171 days after the petition was brought before it, the Akwa Ibom National and State Houses of Assembly Election Petition Tribunal sitting in Abuja has reserved judgement in the suit instituted by Chief Inibehe Okori of the All Progressives Congress (APC) challenging the declaration of former Akwa Ibom State Governor, Chief Godswill Akpabio of the People’s Democratic Party,(PDP) as the winner of the disputed March 28, 2015 Akwa Ibom North West senatorial district election.
Addressing the tribunal while adopting his final written address before the Hon Justice Goddy Anunihu led tribunal, counsel to the petitioner, Chief Assam Assam (SAN) said whenever a document is required by law to be reduced into writing, no other evidence, oral or otherwise of that transaction is admissible.
In his words, “It is a general and most inflexible rule that whenever written instruments are appointed by the requirement of law, any other evidence is excluded from being used either as a substitute or to alter or contradict them. See Sarkar commentaries Law of Evidence page 1415.
On the issue of accreditation, Chief Assam said “none of the parties to this petition has urge upon your Lordships to discard the exhibit P19 (Card Reader report) as the primary process of accreditation. We have argued in our written address that the case of APC v.s JK AGBAJE which is now reported, is not an authority for the much acclaimed statement that the use of the Card Reader is in conflict with the provisions of the Electoral Act. In the circumstance, where 444,505 votes are alleged to have been cast and the only means of credible and transparent accreditation shows that only 205,519 persons were accredited to vote by the Card Reader Machine and there is absolutely no record of where Card Readers did not work in that the failure of the card readers, if any, were not recorded in the “incident forms” to provide the basis for falling back on manual voting, your Lordships must hold that there was over voting in the constituency giving room for the nullification of the results and no more”, he submitted.
He said he does not submit to the thin line opinion which some respondents lawyers hold on proof of non - compliance. “I want to say that there is no thin line here. 205,519 persons cannot legitimately cast 444,505 votes. That is a whooping over voting with the statutory consequence of nullification”, he submitted.
Chief Assam told the tribunal that Section 65(2)b of the 1999 Constitution does not state the process of sponsorship but the Electoral Act states that in Section 31(1). He told the tribunal that the law is explicit on the position that once the sponsorship of a candidate is given to the Electoral commission, INEC has no power to alter it.
“ My Lord, Exhibit 13 followed Exhibit 14 and Exhibit 13 was issued as a consequence of Exhibit 14. When we referred to Section 32 of the Electoral Act, it was for the purpose of showing that were the 1st Respondent to be actually nominated to contest election in Akwa Ibom North West senatorial district, there would have been the document of constituents nominating him. The Respondents have not tendered the document that nominated the 1st Respondent. Only that would have shown that Exhibit 13 was an error. Besides, by virtue of Section 33 of the Electoral Act the only way to alter Exhibit 13 is by death or voluntary withdrawal by the candidate”, he submitted.
He explained that no one is saying Akpabio was not qualified to contest election as a Senator but that he (Akpabio) was not sponsored to contest election as a PDP candidate for Akwa Ibom North West having being nominated and sponsored by the PDP as their candidate for Akwa Ibom North East.
He explained that before the 2015 general election, there was no case law which considered the effect of the Card Reader on accreditation. He submitted that the onus was also on the Respondents to explain to the tribunal the excess votes cast in the disputed election and why no incident form was tendered when it was obvious that manual accreditation was only to be adopted where the Card Reader fails and total votes casts ought not to have exceeded 205,519. He prayed the tribunal to grant the petition and the reliefs sought therein by the petitioner.
Speaking earlier, counsel to Akpabio, Offiong Offiong (SAN) prayed the tribunal to dismiss the petition for lack of merit. He submitted that the petitioners raised constitutional points by questioning the qualification of the 1st Respondent but the Electoral Act cannot be used to interpret the 1999 Constitution.
“ You cannot use the Electoral Act to disqualify Akpabio. You must restrict yourself to constitutional provisions. Any non compliance with the Electoral Act is still subject to the provisions of Section 139(1) of the 1999 Constitution. It is not my job to prove discrepancies in accreditation figures. Ask INEC not me and the petitioner never proved discrepancies in accreditation figures. The onus lies on them to show the variance between the Card Reader and manual accreditation. Any attempt to ignore manual accreditation is a direct affront on the Electoral Act”, he submitted.
Also speaking, counsel to the 2nd Respondent, Paul Ananabah (SAN) prayed the tribunal to dismiss the petition because it is built around the Card Reader and non qualification of the 1st Respondent. He said the error in Akpabio’s nomination form was a simple error that should not concern the petitioner and is not a point the tribunal should entertain. He submitted that any policy not in the Electoral Act is a nullity such as the Card Reader.
He declared that a situation where candidates that fail elections seek redress in court pollutes the electoral system and distracts the winner of the election. He prayed the tribunal to deliver judgement in a manner that sends a serious warning to litigants to reduce litigation so that Nigeria can be like England where elections held without a single petition after the declaration of results.
On his part, counsel to the 3rd Respondent, Adekunle Oyesanya (SAN), submitted that all allegations against Akpabio are electoral offences which the tribunal has no jurisdiction. He submitted that Section 149 of the Electoral Act advises the tribunal to send such matters to the regular court and prayed the tribunal to dismiss the petition in it’s entirety.
Oyesanya cited the case Kayode VS APC & Ors (2014)LPELR-23092(CA) page 65 which held that “By the provisions of Section 87(a)(b) and (c)(ii) of the Electoral Act 2010, as amended, once an aspirant emerges as winner by getting the highest number of votes at the primary election, then, he must be declared winner of the primaries and his name must be submitted to INEC as the candidate of that political party”, a submission that has become the Achilles of the PDP in the petition .
The tribunal at the end of the adoption of the final written address by counsels to all the parties, thanked both the Petitioners and the Respondents for their coorporation which has led to the successful conclusion of the trial and announced that the date for final judgement of the petition shall be communicated to all parties.
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