AKWA IBOM STATE GOVERNORSHIP ELECTION: WHAT THE COURT OF APPEAL SAID.

PREAMBLE:

The April 11, 2015 governorship election in Akwa Ibom State has continued to elicit critical commentaries within and outside the shores of Nigeria. Admittedly, the said election was nothing but a well orchestrated sham, executed in a scandalous manner that smack of state terrorism. The security agencies, particularly the Nigeria Police Force and the Nigerian Security and Civil Defence Corps (NSCDC) wrote separate indicting reports detailing myriad of killings, kidnappings, ballot box snatching, harassment, wanton destruction and violence that occurred during the symbolic exercise. On their part, Independent Observers from the European Union and the United States Embassy, etc, in their reports described the purported election as a sham and demanded its outright cancellation for failing far below acceptable international standards.

WHAT THE COURT OF APPEAL SAID:

Justifiably aggrieved by the outcome of the April 11, 2015 election, the governorship candidate of the All Progressives Congress (APC) Mr Umana Okon Umana and his party filed a petition at the Akwa Ibom State Governorship Election Petition Tribunal. The Tribunal in its judgment delivered on Wednesday, October 22, 2015 agreed in part with the Petitioners that the election was flawed and proceeded to nullify election in 18 out of the 31 Local Government Areas of Akwa Ibom State. Dissatisfied with the outcome of the Tribunal judgment, the Petitioners and the Respondents all challenged the Tribunal's verdict at the Court of Appeal. There were four substantive and one interlocutory appeals, in all. On Friday 18th December, 2015, the Court of Appeal delivered judgment in the five (5) appeals that arose from the Tribunal's judgment.

Below are verbatim EXCERPTS from the epochal and historic judgment which has been applauded in legal circles as a victory for the Nigerian electoral system, democracy and justice:

1. "Though the 2015 general elections have received commendations for its credibility and transparency especially with the introduction and the use of the card readers, Akwa Ibom State election with very few others has been one that called for public outcry because of widespread electoral malpractices".- Per UMANI MUSA ABBA AJI, JUSTICE OF THE COURT OF APPEAL (JCA), in Appeal No. CA/A/EPT/656/2015 at page 32.

2. "Cases are won based on the facts or evidence presented and available. Thus, facts are the palm oil with which cases are eaten in law. Facts must be applied to law and not otherwise. Put simpliciter, the facts in election petition and cases generally make up the evidence of the witnesses and the documents presented. I shall therefore be relying both on the evidence of witnesses and documentary evidence interchangeably in the consideration of this appeal on LGA basis as equally adopted by the two parties here in this appeal." Per UWANI MUSA ABBA AJI, JCA, in CA/A/EPT/656/2015 at page 18.

3. "Mutilation or alteration of a document has been held to seal the death for that document. In other words, it makes it worthless and lifeless to the extent of the mutilation. See ORJI V. DORJI TEXTILES MILLS (NIG.) LTD (2010) ALL FWLR (PT.519) 999 AT 1020. Again, documents which ought to be signed have not been signed or purportedly signed by persons who ought not to sign, cannot be relied upon and smacks of presumption of regularity in law. Pertinent also is Exhibit 317, the report of accredited voters in the election on polling unit by polling unit in the entire State, shows that the number of accredited voters was 437, 128 while the alleged number of votes cast was 1, 222, 836. Further, the voters registers reveals that the accredited voters were 448, 307 while the alleged votes cast was 1, 222, 836... It is also trite that where over voting has been proved, the effect is to void that election." Per Per UWANI MUSA ABBA AJI, JCA, in CA/A/EPT/656/2015 at page 28-29.

4. "The Tribunal in considering substantial non-compliance that necessitated the nullification of the results in the 18 LGAs at page 3791 of the records held in paragraph 4 therein thus:
"We did simple aritmetical calculation from the table of voters supplied in the petition in these Local Governments and arrived at a number of 566, 436 voters as those who were by rough estimate disenfranchised. Adding these figures to 89, 685 votes that the 1st Petitioner scored will close the gap between the results declared in favour of the 1st Respondent." I wonder why the Tribunal could not show how it arrived at this figures. It is evidence generally that by Exhibit 317, the total number of accredited voters is 437, 128 while the total figure of votes cast in the election is 1, 222, 836, thus establishing over-voting by documentary evidence. Also, that there were ballot papers muddling and mangling in bags. Where the court/Tribunal has nullified an election for non-compliance, the issue of proving disenfranchisement is a non sequitur and cannot stand." Per UWANI MUSA ABBA AJI, JCA, in CA/A/EPT/656/2015 at page 31."

5. "The proof beyond reasonable doubt standard envisaged for corrupt practices or electoral offences in the Act is geared towards not sentencing and convicting aspirants with their electorates but to produce winners ultimately in elections. I think where there is found to be overwhelming evidence of over-voting the standard of prove beyond reasonable doubt may not be necessary to prove the electoral offences that culminated into over-voting since election petition is a specie of civil suit and not a criminal one." Per UWANI MUSA ABBA AJI, JCA, in CA/A/EPT/656/2015 at page 35 - 36.

6. "I have not found in the records before me where the 4th Respondents (INEC) at any point denied the authenticity or disowned the said Exhibit "317" and that being the case, Over-voting, in the present appeal, is established as directed against the 4th Respondent. I will like to add here that, it is settled law that the most reliable and authentic evidence is the documentary evidence. See: INEC Vs. Oshiomhole (2009) 4 NWLR (Pt. 1132) 607 at 665 paras E - F. Per SIDI DAUDA BAGA, JCA in CA/A/EPT/656B/2015 at page 60 - 61.

7. "Let me state for the records that the 5th Respondent in the both petition and this appeal is the same Nigeria Police Force that issued Exhibit 337 as its report on the election. That is all the more reason why credence should be, and must be given to the its report as in Exhibit 337. I cannot fault the credence the Tribunal gave to Exhibits 12 and 337 its judgment, the subject of this appeal. Issue 3, raised and argued by the Appellants, INEC, is hereby resolved against them." Per EJEMBI EKO, JCA, in CA/A/EPT/656A/2015 at page 13

8. The Appellants submits that Exhibit 12 that says that "it appears INEC had a close dealing with the sitting authority in the State" was merely full of sound and fury and yet signified nothing, and it like Exhibit 337 was inadequate in contents. I do not think so. Exhibit 12 seems to expose the partisan role of INEC in the election which smacks of corrupt practice. The trial Tribunal believing that Exhibit 12 has content found that its significance cannot be overlooked. When Exhibits 12, 337 and 317 are taken together with other evidence of the Petitioners one gets the impression that INEC did what they did in the disputed election because they "had a close dealing with the sitting authority in the State." Per EJEMBI EKO, JCA, in CA/A/EPT/656A/2015 at page 13 - 14.

9. "Exhibit 317 is an INEC document. It is their report on the card reader accreditation. It indicated that only a total of 437,128 voters were accredited to vote on 11th April, 2015. However, a total of 1,122,836 votes were said to have been cast at the election. That is 685, 708 votes more than the 437, 128 voters accredited to vote at the election. The evidence of Dw. 24 called to douse this fire does not seem to be a sufficient fire extinguisher. The Dw. 24 testified that the information's from the Card Readers were still being uploaded. The question then is why would INEC declare final result and make return of the winner of an election when there was uncertainty whether, from the field, the total votes cast prima facie exceed the voters accredited? If the return was premature then a case of non-compliance with the Electoral Act, 2010, as amended, had in my view been established." Per EJEMBI EKO, JCA, in CA/A/EPT/656A/2015 at page 20.

10. "The issue of over voting, like the overwhelming evidence of there being no collation exercise at the State Collation Centre, are weighty enough to warrant INEC offering explanation since a strong prima facie case had been made that the election, as conducted, was not in substantial compliance with the Electoral Act. As submitted by Chief Wole Olanipekun, SAN, there are other cases of non-compliance with the Electoral Act which evidence are abound in the Record. They include cases of the same persons across different and diverse polling units and wards in different Local Government Areas signing result sheets or electoral forms. Those persons were not shown to be omnipresent at the same time in those various places. INEC had the evidential burden to satisfactorily explain these irregularities and incidents of non-compliance with the Electoral Act and INEC Guidelines etc that are capable of vitiating the election." Per EJEMBI EKO, JCA, in CA/A/EPT/656A/2015 at page 21

11. "I notice in this appeal the Appellants, INEC, avoided comments on the evidence of pw. 4, pw. 7, pw. 8, pw. 9, pw. 10, pw. 33, pw. 35, pw. 44, pw. 46 and 48. The totality of their evidence is that the State Collation Centre was throughout under lock and key, and that no final collation of results from 31 Local Government Areas of Akwa Ibom took place, at all, to justify the final declaration and return of the 1st Respondent in the petition and the 3rd Respondent in this appeal as the winner of the election with the majority of the votes cast in the election. The effect and impact of these overwhelming pieces of evidence render the final declaration and return of the 3rd Respondent, herein, as the winner of election suspect or a complete sham or a hoax. Pw. 33 video taped the activities at the State Collation Centre to add strength to his evidence. The video Recording is Exhibit 5." Per EJEMBI EKO, JCA, in CA/A/EPT/656A/2015 at page 22

12. "As a final postscript , I observe that not even the indictment of INEC in Exhibit 12 to wit -It has been observed closely that the general conduct of April 11th, Gubernatorial and State Assembly (sic, elections ) by INEC ..... by all Standard. It appears INEC (sic) to have had a close dealing with the sitting authority in the State has any impact or bearing on INEC in the conception and prosecution of this appeal. INEC, as an impartial electoral umpire, should in no circumstance be seen to be partial and an interested party at all stages of the election, including the post election disputes inter partes of those who contested the election. Like Caesar's wife, INEC at all times before, during and after the election, shall always appear to be over board. The independence and impartiality ascribed to them must never be seen to have been compromised in any manner whatsoever, including embarking and prosecuting litigations that would appear to be mercenary actions. I say no more and I leave it at. Per EJEMBI EKO, JCA, in CA/A/EPT/656A/2015 at page 31 - 32.

13. "I have studied both sets of regulations above, I do not see any conflict between the regulations in Section 10 (a) of the Guidelines which stipulate that accreditation shall be the verification of the PVC by the Card Reader and the requirement in Section 49(2) of the Act which stipulates that accreditation shall be by verification of the Register of Voters. Whether the verification be from an electronic data base, as the Guidelines state or from a physical register, the important factor is that the verification be from a Register, whether it is an electronic register or otherwise." Per OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, JCA, in CA/A/EPT/656c/2015 at page 18.

14. "Indeed, in the case of APC v Kolawole Agbaje CA/L/GOV/751A/2015 relied upon by the Tribunal and the Respondents as authority for holding the Guidelines to be inconsistent with the Electoral Act, the Court never held the Guidelines to be in conflict with the Act. What Ogbuinya JCA held was the following:
"The evolution of the concept of smart card readers is a familiar one. It came to being during the last general election held in March and April, 2015 in Nigeria. On this score it is a nascent procedure injected into our infant and fledgling electoral system to ensure credible and transparent election. Specifically, it is aimed to concretise our fragile process of accreditation - the keystone of any suffrage. The concept, owing to its recent invention by INEC, a non legislative body, traces its paternity to the manual for election officials, 2015. Put the other way round, the extant Electoral Act as amended which predates this concept, is not its parent or progenitor. Since it is not the progeny of the Electoral Act, a ground in a petition fronting it as challenge to any election does not have its blessings,... section 138 (1) of it".

This decision is not a denunciation but a commendation of the innovation of the Card Readers. The warning however by the learned Jurist is that the issue of Card Reader should not be the ground for challenging an election. This is however not the case in the Appellants' Petition, where the primary ground is that the election is invalidated by substantial non-compliance with the Act... The instant case does differs from the situation in APC v Agbaje Supra where the issue of the Card Reader was one of the grounds. As the Appellants' Counsel submits, and I have no reason to disagree, even though this issue is not one of the Grounds, nothing precludes the Petitioner from alluding to the non-compliance with these Guidelines to buttress the grounds of their Petition. Per OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, JCA, in CA/A/EPT/656c/2015 at page 18 - 19.

15. "From the foregoing averments in the pleadings of the parties, which I have highlighted above, the Respondents, I note, have admitted the validity of the Guidelines as regulating the Governorship elections of April 2015. They have also admitted that the Card Readers were used in the day of the elections. Indeed, the 3rd and 4th Respondents went so far as to admit, in paragraph 11 of their Reply, that there was no sustained malfunctioning of the Card Reader Machine..., In the light of these admissions, it was not necessary, I hold for the Appellants to have proved Exhibit 322, a certified copy of the directive from INEC for the use of the Card Readers at the election in question. It was also not necessary to prove, in the light of these admissions, that the Card Readers were used on the day in question. It is trite law that facts admitted require no further proof. See Aghanelo v UBN Ltd (2002) 7 NWLR Part 666 Page 534 at 549 Para A per Ayoola JSC. Per OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, JCA, in CA/A/EPT/656c/2015 at page 26 - 27.

16. "By the provisions of the Evidence Act, interpreted as I have done above, the burden of proving non-compliance with the provisions of the Electoral Act was, I hold, on the Appellants. Once the Appellants gave evidence of irregularity in the accreditation and the figures accredited by the Card Readers, the evidential burden of disproving these figures, I hold, shifted to the Respondents who it were that contended that these figures did not represent the total number of accreditated voters. Indeed, the 3rd and 4th Respondents, in whose bosom these facts and documents were, gave no contrary figures. It is not enough for DW24 to contend that the Card Readers were still being uploaded six to seven weeks after the elections until they were shut down, he must go further to prove what the final figures were. If, as pleaded by them, the Card Readers were not totally representative of the total number of votes accredited prompting recourse to manual accreditation by Incident Forms, what then were these supplementary numbers accredited? No figures were however given. The only deduction, if the witness is to be believed, is that at the time the 1st Respondent was declared winner of the elections, the number of votes accredited were not known! How then could the 1st Respondent be declared winner of an inconclusive election? Per OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, JCA, in CA/A/EPT/656c/2015 at page 42 - 43.

17. "From the state of the evidence before the Tribunal, the burden placed on the Appellant to prove the figures accredited by INEC on the date of the election was discharged, I hold, by the production of the Report from INEC (Exhibit 317) detailing the data of accreditated voters. The Respondents, however, failed to discharge the evidential burden which shifted on them to disprove the documentary figures produced by the Appellants, they being the party who, by Section 133 (2) of the Evidence Act would fail if no further evidence is adduced in rebuttal. The lower Tribunal, I thus hold, was in grave error to have placed on the Appellants the burden of proving the figures relied upon by the Respondents as showing supplementary accreditation. It was held by the Supreme Court in the case of Okoye v Nwankwo (2014) 15 NWLR Part 1429 Page 93 at Para G-H per Peter-Odili JSC that where the burden of proof has been wrongly placed on the wrong party, there is the likelihood of miscarriage of justice." Per OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, JCA, in CA/A/EPT/656c/2015 at page 44.

18. "In the event that one takes the figures in the voters register, which the Respondents claim that they had recourse to on failure of the Card Readers, the total figure of votes accredited is 448, 307, short of the total votes cast by a whopping 674, 529 votes. Again, for the purpose of arguments, if one were to combine both the Card Reader and the Voter's Register accreditation, the total is 885, 435, still short of the total number of votes cast. Indeed, the last two scenarios are in the realm of speculation, the Respondents, as held by me above, have produced no figures of accredited voters in rebuttal of the figures produced by the Appellants." Per OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, JCA, in CA/A/EPT/656c/2015 at page 46.

19. "Whichever way one looks at it, the facts show that the votes recorded at the Governorship elections of April 11th, 2015 were far in excess of the voters accredited for that election. Where the number of votes cast at an election are more than the number of accredited voters, there is a massive irregularity, with the only conclusion being that the candidate returned as the winner did not secure the total number of votes cast. The Tribunal, by expecting the Appellants to count the ballot papers from the polling units to disprove the votes recorded by INEC as having been recorded, missed the important point, which is whether the votes recorded on the day in question were in excess of the votes accredited. Per OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, JCA, in CA/A/EPT/656c/2015 at page 46.

20. "The case of Ucha v Elechi Supra relied on for proof of non compliance by production of evidence polling unit by polling unit, ward by ward, can thus not apply in a case as in the instant one, when the very foundation of the election is flawed." Per OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, JCA, in CA/A/EPT/656c/2015 at page 47.

21. "Of particular relevance to the question of whether the election was invalid by reason of corrupt practices and/or non-compliance with the provisions of the Electoral Act, 2010 (as amended) is the evidence of PW33, Chief Don Etiebet. This is because one of the allegations of the Appellants in their Petition, aside from non voting at most of the centres, was that there was no collation of votes at all levels of the exercise, aside the widespread violence, multiple thump printing etc. The witness statement of PW33, Chief Etiebet, contained at Pages 115-120 of the Record and which the Tribunal believed, is that following his accreditation to vote at the election in question, reports of violence and the hijack of electoral materials meant for his polling unit and Local Government Area reached him. He made reports to the State Security Service, the S.I.B Monitoring Team and to the Returning Officer of the Local Government Area Collation Centre. He visited INEC Headquarters in the company of the 1st Practitioner, State Agents of the APC and other leaders of the party to verify if collation was being done. They however met the gate locked with no activity going on. Neither the Resident Electoral Officer nor other staff of INEC were to be found, save for security men manning the gate and who prevented access to the building. He made video recordings at the gate of INEC showing the closed gate. He also addressed a Press Conference on the state wide irregularities that characterised the elections, the contents of which address were carried both locally and internationally. He tendered the newspaper Reports and the Press Statement in evidence. The video made by him on the night of the election outside the INEC office under lock and key was played back before the Tribunal. His evidence is that he was surprised that as at 10 pm when processes should have been completed and results brought to INEC office, there was no collation going on. Also belived, as aforesaid, was Obong Victor Attah, former Governor of Akwa Ibom State on the lack of voting at his polling unit. Per OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, JCA, in CA/A/EPT/656c/2015 at page 53 - 54.

22. "It is my opinion that the Tribunal, having believed the evidence of PW33 without reservation and having seen in open court video clips (Exhibit 5 and 6) showing the locking of the gate at INEC should have proceeded to hold it proved that there was indeed no collation of results of the election in question and that votes were merely "allocated". No finding on this important aspect, was unfortunately made by the Tribunal. The evidence of PW33 on the failure of collation, is not alone in this contention. Other witnesses also gave evidence of the lack of collation, not only at the ward and local government levels but also at the State level... The lower Tribunal strangely made no mention nor drew any conclusions from the this evidence. The question is, if there is no collation of results, can there be said to be an election? In the absence of any collation of results, the injunction that evidence should be produced by the Appellants from each polling booth by polling booth, as held in the case of Ucha v Elechi Supra, can thus not apply to a case, as in the instant, where there is clear evidence that there was no collation of results." Per OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, JCA, in CA/A/EPT/656c/2015 at page 56.

23. "It is not feasible, as expected by the Respondents and the lower Tribunal, for the Appellants to embark on the task of counting all the ballot papers to ascertain the votes cast for the parties in order to determine a shortfall, when, as proved before the Tribunal, there has been no collation of results. Where there is no collation of results, there cannot be an election, I hold. Per OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, JCA, in CA/A/EPT/656c/2015 at page 57.

24. The Appellants, I accordingly hold, have successfully discharged the burden of proving the 1st ground of its petition of non-compliance by the Respondents with the provisions of the Electoral Act. This non-compliance, I hold, cuts across all the Local Government Areas, including the 13 Local Governments not nullified, thus substantially affecting the outcome of the election and rendering the same invalid. Having held that the 1st Respondent was not duly elected by the majority of lawful votes cast at the election and that the non-compliance by the Respondents with the provisions of the Electoral Act 2010 (as amended), the lower Tribunal, I hold was wrong in failing to invalidate the entire governorship election conducted in Akwa Ibom State on April 11, 2015.

25. "Having resolved the sole issue for determination in favour of the Appellants and against the Respondents, this appeal succeeds and is hereby allowed.
1. The Judgment of the lower Tribunal in relation to the validation of election results in 13 Local Government Areas of Akwa Ibom State is hereby set aside...
2. The entire Governorship Election conducted in Akwa Ibom State on April 2015 is hereby nullified.
3. The election and returned of the 1st Respondent as Governor of Akwa Ibom State is nullified."

26. "I chip in a word of warning. May this country never again experience the violence and thuggery found to have taken place in Akwa Ibom State during the Governorship elections held on 11th April 2015. Politics should never be so desperate that lives and decorum are sacrificed on the altar of winning at all costs. The descent into almost anarchy as occured in this case must never again be allowed to take place. The supervising body, INEC, is charged at all times to remain on the side of truth and never be complicit in any subversion of due process." Per OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, JCA, in CA/A/EPT/656c/2015 at page 58.

CONCLUSION:

The Court of Appeal deserves unreserved commendation for rising in defence of free, fair and credible elections. This judgment is not just a victory for the Petitioners but also for truth, democracy and justice. Nigeria has been saved from being ridiculed before the international community. No nation can thrive without a conscientious and independent judiciary. The truth has triumphed. God bless the Nigerian Judiciary.

Elections and court cases are over, create threads that seek to critque governance with the motive of wellbeing of citizen.

hopilo:
Elections and court cases are over, create threads that seek to critque governance with the motive of wellbeing of citizen.

HAVING KNOW THE DANGEROUS PRECEDENCE THE SUPREME COURT JUDGMENT HAS SET? YOU THINK?

THIS THREAD IS HERE FOR ALL NIGERIANS TO SEE THE FINDINGS OF THE APPEAL COURT AND THEIR JUDGEMENT SO THAT WHEN THE SUPREME COURT FINALLY COMES OUT WITH THEIR REASONS, WE CAN COMPARE

why shud thr be overvoting when apc said there was no election in the state on the 11 of april?
the number of accreditation by cardreader is 400,000+, who did those votes went to? also why cancel election in d entire state when the appeal acknowledged that d card reader captured 400,000+ prints which means people voted?

yaki84:
why shud thr be overvoting when apc said there was no election in the state on the 11 of april?
the number of accreditation by cardreader is 400,000+, who did those votes went to? also why cancel election in d entire state when the appeal acknowledged that d card reader captured 400,000+ prints which means people voted?

The appeal court judgement was posted here for you to read and know. Failing to do so or should i say failure to understand it will lead to such comment as what you just posted. My brother, as someone learned to explain to you the judgement of the appeal court

yaki84:
why shud thr be overvoting when apc said there was no election in the state on the 11 of april?
the number of accreditation by cardreader is 400,000+, who did those votes went to? also why cancel election in d entire state when the appeal acknowledged that d card reader captured 400,000+ prints which means people voted?

To an ignorant person, you seem to have made sense but sorry you are the ignorant one here.

How can you say that accredited voters = no of votes cast? It's not logically possibly. One can stay back from the voting process after the accreditation.

Kai... People are ignorant o

rottennaija:



The appeal court judgement was posted here for you to read and know. Failing to do so or should i say failure to understand it will lead to such comment as what you just posted. My brother, as someone learned to explain to you the judgement of the appeal court

Leave him in his folly! I can bet you most of them will not read it, they'll jump to comment their ignorance.

The Courts of Appeal were bias on their judgments in favour of APC Governors as against PDP.

The lack of consistency in judgments delivered by different Appeal Court judges is what the supreme court corrected to avoid setting contradictory precedences.