By Ise-Oluwa Ige
On May 21, this year, a five-member panel of the Supreme Court endorsed Senator BobÂ Effiong as the winner of the Akwa Ibom North East Senatorial District poll held on April 21, 2007.
The apex court gave the verdict after it found that Senator Bob was, in the face of the law, the lawful candidate, nominated by the ruling Peoples Democratic Party (PDP) to fly its flag for the senatorial district poll as at the time the election held. The five Justices who constituted the panel that decided the case were unanimous in their reasoning.
They were Justices Dahiru Musdapher, Walter Samuel Nkanu Onnoghen, Francis Fedode Tabai, Ibrahim Tanko Muhammad and John Afolabi Fabiyi. They all said the issue in question touched on substitution of candidates and not nomination of candidates. They said that from all the records made available to them, they said it was Bob Effiong that was nominated, first in time, by the ruling PDP to fly its flag for the senatorial election.
They added that even though there were documents indicating that Akpan was nominated second in time, they said the nomination did not comply with section 34 (1) and (2) of the Electoral Act 2006. The justices said they had expected Akpanâ€™s counsel to advise him appropriately not to dissipate so much energy and monies, as he did, to prosecute the case in view of its facts and the clear provisions of the law. They said that Akpanâ€™s entire appeal before them was like hugging technicalities rather than embracing justice.
They said he (Akpan) sought to succeed merely by drawing attention to perceived technical potholes on the high-way of justice rather than any substantive complaint that the end of justice has not been served in this case. They said Akpan complained not that he was not heard or fairly heard but that his adversary ought not to have been heard on a defective or faulty brief.
They consequently dismissed it as a mere campaign for victory of technicalities over justice. But Chief Albert Akpan who won at the trial high court but lost the battle for the senatorial seat at both the Court of Appeal and the Supreme Court said he was not satisfied but that there was nothing he could do, the apex court having sealed his hope. But what is the issue in dispute all about?
It was Chief Albert Akpan who invoked the original jurisdiction of the Abuja Federal high court through an originating summons shortly after the primary election conducted by the ruling PDP for the Akwa Ibom North East Senatorial District was held. He came to court because, according to him, he won the primary poll by coasting over 60% of the votes cast and beat other party contestants including Senator Bob Effiong but that his name was missing on the list of nominated candidates for the senatorial poll.
He said instead of his name which was forwarded by the PDP to INEC to appear on the list of the electoral body for the senatorial poll, he said Senator Bob Effiongâ€™s appeared, having allegedly smuggled same into INECâ€™s list. He said that soon as he discovered, he said he protested to PDP whose top echelon represented by its National Chairman and National Secretary wrote three different letters to INEC to substitute Effiongâ€™s name with his own. He said the first letter written by the PDPâ€™s authourities seeking for substitution was dated February 5 while the second was dated February 12 and the third March 20. He said to his dismay, INEC refused to act on the letters.
It was the failure by INEC to act on the letters that made him to hire the Chambers of Solomon Umoh to litigate on whether it is available to INEC to refuse PDPâ€™s request for substitution of its candidate for the poll in spite the pronouncement of the Supreme Court in Atiku Vs INEC on the powers of the electoral body. He formulated seven constitutional questions for the court to pronounce upon and asked for three declaratory and four injunctive reliefs should the questions be decided in his favour. Senator Bob Effiong also hired the Chambers of Chief Assam E Assam (SAN) to prosecute his case.
In his defence to the suit, Senator Bob admitted that he lost the primary election to Chief Akpan. He said this was so not because Akpan was more popular than him but because the election was marred by all forms of irregularities, violence and thuggery. He said he complained to the partyâ€™s authourities who saw reason with him and returned him as its nominated candidate for the Akwa Ibom North East Senatorial poll. He told the court that it was a lie that he smuggled his name into the PDPâ€™s list that was submitted to INEC on December 21, 2006 for the senatorial poll.
He asked the court to go through the avalanche of records before it to determine whether the PDP ever alleged that his name was not the one sent first in time to INEC as its candidate for the poll. He said he had seen the three letters being flaunted by Akpan to the effect that the party wanted his name substituted. He said assuming without conceding that the letters indeed emanated from the PDP authourities, he said they were incapable of nullifying his candidature because they were each caught by the provision of section 34 (1) and (2) of the Electoral Act 2006. By the provision of section 34 (1) of the Electoral Act 2006, a political party intending to change any of its candidate for any election shall inform the commission of such change in writing not later than 60 days to the election. Section 34 (2) of the Act says any application made pursuant to subsection (1) of this section shall give cogent and verifiable reasons. Senator Bob said the letters allegedly written by PDP to INEC were not only forged b
ut also failed to comply with these provisions of section 34 of the Electoral Act 2006.
He said as far as law was concerned, he said he was the rightful candidate of the party for the senatorial election as at the time the poll held. He urged the court to dismiss Chief Akpanâ€™s case. But the trial Federal high court which sat and heard the case in Abuja disagreed with Effiong. It gave the judgment in favour of Chief Akpan on the account that he (Akpan) was the popular candidate elected by the people at the primary election conducted by the PDP. The trial high court judge also said that since Effiongâ€™s name was sent first in time to INEC, he said the letters written by PDP seeking substitution of candidate were done within time stipulated by section 34 of the Electoral Act 2006.
The court said that since both parties never raised the issue of compliance with the provision of section 34 (2) of the Electoral Act 2006 with regard to the provision of cogent and verifiable reason for the substitution, the trial judge said the letters were okay and that Akpan is, in law, the candidate of the PDP for the senatorial election.
The judicial pronouncement by the trial high court was rejected by Senator Bob who described same as judicial hara-kiri. He instructed his team of lawyers to go on appeal. At appeal, three justices of the Court of Appeal were empanelled to hear the case. The justices who took written arguments from the parties on record found as a fact that though Chief Ime Albert Akpan beat Senator Bob Effiong in the primary election which was allegedly rigged, they said that it is also not in doubt that Senator Bob Effiongâ€™s name was sent by PDP to INEC first in time.
The appellate court said that it is not the business of the court to pry into how any political party nominated its candidate as it did in the instant case but that the issue of substitution raised in the matter clothed the court with jurisdiction to sit on the matter. The justices said that the trial Federal high court judge misdirected himself when he held that Chief Akpan was the rightful candidate of the PDP on the account that he was the popular wish of party members for the election without considering the issue of substitution in details. The appellate court said that the trial court was wrong to have entered judgment in the case without considering whether the said three letters written by PDP to INEC for substitution of Senator Bob for Akpan gave cogent and verifiable reasons for the substitution sought.
The appellate court said that while it is not in doubt that the first two letters which were dated February 5 and February 12, 2007 respectively came within the time available for political parties to substitute any of their candidates as it was more than 60 days to the election, it however said that the two letters did not conform with the provision of section 34 (2) of the Electoral Act 2006.
The court said that apart from the fact that there was absolutely no concrete evidence showing when the letter dated February 5 was delivered to INEC, it said the ruling PDP gave â€œwithout enough informationâ€ as reason for seeking substitution of Effiongâ€™s name.
Citing the case of Charles Chinwendu Odedo Vs INEC, the court said that the Supreme Court had held amongst others that the words â€œwithout enough informationâ€ do not connote anything that is cogent or verifiable as provided for by section 34 of the Electoral Act 2006. The court said that the only document that gave a semblance of cogent and verifiable reason was the one tagged EDB 5. The said document had requested for substitution of Effiong on the ground that Akpan won the primary poll. But the court said that even though the said document gave an evidence of cogent and verifiable reason, it said that it never helped the case of Akpan because it was sent to INEC late. According to the law lords, they said that â€œexhibit EDB 5 would no doubt appear to contain semblance of cogent and verifiable reason for seeking the substitution of Effiong with Akpan to wit: that he won the primary election of the party but the letter though dated March 20, 2007 shows on its face that it was received by INEC on March 21, 2007.
â€œSubstitution is to be made not later than 60 days to the election concerned. It would therefore appear, with effortless calculation that whatever application that was made therein was not made within compulsory time limit,â€ theÂ court held.