Appeal Court judgment on Abia can’t be faulted – Lawyers
By Innocent Anaba
SENIOR lawyers have praised the courage of the Justices of the Court of Appeal on the judgment delivered on December 31, last year, which declared the All Progressives Grand Alliance, APGA, governorship candidate, Dr Alex Otti as winner of the Abia State governorship election. The court, presided over by Justice Oyebisi Omoleye, nullified the declaration of Governor Okezie Ikpeazu as winner of the election. Also on the panel were Justice Chinwe Iyizoba, Justice Samuel Oseji, Justice Tijani Abubakar and Justice Jamilu Tukur.
Otti and APGA were the appellants, while Ikpeazu, Peoples Democratic Party, PDP and Independent National Electoral Commission, INEC, were the respondents. The Court of Appeal declared Otti as winner of the gubernatorial election and supplementary poll held on April 11 and 25, 2015.
The appellate court nullified the declaration of Ikpeazu as winner of the election and held that Otti scored the majority of lawful and valid votes cast and satisfied the constitutional requirements of one quarter of votes in at least two-thirds of the 17 local government areas.
Several senior lawyers including former Abia State Attorney-General, Chief Awa Kalu (SAN), agreed with the decision, adding that that the justices cannot be faulted. The lawyers praised the courage of the appellate court which looked at the substantive evidence and merit of the case beyond the reasoning of the election petition tribunal. Kalu said: I have read the judgment of the Court of Appeal in Abia State election dispute. I totally agree with the reasoning and conclusions of the Justices. I align myself with the decision. Another Senior Advocate of Nigeria, Chief Felix Fagbohungbe, said it is uncharitable for anyone to criticise the appellate court justices.
Testimonies and processes
Fagbohungbe said: The panel has taken a position, and the Supreme Court should be allowed to decide. It can agree with the appeal tribunal, so how will the critics feel if the Supreme Court says the appeal tribunal was correct? The justices read all the exhibits and all the testimonies and processes, and in their wisdom, they felt this (Otti’s declaration as winner) is how it should go. So, it is uncharitable for anyone to criticise such a judgment. They should wait for the Supreme Court, which is the final court to take a position.
What if the Supreme Court says the appeal tribunal is right? So it will be uncharitable to the justices of the Court of Appeal to be criticised at this stage. Also, you cannot be playing to the gallery at this level and undermine what the Supreme Court will say. Also, a former Ikeja Branch chairman of the Nigerian Bar Association, NBA, Onyekachi Ubani, faulted those making unfounded allegations against the justices, saying it was wrong to attack their integrity without proof. saying It is wrong to make an allegation that one has no proof of, such as that they have taken bribes or they are corrupt just because the judgment does not favour you.
A Lagos lawyer and activist, Toluwani Adebiyi, said an appellate court judgment was less likely to be overturned by the Supreme Court. He said: “What I know that Court of Appeal judgments are more reliable. You can have more confidence in a Court of Appeal decision that a lower court decision. This is in the sense that Court of Appeal decisions are not just by one person, but in the case of Abia State, but a panel of five justices.
“When you look at the ruling of individual judges, you may see some inconsistencies, but Court of Appeal justices are more experienced. A lower court judge can easily be bribed, but it’s not always easy to compromise all justices on a panel. So, their judgment is more reliable. “The Court of Appeal Justices also feel more sense of responsibility, that is why the higher you go, the more likely you will get justice. I am 100 per cent sure that those Court of Appeal justices cannot decide something that cannot hold water. It’s not possible.”
Justice Omoleye in the lead judgment added: “It is hereby ordered that the Certificate of Return already issued to the first respondent, Ikpeazu, by the third respondent (INEC) is set aside.” It was the appellant’s contention that Section 140 (3) of 2010 Electoral Act states that if a tribunal or court determines that a candidate who was returned as elected was not validly elected on the ground that he did not score the majority of valid votes cast, the tribunal shall declare as elected the candidate who scored the highest number of valid votes and who satisfied constitutional requirement.
To be declared the governor, a candidate must satisfy two conditions, namely: the constitutional requirement of spread in two/third of the Local Government Areas, and the highest number of lawful votes, which refers to those cast in accordance with the Electoral Act. Otti and APGA’s prayer was that the votes recorded for Obingwa, Osisioma and Isiala Ngwa councils were characterised by malpractices, and were therefore, invalid and should be cancelled. The appellate court agreed with the submission, contrary to the tribunal’s position that there was a rerun in those areas and that Otti and APGA participated.
On whether Otti’s reliefs were grantable, the appellate court said it found it quite perplexing that the tribunal, instead of reading and considering carefully the pleadings and evidence adduced in Otti’s petition and determining all the issues raised, seemed more concerned with getting rid of as many of the reliefs as possible by striking them out for one “unacceptable” reason or the other.
Plausible and definite reasons
“All the reasons given are untenable and at the end of the day amount to depriving the appellants of fair hearing guaranteed under the Constitution. These generalisations that the claims of the appellants/petitioners were not grantable without giving plausible and definite reasons are unacceptable in law. The view of the tribunal that the claims of the appellants were not grantable is clearly misconceived in law and facts,” Justice Omoleye held.
On the issue of over-voting, the appellants had complained that the tribunal wrongly concluded that there was proper accreditation of votes and that there were other modes of accreditation recognised by INEC. Upholding the appellants’ arguments, the appeal court held: “The finding of the tribunal that the card reader data is not the primary and sole source and record of number of accredited voters was wrong.”
On annulment of elections in Obingwa, Isiala Ngwa North and Osisioma, the appellate court faulted the tribunal for not going ahead to consider the appellants’ grievances on merit after holding that the state Returning Officer had no power to annul and de-annul the election results.
“In what appeared to be a conscious resolve to avoid and evade the determination of the petition on the merit, (the tribunal) chose to embark on swinging forward and backward, delving into imaginations that results were cancelled and elections declared inconclusive and that re-run elections were held in the disputed three LGAs. The conclusion does not represent the correct position of the law, based on the evidence before the tribunal,” the Court of Appeal held.
Having established that there was over-voting in Isiala Ngwa, Obingwa and Osisioma councils, the court said the entire votes recorded there would be deducted from the overall result declared by INEC.
The appellate court held: “Following the deductions of the unlawful votes garnered from the disputed three LGAs, the first appellant (Otti) having scored 164,332 valid votes, as opposed to the first respondent (Ikpeazu) who scored 115,444 votes, ought to have been declared the winner of Abia State Governorship elections conducted on April 11 and 25, 2015.”
The Court of Appeal, therefore, set the tribunal’s judgment aside. It held: “Having resolved all the above issues other than the issue relating to the powers of the Returning Officer with regards to cancellation and de-annulment of election results in favour of the appellants, we hereby hold that this appeal has merit and out to succeed. “The appeal is accordingly allowed. The judgment of the tribunal delivered on the 3rd of November, 2015 is hereby set aside.” Legal observers say the weight of evidence by the appeal court and the issues raised are such that the verdict may not be overturned by the Supreme Court.