Delta Guber Polls: TRIBUNAL SET FOR RULING, AS IKPEAZU TACKLES ADESINA ON SUBSTANTIAL NON COMPLIANCE, CARD READER ROLE IN DELTA GUBER ELECTION
Dr. Onyechi Ikpeazu, SAN, is without doubt one of Nigeria’s most distinguished and cerebral legal scholars traversing the trial and litigation circuit, with great authority, in the country today.
Soft spoke, calm, confident, composed, always smiling with a twinkling glint in his clear eyes and disarmingly simple for a man of such exceptional brilliance, those who have listened to him in open court have often marvelled at the sharpness, articulation, poignancy of thought and potency of argument he brings to bear on every of his submissions.
The pin-drop silence which envelopes and sits in the court-room ambience once he begins to speak and through the duration of his submissions, is a massive testimony to the reverence, respect, awe and deference, which even those encountering him for the first time, experience.
The situation was not different, when the sophisticated Damien Dodo, SAN co-lead counsel to INEC, in the Delta state governorship elections petitions tribunal sitting in Asaba, introduced Dr. Ikepeazu, SAN to deliver the 3rd respondent’s final address, in response to the petition filed by the Labour Party, LP and its governorship candidate, Chief Great Ovedje Ogboru, challenging the declaration of Senator Ifeanyi Okowa (1st respondent) by INEC (3rd Respondent) as the winner of the April 11, 2015, Delta State governorship election.
Representing the Labour Party/Chief Great Ogboru as lead counsel on the other side of the divide, was the ebullient, aristocratic, charismatic and fearlessly robust Femi Adesina, SAN, whose impeccable legal credentials are sometimes laced with a mastery of court room sophistry, dished out in intimidating doses, sometimes humorously and sometimes with audacious authority, to score crucial psychological and case defining victories on arguments and points of law, when the need arises.
Proceeding s for the adoption of final written addresses in this particular matter commenced with Dr. Alex Iziyon, SAN, lead counsel to the 1st respondent (Okowa) making the first presentation and as to be expected, he filed and adopted his written address, including the three outstanding motions already collapsed into the trial proper, as well as the replies to the petitioners address and while filing further submissions to buttress his arguments as earlier indicated during trial, urged the tribunal to dismiss the petition with substantial costs.
Citing the Court of Appeal of APC vs Agbaje in the Lagos State governorship elections petition tribunal matter, Dr. Iziyon noted that paragraph 4.22 of the petitioners address located the petitioners argument as anchored on the card reader usage and processes, and argued that if the argument of the petition had been on non compliance and irregularities then it would have been okay, but to masquerade under section 138 of the electoral act, which deals with that issue and then base their facts on the card reader, had already defeated their case since if the relevance of the card reader is removed, as has already been proved in the course of the trial, then the petition has nothing to fall on.
Iziyon averred emphatically that the case of the petitioners had crumbled ab-initio and from their own mouths, when their own star witness, PW15, (Turner Ogboru), disowned his own witness statement and claimed that the deposition had been done in error, even as he had urged the tribunal to expunge paragraphs 60 and 61 of the said witness statement from the deposition on oath as calculations done in error.
The 1st respondent’s counsel, who also raised the issue of pre-hearing, citing latest Court of Appeal judgments to buttress his argument, equally noted all the arguments on the pending motions on jurisdiction and eligibility of the Labour party candidate to even contest the governorship elections, had been referred back to the tribunal by the higher court and when the coast was becoming clearer and the pendulum was swinging against them, it became imperative for the petitioners to throw-in the towel admirably.
According to him, the petitioners quickly abandoned their argument on the card reader and went back to the issue of voter register, and contrived all kinds of calculations without any pleadings or applications, adding and with reference to the cases of CPC vs INEC and Yusuf vs Obasanjo, that despite what they termed as ‘little discrepancies’ on the figures, the petitioners were already bound by their own pleadings.
Dr. Iziyon concluded by telling the tribunal that the petitioners cannot rely on admission of respondents or unchallenged evidence but prove their own case, which they have failed to do.
“The people of Delta State, in their wisdom, have spoken and demonstrated their choice of who to govern them, through the ballot box and that person is Dr. Ifeanyi Okowa”, Iziyon concluded with great aplomb.
In his own submissions, A.T Kehinde, lead counsel to the PDP (2nd Respondent), after adopting his final written address and all the pending motions and further submissions to buttress his case, quickly told the tribunal that the petition, having not been initiated by due process, by filing an unsigned petition, has no jurisdiction in law.
Citing the case of Balogun vs Akpatason to drive his point home, Kehinde averred that the petition is invalid if not signed at all, pointing out the prayers in the petition ended on a separate unsigned page, while the page containing the signatures was a different accompanying document titled ;Documents to be relied upon at trial’, a situation which has already been settled in the case of Uboh vs Nwokolo, adding that the tribunal has no jurisdiction to determine a matter in an unsigned petition.
While arguing further on the issue of the lawful nomination of the Labour Party candidate as the eligibly qualified candidate of the party to contest the elections, Kehinde told the tribunal that the onus on the petitioners to prove their case is so strict that they must either swim or sink by providing cogent, compelling, convincing evidence, which they have failed to do in their case, even as he added that while the petitioners presented only 16 witnesses to make a case for about 3, 624 polling units in Delta state, most of the witnesses merely provided hear-say evidence since they were not even voters on the field.
“This petition deserves nothing more than dismissal with costs and i urge the honourable tribunal to dismiss the petition and declare our client, Senator Ifeanyi Okowa, the winner of the April 11, 2015 governorship election in Delta State”, Kehinde concluded emphatically.
And then it was the turn of Dr, Onyechi Ikpeazu, lead counsel to INEC (3rd respondent) and after adopting his final written address and he replies to the petitioners address on points of law, proceeded to compartmentalize the onus of the petitioner’s case into four sub-headings viz: (i) Non-compliance in substantially all the polling units, (ii) The Card Reader, (iii) Multiple swiping and/or scanning into the Care Reader, i.e information entered into the card reader that enabled the reading process and, (iv) Over voting.
Addressing the issues one by one, Dr. Ikpeazu, SAN told the tribunal that for the petitioners to establish substantial non-compliance, they must prove two things, namely, that there was substantial non-compliance in the 3, 623/4 polling units in Delta state, which it has failed to do in its case and secondly that it must be categorical in establishing substantial non-compliance polling unit by polling unit, ward by ward, Local Government by local government.
Citing the cases of S.C Ucha vs Elechi, and Adewale vs Olaifa, Dr. Ikpeazu further told the tribunal that the only witnesses, whose evidence will be seen as more credible in this matter, will either be any accredited field agents, accredited electoral officials and other agents representing candidates or political parties in the field. Otherwise, any evidence given by someone not in the field is heresay evidence, Ikpeazu said, adding that the petitioners only used 3 polling units out of the 3,624 polling units to try to establish substantial non-compliance, which according to him was grossly inadequate.
On the issue of the Card reader, Dr. Ikpeazu, pointed out that the petitioners had overlooked one important section in their argument and citing the Supreme Court ruling on the case of Buhari vs Obasanjo, told the tribunal that the issue was not whether INEC has the right to issue the directive as contained in their press release on the April 11 governorship election, but that such a directive must be in conformity with the electoral act.
According to Ikpeazu and citing Section 40 any directive or regulation, which precludes verification in the voters register, will be acting mandatorily and any provision in contradiction to the electoral act will be contrary to section 49 (I&2) which links accreditation to the manual register.
Placing the prescription and interpretation of section 138(2) of the electoral act in context, Dr. Ikpeazu averred that if non-compliance did not infringe on section 49 of the electoral act, then it cannot be a basis for questioning an election, even as he added that INEC’s instructions such as press statements, manuals and guidelines, must be made in strict compliance with the intention of the law as stipulated in the electoral act.
“Any regulation or directive made by INEC which precludes the use of voters’ register is contrary to section 49 (1and2) of the Electoral Act. Section 49 (1and 2) prescribes the use of the voters’ register. Accreditation done in excess of the card reader report but done in compliance with the Electoral Act in Section 49 (1and 2) is therefore good, valid and lawful accreditation,” he said.
Arguing further, Dr. Ikpeazu told the tribunal that the petitioners witness PW1 had already deposed that it was impossible to scan or swipe information into the card reader and so the basis for the determination of over-voting on card reader alone was contrary to the law, which says that over-voting can only be determined by the register of voters and ballot papers.
In conclusion, the learned Dr. Onyechi Ikpeazu, SAN told the tribunal that all or even parts of the instructions and directives, including the press statements of INEC, cannot be found in the electoral act, as they were simply mere instructions from the electoral body, and while emphasising that the petitioners, merely dumped exhibits on the tribunal as demonstrated by the front-loading of one exhibit after the other, urged the tribunal to dismiss the Labour Party, LP, and Chief Ogboru’s petition.
Responding to all the respondents, Femi Adesina, SAN, the lead counsel to the petitioners, started by adopting his written address and all other processes and while adopting his motion on notice on June 26, requesting for certain paragraphs of his response to 1st and 2ndrespondents to be struck out, attacked the issues raised in the final addresses of the respondents frontally.
On the issue of signing the petition, Femi Adesina, SAN told the tribunal that the issue of signature was an issue of fact not argument, even as he stated categorically that the page (68) where the said signature was signed was perfectly in accordance and compliance with paragraph 4 of the 1st Schedule and the reason was to prevent an anonymous petition, since the petitioners or their solicitors were at liberty to sign the petition.
Adesina averred further that it was incorrect to say that paragraph 19 was not an integral part of the petition, and then went on to express his opinion that it was shocking that technicality could be carried to such an extreme, especially given the convention that Nigerian jurisprudence abhors extreme technicalities, especially on issues of locus standi, which the Supreme Court had already addressed and stipulated clearly that questioning the locus of petitioners, requires a cross petition by the respondents.
According to Adesina, if the petitioners had been elected then they would not be in the tribunal as petitioners and in any case, the qualification of the petitioner cannot be challenged by the respondents, and citing the case of Akpore vs Mariere in the 2015 Delta State House of Assembly elections, affirmed that all locus standi requirements had been fulfilled, as contained in the letter of December 21, 2014 informing INEC of the change of name.
Arguing further, Adesina said the card reader did not offend any of the provisions of the Electoral Act, adding that Section 49 did not prohibit the use of the card reader. “If the Card Reader is illegal, then the election of Dr. Okowa is illegal too. Section 52 of the Electoral Act prohibited electronic voting and not electronic accreditation” he said authoritatively.
The Petitioners counsel then informed the tribunal that the assertion by the respondents that exhibits P6 – P26 was dumped on the tribunal was not correct in fact and in law, stating that Petitioners witnesses PW3 and PW15 had specifically referred to all Polling units the petition had complained about and the witnesses statements represented the Evidence-in-chief of the petitioners.
Femi Adesina then argued that the statutory forms not only contained specific information on points, which the witnesses wished to be made but also constitute evidence in themselves and once they are duly admitted, represent the the first evidence of polling units by polling units.
In conclusion, Femi Adesina, SAN passionately appealed to the tribunal that as Ministers in the temple of justice, they should not sacrifice justice of expediency on sentiment, adding that on the grounds of public policy, the voter must be governed by those he voted for and as a result, urged the tribunal to read his written address with great attention, nullify the election of Dr. Okowa and order a fresh election to give the people an opportunity to freely vote for those who will govern them.
Having once again listened with great patience to all the final addresses by the respondents and petitioners and intervened with great diplomacy and brinkmanship, but this time in fewer instances, when and where necessary, the three-man Delta election petition panel, headed by Justice Nasiru Gunmi, assured all parties that it would devote ample time to the final written addresses already adopted.
Justice Gunmi also expressed the sincere apology of the tribunal to the junior counsels in the legal teams of all the parties, with special reference to Kehinde Ogunwumiju Esquire (PDP) and Onyinye Anumonye Esquire (INEC), especially in instances where they may have appeared to have been a little bit stricter in addressing the juniors in arguments with senior counsel.
The tribunal chairman then thanked the press and the audience for exhibiting good conduct all through the proceedings, and while promising that they would communicate the date for the final ruling to all parties, which should be before October 28, adjourned the sitting until the date of the final ruling.
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