Eyiboh: As The Proxy War Unfolds…

Flowing from early last month’s declaration by an Abuja Federal High Court that Hon. Eseme Eyiboh is the rightful Peoples Democratic Party (PDP) candidate in the primary for Eket/Ibeno/Esit/Onna Federal Constituency of Akwa Ibom State, and subsequent swearing-in by the House, with INEC’s nod, some controversy has trailed the development. LOUIS ACHI examines the core issues, legal logic and constitutional imperatives undergirding the matter

Curiously, in Akwa Ibom State, the quaint politics of godfatherism appears to be alive and well. From this prism, forces which operate without or outside the pleasure of the state’s ‘chief servant’ apparently do so at their own peril. But these assumptions may be perceived as naïve, given that this scenario is a common, defining reality in much of the nation’s political space. Could this setting then be the subterranean source of the current face-off between Honourable Eseme Eyiboh and Bassey Dan-Abia over who represents Eket/Ibeno/Esit/Onna Federal Constituency in House of Representatives? Big question!

The Core Issues…

Eyiboh, former chair of the House Committee on Media and Publicity in the sixth House has been locked in pre-election litigations with Dan-Abia who was returned as the winner of the House of Representatives elections held in April. Eyiboh who went to court to challenge the legality of the emergence of Dan-Abia as the candidate of the Peoples Democratic Party (PDP) at the primaries conducted in his federal constituency argued that the primaries ought to have held at the Eket, the federal constituency’s headquarters.

He argued that the primaries that produced Dan-Abia as the candidate was conducted at Uyo, the Akwa-Ibom State capital, making his election unconstitutional. Flowing from these submissions backed by specific provisions in the party constitution and guidelines for primary elections, Justice Abdul Kafarati ruled that Eyiboh should be given the Certificate of Return as the rightful candidate of the party.

But Barrister Abia insists that the House erred in swearing in Eyiboh because he had appealed the judgment even as he vowed to defend the mandate he claimed was handed over to him by the people of his constituency. “Kafarati’s ruling on the suit was unjust, unfortunate and sad,” he said, arguing that his appeal should have made the Speaker to stay action by maintaining the status quo. “The judgment of the Federal High Court did not and indeed could not have invalidated or nullified my sealed Certificate of Rerun by virtue of section 75[1] of the Electoral Act, 2010,” a miffed Abia had stated.

Quoting the relevant sections, Abia stated, “A sealed certificate of return at an election in a prescribed form shall be issued within 7 days to every candidate who has won an election under this Act; Provided that where the Court of Appeal or the Supreme Court being the final Appellate Court in any election petition as the case may be nullified the certificate of return of any candidate, the commission shall within 48 hours after the receipt of the order of such court issue the successful candidate with a valid certificate of return and not otherwise.” For good measure, he submitted that Independent National Electoral Commission Secretary, Abdullai Kaugama, had no such powers to invalidate a Certificate of Return signed as sealed by the Chairman of the Commission.

But for some reasons, Dan-Abia did not make reference to Section 75 (2) of the same Electoral Act as ameneded, 2010 he cited: “Where the commission refuses to issue a Certificate of Return, a certified true copy of a court of competent jurisdiction shall, ipso facto, be sufficient for the purpose of swearing-in a candidate declared as the winner by that court.”

But apparently, Abia’s enthusiastic positions cut little ice with Justice Abdul Kafarati. LEADERSHIP checks into prior communication between the party and Chief Olisah Okeke, chairman, House of Representatives Electoral Panel, Eket/Ibeno Constituency, Akwa Ibom State revealed that the parameters for conducting the disputed primary were clearly defined.

“The National Working Committee (NWC) of our great party has approved your nomination to serve on the Electoral Panel to conduct primaries for PDP House of Representatatives aspirants in Eket/Ibeno Constituency,” a letter to the five-person panel, dated January 27, 2011 and signed by PDP National Organising Secretary Prince Uche Secondus, stated. It further clarified: “In the discharge of their functions, members are expected to be guided strictly by the constitution of the party, the guidelines for the primary election and the time-table approved by the National Executive Committee.”

Court’s Intervention…
As it were, on June 1, while delivering judgment in a suit filed by Eyiboh, Justice Abdul Kafarati of an Abuja High Court voided the party’s primaries held in Uyo, the state capital on January 28, which returned Bassey Dan-Abia as winner. The Justice upheld the argument of Eyiboh’s counsel Wole Olanipekun (SAN) that the election was conducted in violation of the party’s guideline that the exercise should be conducted in Eket, the headquarters of the constituency.
He further noted that the Peoples Democratic Party (PDP) did not controvert Eyiboh’s claim that over 90 percent of the delegates at the Eket Township Stadium, the original venue for the primaries, adopted him as the consensus candidate. His words: “The primaries held on January 28 at which the third defendant (Dan-Abia) was elected as the PDP candidate for the 2011 election is hereby set aside,” ordering the Independent National Electoral Commission (INEC), which is the first defendant, to recognise Eyiboh as PDP candidate and the duly elected House of Representatives member, since the party won the April 9 election.

At the last sitting, Olanipekun had urged the court to rule in Eyiboh’s favour because the party agreed in its defence to have conducted the rerun election in Uyo. “My Lord, PDP’s counsel said the election was conducted in Uyo on the basis of convenience. The Electoral Act said it is mandatory to conduct party primaries to select National Assembly candidates in the Headquarters of Federal Constituencies. My Lord, based on this reckless violation of the Electoral Act, my client is automatically qualified by the provision of the law to assume the seat in the House of Representatives,” he submitted.

Olanipekun submitted that the defence and counter-affidavit of Dan-Abia’s counsel Goddy Uche was inconsequential, since Dan-Abia was not the person who violated the Electoral Act to conduct the primaries in a different location. He also opposed the application for transfer on the ground that all the parties in the matter except Dan-Abia reside in Abuja.

On the motion seeking the quashing of the suit because of its wrong commencement, Olanipekun argued that the rule of the court empowered the applicant to approach it with the originating motion. Dan-Abia’s counsel had submitted that the suit was not brought properly before the court, explaining that his client had already been declared winner of the April 9 election, claiming that Eyiboh and all the delegates were at the venue of the primaries in Uyo. Significantly, PDP’s counsel A. O. Yinka opposed the motion for transfer, saying the court has the jurisdiction to entertain the case.

Different Angles…

The court had framed the issue before it in very direct terms: Who was the candidate of the party? Was it Abia or Ejiboh? It then went on to hold that “Eyiboh who conducted his primary at the headquarters of the constituency is the candidate of the party. Consequently, Abia’s success at the general election inured to Eyiboh by operation of law. This is captured by Articles 17(2)(b) of PDP constitution which provides in pertinent part that “the primary election of the House of Representatives shall be conducted at the constituency’s headquarters.” The court held that “PDP did not follow its rule because the primary was not held in Eket – the party headquarters.”

On further pertinent grounds, the court also voided the primary as being in violation of Section 2010 of the Electoral Act, as amended – “The headquarters of Eket/Ibeno/Esit/Onna Federal Constituency is Eket and that any primary election conducted outside the headquarters is null and void and of no effect.” Clearly, the ruling shows that the process was contaminated and the result was clearly the fruit of poisonous tree under fruit of poisonous tree doctrine.

“If indeed it took place outside the constituency, it is in breach of part 2 (A) (i) at page 6 of Electoral Guidelines for Primary Election 2010 and Section 87 9 (i) (a) of Electoral Act 2010 as amended,” a clearly angry Eyibo clarified.

The INEC Angle…

Against the background that specific provisions of the Electoral Act 2010, as amended, vests on relevant courts of competent jurisdiction the power to compel the Independent National Electoral Commission (INEC) to issue Certificates of Return to candidates who successfully seek its interventions, without bias to further adjudication by superior court, INEC’s hedging in giving a Certificate of Return to Eyibo raises other posers.

Section 75 (1) and (2) of the amended Electoral Act 2010 stipulates that: “(1) A sealed Certificate of Return at an election in a prescribed form shall be issued within 7 days to every candidate who has won an election under this Act – provided that where the Court of Appeal or the Supreme Court being the final appellate court in any election petition as the case may be nullifies the Certificate of Return of any candidate, the Commission shall within 48 hours after the receipt of the order of such court, issue the successful candidate with a valid Certificate of Return.

“(2) Where the Commission refuses or neglects to issue a Certificate of Return, a certified true copy of the order of a court of competent jurisdiction shall, ipso facto, be sufficient for the purpose of swearing-in a candidate declared as the winner by that court.”

Clearly, from the foregoing, Eyiboh has met this legal requirement but at press time does not have INEC’s Certificate of Return. Not dispirited by this, he took the next logical step and instituted an action via Suit No FHC/ ABJ/ CS/ 177/ 2011 between Hon. Eseme Eyiboh versus INEC & 2 Others, over the issuance of Certificate of Return to the plaintiff as ordered by a court of competent jurisdiction. On application to the commission for the issuance of the Certificate of Return (CoR), the commission refused citing that one of the respondents, Mr. Bassey Dan Abia had appealed the judgment. This scenario threw up the poser – did INEC act within the purview of the Electoral Act 2010 as amended?

After the High Court judgment of June 1, 2011 that ordered INEC to issue Hon. Eyiboh the Certificate of Return as the elected candidate of the Peoples’ Democratic Party (PDP) for Eket/ Onna/ Esit Eket/ Ibeno Federal constituency of Akwa Ibom state, in the April 9, 2011 Federal House of Representative election, the commission wrote to its Counsel Chief A. S. Awomolo (SAN) for legal opinion. The learned SAN’s response dated June 3, 2011 and addressed to the Secretary of the commission, Mr. Abdullahi A. Kaugama advised the commission to comply with the court order and issue a Certificate of Return to Hon. Eyiboh.

Chief Awomolo (SAN) legal advice to INEC reads: “From the enrolled order attached to your letter, two members of the Peoples’ Democratic Party (PDP) contested party primaries held at Uyo Township Stadium on 28th and 29th day of January 2011. Hon. Eseme Eyiboh instituted an action in court in which he claimed declarations and injunctive orders. The judgment of the court delivered on 1st June 2011 made the orders to the effect that:

*“The purported sponsorship of Mr. Dan Abia as the candidate of the Peoples Democratic Party for the election to the office as member of the House of Representative representing Eket/ Ibeno/ Eset/ Onna Federal Constituency for the 2011 general election is hereby set aside.

*That order is hereby made directing the 1st respondent to insert the name of the applicant as the PDP candidate for election to office as member of the House of Representatives representing Eket/ Ibeno/ Federal Constituency.

* That the plaintiff is ordered to be returned as the winner of the election
*That the plaintiff is to take the place of the 3rd defendant”.

“The effect of the judgment of the court is that the Commission with effect from the date of the judgment treats, recognizes and holds that the plaintiff as the candidate for the PDP for Eket/ Ibeno/ Eset/ Onna Federal Constituency. He is the person entitled to receive the Certificate of Return.

“If the CoR had been issued to the Mr. Dan Abia, before the judgment, the certificate has to be withdrawn and or cancelled. Fresh Certificate of Return which shall be issued to Hon. Eseme Eyiboh in obedience to court order shall be lawful”.

Curiously, INEC appears to have obeyed the substance of the legal advice in principle but not in practice. Perhaps, understandably this approach has spawned suspicions. Notwithstanding that the judgment of the Federal High Court was declarative; INEC chose only to write to the Clerk of the National Assembly informing him that the CoR it issued Mr. Dan Abia “is now invalid”. But since then, INEC has failed to take any further, specific action.

What next?

The emerging consensus currently feeding the proxy war theory is that, cut to the bone, the extant controversy is a script written by powerful gods that dictate who takes what position in the state, a veiled allusion to the state’s first citizen and his minders. As this curious stand-off subsists, with INEC playing coy and the well-heeled gods of Uyo watching carefully, what happens next? Time to roll out the crystal-balls!
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