9th October, 2015
The Akwa Ibom State governorship tribunal resumed sitting on Thursday for the adoption of final written addresses by parties with the counsel to the candidate of the All Progressives Congress, Umana Umana, stressing that Akwa Ibom state election was “alien to civilisation”.
Umana and the APC had approached the tribunal challenging the conduct of the election and declaration of Udom Emmanuel of the Peoples Democratic Party (PDP), as winner.
At the sitting, counsel to the petitioner, Wole Olanipekun SAN, started with an application to amend the date on his address to read September 30 instead of October 30. But this was objected to by counsel to the second respondent, Tayo Oyetibo. He insisted that the error must not be corrected.
But Olanipekun reminded him that the law says a petitioner shall within seven days “file” his written address and that the law refers to filing and nothing more.
He noted that Oyetibo himself had earlier made some minor corrections on his address. After hearing from both parties, the tribunal ruled that the petitioners effect the change but that respondents could file reply on point of law if any.
Adopting his address, petitioner’s counsel, Wole Olanipekun, prayed the tribunal to allow the petition and grant all reliefs sought therein.
He noted that in the course of trial, he tendered 360 documentary evidence and called 52 witnesses. Olanipekun said while paragraphs 8,9,11,12 and 14 of the final address dealt with accreditation, paragraph 16, 17 dealt with collation while 24-29 took care of the result.
He insisted that accreditation is compulsory in an election; be it through the use of Card Reader or Option A4.
“Accreditation is a must in any election. Which accreditation did they use in this particular exercise when they failed to tender Incident Forms”, he said.
He told the tribunal that the petitioner’s case was misrepresented, as the election allegedly conducted on April 11, was not in accordance with the Electoral Act.
“None of the respondents cited has a nexus. The candidate for the election was not even allowed to vote”, he said.
Olanipekun maintained that the alleged election was not known to mankind or civilization.
He insisted that the cases cited by the respondents have no bearing in law. “The Akwa Ibom poll has no corrolation with EC8A, EC8C etc; they do not tally. We therefore urge your Lordships; on the aggregate of evidence before the tribunal that the petitioners have proved their case beyond reasonable doubt and grant the reliefs sought”, he said.
Earlier, counsel to the 2nd Respondent (PDP), Tayo Oyetibo (SAN), in a motion dated July 13,2015, supported by an 11 paragraph affidavit and a written address, submitted that while the petitioner is afforded the opportunity of filing a list of witnesses without disclosing their identities by virtue of Paragraph 1 and 2 of the Electoral Tribunal and Court Practice Direction which authorizes the use of initials or letters in Witness Statement on Oath by witnesses, the provisions violates the Equal Opportunity Rule written in Section 36(1) of the 1999 Constitution in so far as the same law do not permit the Respondents to do the same.
“The effect of the application My Lord is that only the witness statement of the 1st petitioner who testified as PW 48 is valid in law. All other witness statements on record filed by the petitioners are incompetent in law and should be struck out “, he submitted.
Responding, counsel to petitioners, Wale Olanipekun (SAN) in a counter affidavit and written address dated July 21,2015, prayed the tribunal to dismiss the application which he described as an abuse of court process. He reminded the 2nd Respondents counsel that he had earlier argued a similar application on July 14,2015 and was overruled by the tribunal and wondered why he should deliberately want to dwell on frivolity as a senior legal luminary.
On the Equal Opportunity Doctrine, Olanipekun said the application lacks merit in it’s entirety. “If his client(s) have chosen to use alphabets and the petitioners objected to that, that will be his argument to say his clients are entitled to the same approach. Law is not raised in a vacuum. His argument is off the cuff. Besides, the 3rd and 4th Respondents adored the use of alphabets and no one has crucified them in this same proceedings,” he submitted.
On his part, counsel to the 1st Respondent,(Udom Emmanuel) Paul Usoro (SAN), tabled two motions for an application for extension of time to write and file a reply address in support of a motion on notice dated July 5,2015 and a second reply address dated October 7,2015 and prayed the tribunal to order the two reply addresses as deemed to be appropriately filed and served.
He prayed the tribunal to see his application under the context of paragraph 45(1) of the First Schedule to the Electoral Act as use it’s discretionary power to grant the application as justifiable.
His application however was objected to by Olanipekun who said the Respondent counsel gave no reason why the tribunal should allow the petition be taken outside the purview of the pre- trial stage and why the replies were not filed within the time allowed by law when the petitioners had served the Respondents their reply since July 10,2015.
He told the tribunal that what the law expects from the Respondent was to show exceptional reasons not just cogent reasons before granting such application but that in this case, no tangible reason was given. He told the tribunal that what the Respondent counsel called replies are not replies in the eyes of the law and as such should be dismissed. The application was refused.
In his address, counsel to 1st Respondent, Paul Usoro (SAN) prayed the tribunal to dismiss the petition. He based his plea on the ground that what the petitioners anchored their argument for nullification of the election on, bothers on a presumption of irregularity with regards to the election results. He opined that election result is a pyramid with the polling unit results (Form EC8A) being the base but that the petitioners failed to to dispute the polling unit accreditation with the polling unit results.
Usoro said rebuttal of the presumption of irregularity by law must be done polling unit by polling unit and ward by ward with the polling unit results constituting the base. “The onus of rebuttal is on the petitioner and it has to do it polling unit by polling unit. In this case, has there been a rebuttal to the presumption of irregularity with regards to the results polling unit by polling unit? Did they plead the fact to enable them rebut the results polling unit by polling unit?
Did they tender evidence rebutting the presumption polling unit by polling unit? The petitioners called 52 witnesses. Only 6 were voters, 3 were polling agents. My Lords, the petitioners have not come close to rebutting presumption,” he submitted.
He said the Card Reader is not conclusive with regards voters accreditation as the use of the Card Reader is in conflict with Section 49 of the Electoral Act and prayed the tribunal to dismiss the petition.
On his part, counsel to 2nd Respondent, Tayo Oyetibo (SAN) said it was wrong for the petitioners to have alleged that there was no governorship election in Akwa Ibom state and in another breath said the 1st Respondent did not score majority of the lawfully votes cast. Oyetibo submitted that the petitioners tendered the Card Reader report as exhibit 317 but claimed in another breath that there was no accreditation. “My Lord, the petitioners are not allowed to approbate and reprobate,” he declared.
He said the petitioners started the petition with a plea that voting did not take place throughout the state; tendered ballot papers used in 19 LGA’s but never tendered the alleged ballot papers with multiple thump prints.
Also speaking, counsel to 3rd Respondent (INEC) Onyeachi Ikpazu said the petitioners witnesses testified that voting took place in some areas and election were hijacked on the way to the collation centre and faulted the heavy reliance on the Card Reader report by the petitioner.
He submitted that attacking Card Reader deployment as being against the Electoral Act does not holds substance.
Responding, chairman of the tribunal thanked all parties for the successful conclusion of the trial. He declared that judgement has been deferred to a date that will be communicated to all parties.