May 29: Only God can stop Otti’s swearing in – Ubani

From Boniface Okoro, Umuahia

A legal luminary, Dr. Monday Ubani, has said that only God can stop the swearing in of Abia Governor-elect, Dr. Alex Otti.

Ubani made the assertion while reacting to the purported nullification of Otti’s candidacy by a Federal High Court in Kano on Friday, May 19, 2023 while ruling on a case brought against Labour Party and its candidates across the country in the 2023 general elections by one Ibrahim Haruna-Ibrahim.

The court had ruled that all certificates of return issued to all Labour candidactes who were successful in the election be withdrawn, citing their ineligibility because their party failed to meet the constitutional requirement of submitting its membership register to the Independent National Electoral Commission (INEC) 30 days before conducting their primaries.

However the court was later to clarify that the ruling did not affect Otti or other candidates of Labour Party in Abia because they were not party to the suit.

However, proffering his legal opinion on the issue, Ubani, had argued that that the ruling was of no effect because it was a pre-election matter and was coming too late.

In his legal opinion titled, “Purported Federal High Court Order Against Dr Alex Otti,” Ubani maintained that the ruling could not stop Otti from being sworn-in on May 29 as the Governor of Abia State.

“Come 29th of May, 2023, Dr Alex Otti will be sworn in as the next governor of Abia State. It is only Almighty God that can stop him and fortunately He, God, will not stop him now because the mandate of Dr Alex Otti is not only divine, it was generously and genuinely given by the people of  Abians and God approved it.

Too late for them! Too late,” he concluded in his legal review of the judgement.

The former Second National Vice President of the Nigeria Bar Association (NBA)wrote:

“I was taken aback when news filtered out that a Federal High Court in Kano has ruled that all the candidates of Labour Party including Dr Alex Otti who won the gubernatorial election in Abia were not proper candidates of Labour since according to the court, Labour Party did not submit its Members’ Register 30 days before it held its primary election that produced the candidates for the general election in accordance with Section 77(3) of the Electoral Act of 2022.

“The Section referred to is here: S77.—(1) A political party registered under this Act shall be a body corporate with perpetual succession and a common seal and may sue and be sued in its corporate name.

(2) Every registered political party shall maintain a register of its

members in both hard and soft copy.

(3) Each political party shall make such register available to the Commission not later than 30 days before the date fixed for the party primaries, congresses or convention.

“After examining this section and sub-section 3 of it, it may be possible that this Section and its non- compliance can raise issue as a pre-election matter. I use the word “may” advisedly. However note that the section did not contain any penalty for non compliance. Whether that sub-section can be raised as a qualification issue in a pre-election matter or post election matter is a matter of debate. It hinges on many factors: (1) Who is the plaintiff, what is his locus in this case? Is he a presidential, gubernatorial or legislative candidate in the held election? Did the Section of the Act provide any penalty against the candidates of the party or against the party itself for non compliance?

“Why was this issue not raised before now? Or has it been raised and disposed off  before now? Why was the suit filed at Federal High Court and not in Election Petition Tribunal since election has been held and a winner declared? If this is regarded as pre election grievance, is the aggrieved not caught by S 285(9) of 1999 constitution that gives only 14 days for an aggrieved candidate to file pre-election matter? So many questions seeking answers. The question continues.

”If we all agree on some basic truth that this matter is a pre-election issue what was this meddlesome interloper and busybody doing at the Federal High Court, Kano after several months of the primaries? Even if it is a post-election matter, was Federal High Court the proper court with jurisdiction? I doubt it.

ARGUEMENT

“Whether a candidate is qualified to contest election has over time become a matter of  argument in several quarters. Some are of the opinion that where a candidate is found not to be qualified to contest an election whether as a governor or legislator, the issue  must be raised timeously since it is a pre-election matter. Some others have however  argued that the qualification of a candidate is a subject matter within the jurisdiction of the Election Petitions Tribunal and not otherwise. The truth of the matter is that the  argument is no longer necessary as the Electoral Act has made qualification of the candidate as a ground for petition before the Election Petition Tribunal. Therefore it can also be raised at the Election Tribunal.

 “It must be noted that it is within the prerogative of the person contesting the qualification of a candidate to raise it either at the pre-election stage or post-election stage. 

“However, he has 14 days to file the action challenging his qualification in a pre election contest. If he fails, refuses and neglects to file a pre election suit within 14 days as allowed by the constitution, he is for ever barred(it is statute barred ) to bring the same suit as a pre election matter after election has been held and result announced with a winner.

“But if  he wants to challenge the election after it has been held and result announced, he can only do that at the Election Petition Tribunal and AND NO WHERE ELSE. It means that the matter must get up to supreme court. The winner remains in power until the final decision of the Supreme Court!

“If a court has given a pronouncement on the qualification of a candidate at the pre-election stage, the principle of “Estoppel per rem judicatum” would apply. i.e the Plaintiff is estopped from raising it at the Election Tribunal as a Petitioner or where the question of qualification of a candidate is a pending subject in a pre-election suit, the Election Tribunal will lack jurisdiction to entertain it. It would only amount to an abuse of court process.

“All suits arising from general complaints  like this issue of non-submission of members register to INEC 30 days before the primaries appears as pre election issue that should take a back seat since election has been concluded and winner announced.

“However if any one feels strongly that the issue of non submission of members register of party is  qualification issue that is covered under  S177 of the 1999 Constitution as Amended or any other section, he should bring it on and the appropriate place is the Election Petition Tribunal.  Most importantly we must note that the Petitioner must be someone who must have contested election as a gubernatorial candidate in the 2023 general elections with Dr Alex Otti in Abia State. No one else has locus!

The petition CANNOT BE FILED BY A MEDDLESOME INTERLOPER OR A BUSY BODY.

“On a final note,  the allegation that a political party did not submit its members’ Register 30 days before their primaries will be decided by the Court and that court includes the Supreme court which will decide whether the issue of non submission of members’ register to INEC constitutes grounds for non qualification of a candidate as provided under the 1999 constitution as amended.

“Be reminded that INEC never said that it did not receive the members’ Register of Labour Party 30 days before  their primaries. On the contrary this vexed issue has been decided in other pre election issues involving Labour Party candidates before now at the various courts.

“INEC was the one that accepted the candidates of Labour Party, cleared them for the general elections, conducted the elections and declared them winners with certificates of return. So why this unnecessary brouhaha at this time?”