‘The claims of the petitioners are not grantable’
“Having struck out relief No. 2 of the petitioners claim, it is our considered opinion based on the evidence adduced vis-a-viz relevant laws and decided authorities, the claims of the petitioners are not grantable.
“As stated by the Supreme Court, there can never be a perfect election anywhere, what the law requires is substantial compliance with the requirements of the electoral law and procedure. Okechukwi vs INEC supra. Consequently, the petition fails and it is hereby dismissed. The election of the 1st respondent as declared by INEC is hereby affirmed. We make no order as to costs”
With those words, the Abia State Governorship and House of Assembly Election Petition Tribunal nailed the coffin of the All Progressive Grand Alliance’s (APGA) ambition of getting what it failed to get at the polls from the judiciary, atleast at the interim.
The judgment was delivered by Justice Usman Bwala.
Bwala held: “The relief no V on page 84 of the petition is seeking this Tribunal to void the election of 11-4-2015 in the disputed LGA as we held supra. The elections held in the disputed LGA on 11-4-2015, having been cancelled and a rerun held on 25-4-2015, no claim can be premised on it again as all parties contested in the rerun.”
The fact is that the petitioner had wanted the Tribunal to void the election, which was also cancelled and in which the petitioner participated in the rerun that followed. Of course, the Tribunal did not waste time in telling the petitioner that ‘you cannot build something on nothing’. You cannot void an election that does not exist, the Tribunal insisted.
The Tribunal noted that it examined all evidence adduced by all the parties and found out that all parties dumped exhibits on the Tribunal without speaking to it. In addition, the Tribunal stated that it found out that a lot of exhibits relied upon by the petitioners are in respect of the cancelled election of April 11, 2015, which are of no relevance to the petition since there was a rerun.
In addition, the Tribunal also came down heavily on the prosecuting witness 20. The judges described his testimony as unreliable because he was neither a polling unit agent nor a ward or local government agent. “The petitioners relied heavily on PW20, who gave evidence which is not reliable because he was not a polling unit agent no a ward or Local Government agent. He relied mostly on what his agents told him, thus making his evidence more or less hearsay. The same thing is applicable to the evidence of 2RW03. Their evidence carry little or no weight.
“Apart from the above, the credibility of PW20 was shaken as it turned out contrary to his averment, he is not a legal practitioner under the LPA. The petitioner who wants to be returned as governor failed to adopt his statement on oaths, thus he is deemed to have abandoned his claim even though the PW20 adopted the claim on behalf of the 2nd petitioner”, the Judge declared.
In the landmark judgment, the Tribunal noted that one of the issue raised by the petitioner is the issue of over voting, which was highlighted in the affected local government areas in his final written address. The tribunal said over voting is provided for in S.53(2) of the Act 2010. According to the Tribunal, over voting is said to occur where the votes cast in any polling unit exceed the number of registered voters in that unit.
The tabulation in the petitioners final written address only considers card reader without taking into account voters register. There is no consideration for the voters register. The results of the election held on 25-4-2015 has not been placed before the Tribunal in the tabulation
On April 11, 2015, election were held throughout Nigeria for governorship and state assembly. Alex Otti contested the election of governorship of Abia State on the platform of APGA while Okezie Victor Ikpeazu contested under the platform of the Peoples Democratic Party (PDP). At the conclusion of the election, the result was declared as inconclusive as there were some problems with election in some local government areas. A supplementary election was scheduled for April 25, 2015 in the affected local government areas.
At the conclusion of the election of April 25, the first respondent was declared the winner of the overall election and was declared as the governor of Abia State.
The petitioners were dissatisfied with the declaration and they filed a petition before the Tribunal. The petitioners were Otti and the APGA (1st and 2nd petitioners respectively) while the respondents were Ikpeazu, PDP and Independent National Electoral Commission (INEC) as 1st, 2nd and 3rd respondents respectively.
Upon service on the first respondent of the petition, he filed reply to the petition and raised preliminary objection. The first petitioner concluded his reply urging the Tribunal to dismiss the petition in paragraph 53.
The 2nd petitioner filed his reply to the petition and raised four preliminary objection in the reply. The 2nd respondent concluded his reply urging the Tribunal to dismiss the petition in paragraph 30.
The 3rd respondent filed his reply to the petition and raised five preliminary objections to the petition. The 3rd respondent concluded his reply by urging the court to dismiss the entire petition in paragraph 38.
In the course of the hearing of the petition, parties filed motions. Some motions were disposed off before or during pre-trial hearing. However, some motions were moved during the pre-trial hearing and ruling reserved to be incorporated in the judgment.
“On paragraph 21 of the petition, the motion stated that the 25 polling units where election did not hold should have been listed out. We have looked at the petition. There is no where the 25 polling units of Umunneochi local government area in which supplementary election held was listed. The 25 polling units should have been listed out graphically to enable the repsondents know of them and prepare for it. We uphold the preliminary objection and strike out paragraph 21 of the petition”, the Tribunal held.
The Tribunal also held that the final result of the election was announced on April 25 and not April 12 as the petitioners had said.
The parties called evidence in proof of their cases both oral and documentory. The petitioners called a total of 20 witnesses.
The 1st respondent filed a 40 page final written address and formulated 2 issues for determination. They are: “whether the presentation of the petition particularly the grounds, pleading and reliefs present any justifiable basis for this tribunal to countenance same.
Considering the clear and mandatory provisions of section 139(1) electoral Act (as amended) whether the petitioners have been able to discharge the evidence burden placed on them to warrant and ground interference with the return of the respondent as the duly elected governor of Abia State in the April 11 and 25 election in Abia State.”
It submitted under this issue that the evidence of an eye witness is necessary in proof of electoral pleadings. On the issue of whether the evidence adduced by the petitioners have established their claims, the Tribunal held that the duty to prove lies on the petitioner. “In an election petition, the petitioner has a duty to prove his petition by cogent credible evidence. See CPC vs INEC 2011 LPELR 8257. The respondent has no burden of disproving the claim of the petitioner, he who asert must prove. Buhari vs Obasanjo 2005 13 NWLR (pt 941) 12 at 193”, the Tribunal declared.
Besides, the petitioner also made allegations of bribery . For instance, his prosecuting witness 15 alleged that he was offered the sum of N1m and other sums as bribery, he agreed that he never report the incident to the Police, Economic and Financial Crimes Commission (EFCC) or any other security agency. The Tribunal described him as a sensationalist and added that no credible evidence was adduced to prove allegations leveled against the respondent.
Citing Okechukwu vs INEC 2014 17 NWLR (Pt 1436) 255 at 299-200, the Tribunal stressed that the Supreme Court had held that where in an election petition, a petitioner makes an allegation of crime, he must prove it beyond reasonable doubt. “In our opinion, the petitioners failed to prove the criminal allegations beyond reasonable doubt”, the Tribunal held.
Surely, the battle ground will shift to the appeal court, where the ‘wise men’would determine whether the Tribunal was right in holding that the prayers of the petitoner were not grantable.