Abia guber appeal judgment and harvest of controversy

 

By Okechukwu Keshi Ukegbu

I thought I heard a voice cry, “Sleep no more! Macbeth is murdering sleep.” Innocent sleep. Sleep that soothes away all our worries. Sleep that puts each day to rest. Sleep that relieves the weary laborer and heals hurt minds. Sleep, the main course in life’s feast, and the most nourishing”. – Macbeth.

The timing of the judgment did not even support the illegality allegedly perpetrated by the five- man member panel headed by Justice Oyebisi Omoleye, who robbed Abians of the treasured sleep by delivering a judgment that has been tagged” the most controversial in the recent history”. The judgment that nullified the mandate Abians unanimous gave Dr. Okezie Ikpeazu to serve them as the number one citizen of the state.

The judgment came on the eve of the new year when Abians were savouring the goodies that the festivities usher. It came at a period Abians in the Diaspora had cashed in on the opportunity provided by the yuletide to have a firsthand assessment of the transformation going on in their state, courtesy of the seven months old administration of Ikpeazu.

Indeed, the five- man member panel that nullified Ikpeazu’s mandate at the Appeal Court in Owerri on 31st December, 2015 murdered sleep that soothes away all the worries of Abians. Sleep that has put their decades of neglect to rest. Sleep that has relieved them of their weary labour and hurt. And like Cawdor and Macbeth, sleep had eluded them.

Like the proverbial character that stirred the hornet’s nest, it has been banters, knocks and bashing. It has been barrage of criticisms from the legal to moral and to what have you.

Few days after the controversial judgment, the Chief Justice of Nigeria, Justice Mahmud Mohammed, had, while addressing justices of the Court of Appeal in Abuja at the Annual Conference of the Court of Appeal held in Abuja, expressed concerns over conflicting judgments emanating from the Court of Appeal.

He said: “As the guardians of the law, we must not only be just but also convey certainty in our justness”.

The Peoples Democratic Party largely affected by the decisions of justices of the Court of Appeal in electoral matters had accused the justices of interpreting the laws to favour the ruling All Progressives Congress. The party had also accused the justices of the Court of Appeal of giving conflicting judgments in similar cases and refusing to follow the precedents laid down by the Supreme Court.

He told the justices that they were not allowed to continue to shift the goalposts when the game was on.

While advising them to adhere to certainty and stop creating confusion, Justice Mohammed said: “As your lordships will agree, where an aggrieved person perceives, whether rightly or wrongly, that they will not receive justice, such a situation can indeed bode ill for the community in which he lives and can lead to acrimony and anarchy. “We must not ignore the negative perception that is occasioned by conflicting judgments delivered at various divisions of the Court of Appeal. Such judicial contradictions only result in untold hardships to litigants in their quest for justice. They further cast your lordships in an unfavourable light and leave the judiciary at the mercy of innuendoes, crass publications and editorials”.

A highly- respected and celebrated columnist, Amanze Obi, in his column ”Broken Tongues” of Thursday , January 7, 2016 entitled” Judiciary on trial again” raised some pertinent questions that call for sober reflection.

For clarity and comprehension of the piece, permit me to reproduce substantial part of the piece:” This latest judgement from the Court of Appeal is in the mould of some of the radical judgements, which our courts have had to deliver in election matters. It will go down in our political history as one of the judgements that have tried and tested the impartiality and indepen­dence of the judiciary in Nigeria. It should be noted, for instance, that the judgement is a radical departure from the earlier one given by the Abia State Governorship Election Petition Tribunal, which upheld Okezie’s elec­tion. Given this earlier verdict, the expectation was that the worst that could happen would be to call for a rerun in the event of a higher court feeling that the earlier judge­ment could not be upheld.
“But what came from the Court of Appeal was a bomb­shell. It was not in conformity with the wildest imagi­nation of bookmakers. Our recent experiences with our courts show that such judgements, whenever they are given, are largely political and ultimately spiteful. There are plans behind them. They are usually directed at persons or institutions, which the courts feel have de­liberately perverted the principles of equity and fair play. When, for instance, the Supreme Court declared Chibui­ke Amaechi as the governor of Rivers State, even when he did not stand for election, the story behind it was one of spite. The court saw Amaechi as the oppressed, in fact, an underdog, who was trampled upon by the PDP and some powers that be who did not want him to become governor. The court’s disposition was that such a man needed help. And so, it veered off the legal route in order to procure a favourable judgement for Amaechi. But the court was later to be embarrassed by its own indiscre­tion. Today, the verdict of the Supreme Court on Amae­chi remains one of the legal aberrations of our time.
“But the Abia situation, to all practical intents and pur­poses, cannot be likened to the Rivers scenario. There are, no doubt, notable political gladiators, who have been battling for political space in the state. But in all of this, neither Okezie nor Otti was in the picture. The two gover­norship contenders may have been associates of the con­tending power brokers in the state, but their involvement is too tangential for the political judgement that is playing out. And so, the question must still be asked: Why is the Court of Appeal incensed over Okezie? Why is he being made a subject of spite and disdain? Why has the Court of Appeal acted as if it was on a mission? The majority of the Abia electorate are raising these questions. They are incensed by the judicial fiat that wants to make nonsense of their verdict. And so, the court may have pleased itself in this matter, but the people who are supposed to be the ultimate beneficiaries of the judgement are not satisfied.
“The people cannot also fathom why Abia is being factored into the political earthquake that the ruling All Progressives Congress ( APC) is allegedly planning to unleash on the polity. The party has moved into Akwa Ibom and Rivers States and appears set to topple the ap­ple carte. We fully understand the politics behind all this. The two South South states gave the Jonathan candidacy a big boost with the reasonable number of votes they re­turned in last year’s presidential elections. Given the win­ner takes all disposition of the present order, somebody somewhere may be feeling that the two states should be punished for their practical support for Jonathan.
“But how does Abia come into this mix? Abia, we must recall, is one of the South East states that supported Jona­than only in words but not in action. South east states, most embarrassingly, could not return substantial num­ber of votes because of the shallow thinking of the po­litical elite in the zone. They did not play the politics of numbers. They did not know that the ultimate bragga­docio is to ensure victory, using numbers as a bait. This device was masterfully employed by Attahiru Jega’s Independent National Electoral Commission (INEC) in many northern states, notably Kano, Katsina and Kadu­na where it posted huge figures to boost Buhari’s chances at the polls. This notwithstanding, nobody is complain­ing about the padded figures from the north. The courts are not going there to try their hands on any form of radi­cal displacement of the existing order.
“Even if Abia has to be tinkered with for whatever rea­son, the people do not understand why that should come about through massive disenfranchisement of a section of the Abia electorate. In fact, the most contentious as­pect of the entire drama is the cancellation of the results of the three local government areas in Ngwa land where Okezie hails from. The affected local government areas are those of Osisioma, Obingwa and Isiala Ngwa North. The court cancelled the results of the elections in these local government areas and did not order for a rerun. This is the crux of the matter.
“Those who have peeped into the strength of the reg­istered voting population in the state say that the afore­mentioned local government areas have about 300,000 registered voters. With the cancellation of the results of the April 2015 governorship elections in the state in these areas, this huge number of the voting population has been disenfranchised. Our experience here shows that whereas INEC bothers about the disenfranchisement of voters, one of the reasons it has declared a number of elections inconclusive, the courts do not care a hoot about who is disenfranchised or not.
“The recent governorship elections held in Kogi and Bayelsa states, for instance, were declared inconclusive by INEC because there was need to ensure that regis­tered and eligible voters are not unduly schemed out in the electoral process. In the case of Bayelsa State, the result of the election is still pending because INEC is in­sisting on a rerun in Southern Ijaw Local Government Area. The argument here is that the number of registered voters in Southern Ijaw can tilt the result of the election to any direction.
“The same thing is largely true of the Abia scenario. Here, three local government areas with a registered vot­ing population of over 300,000 are involved. If the court complained of substantial non compliance with the Elec­toral Act in the election that held in these areas, the right thing to do is to order for a repeat of the election in the affected areas. To declare a winner without minding the fact that the votes of the three local government areas could alter the equation is the height of arbitrariness. The action undermines the right of the electorate in the state to choose who should govern them.
“It is unbecoming of our judges to sit in their comfort zones and declare results of elections, which took so much to conduct. By that act, the courts are making non­sense of both the electoral process and the elections. The Supreme Court should rise to the occasion and save our courts from imminent infamy”.
A legal luminary and Senior Advocate of Nigeria (SAN), Chief Mike Ozekhome has lent his voice to the issue. Ozekhome, who spoke at a Channels TV Breakfast Programme ‘Sunrise Daily’, described the judgment as ‘fundamentally wrong’ and full of errors in Law.
He pointed out that the Court of Appeal was wrong in nullifying the election of Abia State Governor, Dr. Okezie Ikpeazu and declaring the candidate of the All Progressives Grand Alliance, Mr. Alex Otti as the winner of the election.
According to him, “the Court of Appeal erred in Law by granting the Appeal of Mr. Otti who could not adopt his own Written Statement on Oath at the Tribunal and also by admitting in Evidence, the Card Reader Report from a witness who was not the maker of the document. He also wondered how the Court of Appeal could give credence to the Evidence of the APGA Star Witness, Mr. Ahamdi Nweke, who was only a Collation Centre Agent and could not have been at the Polling Units where Elections were alleged not to have held”.
Ozekhome reasoned that on the facts of the case before the Court of Appeal, it was fundamentally wrong for them to have declared Mr. Alex Otti as the winner of the elections and ordered his swearing-in. He noted that considering the fact that even going by the calculations of the Appeal Court Justices, the difference between the votes allocated to Mr. Otti and Dr. Ikpeazu was 48,000 while the total number of registered voters in the 3 Local Government Areas of Obingwa, Osisioma and Isialangwa North where they cancelled elections are over 250,000 and as such, going by the Electoral Act, the very worst the Court of Appeal should have ordered should have been a rerun election in those 3 Local Government Areas where they cancelled elections to decide the eventual winner.
He equally faulted the Court of Appeal for relying only on the Card Reader to determine the issue of over-voting and wondered why they discountenanced the Manual Accreditation done in those Local Government Areas considering the fact that the INEC Guidelines allowed for Manual Accreditation where Card Readers fail.
Ozekhome is optimistic that the Supreme Court will not allow the Appeal Court Judgment on Abia State Governorship Elections to stand in the interest of Equity, Justice and Fairness.
Just like Ozekhome, political watchers are expressing high hopes that the alleged faulty judgment by the five- man member panel would not stand the intense scrutiny of the Supreme Court, especially with the recent Supreme Ruling on Zamfara.
It will be recalled that the Supreme Court on Friday affirmed the election of Malam Abdulazeez Yari of All Progressives Congress (APC) as governor of Zamfara. 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.
Delivering the judgment, the Justice John Okoro-led panel of six justices held that the petition lacked substance.
The Court ruled that” to prove over-voting, the law is trite that the petitioner must tender the voters’ register”.
A public affairs analyst and lawyer, Ugochukwu Amaraizu, argued that “the Petitioners in Abia Tribunal did not tender same. The Respondents at the lower Tribunal hammered on this issue with respect to the elections in Obingwa, Osisioma and Isialangwa North. The Tribunal rightly observed it and dismissed the petition”.

On the ground that the appellant ought to have shown that figures representing over-voting, if removed, would result in victory for the petitioner, Amaraizu maintained that Dr Livy Uzoukwu, SAN who appeared for the 3rd Respondent- INEC told the Tribunal that even if the total number of invalid votes or the number representing over-voting is removed, the 1st Respondent- Dr Okezie Victor Ikpeazu would still be leading.

Amaraizu said:”The question now is which evidence did the Court of Appeal rely on to cancel both the valid and the invalid votes?. If you check item No.3 of the Order of the Court of Appeal, you will notice that the Court of Appeal cancelled election in Obingwa, Osisioma and Isialangwa North. The valid votes that were added are the ones from the supplementary election that took place only in few polling Units in Osisioma and Isialangwa North. But there was no supplementary election in Obingwa which was cancelled alongside Osisioma and Isialangwa North. This is why the Court of Appeal declared Dr Alex Otti winner of the election of April 11 and 25. The Appeal Court cancelled the election held in the 3 LGs on 11/4/2015 thereby disenfranchising over 300,000 registered voters”.

Ukegbu, a public affairs analyst, writes from Umuahia, Abia State.

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