SAN FRANCISCO, October 26, (THEWILL) – As Deltans anxiously expect the judgement of April 11 governorship Election Petition Tribunal, slated forMonday (today), THEWILL examines the issues that would form the outcome of the case between incumbent Governor, Senator Ifeanyi Okowa, and two of his main challengers, Olorogun O’tega Emerhor of All Progressive Congress (APC), and Chief Great Ogboru of Labour Party (LP).
Emerhor’s case before the tribunal is tailored to annul the election citing irregularities and alleged unsubstantiated use of the card reader while Ogboru is seeking outright declaration that he won the election against Okowa who polled the highest votes cast to be declared winner by the Independent National Electoral Commission (INEC).
The issues that are the subject of discussion among anxious Deltans now includes “over voting” and alleged non-use of voter card reader which is reportedly held as a mandatory requirement.
The petition of APC and LP seem to be anchored on the alleged non-use of the voter card reader as Ogboru among others had contended that card readers were not used during the governorship election.
One issue that would shape the outcome is the issue of competence of petition filed by Emerhor and APC. Okowa’s counsel had urged the tribunal to strike out the two petitions, saying they lacked merit.
While counsel to Emerhor, the APC candidate, holds that as an electoral guideline by a constitutional agency, INEC’s card reader stipulation must be complied with for the election to be free and fair, the PDP and Okowa’s counsel however hold the view that the card reader should not be used to supplant manual accreditation using the voter’s register.
The PDP/Okowa’s position appears hinged on the fact that the Electoral Act expressly states the use of the voter’s register for accreditation of voters which therefore means that INEC is not at liberty to make a guideline that excludes use of manual voter’s register for accreditation.
Legal pundit told THEWILL that following the Statute Interpretation method which states that “express mention of a thing excludes the other”, citing A.G Bendel vs Aideyen, the card reader should merely aid the manual accreditation process and not supplant it.
“INEC is not supposed to make any guidelines contrary to what the Electoral Act says. INEC guidelines are not superior to the Electoral Act which is the law governing conduct of elections in the country. Whatever the guidelines says cannot supersede the Electoral Act which made voter register as means of accreditation.
“Interestingly, there seem to be two Appeal Court Tribunal verdicts on the issue of card reader for accreditation. While the earlier verdict seems to make the card reader an issue, the later verdict which the PDP/Okowa insist should be used speaks to the effect that card reader should not be a basis for challenging validity of an election.
“This was why the PDP counsel, A.T Kehinde (SAN), in his final submission to the tribunal, pointed out that the petitioners case was based strictly on the card reader accreditation, which according to him, is the magic word of the petition.
Kehinde had told the tribunal that he (2nd respondent) has proved in his address that the records of the card reader accreditation “is most unreliable, speculative and more importantly, not provided for in the Electoral Act, and that was why Section 49 of the Electoral Act says that the voters register is the only document to confirm over voting”, adding that “the conscious refusal of the petitioners to rely on the voters’ register has confirmed the unassailable fact of the 2nd respondent, that the petition is doomed to fail,” Kehinde submitted.
THEWILL reports that one thing that could also shape the outcome of the proceedings are legal technicalities. This was alluded to by Dr. Alex Iziyon, SAN, lead counsel to 1st respondent, Governor Okowa, while replying on points of law to the petitioners own written final addresses told the tribunal, amongst other points, that the Supreme Court had already ruled on the number of pages for the final written addresses to be not more than 40 pages, in order to avoid the situation where counsel would write hundreds of pages and waste the time of the court; a rule which Chief Okpoko is well aware of, and on this ground alone, “there is no process before your Lordships, so no oral application can be made to correct it,” he said.
Chief Okpoko, SAN, counsel to APC’s had reportedly failed to make a 40-page final address as stipulated by the law to the tribunal, a development which legal pundit said could cause knockouts as it appears that he made no final statement to the court.
This development which he sensed could cause legal backlash from his opponents, had reportedly forced him to quickly inform the tribunal before the commencement of the process, that his final address was more than the 40 pages, stipulated by the law, but the fact that the respondents had all replied to the address, indicated that they had accepted it and he was thus making an application to the court to allow him file the address for adoption as it is.
Iziyion had placed the issue of the card reader before the tribunal in his final address, submitting that the petitioners were masquerading under the paragraph of the Electoral Act, which deals with substantial irregularities as the ground of their submissions, when their entire case is based on the card reader.
Iziyon averred that the petitioners have not even crossed the threshold of their case, that their star witness had crumbled during cross examination, and while emphasising that the application on the over pagination of the petitioners final written address be disregarded, urged the tribunal to dismiss the petition as very unmeritorious and with substantial costs awarded, describing it as a “judicial time wasting of tax payers money.”
According to Iziyon, and with special reference to Paragraph 45 of the Electoral Act, the need for pre-trial application and the trial proper “is like the famous statue of Madonna and Child. If you remove one then the other has no relevance and is a mere skeleton,” adding that the petitioner has not only graciously abandoned paragraph 6A of their petition, but has also failed to prove paragraph 6B of the petition and so cannot rely on the admission of the respondents.
Stressing the point, the 1st Respondent’s counsel further argued that the abandoned paragraph 6A of their petition, was central to the petition, pointing out that since the paragraph is rooted in the petition, abandoning it would mean that all the other paragraphs in the petition cannot stand and having themselves admitted to abandoning the paragraph 6A, “then this petition is bound to fail by their own admission”, as the onus is on the petitioners to prove their case, he said.
The PDP counsel also objected to APC and Emerhor’s final written address which he said was over 60 pages combined, and urged the tribunal to strike out the petition for incompetence and lacking particulars, even as he noted this over-pagination was done, after all parties had argued profusely in line with issues formulated for the trial and after holistic considerations by the tribunal.
According to him, what the petitioner has done was contrary to the practice directives and consequently the petitioner has not responded.
“We urge your lordships to discountenance that address and hold that the petitioners have no competent address and have not addressed the tribunal. There is no room for sentiments especially since this case is sui-generis. Once a petitioner runs foul of any directive, it must not be allowed. Every party must open their eyes wide and keep strictly to the provisions of the law,” Kehinde averred.
On the issue of the card reader, Kehinde, citing the rulings on the case of APC vs Agbaje in the recently concluded Lagos State Governorship election petition, both at the tribunal and Court of Appeal, submitted that the card reader is an orphan that cannot trace its paternity to the Electoral Act and it should be cast out.
In his own presentation, Mr. Damien .D Dodo, SAN, and co-lead counsel to INEC (3rd respondent), while also adopting his final address and replies to petitioners addresses on points of law, urged the tribunal to dismiss the APC-Emerhor petition.
“The petitioners have made a desperate attempt to get out of the grips of the Balogun v Akpatason case by arguing strenuously that where there are two conflicting decisions of the Court of Appeal, your lordships are at liberty to pick and choose. That is incorrect and not the position of the law.
“The law with respect to conflicting decisions of the Court of Appeal is that the tribunal is bound to follow the latest in time and it is in that regard that this tribunal is bound to follow the latest decisions in the Balogun v Akpatason case”. Dodo also cited the cases of Mkpedem v Udo; Osakwe vs Federal Technical College of Education and Nwangwu vs Ukachukwu to buttress his points”.
Still challenging the petition filed by APC/Olorogun Emerhor, Dodo equally raised the issues of signing the petition, stating that the petition must fail on that score.
“The failure of one party to sign the petition should not affect the party that signed according to the law. When they signed a joint petition, they took a covenant to swim or sink together. They must now embrace their defeat which is total annihilation by a catastrophe on the part of the law,” he said.
Dodo also averred that the petitioners anchored and concluded their case deliberately and consciously on the card reader, without fully appreciating the challenges associated with it, adding that they took a calculated risk on the card reader without appreciating the process involved and the 3rd respondent has proved that the card reader has not availed them of the case they had intended to establish with it.
Chief Okpoko, responding to the issue of the over 40 pages final written address, had told the tribunal that since the respondents addresses and replies to his own address have already been adopted, he was applying that same be done to his own, irrespective of the number of pages, adding that it is the function of the tribunal to do justice and that since none of the respondents had said in their addresses that the over pagination would injure or affect their presentations, he was appealing for it to be adopted, in addition to all the counter affidavits to each of the motions and affidavits in support of the applications.
Okpoko, who referred to Paragraph 5 of the Practice Directives, averred that the tribunal has the power to act on its own discretion in conflicting Court of Appeal decisions, and while dismissing the case of Osakwe vs Federal College of Education, said that the rule of being bound by the latest rulings in conflicting decision was only applicable to the supreme court case.
“It does not apply to conflicting cases of the Court of Appeal, because they are intermediate courts they cannot over rule themselves,” Okpoko argued.
With specific reference to the case of APC vs Agbaje, and citing Section 138 A&B of the Electoral Act, Okpoko, while responding to the argument that the petitioners cannot project the card reader as grounds for validating an election, said that the view of the Court of Appeal was that, you cannot question the improper use of the card reader as ground for validating an election, but if you have a proper case of non compliance then you can use the card reader to your case.
“The card reader can be used to prove or support an existing ground of irregularities in an election”, he said.
Despite the fact that Dr. Iziyon quickly challenged this assertion by pointing out that it was not contained in the petitioners final written address but was only an oral submission, Chief Okpoko went on to tackle the issue of jurisdiction and the signing of the petition, and citing the cases of Omisore vs Aregbesola, Belgore vs Ahmed and Yakowa vs Said, ultimately submitted that one petitioner can sign for all the petitioners in a joint petition.
On the issue of the use of the card reader by INEC for the election, Chief Okpoko went to great lengths to show that the card reader was not an orphan that should be ‘bulldozed’ out of the way as suggested by the respondents but that the card reader is accommodated by the electoral Act, adding that INEC was established by the constitution (section 153), which prescribes its duties in Paragraph 15 of the third schedule, to undertake, organise and supervise elections of public officers in the state and INEC , as the body with that power made rules, which he admonished the respondents for describing as ‘ultra vires’, when it indeed conforms with INEC’s duties.
Chief Okpoko noted that the Electoral Act conferred on INEC the power to make regulations for the conduct of the election and this gave rise to the Approved Guidelines for the 2015 elections, the Manual for election officials for the conduct of the 2015 elections and indeed the Press Release on Card Reader issued by INEC for theApril 11elections across the country, none of which have not been disputed or invalidated by the respondents.
In his final argument of address, Damien Dodo, SAN, who also told the tribunal that he had three motions pending before the tribunal which he has tendered for adoption, pointed out categorically that the Relief of Paragraph 17 of the petition was un-grantable because the petitioners did not ask specifically for fresh elections.
“The relief of paragraph 17 of the petition is un-grantable. The petitioners did not ask for fresh elections and they must ask for it specifically because the law abhors a vacuum. There cannot be anarchy in Delta State. The Supreme Court has already ruled that the relief for fresh elections cannot be granted consequentially. This petition has committed judicial suicide. If you don’t ask for it, it cannot be given to you. Delta State must move forward”, Dodo concluded.
Meanwhile, as anxiety continues to mount the political atmosphere in the state over the outcome of the tribunal, political pundits said from the submission so far by the legal luminaries, the tribunal may uphold the victory of Governor Okowa based on the rule of law and dismiss the petitioners’ petition based on technicalities except the petitioners had satisfactorily convinced and proved the merit of their case.