OGAH VS IKPEAZU: Constitutional Points To Note
By Peter Agba Kalu
In reference to an article on page 32 of Daily Sun Newspaper of Thursday, 26th January, 2017 under the heading, "Abia: Anxiety as Supreme Court decides Ogah, Ikpeazu's case".

The author made attempts to turn what was purely a PDP pre-election internal matter into a Party Vs Party external matter. All in an attempt to bring Alex Oti APGA who has been described by respected legal minds as an interloper, into the main stream of the case.
It's important to remind the world that Ogah went to court based purely on  Article 14(a) of PartIV of the PDP Electoral Guidelines for Primary Elections and Section 87(A) (B) of the Electoral Act, 2010.
The issue at stake is not a pre-election mattter but, the Personal Income Tax Act 1993 as amended in 2011 as it affects the P.A.Y.E. tax clearance certificate obtainable from the Tax authorities which is covered under Sections 80 and 84 of the said Act.

Ogah went to court because S.80 subsection (2)(s) provides for the tendering of tax clearance certificate as a pre-qualifying document among others for any candidate seeking for an elective office beginning from the Governor to the Councillor in any State of the Federation of Nigeria.

 (S) 85A establishes the Board of Internal Revenue for the States.
(S) 85(1) There is hereby established for each state, a Board to be known as the State Board of Internal Revenue (in this Act referred to as the State Board) whose operational arm shall be known as the State Internal Revenue service (in this Act referred to as the State service).

By the import of this establishment, all States Board of Internal Revenues are creation of the Act as they cannot as such excogitate their own operational systems either by way of computation, time of issuing Tax clearance certificates, to applicants and interpretation of the law to suit individual states.

To show how important the Law regards accuracy and avoidance of undue mistakes; those appointed into the Board for each State are professionals.
(S) 85(2) The State Board comprises:
(a) the Executive head of the state services as Chairman, who shall be a person experienced in taxation and be appointed by the Governor from within the State service;
(b) the Directors and Heads of Departments within the State service;
(c) a Director from the State Ministry of Finance,
(d) the Legal Adviser to the State service,
(e) three other persons nominated by the Commissioner of the Ministry on their personal merit and
(f) the Secretary of the State service who shall be an ex-officio member.

By the caliber of the members of the Board and to whom much is given by way of competence of the Board members, it is expected that before any tax clearance can be issued by the authority adequate care has to be taken to ensure that such document conforms with the standard required of it by the body demanding for it for that purpose. It is for this reason that the Electoral bodies place a very strict burden on the presenter of any such tax clearance certificate. The mere presentation of an irregular tax clearance certificate can disqualify the candidate. But, Ogah went to court because Okezie Ikpeazu knowing fully well that his taxes was in error, swore an oath under the laws and constitution of Federal Republic of Nigeria, that they're in order.

By Section 107(1)(h) of the Constitution of the Federal Republic of Nigeria, a mere presentation of an irregular tax clearance certificate can disqualify the presenter. The Tribunal in the case of HON. DAME BLESSING OKWUCHI NWAGBA (Ph.D) VS EMEKA NNAMANI ABA/ELT/HA/20/2015 court relied on the Section to hold that Emeka Nnamani having merely presented a forged Degree certificate stood disqualified ab-initio. But, the case of Ikpeazu is worst because he sword an oath holding his false information to be true. Whether it's the fault of the tax office or Ikpeazu is what the laws are blind to. Even at that, the Board of Internal Revenue in Abia State has admitted that it made a mistake in issuing Tax Clearance Certificate to Okezie IKpeazu in the Election Tribunal case of Uche Ogah against Okezie Ikpeazu now before the Supreme Court. But, the truth is that those who know the strict tax laws are not satisfied. Confirming their anxiety was the fact that he presented the certificate to INEC without dictating the said mistake the Board admitted that it made.

S.88 of the Personal Income Tax 1993 as amended in 2011 deals with false statement and returns.

Ogah went to court because going by law, a person who:
For the purpose of obtaining a deduction, set off, relief or an overpayment in respect of a tax for himself or any other person or who in a return, account or particulars made or furnishes with reference to tax, knowingly makes a false statement or false representation or (b) aids, abets, assists, counsels, incites or induces any other person  (underlining supplied).
to make or deliver a false return or statement under this Act or
to keep or prepare a false accounts or particulars concerning any income on which tax is payable under Act or
unlawfully refuses or neglects to pay tax, is guilty of an offence and liable on conviction to a fine of five thousand naira or imprisonment for five years or to both such fine or imprisonment.

The combined effect of S. 107 (a) (h) of the Constitution of the Federal Republic of Nigeria and section 88 of the Income Act 1993 as Amended is to place a big burden on both the marker and the presenter of such irregular tax clearance certificate. In an Electoral contest between two parties, and where a winner takes it all, pleading mistake on a sensitive expressly provided constitutional/electoral law could place both the maker and the presented on their own.

The burden of proof lies heavily on who alleges mistake in an expressly provided tax law. Even if the authority as it were accepts mistake, is it also a mistake for the presenter not to take diligent steps to be sure of what he is presenting as documents to INEC?
These are purely the reasons why Ogah went to court. There are no independent candidates in Nigerian electoral law and constitution. Alex Otti  ran as the candidate of APGA after an internal process that brought him up as a winner. Ikpeazu ran as PDP candidate in a process that Ogah fully participated after paying all his required dues and came second. Ogah went to court because he is convinced that from the point of law he, not Okezie was qualified to be PDP candidate. PDP as a party filled a candidate for and fully participated in 2015 election. How then APGA having lost at the Supreme Court to PDP over the election petition case will be declared winner in a purely PDP internal matter before the court is unknown to law.

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