December 19, 2015

PDP kicks, as A-Court nullifies Akwa Ibom Gov election

PDP kicks, as A-Court nullifies Akwa Ibom Gov election

Udom and Umana

…Gives INEC 90 days to conduct fresh election
•Mixed reactions in Uyo

By Ikechukwu Nnochiri (Abuja) & Chioma Onuegbu (Uyo)

THE Abuja Division of the Court of Appeal, yesterday, totally nullified the outcome of the April 11 governorship election in Akwa Ibom State. The appellate court equally set aside the verdict of the Akwa Ibom State Governorship Election Petition Tribunal which had on October 21, ordered a re-run poll in 18 out of 31 Local Government Areas in the state.

Udom and Umana

Udom and Umana

A five-man panel of Justices of the appellate court, in a unanimous judgement yesterday, said there was sufficient evidence that the election which produced Governor Udom Emmanuel of the Peoples Democratic Party (PDP) was not conducted in substantial compliance with provisions of the Electoral Act.

The appellate court held that the Justice Sadiq Umar-led tribunal failed to properly evaluate both oral and documentary evidence that were adduced before it by the All Progressives Congress (APC) and its governorship candidate in the state, Mr. Umana Okon Umana.

In its lead judgement delivered yesterday by Justice Adefunke Okojie, the appellate court held that the lower tribunal erred by not according probative value to a document that indicated that the election was characterised by “massive over-voting”.

The court stressed that exhibit -322 that was tendered before the tribunal clearly showed that the number of votes recorded at the end of the election, exceeded the total number of accredited voters. It noted that the exhibit which is a report on number of voters that were captured by the Smart Card Reader Machines, showed that there was an excess of 685,78 votes.

The appellate court insisted that the case of over-voting was manifestly established on the face of documents, as well as video evidence that the petitioners tendered before the tribunal.

Justice Okojie said it was not enough for the tribunal to anchor its reason for nullifying election in only 18 LGAs on the fact that a total of 566,436 voters in the affected areas were disenfranchised during the governorship poll.

She faulted the tribunal for holding that the petitioners failed to prove that allegation of electoral fraud and non-compliance was not substantial enough to warrant the outright cancellation of the governorship election.

It was the position of the appellate court that the petitioners, having adduced evidence that the election was not properly conducted as required by the law, it said the onus was on the respondents, Governor Emmanuel (PDP) and the Independent National Electoral Commission (INEC) to prove that there was substantial compliance.

The appellate court said the tribunal was wrong by laying the whole burden of proof on the petitioners, saying “whichever way one looks at it, facts show that votes recorded at the end of the election were far in excess of the total number of accredited voters. The tribunal was wrong in holding that non-compliance was not substantial to warrant the nullification of the entire election.

“The tribunal having heard the evidence of the PW-33 and shown video evidence, ought to have held that there was no collation, but that votes were merely allocated not just at the ward and local government levels, but also at the state level.

“If there was no collation, how then could it be said that there was an election? In the absence of any collation, contention by the respondents that evidence should be laid polling unit by polling unit does not apply.

“Where there is no collation, there cannot be election”, the court added, saying “this non-compliance cuts across the entire LGAs in Akwa Ibom State.” Consequently, the court declared that the 1st respondent, Governor Emmanuel, was not duly elected by majority of lawfully cast votes. The tribunal was wrong by failing to invalidate the entire election. The appeal succeeds. The judgement of the tribunal sustaining election in 13 LGAs of the state is hereby set aside.

“The entire governorship election is hereby nullified. Consequently, the election and return of the 1st respondent as the duly elected governor of Akwa Ibom State is hereby nullified. The 4th defendant (INEC) is to conduct a fresh election in Akwa Ibom State within 90 days”, Justice Okojie held.

As a side comment, the Judge decried that there was an “unprecedented level of violence and thuggery” during the Akwa Ibom poll, saying “may this country never again experience such descent to anarchy.”

Earlier, the court dismissed four separate appeals that challenged the judgement of the tribunal.

Whereas two of the appeals were lodged by Governor Emmanuel, the two others were filed before the appellate court by the PDP and INEC.

The court waved aside contention by both Emmanuel and PDP that the APC did not field a valid candidate at the poll.

While affirming Umana’s eligibility, the court said it was satisfied that the notice APC gave to INEC before it conducted the primary election that produced Umana as its candidate, was not in violation of section 35(1) of the Electoral Act. It held that APC gave INEC more than 21 days’ notice.

Meanwhile, the appellate court yesterday accused INEC of being partisan in the whole electoral dispute. “It appears that INEC had chosen a party against the other. This is a bad precedent that is unbecoming of an institution that ought to be an unbiased umpire.

“INEC as an independent body should at no stage be seen to be partial. Like Caesar’s wife, INEC at all times, before, during or after an election should always be seen to be above board. It should not be seen to have embarked on a litigation that appears to be a machinery action”, the court added.

Meantime, PDP, yesterday, vowed to take the matter before the Supreme Court.

Speaking through its lead counsel, Chief Chris Uche (SAN), the party said it would not relent in its effort reclaim its mandate. It will be recalled that the APC and its candidates went to challenge the tribunal verdict which only ordered re-run poll in 18 LGAs namely, Etim-Ekpo, Uyo, Ikono-Ibeeikpo, Orina, Ikon, Oruk, Uruan, Ibenu, Iboni-Ibom, Nsit-Ibom, Nsit-Ubium, Ini, Oron, Nsit-Afia, Etinan, Udung-Oko and Eket. The appellants contended that the tribunal erred in law when it refused to nullify the Akwa Ibom State gubernatorial election in its entirety, despite “an overwhelming evidence that was adduced before it by the petitioners.”

According to them, the tribunal ignored weighty evidence the petitioners laid before it with a view to proving that the governorship election that produced Governor Udom of the PDP was not only fraught with manifest irregularities, but was also conducted with total disregard to relevant provisions of both the 1999 Constitution and the Electoral Act, as amended.

The appellants, in the 26 grounds of appeal they filed through their lawyer, Chief Wole Olanipekun (SAN), specifically prayed the appellate court to order Governor Udom to vacate the Akwa Ibom State Government House, as well as to order INEC to conduct fresh gubernatorial election in the state.

Aside Governor Udom and the PDP, others that were joined as respondents in the appeal were INEC, its Resident Electoral Commissioner in Akwa Ibom State and the Nigeria Police Force.

Canvassing reasons why the judgement of the tribunal should be set aside, the appellants told the Appeal Court that the Justice Umar-led panel misdirected itself in law by holding that non-compliance resulting in the nullification of the election in the said 18 Local Government Areas was not substantial to invalidate the entire election.

They claimed that by nullifying elections in 18 out of 31 local government areas, section 179(2)(b) of the 1999 Constitutions which deemed a candidate to the office of the governor to be duly elected if he has not less than one quarter of the votes cast at the election in each of at least two-thirds of the local government areas, was breached.

Besides, the appellants insisted that two-third of the 31 local government areas in Akwa Ibom should be 21, saying the tribunal failed to apply the mandatory provision of the Constitution by its failure to nullify the election of Governor Udom.

They averred that in the circumstance of their petition, the tribunal had no discretion to exercise other than to nullify the outcome of the governorship election in Akwa Ibom State. The appellants further faulted the decision of the tribunal that they did not contradict evidence on the use of incident forms when the card readers failed, adding that it was their case from the onset, that the incident forms were not used at the elections.

They maintained that the tribunal erred in law when it admitted non-ticking of voters’ register during the election but held that such failure was not heavy enough to invalidate election of the entire state.

While placing reliance on the provision of section 49(2) of the Electoral Act 2010, as amended, the appellants insisted that the Act made ticking of voters register during election mandatory while paragraph 11(c) of the INEC guidelines also mandated that the name of any voter who has voted shall be ticked on the voter register.

On the rejection of the forensic analysis of ballot papers and other election material on the ground that the witnesses were not experts, the appellants also argued that the tribunal erred in its decision and misdirected itself on points of law.

It was their contention that the witnesses who analyzed the ballot papers and election materials did not say that they were not experts and that a witness does not need to call himself an expert in the witness box before his analysis could be relied upon, especially when the professional qualification and experience of the witnesses were subject in dispute.

More so, they argued that sections 67 and 68 of the Evidence Act did not prescribe any standard or the type of standard anticipated by the tribunal.

Mixed reactions in A-Ibom
Meanwhile, mixed reactions, yesterday, trailed the Appeal Court judgement that nullified the controversial governorship election.

Member representing Ibiono Ibom State Constituency in the Akwa Ibom House of Assembly, Mr Ime Okon, expressed confidence that PDP would win the rerun of the governorship election in the state.

Okon who said this in Uyo, yesterday, while reacting to the Appeal Court verdict nullifying the governorship election in the 31 local government areas of the state stressed that the opposition party could not win the governorship election because Akwa Ibom was predominantly a PDP state, adding that if a rerun was conducted, the PDP would still win the governorship election. If it becomes necessary that we go for a rerun, I want to assure you that the PDP will still win because Akwa Ibom State is predominantly a PDP state”, Okon said.

On his part, the Senior Special Assistant to the President on National Assembly Matters (Senate), Sen. Ita Enang of APC said he was happy that at last justice was done to Akwa Ibom people and Nigeria.

Enang stressed that the rights of Akwa Ibom people to elect their leaders had been finally restored to them, saying he trusted the integrity of the Judiciary as the last hope of the common man.

He urged Akwa Ibom indigenes to celebrate the Appeal Court victory with peace and harmony, adding: “This is justice done to Akwa Ibom people and Nigeria which respect the rights of the people to vote that was trample upon.”

The former Chairman, Conference of Nigeria Political Parties (CNPP), Mr Linus Udofia, said that it was a big kudos to democracy.
Udofia, who is a PDP elder statesman, said that both political parties should now go to the poll and test their popularity.
Udofia added, “As a member of PDP, I am of the position that all the parties should go to the poll and win an election devoid of judiciary process.”