While delivering judgment in the petition by the All Progressives Congress, and its candidate, Umana Umana, challenging the election of Mr. Emmanuel of the Peoples Democratic Party, the tribunal cancelled election in 18 LGAs of Nsit Ubium, Nsit Ibom, Ibiono Ibom, Uyo, Etinan, Udung Uko, Oruk Anam, Etim Ekpo, Ikoono, Ini, Ibesikpo-Asutan, Nsit Atai, Eket, Ikot Abasi, Ibeno, Uruan and Onna after holding election was not properly conducted in the affected areas.
The three-member tribunal, led by Justice Sadiq Umar, consequently, ordered the Independent National Electoral Commission, INEC, to conduct re-run election in the affected 18 local government areas. However, the judgment created more confusion as there was no categorical pronouncement on whether Governor Udom Emmanuel should leave office.
In addition, the judgment did not also spell out the time frame for the conduct of the rerun election in the affected local governments. This development has indeed thrown many Nigerians into confusion culminating into mixed reactions.
Even among legal minds, the judgment of the tribunal has left them rather confused. For instance, a constitutional lawyer and author, Sabastine Hon [SAN] said thejudgment is confounding .
The senior member of the Bar contended that even if it had nullified election in half of the local government areas in the state, the tribunal ought to have removed the governor and called for a rerun.
He said, “I think an error of judgment has been committed, by nullifying election in 18 local government areas, it means the governor was not validly elected and should not continue in office.
“However, under the Electoral Act, even if a governor is removed, he cannot vacate the seat until the time appeal is exhausted.
“But it was the duty of the tribunal to have made that pronouncement as a consequential order. It is an order that flows naturally from the judgment.”
He, however, advised INEC to conduct rerun election in the affected local governments within one month or at the expiration of the appeal window so the people of Akwa Ibom state would know who their real governor is.
Another legal practitioner, Emmanuel Gbanfa, equally expressed surprised at the judgment saying the judgment left some gaps which were difficult to understand.
According to him, by cancelling election and ordering rerun in 18 out of the 31 local government areas in the state, the tribunal has left some questions unanswered.
He said “For instance, we know that the governor of Akwa Ibom State cannot be deemed to have been elected on the basis of 13 local government areas given the fact that the state has 31 local government areas”.
He continued“The governor could only be validly elected if he had scored at least 25 per cent of the votes in 24 local government areas of the state.
“By upholding election in 13 local government areas effectively means that the present governor was not validly elected. But because the tribunal did not expressly say so at the end of the day, gives room to confusion.”
Again, Mr. Gbanfa faulted the tribunal for calling for rerun in the 18 affected local government areas without indicating a definite time frame within which INEC should conduct the election.
He insisted a lacuna could be created where all the parties fail to appeal the judgment of the tribunal.
He said, “I believe the tribunal could have said since election has been cancelled in the 18 local government areas and therefore the present governor was not validly elected, they should be a rerun within three months or a specified time frame.
“In that case, if any of the parties goes on appeal, the court would either uphold the ruling or change it.”
The confusion is not resricated to the lawyers alone .Leaders of some political parties believe the judgment is vague.
Reacting to the ruling, the PDP Chairman in Akwa Ibom state, Paul Ekpo, said the judgment was confusing.Mr. Ekpo said the only good thing about the judgment was that the governor, Mr. Emmanuel, remained in office.
“The judgment is very confusing except that my governor, who had won the election overwhelmingly still remains the governor,” Mr. Ekpo said.
At the national level, the PDP through its National Publicity Secretary, Chief Olisa Metuh described as unacceptable and bizarre the election tribunal verdicts in both Rivers and Akwa Ibom. PDP National Publicity Secretary, Chief Olisa Metuh, in a statementon Saturdaysaid “indications to this spurious judgment had months ago been hinted to the PDP, which in turn, alerted the nation and the international community of the heinous plot by the APC government, to use the judiciary and various security agencies to reverse the victory of the PDP in Rivers, Delta, Akwa-Ibom, Taraba and Abia states.
“We invite Nigerians and the international community to recall various reprehensible steps taken by the APC government that culminated in this ruling as well as the ridiculousWednesday’sverdict of the Akwa-Ibom state governorship election tribunal, also sitting in Abuja.”
Metu listed reasons for his party’s objection to the rulings thus “The curious and controversial relocation of the elections tribunals from their states to Abuja without any justification.
“ The constant juggling of judicial officers and members of governorship elections tribunal in PDP states, especially, Rivers and Akwa-Ibom states.
“Constant harassment of judicial and electoral officers involved in the governorship election cases in these state, using agencies of government, particularly, the Directorate of State Services (DSS) under the direct command of a known APC member, Alhaji Lawal Daura.
“ Constant threats, intimidation and coercing of witnesses against the PDP in the tribunals.
“The recent mass transfer of security operatives, especially the DSS and police personnel that actually participated in the conduct of the elections in Rivers and Akwa-Ibom, ostensibly to frustrate the course of genuine evidences in the process.”
The statement added “The bias in the judgment against the PDP in Rivers as well as Akwa-Ibom is evidenced in the contradictions inherent in the trial process of the two cases and the verdicts therein, whereby the tribunals clearly disregarded standing legal norm that a petitioner must establish prove of claims.
“Also curious is the fact that after both the petitioner and respondent agreed before the tribunal that both card reader and manual accreditations were used for the election, the tribunal still went ahead to base its decision on issues of card reader.”
It further said “While it is convenient to them to use legal technicalities to deny PDP victory in Imo, Lagos, Ogun and Yobe states, the same rules are misapplied to wickedly favour APC petitioners in Rivers and Akwa-Ibom states.
“It is therefore evinced that these contradictions are direct fall-out of compromises as well as boasts by the APC of being in direct and remote control of the tribunals. If not, how can one explain the fact that while governorship elections are being upturned in PDP states, in APC states, where similar claims and facts are in contention, elections are being upheld.
“Further proof of bias by the Rivers tribunal is the fact that less than 24 hours after various counsels submitted nine written addresses and documents, the tribunal rushed its notice of judgment, an action ostensibly aimed at ambushing the pending Supreme Court action on the issue of jurisdiction regarding the relocation of the tribunal outside River state, which was due to be deliveredon Tuesday.
“This is not withstanding the fact that the tribunal has up to seven days after of receipt of addresses, to deliver its judgment, but chose instead, to rush to deliver this spurious verdict even on aSaturday, a development eliciting suspicion that the judgment may have since been predetermined and written even before the commencement of the case.
“The PDP calls on all Nigerians and the international community to note this growing manipulation of the judiciary by the APC government, a factor which portends great danger to our democracy and the stability of our country.
“Nigerians would want to recall that under the PDP-led government with former President Goodluck Jonathan’s commitment to the tenets of democracy as encapsulated in the safeguard of ‘one man one vote’ and the independence of the judiciary, the PDP conceded electoral defeat in Edo, Anambra, and Imo states without attempting to collect victory through executive manipulation of the judicial process.
“The PDP restates unequivocally that this judgments must not stand in view of the prevailing inherent contradictions, in addition to the huge threat they portend to our democracy and national stability.
“Finally, the PDP charges all lovers
APC VOWS TO APPEAL AKWA IBOM JUDGMENT
In his response, the APC chairman in Akwa Ibom State, Dr. Amadu Atai said his party will not leave any stone unturned in redressing the judgment saying the party would have won the election but for the irregularities. He insisted that the party would also proceed to the Supreme Court after the appeal to pursue the issue of removing the governor before the re-run election.
Atai said the party was expecting outright cancellation of the governorship election since it nullified the elections in 18 out of the 31 local government areas.
He said “The tribunal has cancelled the governorship elections in 18 local government areas and ordered the Independent National Electoral Commission to conduct elections in the affected areas.
“But we are going to file an appeal because we expected cancellation in more local government areas where discrepancies were pervasive,” he said.
Another APC chieftain who spoke on the issue but refused to be named for security reasons said “The issue of Governor Emmanuel Udom still remaining in office after the judgment of the tribunal is also causing considerable argument in the state as many are of the opinion that there will never be a free and fair rerun without the governor vacating his position.
“As long as a sitting governor remains in power while a rerun is conducted there will never be a free and fair contest. So what is the essence of the rerun. The governor and hs deputy should be made to step aside for the Speaker of the State House of Assembly to take over until after the rerun. This will create room for a level playing field for the candidates and their political parties.
Arguments for and against Rivers tribunal ruling
In a swift reaction,to the judgment nullifying his election Governor Wike expressed dissatisfaction with the judgment and vowed to challenge the verdict at the Court of Appeal.
His Counsel, Chief Chris Uche [SAN] who spoke on behalf of the respondents said they will surely test the popularity of the judgement at the Court of Appeal and even to the Supreme Court.
Questioning why the tribunal hastily delivered its judgment in less than 48 hours after the adoption of final address by parties in the suit, Uche said it was wrong of the tribunal to have heavily relied on the use of card reader when INEC itself admitted that both card reader and manual can be used where the card reader malfunctioned
The senior lawyer accused the tribunal of trying to pre-empt the judgment of the Supreme Court challenging the jurisdiction of the tribunal which has been fixed for Tuesday next week.
After reviewing the arguments and submissions of counsel to parties to the petition, the tribunal said it agreed with the petitioners, All Progressives Congress [APC] and its governorship candidate, dr. Dakuku Peterside that the April 11, 2015 election was characterized by intimidation, harassment, snatching of ballot boxes, diversion of electoral materials, ballot stuffing and allocation of figures in favour of the PDP candidate.
It further held that the failure to use Card Reader Machine as was instructed by the INEC robbed the election of its credibility and made the outcome of the poll a sham and a mockery of democracy.
Besides, the tribunal held that the petitioners had through their witnesses established allegations of non-compliance to the Electoral Act and that the petitioners adduced credible evidence backed by documents to prove that Governor Wike was wrongly declared winner of the election.
The discordant of tune that trailed the ruling was not surprising . thetwo sides had, prior to the judment plied different legal roads in arguing their positions. Whereas the petitioners, through their counsel, Chief Akinolu Olujimi, SAN, urged the tribunal to sack Governor Wike and order the Independent National Electoral Commission, INEC, to conduct fresh governorship poll in Rivers State, all the respondents, sought the dismissal of the petition for want of merit.
While adopting their final written argument dated October 19, counsel to the petitioners, Olujimi, SAN, urged the tribunal to hold that “no governorship election known to any law in Nigeria, took place in Rivers State on April 11, 2015. My lords, the central issue in this petition is about the pleadings of the parties.
“It is the nature of the pleading that defines the issue in dispute between the parties. It is the case of the petitioners that there was no election conducted in Rivers State known to the law. The 2nd respondent (Wike) has the burden to justify the over 1 million votes that were allotted to him by INEC. What we are simply asking for is the nullification of the election.”
On his part, Wike, through his lawyer, Mr. Emmanuel Ukala, SAN, relied on the provision of section 85(1) of the Electoral Act to insist that Dr. Peterside was not validly nominated by the APC to contest the governorship election.
Wike argued that instead of the 21 days provided by the Electoral Act, APC, only gave INEC 16 days notice before it conducted the primary election that produced Peterside as its governorship flag-bearer in the state.
“My lords, this goes to the issue of qualification. The Appeal Court had in its decision in Labour Party vs. Wike, held that the 21 days notice is mandatory. There is, therefore, no locus standi in the petitioner before this court.”
On the issue of whether or not Wike secured the lawfully cast votes to warrant his declaration as winner of the April 11 governorship poll in the state, Ukala relied on the decided case-law in Buhari vs Obasanjo and contended that the petitioners failed to effectively discharge the burden of proof placed on them by the law.
“What they were expected to do was to call all officers who conducted the election, as well as tender all the electoral forms that were used. So far, aside calling only 56 witnesses, the petitioners only tendered 3,157 copies of the Forms EC8A, whereas from their own calculation, there were supposed to have tendered 5,792 copies. It is, therefore, our position that the petitioners did not meet the standard of proof set by the law,” Ukala added.
Besides, Wike also relied on the case of Ngige vs INEC, 2015, 1-NWLR, part 1440, and argued that the burden of establishing that the election was conducted in substantial non-compliance with the Electoral Act, rested on the petitioners.
Similarly, INEC, through its lawyer, Dr. Onyechi Ikpeazu, SAN, urged the tribunal to dismiss the petition and affirm the governorship election result it declared in Rivers State.
INEC relied on the case of Gundirin vs Nyako, and argued that APC and Peterside ought to have proved that the election was flawed, by calling witnesses from each of the polling units in the state.
“We pray this tribunal to dismiss the evidence of the PW-40. Assuming that the issue of irregularity was brought to the attention of the INEC and it looked into it and took the decision to declare the result, it means that INEC did not accept the opinion expressed by the PW-40. It also means that INEC rejected those reports, it can therefore never amount to admission against the election,” INEC lawyer submitted.
Earlier, lead counsel to the PDP, Chief Wole Olanipekun, SAN, also prayed the tribunal to dismiss the petition and uphold governor Wike’s election. After listening to all the parties the tribunal reserved its judgement for today on the matter.
The tribunal had while reviewing the case in its judgment stated that Peterside/APC called 56 witnesses and of the respondents: INEC-16; Wike-24; PDP-none. The panel states that the petitioners submitted three issues for determination.
INEC had argued that the petitioners failed to prove their case polling unit by polling unit in line with Supreme Court earlier decisions. The Tribunal thereafter reviewed Mr. Wike’s second major argument. Governor Wike’s first major argument is that most of the petitioners’ witnesses gave hearsay evidence, while the other major arguments, include: Petitioners are required to prove polling unit by polling unit but they only called few polling unit agents; non-usage of card reader cannot be grounds for nullifying election.
Mr. Wike also argued that the election was free and fair and he was duly returned governor. He asked the tribunal to strike out the petition. The tribunal states that PDP’s final address was on October 16.
The PDP argued that the Petitioners leveled allegations of crime against the military which was not joined as a party and that such should be expunged from the record of the court.
In addition, PDP also argued that non-usage of card reader cannot be grounds of nullification of election. PDP thus argued that the petitioners failed to prove their case and case should be struck out.
The petitioner, Mr. Peterside, argued that the card reader machine was made mandatory by INEC’s guideline and has the backing of the Electoral Act.
In its judgment, the tribunal adopted only one issue for determination – whether or not the petitioners have proved their case after dismissing the preliminary issues concerning the competence of the tribunal raised by the respondents.
The tribunal restated the petitioners’ allegations including poll being marred by intimidation of voters, non-availability of result sheets, snatching of electoral materials, non-collation of results at wards and LG levels and held that the evidence of the petitioners’ witnesses is relevant and reliable in this regard.
The tribunal stated that INEC has the power to insist on card readers and it therefore is not open to anybody to act otherwise. According to the tribunal, Exhibit A9 presented by the petitioners, which is a report by head of election monitoring team of INEC office in Rivers State, Charles Okoye, confirmed the allegations of the petitioners.
The tribunal stressed that card readers were introduced by INEC to ensure credibility and transparency of the election, adding that “We don’t see any conflict between the introduction of card readers and the provisions of the Electoral Act.”
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