Appeal Court decision on Abia guber election: matters arising, by Sam Hart

I am a Lawyer.

Like we say, I am a Minister in the Temple of Justice. At the Law School, we were harassed with this book containing the Rules of Professional Conduct guiding our actions as Lawyers. One of the things we were told in the book is not to criticize the decision of courts so that we do not bring the judiciary to disrepute. That is why we always chorus ‘As the Court Pleases’ no matter how we feel about the pronouncements of courts.

I am looking at Newspaper Reports of the Judgment of the Court of Appeal on the Abia elections and I am here wondering what I would have said if I was not a Lawyer.

For those of you who do not have the facts, let me reproduce Vanguard Newspaper Report on the Judgment carried on January 1, 2016.

“The Governorship Election Appeal Tribunal sitting in Owerri, Imo State, has nullified the election Governor Okezie Ikpeazu of Abia State. The court also declared Dr. Alex Otti of the All Progressives Grand Alliance, APGA, the winner of the April 11 and April 25 supplementary elections. The five-member panel, headed by Justice Oyebisi Omoleye, annulled the election on the grounds of substantial non-compliance with the Electoral Act.

Delivering judgment in an appeal filed by Otti, the court said that the APGA candidate scored 164, 444 valid votes to defeat Ikpeazu who scored 114, 444 votes. The court declared that Otti was the winner of the April 11 and April 25 supplementary elections in Abia State.

Omoleye said that the cancellation of the elections held in three LGAs of Obingwa, Osisioma Ngwa and Isiala Ngwa by the returning officers after the results were uploaded to INEC was wrong.

“In the Electoral Act, the Returning Officer has the right to only declare results of elections and not to cancel elections. This panel discovered that the earlier results uploaded to INEC headquarters correspond with the correct valid registered voters in the three LGAs, while that awarded to the respondent, shows over voting and therefore null and void…”

“…After nullifying the election, the court insisted that there was no need to call for re-run because the results of the April 11 and 25 polls clearly present Otti as the genuine winner of the exercise”.

If I was not a Lawyer, I would scratch my head and wonder at the contradictions inherent in the judgment. In one breath, the court held that there was substantial non-compliance with the Electoral Act in the course of the election and thus invalid. In another breath, the courts held that Alex Otti is the winner of the election that did not comply with the Electoral Act! Baffling right? Stay with me.

Again, the courts confirmed that the Returning Officer who cancelled the elections from the three Local Government Areas of Obingwa, Osisioma and Isialangwa South LGA and later reversed himself had no powers to cancel an already declared result but the court then curiously went ahead to invalidate the votes recorded by Dr. Okezie Ikpeazu in the Local Governments where the results could not be cancelled in its own words.

Then the clincher. The Court of Appeal invalidated the elections in the 3 Local Government Areas with voter population of over 300,000 and then went ahead to declare Alex Otti winner of the election based on results from the other 14 Local Governments even though his supposed margin of victory is 50,000 votes by the results accepted by the courts. What it then means is that Alex Otti was declared Governor of Abia State with 17 L.G.As without recourse to the voters in 3 L.G.As numbering over 300,000!

My non-Lawyer imagination is still at work. I will draw some parallels with other elections and other Judgments by Courts so far held/pronounced.

In Abia State, during the General Elections on April 11, a winner could not be declared immediately after the election because the margin of leadership of Dr. Okezie Ikpeazu was about 30,000 while the areas where elections could not hold for various reasons had about 50,000 registered voters. A supplementary election was held 2 weeks later and Dr. Okezie Ikpeazu was declared winner afterwards.

The novel Kogi legal conundrum was because the margin of victory of the late Alhaji Abubakar Audu was less than the number of registered voters in areas where elections could not hold thus, he could not be declared winner and he died shortly after the decision was taken to hold a supplementary election.

In Bayelsa State, we do not as yet have a winner for the Governorship elections because the elections in Southern Ijaw L.G.A was cancelled and a rerun ordered because the margin of leadership of Hon. Henry Seriake Dickson is less than the 120,000 registered voters in Southern Ijaw L.G.A.

The rationale for this concept upheld religiously by INEC is simple: You cannot declare a winner in an election until he/she has a clear and commanding lead that outweighs the number of voters in areas where elections could not hold so long as the opponents still have a mathematical chance of snatching victory.

INEC has stoutly played by the books and stood by the Laws of the land. The courts are the temples of Justice and their primary role is upholding the rule of Law. An Executive body is upholding the Law but the Judiciary seems to want to stand the Law on its head!!!

Kindly stay with me. It gets more interesting. The same Court of Appeal, albeit presided over by different Justices had earlier upheld the elections of Members of the National and State Houses of Assembly from these same Local Government Areas where the Court of Appeal in the Gubernatorial Appeal determined that elections did not hold. The State House of Assembly elections earlier upheld by the Court of Appeal held on the same day and contemporaneously with the Governorship elections.

In the case of Rivers State, the Election Petition Tribunals and the Court of Appeal nullified the elections of most National and State House of Assembly Members as well as the election of the Governor because they determined that elections did not hold. Both elections were held same day so if there was no election for one, there couldn’t have been for the other.

How then will a Court of Appeal hold that House of Assembly elections held on a day and the same Court of Appeal will yet hold that elections did not hold for the Governorship elections held on the same day?

There are other issues contingent to this argument bordering on adoption of the statement of a witness who read from a document she admitted not being the author and the author never came forward, admittance of the testimony of a witness who was thoroughly discredited and his testimony duly thrown out by the lower Tribunal and the attempt to disenfranchise a candidate in an election by throwing away the votes of his entire Local Government Area and the 2 L.G.As contiguous to his LGA which are his strong support bases and home to the largest number of voters in the State and indeed, an entire homogenous ethnic grouping.

Under the circumstances, the best the Court of Appeal could have done in the Appeal under question would have been to order for a rerun election in the L.G.As where it determined that elections were inconclusive. Only after the rerun has been held and a clean result announced can the rightful winner be determined. To subtract the votes scored by Dr. Ikpeazu from the 3 contentious LGAs and then go ahead to declare Mazi Otti Winner based on results of the other 14 LGAs is at best tenuous.

I have a feeling that Mazi Alex Otti and his supporters are aware that what they got was only a pyrrhic victory. They have been subdued in their celebrations and even they are in shock because this was not what they were expecting.

The battle has moved to the Supreme Court. We shall see how it ends.

If I was not a Lawyer, the above would be my submissions based on the judgment of the Court of Appeal.

But I am a lawyer so I cannot speak on the matter. I will let it be.

As the Court Pleases.

(African Herald Express)