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The Supreme Court and election petitions

By Obinna Mekannaya

Two controversies issued from the recent Appeal Court decision which upturned Mrs. Joy Emodi’s election as a senator of the Federal Republic of Nigeria and replaced her with Mr. Alphonsus Igbeke as the duly elected senator for the Anambra North Senatorial District. While we keep these controversies on queue for the moment, let us briefly look at another problem that should concern us but which appears to have been placed in the back burner.

The Appeal Court in Enugu decided the Igbeke vs Emodi and three others case on March 25, 2010 – that is 37 months after the election that was in contention took place. It is to Nigeria’s eternal shame that this travesty of justice continues to take place. Why should three years elapse before the judicial process of a senatorial seat that has a four-year tenure is concluded? Even as this is being written, and more than three years after the governorship election, the case between APGA’s Mr. Martin Agbaso and PPA turned PDP Governor Ikedi Ohakim remains undecided. It now seems that Chief Ohakim’s tenure will run out before the challenge to the legitimacy of his office is determined. What kind of country allows this patently anti-democratic judicial process?

What this must put in the front burner is the urgent necessity to implement the electoral reforms required to make better meaning of our elections. Strictly speaking, Nigeria should not hold on to a curious arrangement which allows announced victors of elections to be sworn into office while judicial challenges mounted against their returns are pending. It speaks volumes on lack of seriousness and patriotism that, the leadership of a country which appointed a qualified and distinguished panel to study existing electoral processes and suggest reforms, has done absolutely nothing to address the contents of the report of the panel nearly two years after it was submitted.

It is the same issue of electoral reforms that pertain to the two controversies which attended the Appeal Court decision on the Igbeke-Emodi case. Yes, the Senate ultimately did the right thing by admitting Senator Igbeke into its membership. Proper electoral reforms should put paid to the sort of dithering which informed the Senate’s reaction to the Appeal Court decision. This is because of the triteness of the position that the final judicial decision on senatorial elections rests with the Court of Appeal.

This leads directly into the second controversy. Does the position of the Court of Appeal as the final arbiter in an election – any election – mean that the Supreme Court of the Federal Republic of Nigeria is divested of its traditional role of interpreting fundamental difficulties that arise from adjudications of lower courts, including the Court of Appeal?

Should the Supreme Court, the last portal of justice in Nigeria be bound and gagged in matters that could strengthen or fatally weaken the country’s democratic process? Should the finality of the say of the Appeal Court in certain electoral matters preclude it from the crucible of thorough examination by superior judicial authority?

Those who say that Senator Joy Emodi should allow the matter of her judicial ouster from the Nigerian Senate to ride have not critically examined her position. True, the vast majority of Nigerians didn’t even realise that there still was a case pending against Mrs. Emodi – until the Appeal Court pronounced on the matter during March, that is. But, a few people assiduously followed the case, including this writer. With Mrs. Emodi’s return as the duly elected senator for the Anambra North Senatorial District, the result of the poll of April 28, 2007 was challenged severally at the Election Petitions Tribunal in Awka. These cases were consequently consolidated and heard by a panel of five judges: J. S. Abiriyi, A. G. Kwajaffa, D. T. Okuwobi, B. A. Georgewill and A. M. Lamido. At the pre-trial conferences, two issues were set down for hearing a determination, thus:

1. Whether the election of 28th April, 2007 in the Anambra North Senatorial District was conducted in substantial compliance with the electoral Act 2006.

2. Whether the 1st respondent was duly returned as the winner of the said election.

The Tribunal held that the election was held in substantial compliance with the 2006 Electoral Act. It further held that Senator Emodi was duly returned as the winner of the election. In the specific petition filed by Chief Alphonsus Igbeke, he had contended that election had actually taken place in just five of the seven local government areas of the Anambra North Senatorial district, namely Anambra East, Anambra West, Ogbaru, Onitsha North and Oyi; and that based on the results in the five LGAs, the Independent National Electoral Commission (INEC) ought to have declared him the victorious candidate. Igbeke called eight witnesses, including himself, to support his case.

In its unanimous decision read on June 17, 2008 by Justice Abiriyi, the Tribunal held that “the Petitioner (Alphonsus Uba Igbeke) has failed to prove his claims to all or any of the reliefs in this petition against any or all of the 1st to 4th respondents and this Petition be and is hereby dismissed as lacking in merit.” The Tribunal held that the Prosecution Witnesses (PWs) “told outright lies on the events of 28/1/07 and did not impress us or appear to us as persons who undertook any assignment touching on the election process in the Anambra North Senatorial District either as party agents or INEC officials. None of the PW4, PW5, PW6 and PW7 who claimed to have worked for INEC tendered any evidence of their appointment to do the work the allegedly did for INEC on 28/4/07. PW8 (Igbeke), from his evidence, was completely incompetent and incapable in law to give evidence of events across the entire 7 local government areas and had admitted so under the intense heat of cross examination to the effect that all his narration of events were based on what his agents told him. If this evidence was given with the intention that what his agents told him is true, then it is complete hearsay and is not admissible. See S.77 of the Evidence Act.”

Of the many petitions filed at the Tribunal, only two – those of Igbeke and Mrs. Jessie Balonwu made it to the Court of Appeal in Enugu. Justices Victor A. O. Omage, Mohammed Ladan Tsamiya and Olukayode Ariwoola heard Mrs. Balonwu’s appeal, delivering judgment unanimously on the February 10, 2009. In the lead judgment, the Hon Justice Omage said:

“In reply to Issue 1 (Whether the election of 28th April, 2007 in the Anambra North Senatorial District was conducted in substantial compliance with the Electoral Act, 2006), Yes, the Court below (Tribunal) was right to disbelieve the appellant and the witnesses when they deposed that election materials were not distributed. The testimonies of the appellant and witnesses fail to offset the legal presumption of regularity made in an election properly conducted. See section 150 of the Evidence Act. See also Section 44(3) of the Electoral Act in the duty of the polling agents. The election was properly conducted. Yes, the Court below was right to uphold the election of the 1st Respondent.”

Now, a crucial question arises: If the Hon Justices Omage, Tsamiya and Ariwoola agreed with the Tribunal’s judgment, to wit, that “the 1st respondent was validly elected and returned as the winner of the Senatorial Election of 28/4/07 in the Anambra North Senatorial District by the 2nd – 4th Respondents; if the distinguished Justices averred that the election of Senator Joy Emodi in  the election of 28th April, 2007 in the Anambra North Senatorial District was conducted in substantial compliance with the Electoral Act, 2006”, how come that another Court of Appeal found differently in the appeal filed before it by Senator Alphonsus Uba Igbeke? The reason this question must be taken most seriously is that, sitting on this second Court of Appeal panel were the Hon Justices Amiru Sanusi, Mohammed L. Tsamiya and Olukayode Ariwoola, the last two of whom had sat on the first Appeal Court panel and had pronounced Senator Emodi validly returned in the April 28, 2007 election.

Senator Emodi filed a Motion On Notice on this development, seeking two reliefs:

1. An order disqualifying Justices Sanusi, Tsamiya and Ariwoola from sitting, further sitting, adjudicating, taking part in any process before the Court of Appeal in relation to Appeal No CA/E/EPT/04/2009 or delivering any opinion/ruling/ judgment therein.

2. An order that a new panel excluding Justices Sanusi, Tsamiya and Ariwoola be constituted to determine the motions pending before the Court of appeal in Appeal No CA/E/EPT/04/2009.

Was the Motion On Notice legally and properly attended to? This question is for the Supreme Court to decide. Senator Emodi also wants the Supreme Court to interpret the contradictory decisions of the two panels of the Court of Appeal. The apex court must decide on whether or not the Court had simultaneously approbated and reprobated. Surely, it is trite to state that, in matters of interpreting Nigerian laws, the Supreme Court is the ultimate authority. In the matter of the Anambra North Senatorial District, the Supreme Court’s authority to interpret Nigerian laws cannot be altered or diminished or question on the thin ice of the Court of Appeal being the final arbiter in cases pertaining to senatorial elections.


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