Update on Andy Uba's supreme Court Drama: Appeal withdrawn

Lawyer to the governorship candidate of the Peoples Democratic Party (PDP) in the April 2007 election in Anambra State, Chief Andy Uba, yesterday withdrew the appeal at the Supreme Court which asked the apex court to overrule its earlier judgment which ousted Uba as the governor of the state.
But a spokesman for Uba told THISDAY last night that the action would not mark the end of the matter which seeks Uba being declared as “governor-in-waiting”.
In a notice of withdrawal of appeal dated May 6, 2009 and filed at the registry of the Supreme Court on May 7, 2009, the appellant claimed he would like to discontinue with the prosecution of the appeal.
The withdrawal notice signed by Mr. Taiwo Obe, counsel to Uba, stated inter alia: “Take notice that the appellants (PDP and Uba) herein do not intend to further prosecute this appeal and accordingly withdraw same.
“The effects of the notice of withdrawal of appeal according to order 8 rule 6 which deals with the withdrawal of an appeal at the Supreme Court is that an appellant may at any time before the appeal is called for service on the parties in the appeal and file at the registry of the apex court a notice to that effect that he does not intend to prosecute the appeal; and by order 8 rule 6[5] an appeal which has been withdrawn under this rule shall be deemed to have been dismissed.”
Reacting to the withdrawal of the appeal, the National Chairman of the All Progressives Grand Alliance (APGA), Chief Victor Umeh, hailed the decision as a sound one that would go a long way in preserving the sanctity of the Supreme Court.
He said: “We welcome the development. The withdrawal of the appeal by Andy Uba will go a long way to restore the sanctity of the apex court.”
The Supreme Court had, at the last adjourned date, ruled that it would constitute a full panel that would hear and determine the appeal brought by Uba in which he asked the court to set aside its earlier judgment that ousted him as governor of Anambra State.
The decision of the court to constitute a full panel was based on the request by all the parties who agreed that the best way to deal with the issue in the appeal once and for all was to have a full house of the court sitting.
Justice Aloysius Katsina-Alu, who presided during the last sitting of the Supreme Court, said there was no point wasting time on hearing the appeal piecemeal and that since parties to the suit already indicated readiness to have a full court, their request was granted.
On the panel that heard the constitutional interpretation of the appellant’s suit were Justices Aloysius Katsina-Alu, Dahiru Musdapher, Muktar Coomasie, Olufunmilola Adekeye.
Taiwo Abe represented the appellant; Onyechi Ikpeazu (SAN) for the 1st respondent, which is the Governor of Anambra State, Peter Obi; D.C. Awaleum for the 2nd respondent; and Orji Nwafor Orizu for the 4th respondent.
On his part, Ikpeazu said the appellant had filed a preliminary objection and wished it could be taken distinctly, adding that whereby it was not taken before the appeal itself, the 1st respondent would be asking for the constitution of the full court to take the constitutional matter.
According to him, "the present action by the appellant is a surreptitious request for the setting aside of the decision of the court taken in a full court."
However, counsel to the appellant, Abe, said that the 1st respondent had already finished his objection by not putting it in the brief he had filed and that it would be incompetent to bring up issue not contained in the respondent’s brief.
In his argument of the preliminary objection, Ikpeazu said the 1st respondent contended four grounds viz: that the court of appeal erred in not entertaining an application brought to set aside the notice and grounds of appeal said to be filed in the court on the 18th of April 2007.
He said that the propriety of filing the same notice was raised and sustained by the Supreme Court and the apex court had declined the invitation to set aside its judgment based on the same facts put forward by the appellant.
According to him, the court had the absolute authority to prevent the abuse of its process or scandalise its rules and having decided on the case, the appellant c ould not return to the court asking that the judgment of the court of appeal’s decision be reversed.
He said that there could be no other determination of any court including the Supreme Court based on the notice of the appeal, adding that the appeal was out to abuse the process and embarrass the court.
He referred to the ruling of the court where it was stated that the court had already given its final judgment in the issue being canvassed by the appellant thinking that he has another joker, stressing that they only reproduced the same application that had been decided.
Ikpeazu submitted that the objection struck at the very roots of the case and it was an invitation by the appellant for the court to overrule itself. He urged the court in the interest of justice and the country to strike out the appeal.
Justice Katsina-Alu then said that since all parties in appeal were dispossed to having a full court, it shall be constituted for it to be heard once and for all.
The Supreme Court had on June 14, 2007 in what could be termed a locus classicus in law reinstated Mr. Peter Obi as Governor of Anambra State and ordered Uba to vacate the Government House as, according to it, the tenure of Obi would lapse on March 17, 2010.
The court also berated the Independent National Electoral Commission (INEC) for going ahead to conduct election into the office of the state governor when it was aware of the pending suit.
The apex court in the unanimous decision of seven justices of the court stated that INEC erred when despite the pendency of the matter went ahead to conduct elections into the office of the governor of the state when the said seat was not vacant.
The court in the lead judgment delivered by Justice Kastina-Alu held that “there has been no dispute that Governor Obi took his oath of office on March 17, 2006, his tenure of office shall expire on March 17, 2010. INEC admitted that it was aware of the pendency of the suit and still went ahead to conduct an election into an office that is not vacant.
“The office of the Governor of Anambra State was not vacant as at the time of the elections, Andy Uba should immediately vacate the office for Peter Obi to complete his term of office,” he added.
Citing the provision of Section 180 (2) of the 1999 Constitution, Kastina-Alu held that a governor’s term of office begins to run from the day he took the oath of office.
Section 180 (1) of the 1999 Constitution reads, “Subject to the provisions of this Constitution, a person shall hold the office of Governor of a State until (2) Subject to the provisions of subsection (1) of this section, the Governor shall vacate his office at the expiration of a period of four years commencing from the date when-in the case of a person first elected into as Governor under this constitution, he took the oath of allegiance and oath of office.”
The court maintained that since Obi took the oath of office on 17th March 2006, he could not be said to have completed his four years in office as governor. Therefore the seat of the the state governor was not vacant as at 14th April 2007 when INEC went ahead to conduct election in the state.
According to him, “the plaintiff/appellant brought his case to invoke the powers of the court and noted that the court has the jurisdiction to hear the matter as according to his the matter predates the elections.”
On his part, Justice George Oguntade stated that, “much as I sympathize with people that spent huge resources to contest an election into an office that is not vacant, we are bound by the provisions of the Constitution; I agree with the lead judgment and order Andy Uba to vacate the office for Obi to take over immediately.”
Obi had gone to the Federal High Court in Enugu for the following declarations:
• A declaration that the four- year tenure of office of the Plaintiff as the Governor of Anambra State began to run from the date he took the Oath of Allegiance and Oath of Office being the 17th day of March, 2006.
• A declaration that the Federal Government through the defendant being its agent cannot lawfully conduct any Governorship Election in Anambra State in 2007 in so far as the Plaintiff as the incumbent Governor has not served his four -year tenure of office commencing from when he took the Oath of Allegiance and Oath of Office on 17th March, 2006.
• An order of injunction restraining the defendants, their agents and privies or howsoever from in anyway conducting any regular election for the Governorship of Anambra State until the expiration of a period of 4 (four) years from the 17th day of March, 2006 when the Plaintiffs tenure of office will expire.
Obi lost both at the Federal High Court and the Court of Appeal in Enugu. Not satisfied with the decision of the two courts, he consequently filed an appeal at the Supreme Court where he raised the following issues for determination:
• Whether the learned Justices of the Court of Appeal were correct when they upheld the decision of the Federal High Court declining jurisdiction and held that the prayers in the Appellant’s originating summons were election tribunal.
• Whether having regard to the proper appreciation of the Appellant’s prayers in the originating summons the Court of Appeal was right in not invoking the powers under Section 16 of the Court of Appeal Act.
After considering the appeal of Obi, the Supreme Court in a unanimous decision on June 14, 2007 ordered Uba to immediately vacate the Anambra governorship seat for Obi whose tenure as governor was expected to lapse on March 17, 2010.
Dissatisfied with the apex court's ruling, Uba went back to the Supreme Court asking it to review its decision and return him back to office as Anambra Governor as, according to him, the notice of appeal was not filed at the registry of the Federal High Court, Enugu but at the registry of the Court of Appeal, Enugu Division which he contended was an error in law and vitiates the judgment of the court.


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