Anxiety in Akpabio’s camp as Okori files brief of argumen

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...Why Akpabio can’t escape justice- Group

There is panic and anxiety in the political camp of embattled Senate Minority Leader and former Akwa Ibom State Governor, Chief Godswill Akpabio as the Court of Appeal,  Abuja Division gets set to hear and determine the appeal filed by Chief Inibehe Okori of the All Progressives Congress (APC) against the judgement of the Akwa Ibom State National and State Houses of Assembly Election Petition Tribunal in Abuja which upheld the disputed March 28, 2015 Akwa Ibom North West senatorial district election which saw Akpabio scoring 422,009 out of the alleged 444,505 votes cast in an election where only 205,519 voters were accredited. The tribunal had ruled among others that despite the clear case of over voting,  Akpabio’s election was done in substantial compliance with the provisions of the Electoral Act. 

The judgement which was greeted with outrage in the country was widely condemned by legal experts who described the judgement as a miscarriage of justice.

In a notice of appeal before the Court of Appeal, the appellant submitted that being dissatisfied with the decision of the Hon. Justice Goddy Anunihu led tribunal of October 14, 2015, he sought to appeal the judgement of the tribunal on seven grounds. He listed the grounds of appeal to include:

-That the  Learned Justices of the Trial Tribunal erred in law when they found and held essentially that the 1st Respondent was qualified to contest and duly contested the Akwa Ibom North West senatorial district election into the National Assembly on the 28th of March, 2015.

-That the Learned Justices of the Trial Tribunal erred in law in holding that the 3rd Respondent sponsored the 1st Respondent for the National Assembly Elections in Akwa Ibom North West senatorial district.

-That the Learned Justices of the Trial Tribunal erred in law when they found and held that INEC had the power to on its own normalize any anomaly in Akpabio’s nomination form by resorting to his personal particulars to determine his appropriate constituency.

-That the Learned Justices of the Trial Tribunal erred in law when they found and held the 1st ground of the petition is based on a technical error in the nomination documents of the 3rd Respondent and does not affect the substance of Akpabio’s nomination to contest the election.

-That the Learned Justices of the Trial Tribunal exhibited double standards in resolving the issues placed by the parties before them and therefore erred in law.

-That the Learned Justices of the Trial Tribunal erred in law when they found and held that exhibit P.19 ( Card reader report) is inadmissible and proceeded to expunge same from the records.

-That the judgement, entered by the Tribunal, is against the weight of evidence adduced at the trial which all amounted to a miscarriage of justice.
He sought as reliefs from the appellate court the setting aside of the judgement of the Trial Tribunal and an order entering judgement in favour of the Petitioners / Appellants with regards to all the reliefs contained in the petition.

According to Okori’s brief of argument, “ The main grouse of the appellant in this matter revolved around two solid contentions. The first grouse is that the 1st Respondent did not meet the stipulation of section 65(2)(b) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) as to the qualification of a candidate to contest for an election as a member of the senate. 

This contention was premised on the fact that the 1st Respondent was actually nominated and sponsored by the 3rd Respondent to contest for the Akwa Ibom North East Senatorial District Election and not for the Akwa Ibom North West Senatorial District Election. In fact, the INEC’s Senatorial Elections submission of names of candidates by Political Party (Form CF 002C) and the PDP National Assembly Primary Election/Nomination of National Assembly Aspirant Form PD 004/NA/2014 which were admitted during the trial as Exhibit P 13 and P 14 respectively vividly showed that the 1st Respondent was nominated by his party to contest the senatorial election in Akwa Ibom North East Senatorial District Election. It remains bewildering on how the 2nd Respondent went ahead to ‘field’ the 1st Respondent for an election in a different senatorial district against the wishes and directives of the 3rd Respondent”.

“The second grouse of the appellant  is that the election in Akwa Ibom North West Senatorial District was invalid by reason of corrupt practices and/or non-compliance with the provision of the Electoral Act (as amended). Glaringly, from a dispassionate assessment of the result sheet of the Akwa Ibom North West Senatorial District (Form EC8D(1)) which was tendered and marked as Exhibit P17 at the tribunal and a cursory reading of the Card Reader Report for Akwa Ibom North West Senatorial District, which was tendered and marked as Exhibit P19, one will easily decipher that the total number of accredited voters as per the Form EC8D(1) way exceeds the total number of accredited voters as recorded on Card Reader Report by 238, 986 votes . Without missing words, it is clear and manifest that the said Election was grievously characterized by over voting”, he declared. 

Okori said in proof of  his case, he  called 17 witnesses and tendered a host of Exhibits. “In buttressing the claim of the non- qualification of the 1st Respondent, the appellant relied on the testimony of PW 7 (Mr. Samuel Unewnojo John) a subpoenaed witness who works at the INEC Legal Department. Through PW 7, the Petitioners tendered exhibits P 13 (INEC submission of names of candidates by Political Party (Form CF 002C) and P 14 (PDP National Assembly Election Result Form Code PD 004/NA/2014). PW 7 further informed the court during cross examination that “a political party cannot correct any error in any document it submits to INEC. With the consent of a candidate, a political party can withdraw a candidate submitted by it if that candidate withdraws

“The appellant also subpoenaed another witness– PW10 (Mrs. Abimbola Oladunjoye) who works at the INEC ICT Department. Through PW 10, the Petitioners tendered exhibits P 19 (Certified Copy of the Smart Card Reader Report) and P 20(INEC Guidelines for the conduct of the 2015 General Elections). The 1st Appellant herein also testified at the Trial as PW 17. PW 17 informed the Tribunal that he was not accredited on the day of the election. He also told the court that incidence forms were not used in situations where card reader machines could not read the finger prints of the intending voters. Other witnesses called by the appellant testified to the effect that the election was largely characterized by malpractices as elections did not hold in some polling units while there was no accreditation in other polling units”.

The APC chieftain told the Appeal Court that upon the close of the case at the tribunal , the 1st Respondent (Akpabio) called 19 witnesses, the 2nd Respondent (INEC) called only 1 witness while the 3rd Respondent (PDP) called 3 witnesses.

In his word, “Most important of note is the testimony of the 1st Respondent’s witness – RW3 (Prof. Adewale Oladipo) the National Secretary of the 3rd Respondent Political Party. RW 3 informed the Tribunal that ‘he is aware that parties sponsor candidates by submitting forms to INEC. During his cross examination by the Petitioners’ counsel, RW 3 informed the Tribunal that he signed exhibits P 13 and P 14 in error. He further informed the Tribunal that he knows the condition upon which a sponsored contestant to INEC can be changed. Also, upon detection of his ‘supposed error’ in exhibits P 13 and P 14 he made no effort to rectify the error”.

Okori explained that despite the array of evidence laid in proof of their contention of the non – qualification of the 1st Respondent, the Tribunal still went ahead to resolve this ground against him and thus held the 1st Respondent to have been qualified. “The Tribunal amazingly used the oral testimony of RW 3 to rectify the “alleged errors” in exhibits P 13 and P 14 against the settled principles of law that documentary evidence speaks for them self and no oral testimony should be allowed to vary, alter or add to the contents of a document”, he submitted.

The APC candidate noted with dismay that the Tribunal employed a double standard in assessing the exhibits before it by refusing to countenance exhibit P19 without even taken a second look at the contents of the documents based on the mere fact that the certificate accompanying exhibit P19 read Card reader report of Akwa Ibom South Senatorial District instead of Akwa Ibom North West Senatorial District. “While it used the oral evidence of RW 3 to correct exhibits P 13 and P 14 on one hand, it refused to use the oral testimony of PW 10 to correct the errors in exhibit P19. Your Lordships are humbly invited to look at pages 3089- 3092 and 3097 respectively of the record”, he prayed.

He therefore prayed the Court of Appeal to determine “whether the 1st Respondent was validly sponsored by the 3rd Respondent to represent Akwa Ibom North West Senatorial District in the National Assembly General Elections of 28th March 2015, whether the 2nd Respondent is by law empowered to nominate candidates on behalf of political parties or exercise any form of discretion in the nomination  of a candidate for any constituency and whether the Tribunal properly evaluated the evidence placed before it in arriving at its judgment.

On whether the 1st Respondent was validly sponsored by the 3rd Respondent to represent Akwa Ibom North West Senatorial District in the National Assembly General Elections of 28th March 2015 and whether the 2nd Respondent is by law empowered to nominate candidates on behalf of political parties or exercise any form of discretion in the nomination  of a candidate for any constituency,  he explained that it is pertinent to ask what amount to proper sponsorship of a candidate? Or in other words, how is a candidate sponsored by a political party to contest an election?  This question, he insisted has been put to paid by section 31(1) of the Electoral Act 2010 (as amended). By the said provision of section 31(1) of the Electoral Act, the law has made it clear as follows that: “Every political party shall not later than 60 days before the date appointed for a general election under the provisions of this Act, submit to the Commission, in the prescribed forms, the list of candidates the Party proposes to sponsor at the elections, provided that the commission shall not reject or disqualify candidates(s) for any reason whatsoever”.

Chief Okori contended that the constitution has delineated each state into three senatorial districts for the purposes of elections to the Senate and that all parties in the suit particularly the 2nd Respondent agreed that there are three Senatorial Districts delineated in Akwa Ibom State by virtue of section 71(a) of the Constitution and named as Akwa Ibom South, Akwa Ibom North East and Akwa Ibom North West Senatorial Districts for the purposes of elections to the Senate.

“My Lords, the Nigerian Atlas of Electoral Constituencies clearly contains this delineation. It is our submission that the Nigerian Atlas of Electoral Constituencies being an instrument made subsequent to the said provision of the Constitution (that is section 71(a)) is a subsidiary legislation and the Court is enjoined to take judicial notice of it. On this we refer your Lordships to the provision of section 122 of the Evidence Act 2011 (as amended)”, he said.

Okori submitted that Akpabio was not sponsored to contest the election for Akwa Ibom North West Senatorial District as going by his nomination forms sent to INEC, it is not in doubt that he was of a truth nominated by the PDP to contest election into Akwa Ibom North East Senatorial District. “In support of this, we refer your Lordships to Exhibits P13 and P14 which clearly reveal the nomination of the 1st Respondent to contest the 2015 senatorial election for Akwa Ibom North East Senatorial District”, he opined.

The appellant told the court that by the sponsorship of the 1st Respondent to INEC (in compliance with section 31(1) of the Electoral Act) by the 3rd Respondent to contest election as a member of the National Assembly representing Akwa Ibom North East Senatorial District, Akpabio was disqualified from somersaulting to now contest Election in Akwa Ibom North West Senatorial District (a District into which he was not nominated) and that by reason of the disqualification of the 1st Respondent, all votes allegedly scored or accredited to him during the 28th March, 2015 Akwa Ibom North West Senatorial District Election in Akwa Ibom State are wasted and thrown away votes.

Okori said by virtue of the provisions of the Electoral Act, Section 34(1) clearly provided that:  “A political party intending to change any of its candidate for any election shall inform the Commission of such change in writing not later than 60 days to the election. 

(2) Any application made pursuant to subsection (1) of this section shall give consent and unfavourably reasons.
(3) Except in the case of death, there shall be no substitution or replacement of any candidate whatsoever after the date referred to in subsection (1) of this section.

Section 36 (1) A candidate may withdraw his candidature by notice in writing signed by him and delivered by himself to the Political Party that nominated him for the election and the Political Party shall convey such withdrawal to the Commission and which shall only be allowed not later than 70 days to the election.

(2) Where the Commission is satisfied that a candidate has withdrawn as provided in subsection (1) of this section, his political party shall be allowed to nominate another candidate not later than 60 days before the date of the election.

Section 38(1) Where a candidate knowingly allows himself to be nominated by more than one political party and or in more than one Constituency, his nomination shall be void”.

“On a calm reading of Exhibit P13, your Lordships will observe that the 1st Respondent was sponsored by the 3rd Respondent to contest election in Akwa Ibom North East Senatorial District. Exhibit P14 further reconfirms the 3rd Respondent’s desire to actually sponsor the 1st Respondent to contest the senatorial election for Akwa Ibom North East Senatorial District”.

“In a feeble attempt to refute the Appellants’ assertions, the 1st Respondent called RW 3 (the National Secretary of the Peoples Democratic Party). During his testimony, RW 3 claimed that the sponsorship of the 1st respondent to Akwa Ibom North East Senatorial District was an error of the National Secretariat and that they at the National Secretariat ‘had intended’ to nominate the 1st respondent as its candidate for Akwa Ibom North West Senatorial District. He however did not say how the error occurred or why both documents (which he signed, as the only instruments of sponsorship), issued on two different days; the 7th of December and the 18th of December 2014 contained these ‘errors’ and how without any further instructions from him, the error was amended, corrected or cancelled by INEC. It is pertinent to state that upon the last question put by the petitioners’ counsel, the said witness admitted he knew how such errors could be corrected; he never said he made any effort at correcting same”.

Continuing, he said, “A nagging question has been that how can two vital documents issued and signed on two different days for two different distinct purposes bear the same error of nominating the 1st Respondent for election in the wrong constituency?  We posit that this ‘supposed error’ in this circumstance is too grave to be an error. We are of the firm view that the actual intention of the 3rd Respondent is to nominate the 1st Respondent to contest the Senatorial Election for the Akwa Ibom North East Senatorial District; the claim of RW 3 that the nomination of the 1st Respondent was to contest election in Akwa Ibom North West Senatorial District is just an afterthought and a pillar-to-post desperate attempt to salvage the null election of the 1st Respondent”.

“However my Lords, assuming without conceding for a split of a second that the nomination of the 1st Respondent was an error, it is our stand that the refusal of RW 3 to take the appropriate steps to rectify the error as soon as it was deduced should only leave the Respondents with one result which is for them to eat the sour grapes of their blunders. It is by this that examples will be set that the law does not encourage ineptitude, impunity, recklessness and lackadaisical attitudes”.

Proceeding further my Lords, it is settled law that documentary evidence is the ‘best evidence’ and documents speaks for them self. In a host of decided authorities, it has been clearly resolved that oral evidence should not be allowed to contradict the contents of documentary evidence. In the case of Egharevba V. Osagie (2009) 18 NWLR (Pt. 1173) 299, per Ogbuagu JSC opined thus:

“It is now firmly settled that documentary evidence, is the Best evidence. It is the best proof of the contents of such document and no oral evidence will be allowed to discredit or contradict the contents thereof except where fraud is pleaded, he submitted.

While praying the Appeal Court to do hold that Akpabio was sponsored by the 3rd Respondent to contest election in Akwa Ibom North East Senatorial District, Chief Okori asked the Court of Appeal to declare that in defiance of the directives of the 3rd Respondent, the 2nd Respondent ‘fielded’ the 1st Respondent in a wrong and different Senatorial District (that is Akwa Ibom North West Senatorial District) other than the actual Senatorial District the 2nd Respondent had sponsored the 1st Respondent,  that the 1st Respondent and the 3rd Respondent did nothing to prevent the 2nd Respondent from going contrary to their directives by fielding the 1st Respondent in the wrong senatorial district and that the 1st Respondent contesting in a different constituency other than the constituency he was nominated into renders his nomination utterly void.

He insisted that by the clear provision of the law, all the votes recorded to the 1st Respondent in the Akwa Ibom North West Senatorial election are null and wasted votes and same ought to be cancelled while praying that he (Okori) did not contest against any candidate nominated by the 3rd respondent to contest election in Akwa Ibom North West Senatorial District.

“Therefore, the 1st Appellant having scored majority of the valid votes cast at the election amongst all the qualified candidates that contested the Akwa Ibom North West Senatorial District Election ought to have been declared the winner of the said election”.

“We submit that the unilateral decision of the 2nd Respondent to field the 1st Respondent in a senatorial constituency other than where the 3rd Respondent nominated him to contest violates the provisions of Section 65 of the 1999 Constitution of the Federal Republic of Nigeria (as amended). Furthermore, since the election of the 1st Respondent violates the mandatory provision of section 31(1) of the Electoral Act, 2010 (as amended), the votes recorded in his favour (422, 009) must be set aside. If this is done, the result of the election can no longer be the same”, he prayed.

Chief Okori also submitted that the tribunal failed to properly evaluate evidence before it in arriving at it’s judgent, stating that the law is well settled that a court must properly evaluate the evidence before it in arriving at its judgment one way or another and that a court is duty bound to weigh evidence laid before it on a proper scale, using the proper test to see if the case of the parties before it is made out.

“The law is trite that where the findings of fact is challenged in the  Appellate Court and the Court comes to the conclusion that the evaluation by the trial Court or the lower tribunal was wrong, the Appeal Court  does have the power to undertake the necessary evaluation. To do so won’t be regarded as usurpation of the province of the trial Judge. On the contrary, failure to do so would amount to abdication of responsibility”.

The APC chieftain submitted that the trial tribunal erred in law when it held that INEC could alter or change the nomination of a candidate by a political party and also erred in law when it held that Form CF.001, the sworn affidavit of each candidate was more superior than nomination forms (Exhibit P13 and P14).

Hear him, “It is our submission, manu brevi, that there is no law which empowers INEC, the 3rd Respondent to nominate candidates on behalf of political parties or change the constituencies for which candidates have been nominated by their political parties. Authorities abound that throughout the electioneering process, the 2nd Respondent (INEC) is enjoined to and must remain partial, not delving into the domestic affairs of a political party”.

“Similarly, since a candidate cannot nominate himself for any election, his sworn affidavit (Form CF.001) cannot be resorted to in answering the question of his nomination. By Exhibits P13 and P14, a political party, in this case PDP clearly informed the 2nd Respondent of the particular constituency its candidate was nominated for, in this case “Akwa Ibom North/East Senatorial District” and INEC was not empowered to go fishing through Exhibit P15 for that information. See Lado vs. C.P.C (2011) 18 NWLR (Pt.1279) p.689 (1279) p. 729 para. A where the court held that:

“The Nigerian Constitution has no provision for an independent candidate. A political aspirant can only contest an elective post on the platform and ticket of a political party”.

Okori explained that by law, Akpabio  could not have nominated himself via Exhibit P15 which contained his sworn deposition and therefore submitted that the trial tribunal wrongly resorted to Exhibit P15 in searching for a more “proper” constituency for the 1st respondent even where Exhibit P13 contained the scores 1st Respondent got at the primaries of Akwa Ibom North/East Senatorial District (423 votes).

Most surprising wrong he said was the trial tribunal resorting to the oral evidence of RW2 and RW3 which sought to correct/change the content of Exhibit P13 and P14 by saying it was only a “clerical error” and that the primaries 1st Respondent participated in was that of Akwa Ibom North/West Senatorial District. “It is clearly evident  however that the above position of facts was not supported by documentary evidence at all, particularly the nomination forms of Exhibit P13 and P14 which stated clearly that the 1st Respondent participated in Akwa Ibom North/East Senatorial District and emerged the majority winner with 423 votes from Akwa Ibom North/East Senatorial District”, he declared.

On the expunging of the Card Reader report by the tribunal,  Okori prayed the appellate Court to hold that the trial tribunals decision was absurd and most perverse and was arrived at against the weight of evidence adduced at the trial.

Hear him, “We are emboldened in making the above submission by the clear provisions of the Evidence Act, the dictates of fair hearing and the need for courts/tribunals to do substantial justice to all the parties before it. It is unfortunate that the trial tribunal fell afoul of these hallowed doctrines when it decided to adopt varying and conflicting standards in evaluating the evidence before it”.

“The holding that due to the erroneous/mistaken reference to Akwa Ibom south Senatorial District, P19 was inadmissible by virtue of section 84 of the Evidence Act was most absurd and a technical maneuver by the trial tribunal. My lords, it was the same tribunal that held that reference to “Akwa Ibom North/East Senatorial District” was only a “technical error”.

“Furthermor Exhibit P.19 was a very relevant document in proving the ground of non-compliance or over voting by the petitioners and the trial tribunal ought not to have thrown same away on a very trivial excuse. The law is trite that admissibility of documents is governed by three basic factors to wit: a. was the document pleaded? b. was it relevant to the fact in issue? c. was it in admissible in form?

He declared that Exhibit P.19 satisfied the above requirements and ought not to have been expunged from the records of court by the Justice Goddy Aninuhu led tribunal.

“Placing Exhibits P17 (EC8D), P24 (EC8D1) alongside Exhibits P.19 (Computer print-out of Card Reader Accreditation) this Honourable Court would have come to the irresistible finding that there was massive over-voting at the election of 28th March, 2015. In fact, your Lordships will observe that the Total Votes Cast at the Election exceeds the Total Number of accredited voters by 238, 986. This therefore manifestly reveals over - voting. We pray Your Lordships to so hold”, he submitted. The Respondents (Akpabio, INEC,PDP) have five days to reply Okori’s submissions at the Court of Appeal before the adoption of brief by all parties in the suit.