More Reasons Why The Appeal Court Sham Will Not Stand, Ndukwo
Tongues have been wagging, and rightly so, since the Appeal
Court judgment of December 31, 2015 declaring the Candidate of
the All Progressives Grand Alliance (APGA), Dr. Alex Otti as the
duly elected Governor of Abia State in the April 2015
governorship election.
echelon of the Nigerian judiciary to a Tower of Babel, it is fast
emerging the abattoir of justice to the extent that it has drawn the
public ire of the Chief Justice of the Federation.
It is, therefore, sad to see some commentators, even some
lawyers take it upon themselves to also defend the indefensible
due to partisan and patronage interests. However, an in-depth
analysis of the Abia imbroglio will clearly show why the
miscarriage of justice cannot stand.
The demographics and Geaography of Abia
Understanding the demographics and geopolitical structure of
Abia State is very imperative to appreciating the stakes,
especially as they concern the two big masquerades in the Abia
gubernatorial tussle- Governor Okezie Ikpeazu (Ph.D) of the
Peoples Democratic Party (PDP) and Dr. Alex Otti of the All
Progressives Grand Alliance, APGA.
Abia State has two major political power blocks, namely, Old
Bende and Ukwa-Ngwa. The Old Bende comprises eight Local
Government Areas (LGAs), whereas nine LGAs are in Ukwa-Ngwa
block. Whereas the Old Bende axis has produced the Governors
of Abia State since the creation of the State, both during the
military and the present democratic dispensation, the Ukwa-Ngwa
axis has not tasted power before the election of Governor
Ikpeazu, despite having more local governments and population.
From the geopolitical equation also, Abia North Senatorial District
produced the first Governor in the current dispensation, Chief Orji
Uzor Kalu, who hails from Bende L.G.A (1999-2007 or eight
years). Abia Central produced his successor, Chief T. A. Orji who
also did eight years (2007-2015). Orji hails from Umuahia North,
also Old Bende block). . Both were on the PDP platform.
It was, therefore, not surprising that the PDP naturally shopped
for a quality governorship candidate from Abia South Senatorial
District in 2015, which resonated very well with the people of
Ukwa-Ngwa political block and all Abians with sense of justice
and fairness. But, certainly not so with a few who were so
blinded by lust for power that they did not mind sacrificing justice
and peaceful coexistence. Dr. Alex Otti, one of the aspirants
under the PDP as the rallying point.
He denounced his indigenship of Arochukwu and rather adopted
that of Isiala-Ngwa South, where he claimed his parents had
resided for years and where he and his siblings were born and
raised- all in an attempt to clothe himself with the Ngwa toga to
qualify for the PDP nomination.
But the PDP faithful and Abians were not fooled. PDP zoning
was on basis of geopolitical equation (by Senatorial Districts), not
ethnicity. Thus, it meant that only the people from the six LGAs
of Abia South Senatorial District were qualified to vie. That
obviously disqualified Dr. Otti, notwithstanding his claim to Ngwa
indigenship. He was evidently on the wrong side of the Ngwa
geopolitical equation.
And all entreaties by Ukwa-Ngwa clan for him not to tear apart
their brotherly bond, and to ensure that a position they had long
craved for did not elude them, fell on deaf ears.
He decamped to the APGA in the hope perhaps, that he could
change the perception and narrative. As if to add salt to injury, he
choose his running mate from Ndi Uduma Awoke in Ohafia, next
LGA to his own Arochukwu LGA all of the same Bende
geopolitical block.
Equally, Arochukwu and Ohafia LGAs constitute the Arochukwu/
Ohafia Federal Constituency. Dr. Otti and APGA, therefore wanted
to foist on Abians a situation where both the Governor and
Deputy Governor come from one Federal Constituency, contrary
to PDP philosophy and constitution as well as the spirit and letter
of Federal Character as enshrined in the 1999 Constitution. What
an effrontery!
It was, therefore, not surprising that he lost woefully as the
people of Abia queued behind the PDP and Governor Ikpeazu,
being the face of equity and justice.
Questionable Appeal Panel
Although the Abia State Governorship Tribunal dismissed Dr.
Otti’s petition challenging Governor Ikpeazu’s election, the Appeal
Court thought otherwise on grounds that have drawn
understandable opprobrium across Abia and Nigeria.
But, for the PDP, it wasn’t surprising because they had cried foul
ab initio over the constitution of the Panel. The Appeal Court of
Nigeria has 16 Divisions with over 64 Justices; thus, it is the
practice not to allow the panel of a local division of the Court of
Appeal to hear appeals emanating from its Jurisdiction. It has
also been the universal and age-long practice for members of
appeal panels, in election matters to be drawn from different
Divisions of the Court of Appeal. In fact, the practice is that no
two justices come from the same division. The logic is simple:
their Lordships are human beings with social relations and it is
always better to avoid familiarity and conspiracy.
It was, therefore, quite curious to the PDP that apart from
Chairman of the Panel, Hon. Justice Oyebisi Omoleye from
Makurdi Division, the remaining four of the five-member Appeal
Panel were drawn from the Lagos Division where Dr. Otti has lived
and worked all through his banking career. He was also alleged
to be a well-known close friend of the Presiding Justice of the
Lagos Division of the Court of Appeal, Justice Amina Augie.
The PDP proactively protested and sent a detailed and strongly-
worded petition to the President of the Court of Appeal, Hon.
Justice Zainab Bulkachuwa, requesting the dissolution and
reconstitution of the panel in line with the general practice of
drawing justices from different divisions.
The Party also petitioned President of the Federal Republic of
Nigeria and copied the petition to the President of the Court of
Appeal to each of the five Justices of the Appeal panel,
requesting them to disqualify themselves since the PDP had
expressed lack of confidence in the panel as constituted.
Therefore, to the PDP, what eventually played out at Owerri on
December 31, 2015, the PDP did not only confirm the red flag
raised by PDP, but actually appeared to justify its suspicion that
the panel was in Abia with a mandate to uphold Dr. Otti’s appeal.
Questionable Witnesses.
The panel anchored its decision on the testimonies of
Prosecution Witness (PW)20 and PW19 at the Election Petitions
Tribunal. It is bewildering that their Lordships had dwelt so much
on the credibility of PW20, and argued that there was no way in
the record of proceedings that PW20 (who was the star witness
of the Appellants at the tribunal) had stated that he was a legal
practitioner either in Nigeria or in England and rather found him a
credible character. The panel went ahead to give credence to his
report, in his capacity as the State Collation Officer of APGA.
Notwithstanding that he was stationed at the INEC State
headquarters in Umuahia, he was giving/tendering reports of
purported occurrences at the units, wards and local government
areas where he was never present and could never have been at
the same time. The Appeal Panel proceeded to state that it
believed the testimony of a witness that never appeared before it,
over and above the Tribunal that not only witnessed the cross-
examination of the said witness, but saw and assessed his
demeanor and disposition before arriving at its informed decision.
This is a sharp contradiction to Section 84 of Evidence Act and
the landmark cases of Haruna vs Modibo and Orji vs Ugochukwu
on documentary hearsay, which the panel failed, neglected or
refused to take judicial notice of, or be so guided.
PW19 was the INEC official who testified on the Card Reader.
She had, incidentally made a written report in May 2015 when the
petition was filed, but tried to corroborate her report with her oral
testimony in August during trial. The Tribunal as that would
amount to amending her pleading, which was unacceptable.
The Appeal Panel also erred in relying on the figure contained in
the said report as the authentic number of accredited voters in
arriving at its decision of over-voting. The panel grossly refused
to appreciate that Card Reader alone could not contain the
accurate number of accredited voters. In fact, Card Reader is not
recognized by the Electoral Act as Section 49 of the Act provides
for the Voters Register and Section 53(2) specifically stipulates
that the people should vote and not to be disenfranchised, as the
panel’s decision to cancel election results in Osisioma, Isiala-
Ngwa North, and Obingwa (with a total registered voters strength
of over 200,000) amounted to.
This is a deprivation of the people’s inalienable right to vote and
be voted for as guaranteed by the 1999 Constitution. More so,
when considering that such spurious cancelation and re-
computation left Dr. Otti of APGA with a higher number of votes
that formed the basis of his declaration as the winner of the
gubernatorial election.
This is in total contradiction of the spirit and letter of the Electoral
Act and similar cases decided by sister appeal panels, which in
the worst case would have been a re-run in those areas where
results were canceled. More so since Alex Otti’s purported votes
in the panel’s re-computed figures upon which he was declared
winner was merely 50,000 votes, a far cry from the over 200,000
votes canceled in Governor Ikpeazu’s stronghold.
The cancelation in Obingwa LGA, for instance, leaves Dr. Okezie
Ikpeazu with no single vote whatsoever in his own LGA, meaning
that no one at all voted for him, including himself. Yet this is the
LGA that has always recorded the highest number of votes in the
state since 1999.
Powers of the State Returning Officer to cancel results
Another issue that begs the question is the power of the State
Returning Officer to cancel the results of the election in the
aforementioned three LGAs in the first place, and his purported
reversal of the action! In fact, INEC and Ikpeazu had rightly
argued that the Returning Officer acted ultra- vires his powers.
But the Panel went further to state that it also didn’t recognize the
supplementary election of April 25, 2015 so ordered by the
Returning Officer, because by its evil genius mathematical
computation, Dr. Otti had already won based on the offense or
mortal sin as it were committed by the 3 LGAs on April 11,
warranting the punitive cancellation of their results.
Paradoxically, the same Panel, on page 74 of its hogwash,
disjointed, and marathon judgment stated: “It is ordered that the
results of Isiala-Ngwa North, Obingwa, and Osisioma Local
Government Areas of Abia State be and are hereby cancelled…
The election, return and declaration of the 1st Respondent, Okezie
Victor Ikpeazu, as the Governor of Abia State are hereby nullified
and set aside.
“The 1st Appellant, ALEX OTTI, having scored the majority of
lawful/valid votes cast at the elections/supplementary elections of
11th and 25th April, 2015 respectively, held in Abia State for the
occupation of the seat of Governor of Abia State and having
satisfied the constitutional requirement of one quarter of the
votes in at least two-thirds of the Seventeen Local Government
Areas of Abia State is hereby returned as the duly elected
Governor of Abia State”.
This volte face by the Panel in, first recognizing the April 25
supplementary election as ordered by the Returning Officer, and
finally recognizing 17 local government areas as opposed to 14,
having earlier cancelled 3, is manifestly glaring! This exposes the
entire untidy exercise.
Failure of Alex Otti to testify
It was a gross error and contradictory on the part of the five-man
Appeal Panel to decide that the failure of Dr. Alex Otti, the first
Petitioner/Appellant, to testify in his own petition was of no
material importance. In fact, on the contrary, it remains fatal to
his case.
Instructively, an earlier panel of the same Court of Appeal, Owerri
Division, in dismissing the Interlocutory Appeal by Dr. Otti seeking
to be allowed to testify out of time had this to say in October
2015: “On the merits, this conduct of approbating and
reprobating on the same point the Appellants are estopped from
insisting on a longer period than the 7 days they had agreed on,
or consented to, for the presentation of their case at the lower
Tribunal, since they had consented to the 7 days to do so. See
UDE vs. NWARA (1993) 2 NWLR (part 278)638 at 662 – 663….
“The Petitioners/Appellants had, in my view, approached the
proceedings at the lower Tribunal as if they had all the time in
the world to prosecute their petition in whatever laissez faire
manner or that they had the magic of Joshua to arrest the sun or
time from moving.
“It is clear…that delay defeats equity and that equity only aids the
vigilant and not the indolent…”
From the above comments of the erudite justices, it is obvious
that an unserious party or candidate who abandons the serious
and arduous task of proving the facts of his petition cannot
expect victory at the end of the day. In law, a sworn witness
deposition does not become evidence until the deponent has
adopted such testimony under oath in the witness box. In this
case, Dr. Otti adduced no evidence to support his petition and for
the five-man Appeal Panel to hold contrary is a grave error in
law. Therefore, Dr. Otti’s failure to testify at the Election Petitions
Tribunal meant that he had abandoned his petition.
The Issue of over-voting: The Zamfara State case
In a similar case of alleged over-voting in the Zamfara State
governorship election the full panel of the Supreme Court
unanimously decided on January 8, 2016 that: “The grouse of the
appellants in this issue, basically, is that there was over-voting
and that because of that there was substantial non-compliance
with the Electoral Act.
“To prove over-voting, the law is trite that the petitioner must
tender the voters’ register. The Court must also see the
statement of result in the appropriate forms which would show
the number of registered accredited voters and number of actual
voters”.
In delivering the judgment, Justice John Okoro JSC, said: “From
the finding above, I agree with the court below that the appellants
failed woefully to prove over-voting in
accordance with the principles laid down by law.”
The Supreme Court equally said that, the appellant must also
relate each of the documents to the specific area of the case in
respect of which documents were tendered.
In other words, the Supreme Court is emphatic that the allegation
or issue of over-voting is Polling Unit-specific and not Ward or
LGA-specific as the five-man Appeal Panel in Owerri grossly
misinterpreted and misapplied, culminating in their so called
cancellation of votes in Obingwa, Osisioma, and Isiala-Ngwa.
The import of this is that whereas over-voting as it were may
occur in one or two or more polling units in a Ward and similarly
ten or more wards in a LGA, it will be gross injustice to cancel
the votes of the entire Ward or LGA because of an infraction of
just about 10 percent or less of the total registration area. It will
amount to an unwarranted and unmitigated punishment of a
larger innocent group, which is what the five-man Appeal Panel
has done in the Abia case.
Moreover, the law provides for a rerun in areas where cancellation
is done as a result of over-voting and not a punitive punishment
of disenfranchising, even the voters that participated in the
alleged over-voting.
Juxtaposing the Supreme Court decision in Zamfara’s case with a
sister Court of Appeal Panel in the Taraba case, it is glaringly
evident that the 5-man Appeal Court of Appeal Panel in Owerri
grossly erred in interpreting and applying the law on the issue of
over-voting.
The Supreme Court further stated that: “The reliance on the
evidence one of the witnesses through a document he did not
make has not made any difference”.
This decision by the Supreme Court is in sharp contrast with that
of the five-man Appeal Panel, which erroneously and laboriously
strove to give admissibility to the evidence of PW 19 in the Abia
case.
Little wonder Abians have trouped out en masse to show their
dissatisfaction over what they see as miscarriage of justice. The
Appeal Panel’s verdict has equally elicited a lot of reactions,
commentaries and discourse in many fora, albeit in defense of
and solidarity with Dr. Okezie Ikpeazu.
Governor Ikpeazu’s rising goodwill
However, the Appeal Court travesty, notwithstanding, political
observers have noticed with keen interest that the enormous
show of solidarity ironically comes more from the areas and
people that had prior to Governor Ikpeazu’s election, shown
palpable apprehension regarding his ability to perform as a
Governor. But with just six months in office, it is entirely new
stories and testimonies for the ebullient and performing
Governor.
With a plethora of groundbreaking achievements, the Governor is
the darling of the Abia people, and Aba in particular ironically,
who have never seen it that good before. From the cement
pavement-metal rod basket/9 inch thick asphalt road construction
technology with modern wide drains and solid bridges to the
construction and major rehabilitation of over 40 roads across the
state, the landmark reconstruction and equipping of public
primary and secondary institutions as well as the unprecedented
free feeding of primary school pupils starting January 2016,
Governor Ikpeazu is on lips of the young and old even as hitherto
doubting Thomases have wholeheartedly embraced him.
Therefore, for Abians, all eyes remain on the Supreme Court for
true justice and redress so their joy will not be caught short.
––Elder Ndukwo wrties from Umuahia
Source:This day
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