Judicial vindication of Umeh

FRANCIS IWUCHUKWU

Abuja division of the Court of Appeal restored what political observers sees as normalcy to the All Progressives Grand Alliance (APGA) when it declared the formerly removed National Chairman of the party, Chief Victor Umeh as the authentic boss of APGA.

Besides, the Appellate Court also threw out the judgement of justice Abdulkadir Abdul Kafarati of the Federal High Court in Abuja which had earlier removed the Umeh led National Executive Committee (NEC) of APGA, with a further re-affirmation of Umeh and Alhaji Sani Abdulahi Shinkafi as the National Chairman and National Secretary of the party respectively.

The Court of Appeal in its lead judgment read by Justice T.Y Hassan insisted that the 1st respondent in the suit, Maxi Okwu has no locus standi to have instituted the suit having been expelled from the party.

The Appellate Court also berated the Justice Abdul Kafarati for assuming jurisdiction in the matter when he lacks the jurisdiction to have gone into the it in the first place. Justice Hassan held that, "The appeal is against a Federal High Court delivered on January 15th which had dissolved the entire leadership of APGA elected in 2011 the party.

"On whether the appellants complied with the provisions of the APGA Constitution I hold that they substantially complied with the said Constitution. I also uphold all the 12 grounds of appeal brought by the appellants. The trial judge, Justice Abdul Kafarati should not have assumed jurisdiction to entertain the suit when there is a subsisting judgment of the Court of Appeal Enugu Division."

The Appellate Court also agreed with the APGA convention conducted in February 10, 2011 as having complied with the provisions of the APGA Constitution, adding that Justice Kafarati had no jurisdiction on the matter as there was a subsisting judgment of the Court of Appeal Enugu Division which had nullified the decision of the Enugu State High Court presided over by the Chief Judge (CJ) of Enugu State, Justice Innocent Umezurike.

It would be recalled that on January 16, 2014 Justice Abdul-Kafarati had sent Umeh parking from office as National Chairman of APGA with a directive that the Independent National Electoral Commission, INEC, should with immediate effect, give recognition to one Chief Maxi Okwu as Chairman of the party.

The judge did not stop at that, he equally gave an Order to the National Secretary of the party, Alhaji Sani Shinkafi and other members of the National Working Committee, NWC, who were alongside elected into office with Umeh at a convention held on February 18, 2011, in Awka, Anambra State to vacate their respective offices with immediate effect.

Besides, Justice Abdul-Kafarati also instructed INEC to henceforth relate with Ibrahim Carefor, Chief Dickson Ogu, Dr. Gbenga Afeni and Alhaji Abubakar Adamu as the legally elected national officers of the party since they all emerged from a
separate convention of the party that also held in Awka on April 8, 2013.

In his declaration, the judge had held that, "Umeh and Shinkafi (1st and 2nd defendants), having been expelled from the party whether lawfully or unlawfully, regularly or irregularly, cannot validly continue to occupy the positions of National Chairman and National Secretary respectively when the suit they filed challenging their said expulsion has not been decided and in their favour.

"The 2nd Defendant, having first been elected National Secretary of the party on January 10, 2003, which is over 10 years ago, cannot validly continue in office 10 years after he was first elected when by Article 18(2) of the Constitution of the party, any official of the party can only stay in office for a maximum of two terms of four years each."

The court pointed out that both Umeh and Shinkafi were voted into office by voice votes instead of secret ballot as stipulated by the party's Constitution, which the judge described as the process that rendered as a nullity their emergence as national officers of the party.

The judge posited that unless and until the judgement of the Awka High Court given in a suit that was earlier filed by one Michael Joe Onwudinjo, which had recognised the Okwu-led faction of the party, was set aside by a higher court, it remained binding, subsisting and must be obeyed by INEC.
The court consequently granted all the prayers sought by Okwu.

But this decision did not go down well with Umeh who then approach the Abuja Appellate Court with a position that the
trial court involved in what he termed acts of judicial rascality. Umeh in his appeal argued that the Enugu Division of the appellate court had ab-initio gave nud to the
indefinite suspension of all the Okwu-led executives from the party, adding that the Supreme Court was already aware of the facts of the case.

Umeh who accused the judge of overreaching his powers by delving into an issue which he contends was purely within the purview of domestic affairs of a political party, also instituted a motion seeking an order for stay of execution of the judgment pending the hearing and determination of their appeal.

The defendants also prayed the appellate court to issue an Order
of injunction restraining the Okwu-led faction from interfering in the leadership and management of APGA in any manner whatsoever, including by way of dealing with INEC as officers of APGA and or from parading themselves as the validly elected national officers of the party, pending the outcome of the appeal they lodged.

Umeh alongside other sacked national officers of the party maintained that the Abuja High Court does not have the
jurisdiction to entertain the suit and make orders that would affect and curtail the constitutional and inherent rights of APGA which they said was at no time, joined as a party in the matter.

According to their four
grounds of appeal, the Umeh's piloted faction of APGA argued that Justice Abdul-Kafarati, erred in law and thereby occasioned a miscarriage of justice when it refused to uphold the preliminary objection challenging the jurisdiction of the court to entertain the suit.

Besides, the sacked National Secretary of the Party, Shinkafi, explained that the faction had concluded plans to drag Justice Abdul-Kafarati before the National Judicial Council, NJC. He said, "It is this kind of judgment that makes us call for a total overhaul of the judicial system in this country and sack of bad judges.

"This kind of verdict is capable of setting a bad precedence; it is nothing but sheer judicial rascality on the part of the judge to sit on appeal over the previous judgment of a higher court even when the same matter is still pending before the Supreme Court.

"This judgment was fraudulent! However, there is no cause for alarm. We are going to write a petition against the judge. Max Okwu’s expulsion from APGA was upheld by the Supreme Court and since then he has not been granted pardon by the party, so one wonders the basis of this judgment by Justice Kafarati.

"Anyway, it is not surprising to us. We all know the antecedent of this judge. He was the same man that sacked Oyinlola as the National Secretary of the PDP, a verdict that was accordingly set aside by a higher court. We have already filed our appeal and applied for a stay of execution. We want to assure all APGA supporters that there is no cause for alarm."

Okwu who had approached the court in his suit designated FHC/ABJ/CS/563/2013 and instituted by his counsel, Oba Maduabuchi, maintained that the party's convention and election on February 10, 2011, where Umeh and Shinkafi were re-elected National Chairman and National Secretary respectively was by voice vote contrary to Article 18(4) of the party’s Constitution which stipulates that elections should be by secret ballots only.

Specifically, Okwu want the court to determine, "Whether the 2nd defendant (Shinkafi) can still validly occupy the position of National Secretary of APGA in 2013 when the constitution of the party provide a maximum tenure of eight years and he was first elected as National Secretary of the party 10 years ago on January 10, 2003."

He also wants the court to issue an order directing Umeh, Shinkafi and all the officers said to have been elected with them in the February 2011 national convention by voice vote to vacate their various offices since their coming into office was not in accordance with Article 18(4) of the APGA constitution which prescribes that elections shall be by secret ballot.

Okwu and the other plaintiffs consequently want the court to hold that Umeh and Shinkafi, "Having been expelled from the party, whether lawfully or unlawfully, regularly or irregularly, cannot validly continue to occupy the positions of National Chairman and National Secretary respectively when the suit they filed challenging their said expulsion has not need decided and in their favour.”

Aside Okwu, other plaintiffs include; Ibrahim Carefor, Chief Dickson Ogu, Dr. Gbenga Afeni and Alhaji Abu Akbar Adamu, suing for themselves and other national officers of APGA who were elected during the party’s national convention and held on April 8, 2013 in Awka, Anambra State capital.

The defendants are; Chairman of the party, Chief Victor Umeh; National Secretary, Alhaji Sani Shinkafi and the Independent National Electoral Commission, INEC.

Prior to Umeh's removal, an Enugu High Court, presided over by the Chief Judge (CJ) of the state, Justice Innocent Umezulike sometime in February 2013 removed Umeh as chairman of the party on the reason that his tenure expired in December, 2010. The Enugu CJ's decision was based on a suit filed by an aggrieved member of the party, Jude Okolie who had prayed the judge in June 2012 to hold that Umeh’s stay in office beyond December 2010 was not Constitutional.

Okolie in his suit wants the court to, "Determine whether going by article 18 of the APGA constitution, the defendant, (Umeh) can be re-elected other than through a secret ballot system in an election organized by the National Executive Committee, NEC of the party.

"Whether the defendant can legitimately remain in office after 2010 without any valid national convention in line with the constitution of APGA," with a position that consequent upon the provisions of the party, Umeh was also supposed to have vacated office at least two months to a fresh election.

But in his preliminary objection to the suit, Umeh had through his lawyer, Patrick Ikwueto questioned the jurisdiction of the court as well as the locus standi of the plaintiff. The sacked national chairman stated that the non-joinder of APGA in the suit would amount to injustice. Umeh also insisted that the plaintiff had since been expelled from the party, and as such lacked the locu standi to pursue the suit.

Umeh did not stop at that, he also stressed that the suit was a domestic and internal matter of the party, with a position that the court had no right to dabble into such issues. But the court in its judgement declared that although it may be desirable to bring in APGA, "Failure in my view cannot affect the action in any way. The provisions of APGA Constitution which is before me is very clear, it is written in English and not in any strange language; so the position of this court is APGA as a political party is not indispensable in exercising the interpretative powers of this court.

"The expulsion of the plaintiff from the party does not exist to the knowledge of the court. If the said 3-man panel that recommended his expulsion really existed, where is the notice of proceedings, when was the plaintiff invited and was he given fair hearing? In the absence of all this, no sane court can hold that the plaintiff was expelled. It is a nullity; it was contrived for the essence of this suit.

"Accordingly, the court shall not run away from this suit in terror at the slightest mention of the word ‘domestic affair’. The court has a duty to insist that rule of law and constitutional provisions prevail in political milieu.

"The defendant’s claim that he was re-elected during a national congress of the party held in Awka, Anambra State in February, 2011 did also not change the mind of the court. The court observed that section 18 of APGA constitution was violated in the said election, as Umeh and other members of the national exco of the party were only presented through a voice vote, other than a secret ballot, as provided by the party’s constitution.

"By law, he has since 2nd Day of December, 2010 seized to be the APGA national chairman. I have not said that the defendant is barred from presenting himself for election, he may as well win, but the court insist that such election must comply strictly with the provisions of the party’s constitution.

"He is not and has not been the party’s national chairman since December 2, 2010. Following from the above, the NEC of APGA is bound to meet and fix a date for election. The defendant cannot be re-elected other than by a secret ballot system in such election fixed by the NEC.

"His occupation of office after 2010 is illegal, ultra vires the constitution of APGA. He is thereby restrained from parading himself as the national Chairman of APGA."

But the Court of Appeal sitting in Enugu upturned the decision of the Enugu High Court when it returned Umeh as the national chairman of APGA. The appellate court in its lead judgement read by Justice Tom Yakubu on behalf of two other justices in the appeal panel, Justices Paul Galinje (Chairman) and Modupe Kwasami, granted all the four reliefs sought by the applicant (Umeh) and resolved all the issues set out for determination in his favour.

The appellate court also agreed with the submissions of Chief Umeh that the trial court over reached itself when it ruled that the APGA National Convention of November 10, 2011 was unconstitutional, adding that it was the invalidation of the convention that was the fulcrum and basis for granting the erroneous injunctions that removed the appellant from office.

Umeh had in his Notice of Appeal before the Enugu Appellate Court requested for stay of the lower court's decision
which had sacked him as APGA national chairman, pending the determination of his appeal, just as he explained that he had on February 11, 2013 filed an application before the court below for an order of stay of execution pending the determination of his appeal.

He said, "Despite my request for a date to be assigned for the hearing of my Motion on Notice dated and filed on February 11, 2013, the said Motion on Notice for Stay of Execution was not heard nor attended to by the lower court before the Record of Appeal was transmitted to this Honourable court and the appeal entered as no. CA/E/84/2013."

The sacked APGA chairman informed the appellate court that by the judgement of the lower court, "The monitoring/approval of the APGA National Convention held on February 10, 2011 by INEC, in exercise of its (INEC's) statutory function under the Electoral Act 2010 (as amended) and under the 1999 Constitution of the Federal Republic of Nigeria (as amended), was vitiated/annulled in the absence of INEC and in total disregard of the statutory limitation prescribed by the Public Officers (Protection) Act."

Umeh insisted that unless the appellate court considers granting the Order for the stay of execution, "The strangers to the suit acting under the false description of 'National Caucus of APGA' will not relent in depriving me of the exercise of my constitutional right of appeal as well as creating confusion, disharmony and chaos within our party, APGA.

“Unless by an Order of this Honourable Court, the persons 'elected' as 'Acting National Officers' of our party (APGA) vide the communiqué dated February 16, 2013 will continue to usurp my functions under the constitution of APGA and render my appeal utterly impotent."