A member of the House of Representatives, Amadi Dennis, has accused the Independent National Electoral Commission of wrongly issuing a certificate of return to his opponent, Ogbuefi Ozomgbachi, despite a stay-of-execution order against a recent court judgment sacking him from the House.
Mr. Ozomgbachi, a former member of the House, had filed a suit against Mr. Dennis in the Federal High Court, urging it to declare him winner of the Peoples Democratic Party primaries for the Udi/Ezeagu federal constituency of Enugu State held on December 6, 2014.
In suit number FHC/ABJ/CS/1026/2014, he alleged that Mr. Dennis and the PDP cheated him in the election and prayed the court to declare him winner.
The judge, Okon Abang, in a judgement delivered on June 10, granted the reliefs sought by Mr. Ozomgbachi and ordered INEC to issue him a certificate of return.
The commission subsequently issued certificate of return to Mr. Ozomgbachi, though he could not be sworn in immediately because the National Assembly proceeded on a recess a day after he received the certificate.
Mr. Dennis said INEC acted wrongly by issuing the certificate to his opponent.
He told PREMIUM TIMES that following the judgement he immediately ordered his lawyers to file notice of appeal and a motion for stay-of-execution which were concluded and served on the commission within 12 days from the day the judgement was delivered.
He said Nigeria’s electoral laws granted a losing party a 21-day grace for which to file an appeal in higher courts.
In the document he made available to this newspaper, Mr. Dennis said he filed the first notice of appeal and stay-of-execution in the same court and that it was served on INEC on June 13.
He also said on June 20, after transmitting record of proceeding at the FHC to the Court of Appeal, he filed another notice of appeal and motion for stay in the latter and served them on INEC on the same day.
According to the lawmaker, the Commission acknowledged receipt of the documents.
He said on June 22, a hearing notice on the motion for stay was served on INEC, which indicated that the matter would be heard at the Court of Appeal on October 19.
The notice, he stated, was received by Saleh Ibrahim, a senior clerical officer in the Legal Services Department at2:38 p.m.
Mr. Dennis lamented that despite the notice, INEC issued a certificate of return to Mr. Ozomgbachi at about 4pm on the same day, “in a clear disregard for the motion for stay for which hearing notice at the Court of Appeal had been served”.
He described INEC’s decision as “absurd and unjustifiable”.
One of his lawyers, Peter Eze, said the court ruled that “a party cannot be held in contempt of court if he fails to obey the order of court after he has filed an application for stay or is notified of a pending application for stay”.
He said a Supreme Court judgement in 1972 also frowned at the position of INEC in his client’s case.
According to him, the Supreme Court ruled in Vatswani Vs. Savalakh that “It will amount to an effrontery for a party or court to proceed with the execution of judgment knowing fully-well that a motion for stay regarding that judgment is pending in the court”.
Mr. Eze said he wrote a letter to INEC on June 14, urging the commission not to issue a certificate of return to Mr. Ozomgbachi, saying the Court of Appeal clarified the matter in a 1997 case between Doma Vs. Ogiri.
But INEC’s Deputy Director for Public Affairs, Nick Dazang, dismissed the allegations, saying the commission did no wrong in the matter.
According to him, INEC waited a few days before executing the high court judgment.
“Even though Mr. Dennis had appealed, the motion for stay-of-execution was adjourned to October this year. In the circumstance, INEC had no option than to comply with the court order,” Mr. Dazang told PREMIUM TIMES.
The INEC spokesperson further explained that the Commission gave Mr. Ozomgbachi the certificate of return because it was directed to do so with “immediate effect”, and to avoid being held in contempt of court.
When reminded about a position INEC took in 2012 when the commission declined to issue a certificate of return to the party that won a case in the high court and appeal court, demanding that the party’s victory must be affirmed by the Supreme Court before the commission could take any action, Mr. Dazang said the decision to comply with court order was a new policy of INEC.
“The commission has decided as a matter of policy to obey all subsisting court orders,” notwithstanding the position of Section 143 of the Electoral Act which gave a losing party 21 days to file an appeal,” he said.
Mr. Ozomgbachi could not be reached for comments on the matter. He did not respond to the repeated calls and text message sent to his mobile telephone.