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TENURE ELONGATION: FULL INEC APPEAL DUCUMENTS FILED AT THE COURT OF APPEAL

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IN THE COURT OF APPEAL

HOLDEN AT ABUJA



APPEAL N0. SUIT N0. FHC/ABJ/CS/651/2010

BETWEEN
INDEPENDENT NATIONAL ELECTORAL COMMISSION ... APPELLANT

AND
1. Chief Timipre Sylva ... … … …

2. Attorney General of Bayelsa State
3. Mienyobofa Fafa Stephen, Gow

4. Alhaji Ibrahim Idris(Governor of Kogi State) …. RESPONDENTS

5. Alhaji Aliyu Magatakarda Wammako
6. Admiral Murtala Nyako (Rtd)
7. Senator Liyel Imoke
NOTICE OF APPEAL
FORM 3
(Order 6 Rule 2)
TAKE NOTICE that the Appellant being dissatisfied with the decision of the Honourable Justice Adamu Bello sitting at the Federal High Court Abuja, dated Wednesday 23rd Feb., 2011 in consolidated suit numbers FHC/ABJ/CS/646/2010; FHC/ABJ/CS/648/2010; FHC/ABJ/CS/650/2010; FHC/ABJ/651/2010; and FHC/ABJ/668/2010 DOTH HEREBY APPEAL to the Court of Appeal upon the grounds set out in paragraph 3 and will at the hearing of the appeal seek the reliefs set out in paragraph 4.

AND the Appellant further states that the names and addresses of the persons directly affected by the appeal are those set out in paragraph 5

2. PART OF THE DECISION COMPLAINED OF: Whole Decision.

3. GROUNDS OF APPEAL:
GROUND ONE: ERROR IN LAW
The Learned Trial Judge erred in law when he held at pages 39-40 of his Judgment that “in their written submissions, plaintiffs have placed relevance on the case of OBI vs. INEC (2007)11 NWLR (PT. 1046) P. 565, A.G. ANAMBRA STATE vs. A.G. FEDERATION (2007) 12 NWLR (PT. 1046) p.1; LADOJA vs. INEC & 2 ORS (2007) 12 NWLR (PT. 1047) p. 119 among others to the effect that these cases are relevant for the determination of the suits…….having had the opportunity to read the above cases and others cited by the parties, I believe that the case of OBI vs. INEC (supra) in which the Supreme Court interpreted the provision of section 180(2) of the 1999 Constitution is relevant to the determination of the issues relating to the tenures of the Plaintiffs contrary to the position of the defendants except PDP.” and then proceeded to consider the dictum in OBI vs. INEC (supra), when the dicta in OBI vs. INEC and LADOJA vs. INEC & 2 ORS (supra) both have significant bearing and relevance to the issues raised in the consolidated suits before him.

PARTICULARS OF ERROR:
i) In OBI vs. INEC (supra) the Supreme Court per Aderemi JSC held that in applying the provisions of section 180(2) of the Constitution of the Federal Republic of Nigeria, 1999, the four-year term of office of Peter Obi, as Governor of Anambra State will run from 17th March 2006 when he was first sworn-in to 17th March 2010 because Dr Chris Ngige’s election having been annulled, the period Chris Ngige was in office as the Governor of Anambra State could not count for the period a different person, who was a victim of electoral irregularities i.e Peter Obi first assumed the office of Governor of his State, on 17th March 2006.

ii) Whereas Plaintiffs/Respondents’ case ought to have been distinguished from Obi’s because they had been in office as Governors before they were removed by the Court of Appeal for electoral irregularities and a re-run election having been conducted within 90 days, returned to the same office, re-sworn continued from where they had their tenures briefly interrupted.

iii) In LADOJA vs. INEC & 2 ORS (supra), the Supreme Court held that the period Ladoja was out of office as Governor of Oyo State (eleven months) which was a longer period than the period of interruption experienced by the Plaintiffs/Respondents in the consolidated suits, counted in computing Ladoja’s four-year tenure who was removed by the Oyo State House of Assembly and subsequently re-instated by a court order that nullified the process of his removal and declared it illegal.

iv) Both the principle enunciated in the cases of OBI vs. INEC and LADOJA vs. INEC & 2 ORS do not support the erroneous conclusion reached by the Learned Trial Judge that the re-run tenures for the Governors of the five States would start afresh under section 180(2) of the 1999 Constitution.

v) A period of interruption leading to a re-run election as a result of a previous election adjudged by a court of competent jurisdiction as fundamentally flawed and fraught with irregularities cannot be construed to benefit the same Holder of the same public office.

vi) The ratio decidendi in OBI vs. INEC (supra) was misunderstood and misapplied by the Learned Trial Judge.

GROUND TWO: ERROR IN LAW
The Learned Trial Judge erred in law in shutting his eyes to the circumstances of the Plaintiffs/Respondents Governors’ re-run elections when he relied on the case of PROGRESSIVE PEOPLE’S ALLIANCE (PPA) & ANOR vs. INEC & 3 ORS (2010) 12 NWLR (PT. 1207) p. 70 at 94 paragraphs E-H and other authorities in stating that whatever is nullified is invalid and of no legal force, whereas the Oaths of allegiance and offices first administered on the Governors were not capable of extinction in the circumstances of the consolidated suits.

PARTICULARS OF ERROR:
i) When Governors have taken Oaths of allegiance and Oaths of office, the same one, same wording as the one taken before a re-run election in which they are the beneficiaries as distinct from the victims of electoral irregularities stricken down by a court of competent jurisdiction, and conversely returned as winner of the first election and again as winner of the re-run election, such Governors cannot seek to extend their tenures ad abundantiam meaning to abundance, so as not to make mockery of the cherished Latin maxim, ex turpi causa non oritur actio – from a dishonorable cause an action does not arise as no man or woman is to profit from his/her wrong.

ii) A Court is duty bound to always apply the rule fiat justitia ruat caelum that is to say justice be done, the sky will not fall; whenever a party to a dispute aim at taking advantage of imaginary lacunae in the Constitution to promote certain electoral injustices, as in the consolidated cases.

iii) Failure to reflect upon the admonition of the Court of Appeal per Saulawa JCA in UKPO vs. IMOKE (2009) 1 NWLR Pt. 1121 p. 90 on the role of the judiciary in nurturing and strengthening democracy in Nigeria, i.e. “……that the judiciary has a sacred, albeit arduous duty to salvage this nation. And as Judges, we must strive to rise up to that challenge. For only then can we earn for ourselves the gratitude of the people and as priests in the temple of justice, the eternal blessings of the Almighty God (The Supreme Judge)” led to a miscarriage of electoral justice.

iv) Failure to take the advise of Ogbuagu JSC in SOKOTO STATE GOVERNMENT vs. KAMDEX NIGERIA LTD (2007) 7 NWLR (Pt. 1034) p. 466 at 503 on duty of the Court not to support an act which is an antithesis of justice, that runs parallel to justice.

GROUND THREE: MISDIRECTION IN LAW
The Learned Trial Judge misdirected himself in law when he said that the taking of the Oath of allegiance and Oath of office, twice in each case, in which the Plaintiffs/Respondents’ Governors had indulged, is the basis for calculating the four-year term, and that a nullification of the previous elections of the plaintiffs/appellants Governors also nullified their previous Oath of allegiance and the Oath of office; when Oaths are solemn pledges designed to defend and preserve the Constitution pursuant to the seventh schedule of the Constitution of the Federal Republic of Nigeria, 1999 and when section 180(2) did not contemplate an extension.

PARTICULARS OF MISDIRECTION:
i) A cursory reading of the seventh schedule to the Constitution of the Federal Republic of Nigeria, 1999 reveals that it is the same nature and character of Oaths that were taken by the Respondents on the two occasions they were sworn-in as Governors, these being abundant indulgences.

ii) Oaths of allegiance and Oaths of office are acknowledgments of loyalty to Nigeria; it provides overarching guidance and a standard of conduct which binds unless the subscriber(s) renounce allegiance to the Country and to the Constitution.

iii) Oaths under the seventh schedule of the Constitution conclude with the concept of divine guidance to affirm the transcendence of religious faith in our heritage and values and constantly strengthens the spiritual weapons upon which a Nation’s most powerful tool is built at all times and for all good.

iv) Oaths are a welcome source of personal and national strengths for which even atheists have a moral obligation to uphold from a societal perspective, ends with the phrase: “So help me God.” The integral part of the obligations imposed therein do not cease with the office. E.g. the subscribers do not stop defending or preserving the Constitution of Country Nigeria because they are no longer State Governors, neither do their allegiances to the Federal Republic of Nigeria, extinguish.

v) The Plaintiffs/Respondents’ Oath of allegiance and Oath of office on both occasions each being of similar nature and character and administered on the same personality, cannot be interpreted to increase the four-year term of office of the subscribers contrary to section 180(2) of the Constitution, as the subscribers to the Oaths are the same Governors with the same identity and nationality as when they first took it.

GROUND FOUR: MISDIRECTION IN LAW
The Learned Trial Judge failed to follow the legal principle of stare decisis et non quiete movere (to abide by decisions of superior courts and not disturb settled matters) and misdirected himself in law when he misapplied the ratio enunciated by the Supreme Court in BALONWU & 5 ORS vs. GOVERNOR OF ANAMBRA STATE & 13 ORS (2009) 18 NWLR (PT. 1170) p.13 as cited by the Defendant/Appellant that as de facto Governors, the executive acts performed, being valid, the periods ought to have computed into their four-year tenures, and held instead that the Supreme Court failed to consider the consequences of annulled elections in those circumstances of re-run elections, and thereby directed that s.180(2) of the Constitution made reference to Oath of allegiance and Oath of office and nothing more, and in so doing extended the four-year tenures of office of the State Governors.

PARTICULARS OF MISDIRECTION:
i) BALONWU & 5 ORS vs. GOVERNOR OF ANAMBRA STATE & 33 ORS (supra) having settled the issue of de facto Governor being one who holds office until their petitions and appeals are concluded in Tribunals, hence their acts and proclamations are valid, the lower court ought to have interpreted the Constitution by computing the period the Respondents had spent in office before their elections were annulled for electoral irregularities and election misconduct as stated in the judgments that annulled the elections, being judicially noticed.

ii) The Latin phrase ex nibilo nihil fit (creation out of nothing) has its origin in Theology to mean God created the universe out of nothing though God’s acts of creativity remained, it would infer that the Plaintiffs/Respondents’ Governors having also enjoyed parts of their tenures which ought to count in computing the total four-year regime, having enjoyed salaries and perquisites of office, and signed Bills into Law which remain as Laws even as de jure Governors turned de facto, ought not to approbate and reprobate, particularly in the face of the spate of judicial condemnation of the acts of electoral irregularities and electoral misconduct that ushered them into public offices, being unacceptable legacies of democracy and wrong values.

iii) With a view to promoting Nigeria’s democratic culture and values and to bringing out the intention of the Legislators in the drafting of section 180(2) of the Constitution of the Federal Republic of Nigeria, 1999, the National Assembly having passed the Constitution of the Federal Republic of Nigeria (First Alteration) Act, 2010 signed by Mr. President on 10th Jan., 2011 has thereby put the construction to be given to the new section 180(2) beyond the slightest doubt, or question.

iv) In exercising its interpretative jurisdiction, the Court ought to have brought out the intention of the Legislature as stated by Aderemi JSC in LADOJA vs. INEC (supra) when the Supreme Court refused Ladoja, whose four-year tenure was interrupted by eleven months, tenure elongation and refused to push his tenure from May 29, 2007 to April 29, 2008, as sought by him, bearing in mind that he was first sworn-in on May 29, 2003 before he was removed by the Oyo State House of Assembly.

v) The National Assembly having made further clear the intention of the Draftspersons in 2010, it does not lie in the hands of the Respondents’ Governors to take any step to upturn it.

vi) In the interpretation of the Constitution or a Statute, words must be construed res magis valeat quam pereat meaning to give a sensible meaning to them, to ensure that the intention of the legislature is not defeated as enjoined by Tabai JSC in AMALGAMATED TRUSTEES LTD vs. ASSOCIATED DISCOUNT HOUSE LTD (2007) 15 NWLR (PT. 1056) p.118 at 147-148.

GROUND FIVE – ERROR OF LAW
The Learned Trial Judge erred in law when he failed to interpret the word “shall” used in section 180 (2) of the Constitution of the Federal Republic of Nigeria, 1999 to connote compulsion on the Respondents Governors to vacate their offices under a constitutional duty to do so at the expiration of their four years term from when they first took the Oath of allegiance and the Oath of office, as propounded by Niki Tobi JSC in SOKOTO STATE GOVERNMENT vs. KADEX NIGERIA LTD (Supra).

PARTICULARS OF ERROR:
i) “Shall” vacate office as used in section 180 (2) of the 1999 Constitution of the Federal Republic of Nigeria, has a mandatory connotation to leave the office of Governor after a four-year term, where the occupant of the office is the same person who was re-sworn after a re-run election.

ii) There being no difference in the wording of the Oath of allegiance and Oath of office administered on the Respondents before and after the re-run elections, s.180 (2) of the 1999 Constitution made no distinction between both sets of Oaths (i.e. one taken before re-run and the other post a re-run).

iii) Having had the first Oath of allegiance and Oath of office administered on the persons of the Governors of the affected States, the second set of Oaths was a mere formality for their second coming being a continuum of the initial tenures.

iv) There is nowhere throughout the seventh schedule of the 1999 Constitution of the Federal Republic of Nigeria and section 185 thereof where the Oath of allegiance and Oath of office being administered by the Chief Judge of a State, on a Governor is distinguished or distinguishable from the Oath of allegiance and Oath of office being administered also by the same Chief Judge on the same Governor who won a re-run election.

v) Oath of allegiance under the seventh schedule compels the subscriber to “bear true allegiance to the Federal Republic of Nigeria” and to “preserve, protect and defend the Constitution of the Federal Republic of Nigeria. So help me God.”

vi) Oath of office of Governor as titled reaffirms similar wordings and undertaking to inter alia discharge ones duties as Governor of a State faithfully and to the best of the subscriber’s ability.

vii) In all of the cases where the Court of Appeal nullified the election of the Respondents, nowhere throughout the judgments were the original Oaths taken nullified by Orders of the Court of Appeal, the final adjudicator, neither any of all the executive acts taken, the assets and loans taken, salaries and perquisites enjoyed and liabilities incurred whilst in office.

viii) Nullification of election is on one hand, and nullification of Oath of allegiance to one’s country and or Oath of office of the subscriber to serve his/her country faithfully, to the best of his/her ability, is another; the latter not being capable of nullification to avoid acts of betrayal of a Nation’s trust or a violation of allegiance to one’s sovereign.

ix) To count four years from when the Respondents won their re-run election and subsequently re-sworn, was a strange importation into the clear wording and interpretation of section 180(2) of the 1999 Constitution, and amounts to tenure elongation, an act never contemplated by the draftspersons.

x) Words in a Constitution should be interpreted to remove ambiguities, to demote rather than promote the mischief rule.

GROUND SIX: ERROR IN LAW
The Learned trial Judge erred in law in holding that the suit was competent when he lacked the jurisdiction to entertain the Plaintiffs’ claim which sought to interfere with the statutory functions of the Appellant to conduct, schedule and regulate elections into political offices, and thereby occasioned a grave miscarriage of justice.

GROUND SEVEN:
The Judgment is against the weight of evidence and inconsistent with decisions of the Appellate Courts in respect of the issues canvassed.

GROUND EIGHT:
Further grounds will be filed upon receipt of the record of proceedings.

4. RELIEFS SOUGHT FROM THE COURT OF APPEAL:
i) AN ORDER allowing this Appeal.
ii) AN ORDER setting aside the Judgment of the Lower Court.

5. PARTIES DIRECTLY AFFECTED BY THIS APPEAL:
i) The Appellant:
INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)

c/o Dame Carol Ajie, LL.B (Hons), B.L.;MCIArb(London); LL.M(Georgetown)

(Professor Scholae Juris, Georgetown Law, Washington D.C., USA;

Int’l Human Rights Law, GULC; LAWA Fellow 2009-2010, GULC.)

C. N. AJIE & CO.
Legal Practitioners for the Defendant/Appellant:

Office Suite 332, 3rd Floor
Transcorp Hilton
Abuja.


ii) The 1st, 2nd and 3rd Respondents (Governor of Bayelsa State)

c/o Their Counsel
Chief Ladi Williams SAN
Whose Address for Service Within Jurisdiction is:
c/o A. O. Oloraje & Co.
Suite 2, 3rd Floor, Left Wing
City Plaza, Rubuka Close,
Off Nkwere Street,
Beside NIPOST Headquarters
Garki,
Abuja.

iii) The 4th Respondent:
Alhaji Ibrahim Idris, Governor Kogi State

c/o His Counsel
Prince Lateef O. Fagbemi, SAN
4th Floor, Rivers State Office Complex
Plot 83, Ralph Shodeinde Street
Opposite Federal Ministry of Finance
Central Area,
Abuja



iv) The 5th Respondent:
Alhaji Aliyu Magatakarda Wammako, Governor of Sokoto State.

c/o His Counsel:
S.I Ameh, SAN and Yahaya Mahamood Esq.
S. I Ameh (SAN) & Co.
(Jubilee Chambers); Flats 2 & 3, 2nd Floor
AGA Memorial Complex
16, Nkwere Street
Garki II, Abuja.
v) The 6th Respondent:
Alhaji Aliyu Murtala Nyako (Rtd.), Governor of Adamawa State.

c/o His Counsel
Kanu G. Agabi, (CON) SAN
Kanu Agabi & Associates
Drive 6, House 8
Ministers Quarters
Mabuchi
Abuja
vi) The 7th Respondent:
Senator Liyel Imoke, Governor of Cross River State.

c/o His Counsel
Paul Erokoro & Co
3rd Floor, Wema Bank Building
Plot 464, Constitution Ave
Central Business District
Abuja.
M: 08037868803
Email: [email protected]; [email protected]

vii) People’s Democratic Party (PDP)

PDP Headquarters
Wadata House
Wuse Zone 5
Abuja.
viii) Hon. Attorney General of the Federation and Minister of Justice

Attorney General’s Chambers
Federal Ministry of Justice
Abuja.


Dated this Monday the7th Day of March 2011

Notice and Grounds of Appeal prepared and filed by:


Dame Carol Ajie LL.B (Hons), B.L.;MCIArb(London); LL.M(Georgetown)

(Professor Scholae Juris, Georgetown Law, Washington D.C., USA;

Int’l Human Rights Law, GULC; LAWA Fellow 2009-2010, GULC.);

Address for service within jurisdiction:

C. N. AJIE & CO.

APPELLANT’S COUNSEL

Office Suite 332, 3rd Floor

Transcorp Hilton

Aguiyi Ironsi Street

Abuja.

M: 08033041206

Email: [email protected]


IN THE FEDERAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION HOLDEN AT ABUJA

SUIT N0. FHC/ABJ/CS/651/2010

BETWEEN
8. Chief Timipre Sylva ... … … …

9. Attorney General of Bayelsa State
10. Mienyobofa Fafa Stephen, Gow

11. Alhaji Ibrahim Idris(Governor of Kogi State)…. Respondents.

12. Alhaji Aliyu Magatakarda Wammako

13. Admiral Murtala Nyako (Rtd)

14. Senator Liyel Imoke
AND
1. Independent National Electoral Commission Appellant/Applicant

2. Attorney General of the Federation Respondent

3. People’s Democratic Party Respondent

MOTION ON NOTICE
BROUGH PURSUANT TO:
1. ORDER III RULE 1 OF THE SHERIFFS AND CIVIL PROCESS ACT, JUDGMENTS (ENFORCEMENT) RULES CAP. S6, VOL. 14 LAWS OF THE FEDERATION OF NIGERIA, 2004

2. ORDER 32 RULES 1, 4(1) AND 5 OF THE FEDERAL HIGH COURT(CIVIL PROCEDURE) RULES, 2009 AND

3. THE INHERENT JURISDICTION OF THE COURT.
TAKE NOTICE that this Honourable Court will be moved on …………..the ………….day of………………………2011 at the hour of 9”0 Clock in the forenoon or so soon thereafter as Counsel may be heard on the following;

1. AN ORDER of Stay of Execution of the Judgment of the Honourable Court delivered on Wednesday 23rd Feb., 2011, pending the hearing and determination of the appeal already filed and served on the Respondents.

2. AND for such further Order(s) as this Honourable Court may deem fit to make in the circumstances.

Dated this Tuesday the 8th Day of March 2011

Dame Carol Ajie, LL.B (Hons), B.L.;MCIArb(London); LL.M(Georgetown)

(Professor Scholae Juris, Georgetown Law, Washington D.C., USA;

Int’l Human Rights Law, GULC; LAWA Fellow 2009-2010, GULC.)

C. N. AJIE & CO.
Legal Practitioners for the Appellant/Applicant:
Office Suite 332, 3rd Floor
Transcorp Hilton, Abuja.
M: 08033041206
Email: [email protected]


ON NOTICE TO:
1. The 1st, 2nd and 3rd Respondents: (Governor of Bayelsa State)

c/o Their Counsel
Chief Ladi Williams, SAN
Whose Address for Service within jurisdiction is:
c/o A. O. Oloraje & Co.
Suite 2, 3rd Floor, Left Wing
City Plaza, Rubuka Close,
Off Nkwere Street, Beside NIPOST Headquarters
Garki,
Abuja.

2. The 4th Respondent:
Alhaji Ibrahim Idris, Governor of Kogi State.
c/o His Counsel
Prince Lateef O. Fagbemi SAN With Pius Okubo SAN
4th Floor, Rivers State Office Complex
Plot 83, Ralph Shodeinde Street
Opposite Federal Ministry of Finance
Central Area,
Abuja.


3. The 5th Respondent:
Alhaji Aliyu Wammako, Governor of Sokoto State.
c/o His Counsel
S.I Ameh, SAN
Yahaya Mahamood Esq.
S. I Ameh (SAN) & Co.
(Jubilee Chambers); Flats 2 & 3, 2nd Floor
AGA Memorial Complex
16, Nkwere Street
Garki II, Abuja.


4. The 6th Respondent:
Admiral Murtala Nyako, (RTD), Governor of Adamawa State.

c/o His Counsel
Kanu G. Agabi, (CON), SAN
Kanu Agabi & Associates
Drive 6, House 8
Ministers’ Quarters
Mabuchi, Abuja.


5. The 7th Respondent:
Senator Liyel Imoke, Governor of Cross River State.

c/o His Counsel
Paul Erokoro & Co
3rd Floor, Wema Bank Building
Plot 464, Constitution Ave
Central Business District, Abuja.
M: 08037868803
Email: [email protected]; [email protected]

6. People’s Democratic Party (PDP)
PDP Headquarters
Wadata House
Wuse Zone 5
Abuja.


7. Hon. Attorney General of the Federation and

Minister of Justice
Attorney General’s Chambers
Federal Ministry of Justice, 5th Floor
Abuja.








IN THE FEDERAL COURT OF NIGERIA

HOLDEN AT ABUJA
SUIT N0. FHC/ABJ/CS/651/2010

BETWEEN
1. Chief Timipre Sylva ... … … …

2. Attorney General of Bayelsa State
3. Mienyobofa Fafa Stephen, Gow

4. Alhaji Ibrahim Idris(Governor of Kogi State)…. Respondents.

5. Alhaji Aliyu Magatakarda Wammako
6. Admiral Murtala Nyako (Rtd)
7. Senator Liyel Imoke
AND
1. Independent National Electoral Commission Appellant/Applicant

2. Attorney General of the Federation Respondent

3. People’s Democratic Party Respondent

AFFIDAVIT IN SUPPORT OF MOTION FOR STAY OF EXECUTION.

I, KENNEDU AJOGI, Male, Christian, Nigerian, Litigation Clerk in the Chambers of Messrs C.N. AJIE & CO., Counsel to the Applicant, of Suite 332, 3rd Floor, Transcorp Hilton, Aguiyi Ironsi Street, Maitama – Abuja doth hereby depose on Oath and state as follows:

1. That I am a Litigation Clerk in the Chambers of Messrs C.N. AJIE & CO., Legal Practitioners for the Appellant/Applicant in these proceedings.

2. That by virtue of my schedule of duties I am fully conversant with the facts deposed hereto.

3. That I have the authority and consent of my Principal and those of the Appellant/Applicant to make this affidavit deposition.

4. That on Monday 7th March 2011 at 1:00 p.m. I was informed by my Principal in chambers, Dame Carol Ajie and I verily believe as follows:

i) That on the 23rd of Feb., 2011, this Honourable Court gave Judgment against the Appellant/Applicant herein who is charged with the statutory duties and constitutional role of conducting elections into the offices occupied by the 1st, 4th, 5th, 6th and 7th Respondents Governors and their counterpart in all the States, in addition to those of the offices of the State and National Assemblies and the President of Nigeria.

ii) Towards this end, INEC caused to publish a Schedule for the 2011 Election slating 16th April 2011 for the Governorship election, pursuant to the powers conferred on it by the Electoral Act, 2010 as amended as well as the Constitution of the Federal Republic of Nigeria 1999.

iii) That there are four States that Governorship elections had been scheduled by INEC not to hold in April 2011 namely Rivers, PDP (June 2011); Edo, Labour Party (July 2012) Ondo, Labour Party (July 2012 and Anambra, APGA (Nov., 2014).

iv) That in Oct., 2010 the Court of Appeal Ilorin Division, by a unanimous decision, nullified the election of Governor Segun Oni of Ekiti State (PDP) and ordered the swearing in of a first term Governor, Dr. Kayode Fayemi of Action Congress of Nigeria (ACN). This would mean that Governor Fayemi will occupy the office till Oct., 2014 when his term expires and there will be an election in which he will be eligible to run for a second and final term of four years.

v) That Dr Fayemi of Ekiti State, brings to five the number of State Governors who were sworn in for the first time after a sitting Governor was removed by the Court of Appeal on account of electoral irregularities and election misconduct.

vi) That in the case of the five Respondents Governors in these cases, Adamawa, Bayelsa, Cross River, Kogi and Sokoto States, after their elections were nullified by the Court on grounds of electoral misconduct and irregularities, a re-run election was ordered in which they contested and won again, some won with larger margins amidst wide protests.

vii) That conducting elections in their respective States along with others who came into office the same time as the Respondents Governors did i.e. May 29, 2007, will not cause any of the participants any harm or prejudice but shutting out other contestants would cause a greater hardship.

viii) That the point on the Respondents being sworn-in a second time, following the re-run is the subject of an appeal against the Judgment of this Honourable Court of 23/2/2011.

ix) That having obtained a certified true copy of the judgment, she has filed a Notice and Eight Grounds of Appeal against it, on behalf of her client, the Appellant/Applicant, INEC; a copy of which is herewith attached and marked Exhibit “A.”

x) That it will deepen our democracy to stay execution of the Judgment of this Honourable Court pending the hearing and determination of the Notice and Grounds of Appeal filed.

xi) That it is in the interest of justice to allow Governorship elections hold in Adamawa, Bayelsa, Cross River, Kogi and Sokoto States, some of these Governors, Kogi for example will exhaust his 2nd term on the 29th of May 2011 and those who would not, will have the opportunity of contest offered with other co-contenders from all the political parties keen.

xii) That the res will definitely be annihilated and destroyed as time is of the essence unless a stay of execution of His Lordship’s Judgment is granted.

xiii) That the Grounds of Appeal raise substantial issues in an area of law where the law is somewhat recondite.

xiv) That the Appeal is arguable, meritorious and might succeed.

xv) The balance of convenience is in favour of granting a stay.

5. That a stay of execution would permit INEC’s schedule of Governorship elections in those States affected to run freely, and fairly with others and would permit the Respondents and other co-contestants to come to a political level playing ground.

6. That the local and International community is looking to see that INEC does not fail, that our Nation’s democracy is sustained such that steps be not taken or restraining Orders granted that stultify the conduct of All State-elections due to come up in April 2011.

7. I make this affidavit deposition in good faith believing its contents to be true and correct in accordance with the Oaths Act.

DEPONENT
SWORN TO at the Registry of the Federal High Court, Abuja.

This ………………………..day of…………………..2011

BEFORE ME:

COMMISSIONER FOR OATHS.


IN THE FEDERAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
SUIT N0. FHC/ABJ/CS/651/2010

BETWEEN
15. Chief Timipre Sylva ... … … …

16. Attorney General of Bayelsa State

17. Mienyobofa Fafa Stephen, Gow

18. Alhaji Ibrahim Idris(Governor of Kogi State)…. Respondents.

19. Alhaji Aliyu Magatakarda Wammako

20. Admiral Murtala Nyako (Rtd)

21. Senator Liyel Imoke
AND
4. Independent National Electoral Commission Appellant/Applicant

5. Attorney General of the Federation Respondent

6. People’s Democratic Party Respondent

WRITTEN ADDRESS OF COUNSEL TO THE APPLICANT ON THE MOTION ON NOTICE FOR STAY OF EXECUTION.

1.0 INTRODUCTION:
This is an application brought pursuant to Order III Rule 1 of the Sheriffs and Civil Process Act; Judgment (Enforcement) Rules CAP. S6, VOL. 14 Laws of the Federation of Nigeria, 2004 and Order 32 Rules 1, 4(1) and 5 of the Federal High Court (Civil Procedure) Rules 2009 and the inherent jurisdiction of the Court, praying the following Orders:- AN ORDER Staying Execution of the Judgment of the Honourable Court delivered on Wednesday 23rd Feb., 2011, pending the hearing and determination of the appeal already filed and served on the Respondents. AND for such further Order(s) as this Honourable Court may deem fit to make in the circumstances. It is supported by a seven paragraph affidavit deposed to by Mr. Kennedy Ajogi, a Litigation Clerk in the Chambers of the Applicant’s Solicitors Messrs C.N. Ajie & Co.

My Lord we have Exhibit “A” the Notice and Grounds of Appeal attached as being duly filed and served on all the Respondents. We rely on all the paragraphs particularly paragraphs 3, 4 (i)- (xv), 5, 6 and 7 of the affidavit and every paragraph of the affidavit of extreme urgency. We also rely on Exhibit “A”.

2.0 ARGUMENT:
My Lord, though the granting of an application for stay of execution of your Lordship’s Judgment pending the determination of the appeal filed is a discretionary power which is exercised depending on the facts and circumstances of the case, the following ingredients which are eloquently present in this case, co-exist for the consideration of my Lord, to enable your judicial and judicious exercise of discretion:

1. An Appeal has been filed by the Appellant/Applicant as per Exhibit “A” attached, contesting the Orders, injunctions and declarations made by this Honourable Court on 23rd Feb., 2011;

2. The Grounds of Appeal are arguable on its merit, with have a chance of success as counseled in NDABA (NIG) LTD. vs. U.B.N Plc (2007) 9 NWLR (Pt.1040) p. 437 at 466

3. The Appellant/Applicant is a body set up by the Constitution and clothed with the legal right to invite Courts to consider substantial points of law in this Appeal. Please refer to section 15 of the Third Schedule, Part I of the Constitution of the Federal Republic of Nigeria, 1999 particularly subsection (a) of section 15 which states that the Independent National Electoral Commission (INEC) Appellant/Applicant “shall have power to organize, undertake, and supervise all elections to the offices of the President and Vice President, the Governor and Deputy Governor of a State, and the membership of the Senate, the House of Representatives and the House of Assembly of each State of the Federation.”

Section 15 (i) says INEC “shall have power to carry out such other functions as may be conferred upon it by an Act of the National Assembly.” INEC is enamoured with further powers in the Electoral Act, 2010 even as amended. So where the Respondents as in this case, encroach on the discharge of the constitutional and statutory duties of INEC, it has an obligation to stop it.

4. The Appeal raises substantial issues of law on a recondite point of law which the Appellate Court is being invited to resolve;

5. The stay is necessary to preserve the res and stop it from annihilation, destruction or damage. The Court has held in JULIUS BERGER (NIG) PLC vs. T.R. COMM. BANK (2007) 1 NWLR (Pt. 1061) p.540 at 548 that in order not to inflict on the higher courts a completed act, the practice has been firmly established that a fiat accompli should not be imposed on the higher court. This is done to prevent impugning on the jurisdiction of a superior court, and in order not to create a situation of helplessness in the end.

6. That a greater hardship will be caused if the application is refused; as the Respondents will lose nothing and gain but extended tenures if a stay is not granted. But if this application is granted by this Honourable Court, the Appellant would perform its statutory duties of conducting elections in the affected States as well others and the opportunity of a level playing ground afforded to other candidates who hitherto signified interest to contest elections against those Respondents who have done one term e.g. Sokoto.

7. Hence the balance of convenience is in favour of granting a Stay.

8. That a refusal of a stay will render the decision of the Court of Appeal nugatory; time being of the essence April 16, 2011 is around the corner, the date be preserved; should election not hold as published by the Appellant and the Appellant finally wins the appeal, it would put INEC in an awkward position.

9. The conduct of the parties count; in this instance the Respondents had been involved in previous elections which the court may take judicial notice of as those nullified on account of election malpractices and irregularities of which they were beneficiaries now seeking to profit from certain electoral wrongs(i.e. rigging). That is not to be encouraged in a democratic environment that desires nurturing especially as Courts, will not lend support to unjust acts, the Applicant having demonstrated good faith.

10. That there are special and exceptional reasons why suspension of the Judgment ought to be granted in this case, the Appellant/Applicant is a statutory body charged with the responsibility of regulating, scheduling and conducting elections into the offices occupied by the Respondents amongst others and should not be stopped from doing its statutory work. Also special reasons exist where there is a ground of appeal as in the Appellant’s Ground six, that raises the issue of jurisdiction. Please see YUSUF vs. EDUN (2005) 16 NWLR (Pt. 950) p. 34 at 49 and 53

The Supreme Court has held in KIGO (NIG) LTD vs. HOLMAN BROS (NIG) LTD (1980) 5-7 SC 60; that the categories of special or exceptional circumstances are not exhaustive and that the important question is whether the Applicant has shown any special circumstances to warrant granting a stay in its favour pending the determination of its appeal. We urge your Lordship to answer all of these questions in the affirmative. See also ADO vs. COMMISSIONER OF WORKS, BENUE STATE (2007) 15 NWLR (Pt. 1058) p. 429 at 444 per Ndukwe-Anyanwu JCA, where the Court of Appeal, Jos Division held that in order to obtain a stay of execution of judgment against a successful party, an Applicant must show sufficient reasons to warrant it and that where grounds exist suggesting a substantial issue of law to be decided on Appeal in an area in which the law is somewhat and recondite, such substantial grounds as would warrant an interference clearly exist. See also NWABUEZE vs. NWOSU (1988) 4 NWLR (Pt. 88) p.257 and the locus celebra, VASWANI TRADING CO. vs. SAVALAKH & CO (1972) 1 All NLR (Pt. 2) p.483

3.0 CONCLUSION:
On the premises, we respectfully urge that all the conditions for a stay of execution of the Judgment of this Honourable Court of 23rd Feb., 2011, copiously co-existing, that a stay of execution be granted. We beg to move in terms of our Motion papers in adopting our written address.

4.0 LIST OF AUTHORITIES REFERRED TO:
1. SHERIFFS AND CIVIL PROCESS ACT, JUDGMENT ENFORCEMENT RULES, 2004

2. FEDERAL HIGH COURT (CIVIL PROCEDURE) RULES, 2009

3. THE CONSTITUTION OF THE FEDEARL REPUBLIC OF NIGERIA: S. 180(2)

4. SECTION 15 OF THE THIRD SCHEDULE, PART I OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, 1999

5. THE ELECTORAL ACT, 2010, AS AMENDED
6. NDABA (NIG) LTD. vs. U.B.N Plc (2007) 9 NWLR (Pt.1040) p. 437

7. JULIUS BERGER (NIG) PLC vs. T.R. COMM. BANK (2007) 1 NWLR (Pt. 1061) p.540 at 548

8. YUSUF vs. EDUN (2005) 16 NWLR (Pt. 950) p. 34 at 49 and 53

9. KIGO (NIG) LTD vs. HOLMAN BROS (NIG) LTD (1980) 5-7 SC 60

10. ADO vs. COMMISSIONER OF WORKS, BENUE STATE (2007) 15 NWLR (Pt. 1058) p. 429 at 444

11. NWABUEZE vs. NWOSU (1988) 4 NWLR (Pt. 88) p.257

12. VASWANI TRADING CO. vs. SAVALAKH & CO (1972) 1 All NLR (Pt. 2) p.483

Dated the 8th of March, 2011

Dame Carol Ajie
C. N. AJIE & CO.
Legal Practitioners for the Defendant/Appellant:
Office Suite 332, 3rd Floor
Transcorp Hilton, Abuja.

ON NOTICE: to All the Respondents whose addresses for services are as stated in the accompanying process for Stay of Execution of the Judgment of 23:2:2011