The Senate election, which held two years ago, may have come and gone; the last, however, has not been heard of the dispute between Jude Azekwoh of the Democratic Peoples Party (DPP) and Dr. Ifeanyi Okowa of the Peoples Democratic Party (PDP) over Delta North senatorial district seat. Davidson Iriekpen examines the latest twists to the controversy
Controversy surrounding the winner of Delta North senatorial district election between Mr. Jude Azekwoh of the Democratic Peoples Party (DPP) and Dr. Ifeanyi Okowa of the Peoples Democratic Party (PDP), who is currently occupying the seat in the Senate is yet to abate two years after.
The latest twist was on account of an order by the Chief Justice of Nigeria, Justice Aloma Mariam Mukhtar, who while acting on a petition written by Azekwoh and in her capacity as Chairman of the National Judicial Council (NJC), directed the Acting President of the Court of Appeal, Justice Zainab Bulkachuwa, to investigate the allegations against the justices of the Court of Appeal, led by Justice Raphael Agbo.
Azekwoh, in the petition, had complained that his appeal was unjustly and unfairly terminated by the justices of the court without hearing the case.
In a letter with reference number NJC/CA/DM/VIII/166, dated January 7, 2013, the CJN mandated Bulkachuwa to investigate the allegations and report back to her.
The letter obtained by THISDAY and titled: "Re: Unfair, Unjust and Illegal Termination Without a Hearing of Appeal NO.CA/B/EPT/230/2011 between Jude Eluemuno Azekwoh and Another vs. Dr. Arthur Ifeanyi Okonwa & Others," read: "I have been directed by the Honourable Chief Justice of Nigeria and Chairman of the National Judicial Council, Justice Aloma Mariam Mukhtar, to forward to your Lordship the attached petition dated August 27, 2012 by one Jude E. Azekwok on the above subject matter for your necessary action please."
Investigation by THISDAY showed that this was not the first time such directive would be coming from the NJC to the Appeal Court president for action. Early last year, the immediate past CJN, Justice Dahiru Musdapher, had mandated then acting President of Court of Appeal, Justice Dalhatu Adamu, to investigate the allegations against the Court of Appeal justices but nothing was heard about the directive before Musdapher retired in July last year.
The crisis took its starting when Azekwoh, candidate of the DPP contested for the 2011 Delta North senatorial election seat against Okowa of the PDP and others. When results were announced, the Independent National Electoral Commission (INEC) declared Okowa winner of the election.
Not accepting the result, Azekwoh petitioned the Delta State Election Petitions Tribunal, challenging the "purported victory of Okowa" and seeking that he be declared winner instead. Among other reasons stated, The DPP candidate argued that the name of Okowa was not submitted by his party within the legally stipulated time.
"As at January 15 when INEC foreclosed further entry of candidates for the election into the National Assembly, the PDP did not have a candidate. No name was submitted by the party within the time stipulated by the rules. It is on record that the PDP held its Delta North senatorial primaries on 11/1/2011 in which Okowa and others contested but it was cancelled because it was marred by irregularities.
"There was repeated primary election on the 29/1/2011 where Okowa was declared winner notwithstanding that 15/1/2011 was the deadline set by INEC. This is complete contravention of the rules and regulation guiding the conduct of senatorial primaries. What that means is that there was no PDP candidate for the Senatorial election."
Azekwoh, therefore, asked that he be declared winner. But the tribunal dismissed the petition against Okowa's victory on technical grounds without hearing the case on its merit.
Azekwoh, consequently, ran to the Court of Appeal in Benin. Again, he was shut out without fair hearing, a situation he described as a violation of his constitutional right. Bent on getting justice, he then took his case some notch higher.
The DPP candidate contended in his series of petitions to the CJN that his appeal against the decision of the election tribunal in Asaba was allegedly subjected to "unfair, unjust and illegal termination" by the appeal panel headed by Justice Raphael Agbo. He urged the CJN to ensure the investigation of the conduct of members of the appeal panel, who sat on the appeal marked: CA/B/EPT/230/2011 between Jude Eluemuno Azekwoh and another vs Dr. Arthur Ifeanyi Okowa and others.
Azekwoh argued that he was denied the right to fair hearing, both at the tribunal and appeal levels and therefore wants the CJN to ensure the reconstitution of a fresh panel to hear his case on merit.
He said his determination to ensure that justice was done in the case informed his petition to the new CJN, in her capacity as the chairman of the NJC, adding that the petition was intended as a reminder because his earlier one dated January 31, 2012 was left unattended to.
Indeed, in January, he petitioned the NJC under Musdapher. Upon receiving the petition, the former CJN via a letter dated February 13, 2012, requested the presiding Justice of Appeal Court, Benin to comment on the issues raised in the petition. Azekwoh said no further action was taken in respect of his case.
He argued that the appellate court "threw out" his appeal "on no grounds known to law and morality, thereby occasioning a huge miscarriage of justice." He noted that before his January 31 petition to the then CJN, he had written one to the President of Court of Appeal on November 19, 2011 and a reminder letter dated January 1, 2012, but that both were not acted on.
The petitioner exhibited Certified True Copy (CTC) of the proceedings at the Court of Appeal and argued that his appeal was struck out, four days before the expiration of the 60-day period, on the grounds that he was out of time. He said the lower tribunal had acted in similar way in dismissing his petition by holding that he applied for the pre-hearing session via a letter and not a motion.
"I have not been heard by the court, from Asaba to Benin. It is not because I was absent or my counsel did not appear, or that the processes were filed out of time or statutorily inhibited in any way. If I am not heard when I am supposed to be heard, my humble opinion sir, is that time starts running from the time when I was to be heard. It is, with greatest respect, my fundamental rights cannot be waived. Since I have not waived the same, may I respectfully plead Your Lordship to intervene," Azekwoh said in the petition to Justice Mukhtar.
He was convinced that the constitution of another appeal panel and the investigation of the conduct of the panel members at the Court of Appeal, Benin, would help redress the injustice done to him and restore his right to be heard as a citizen.
In the earlier petition to the CJN written by his lawyer, Oladipo Okpeseyi (SAN), Azekwoh gave a history of his unsuccessful effort so far to ensure that as a citizen, he was accorded fair hearing by the country's court. He stated that he felt dissatisfied with the declaration of Okowa as the winner of the election and decided to challenge the outcome of the election by filing a petition before the election tribunal in Asaba on April 20, 2011.
The tribunal was said to have struck out his petition on August 2, 2011 on "the technical ground that the pre-hearing session application was made via a letter and not by motion, even after parties had thereafter taken further steps in the matter."
Dissatisfied, he appealed the tribunal's decision on August 18, 2011 at the Appeal Court, Benin City. On September 19, he filed his brief of argument, while the respondent, the PDP candidate, filed his on September 23, 2011.
"The respondent filed a preliminary objection with his brief. Both were not served on the appellant. His counsel only stumbled on the information on September 26, 2011 that the appeal was for hearing the next day (September 27) as we were reliably informed by the appellant.
"The Court of Appeal, despite objection, heard the preliminary objection and struck out the appellant's brief of argument and even proceeded to strike out the appeal for lack of time when he (the appellant) had four clear days to the 60 days for appeal, consequently refused the appellant a hearing," his lawyer stated in the petition.
In a verifying affidavit supporting an application for relisting, but which was later withdrawn, Bayo Eniwaye (one of the appellant's lawyers who was in court on September 27) said the court refused his applications to either be given the required three days to respond to the preliminary objection or had the case stood-down for an hour to enable him respond.
"The court overruled me and reminded me that the three days I applied for were the only days left that the appeal must be heard and disposed off. All entreaties to the court to allow the appellant respond to the notice of preliminary objection was refused," he averred.
Okowa had, aside claiming victory in the election, in his brief of argument, prayed the Appeal Court to, among others uphold the lower tribunal's verdict and dismiss Azekwoh's appeal. He had argued that the tribunal was in order in holding that the petitioner was in error in applying for the pre-hearing session through a letter rather than a motion.
Represented by Peter Mrakpor, Okowa argued in his preliminary objection that the applicant had exceeded the stipulated 10 days for the filing of brief of argument by an appellant after being served with the record of appeal.
In its ruling on the objection on September 27, 2011, the court upheld Okowa's argument and held that "the appellants' (Azekwoh and his party's) brief of argument was filed out of time. The 1st and 2nd respondents (Okowa and his party), in their preliminary objection drew attention to it.
"The appellants, in their reply to the objection denied that fact. The appellants' counsel has however, from the bar, admitted that his brief was in fact, out of time. With the challenge to the competence of the brief, what was expected of the appellants was to seek to regularise. That they did not do. The brief of argument being incompetent, there is nothing before this court for the appellants to argue. The appellants' brief or argument is hereby struck out. This appeal is struck out. No order as to cost," the court held.
However, with a new letter upon which the new CJN has promptly acted, the battle for Delta North Senatorial seat may have just begun afresh.