said he was satisfied that Ikpeazu perjured by giving false information in the Form CF001 and documents accompanying it, which he submitted to both PDP and the INEC to participate in the governorship contest he eventually won ahead of candidate of the All Progressives Grand Alliance, APGA, Dr. Alex Otti.
However, a five-man panel of Justices of the Court of Appeal in Abuja, in a unanimous decision on August 18, lampooned Justice Abang, who they said delivered judgement that was bereft of justice.
“His Lordship committed a grave violence against one of the pillars of justice,” Justice Morenike Ogunwumiju who delivered the lead verdict said.
She said Justice Abang failed to uphold the legal maxim of ‘Audi alteram partem,’ which is a legal maxim that means ‘hear the other side,’ as first enacted in the Magna Carta, 1215.
It is a principle of fair-hearing; that both parties shall respond to the evidence against them, which is considered a principle of fundamental justice or equity.
In the summation of the appellate court, Justice Abang “stood the law on its head,” as well as adopt a “hostile proceeding” against Ikpeazu and the PDP, by not granting them fair hearing.
It held that allegation of forgery and tax evasion levelled against Ikpeazu by Ogah, being “very contentious” in nature, ought to have been determined through Writ of Summons instead of Originating Summons.
The appellate court faulted Justice Abang for passing judgment that removed Ikpeazu, without according him the right to defend himself.
The appellate court panel noted that Ogah’s contention was not that Ikpeazu did not pay his tax, but that the tax papers given to him by the tax office in Abia State were forged.
It then wondered why Justice Abang refused to listen to one Mr. James Okojie who is a Director in Abia State Board of Internal Revenue Service, whose evidence it said, would have been subjected to cross-examination.
That notwithstanding, ‘quod constat curiae opere testium non indiget’, is a legal concept implying that ‘what appears to the court needs not the help of witnesses’.
Whereas section 6(6) of the 1999 Constitution confers inherent powers on judges, section 251(1) allows the Federal High Court to exercise jurisdiction on matters relating to tax.
Justice Abang had upon conclusion of hearing on two separate suits that were lodged by Ogah and two PDP members in the state, Obasi Uba Ekagbara and Chukwuemeka Mba, held that evidence before the court showed that Ikpeazu did not file his tax clearance in 2011, 2012 and 2013.
He noted that tax payments for the three years were made before the 2014 primaries of the PDP in one day (on a Saturday) and not “as at when due”.
Aside declaring that the tax clearance certificate and income tax receipts Ikpeazu used to secure clearance to participate in the governorship primaries were unknown to the law, Justice Abang said the documents contained false information.
However, the appellate court dismissed that conclusion as balderdash, saying Justice Abang “spoke from two sides of his mouth” in the matter.
The five-man panel accused Justice Abang of embarking on a voyage of discovery for the plaintiffs.
For instance, it observed that no portion of 2014 Guidelines of the PDP, stipulated that a qualifying factor for candidates included payment of tax “as at when due.”
It said that Justice Abang imported the phrase “as at when due”, from “the figment of his imagination”, adding that Ogah failed to prove his case against Ikpeazu beyond every reasonable doubt.
“How does the submission of tax papers on a Saturday, under section 31(5) of the Electoral Act, amount to forgery?,” Justice Ogunwumiju queried.
“From whatever angle the issue is looked at, the decision of the trial court is grossly erroneous”, a member of the panel, Justice Abubakar Yahaya added.
More so, the appellate court also knocked Abang over his refusal to stay the execution of his judgement after he was notified that an appeal had been lodged against it.
It went ahead and nullified the ruling Abang delivered on July 8, saying he over-reached his powers by wrongly interpreting the Appeal Court Rules.
Ikpeazu had in his first appeal marked CS/S/390B/2016, urged the appellate court to determine whether Justice Abang was right to have proceeded with the ruling when he was fully aware that the appellate court was already seized of facts of the case.
He argued that Justice Abang was wrong to have gone ahead to interpret Order 4 Rules 10 & 11 of the Court of Appeal Act, after the record of appeal had been duly transmitted to the higher court.
He maintained that the lower court ought to have suspended proceedings before it to abide by decision of the appellate court.
In a unanimous decision, the appellate court panel faulted Justice Abang for not according due respect to judicial hierarchy.
The higher court maintained that Justice Abang’s judgement on the electoral dispute, if allowed, would amount to “rape on democracy”, adding, “that certainly cannot be justice”.
Though the burden of proof lies with the plaintiff, however, judges, as ‘domins litis’ (masters of the court), have the divine mandate to look beyond technicalities on the path of justice.
Only recently, the Chief Justice of Nigeria, Justice Mahmud Mohammed, at a workshop organised by the National Judicial Institute, NJI, decried the weight of caseload judges confront every day.
“At the same time, one is also faced with the ever present clamour and demands for quick, affordable and efficient dispensation of justice”, the CJN noted.
Could Justice Abang have been right when he determined the matter through Originating Summons, considering the possibility that the defendants could decide to call as many witnesses as possible in a bid to frustrate the case?
Did Justice Abang indeed accord all the parties the opportunity to argue their case?
Were findings in his judgement in tandem with facts laid before the court?
Did he make orders unknown to law? Did he indeed over-reach his powers and ‘slap’ the principle of judicial hierarchy on the face by refusing to hands-off for the appellate court?
Those are some of the pertinent questions only the Supreme Court can answer.