A part from Nigeria’s economic crisis and the Dasuki arms deal revelations, the landmark judgment delivered on the Abia governorship case by the Court of Appeal sitting in Owerri on December 31, 2015 is perhaps the hottest talking point in the country today. The Appeal Court ruling which sacked the sitting governor, Okezie Ikpeazu of the Peoples Democratic Party (PDP), and ordered the immediate swearing in of his contender, Alex Otti of the All Progressives Grand Alliance (APGA), has no doubt generated a lot of controversies, with many Ikpeazu loyalists and supporters taking to the streets to protest what they perceive as unfair judgment.
A critical look at the judgment on its own merit reveals, however, that these controversies and protests arise largely out of emotional considerations without taking due cognisance of the salient details that informed the decision of the Appeal Court judges. This piece is an attempt to bring out the salient points of that judgment in order to prove that the Appeal Court ruling is sound and flawless, at least from one’s perspective. This is without bias to the decision that the Supreme Court eventually takes regarding the matter.
Primarily, 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 valid votes cast at the election, the election tribunal or the court, as the case may be, shall declare as elected the candidate who scored the highest number of valid votes cast at the election and satisfied the requirement of the constitution and the Act.
What this means in effect is that to be declared the governor, a candidate must satisfy two conditions: (a) the constitutional requirement of spread in 2/3 of the local government areas, and (ii) score the highest number of lawful votes.
By way of definition, lawful votes are those votes that are cast in accordance with the provisions of the Electoral Act. In HDP V Obi (2012) 1 NWLR (PT 1282) 464, the court held that “Invalid means without validity, efficacy, weight or cogency and having no effect. An invalid vote is not a vote at all and after it has been detected as being invalid, it cannot be used to compute the number of votes cast in an election”. The court went further to say that “it will be like counting both the living and the dead in a census exercise…like one of her children asking his mother to add chaff that has been sifted from the wheat into the wheat meal on the fire”.
In the case under consideration, the prayer of the appellant (Alex Otti) to the Appeal Court was that the votes recorded for Obingwa, Osisioma and Isiala Ngwa were characterised by malpractices, invalid and were not real and should be cancelled. The Court of Appeal simply agreed with this submission and it was upheld.
The Elections Petitions Tribunal which ruled in favour of Ikpeazu may have misunderstood the case and held that there was a rerun in these areas and that APGA participated. It therefore closed its eyes to exhibits showing over-voting and other irregularities and ruled that having gone through a rerun, all exhibits tendered by APGA were not to be considered. It therefore did not look at documents tendered by Otti’s team to show substantial non-compliance and over-voting.
The law is that once there is an over-voting, the results of those areas where there is evidence of over-voting should be cancel. If then the leading candidate has enough spread constitutionally, he will be declared winner. There is no rule that everybody must participate in an election.
And this position is not without precedent. In AREGBESOLA V OYINLOLA, 10 local government areas where over-voting occurred were cancelled including Oyinlola’s own local government area. Aregbesola was returned after more than 300,000 votes were invalidated.
In FAYEMI V ONI, results were also invalidated and Fayemi was returned as having scored the majority of lawful votes.
Similarly, in AGAGU V MIMIKO, the court held that “There are therefore no relief seeking that election be nullified and a fresh one conducted. In the absence of such, a relief seeking the voidance of the elections of the governorship election held in Ondo State on 14th April, 2007, this court is not competent to accede to that request”. As such, the results for wards in Ese Odo, Okitipupa and Akoko North East were nullified and Mimiko declared the winner.
As Chinedu Ekeke aptly captures it, “The argument of the Appeal Court is that the Independent National Electoral Commission (INEC), which was defending its declaration of Ikpeazu as Abia governor in the suit, was the same body which presented the Election Petitions Tribunal with evidence of accreditation in the election. The INEC official who was subpoenaed by the Tribunal said the accreditation report she brought was conclusive, and that every accreditation that took place in that election was captured in that document. When this witness said these, Ikpeazu’s lawyers did not cross-examine her to fault her claim.
“And in law, once you don’t fault a witnesses’ claim with cross-examination, you have agreed with her testimony. It was based on that evidence which Ikpeazu’s lawyers acquiesced to with their silence that the Appeal Court judges established a case of over-voting in some areas in the election.”
To properly situate this point, a breakdown of the figures obtained from the INEC CTC collected on 23/4/2015 shows that in Isiala Ngwa LGA, 63,115 voters were registered while 58,520 collected their PVCs; in Osisioma, 88,867 voters were registered while 75,694 collected their PVC; and for Obingwa, 98,253 voters were registered while 95,879 collected their PVCs. This brings the total number of registered voters in the three LGAs to 250,235, while the total number of those who collected their PVCs is 230,093.
Out of this number, a total of 93,369 voters were accredited in the three local government areas of Isiala Ngwa, Obingwa and Osisioma, according to INEC accreditation report, whereas number of votes submitted from the three LGAs was 160,252. How then did 93,369 people produce 160,252 votes?
Because voting can only be exercised by those who went through accreditation, the learned justices of the Appeal Court determined that the results from Isiala Ngwa, Obingwa and Osisioma were concocted, fictitious, fabricated and therefore unlawful. And our laws have it settled that when over-voting is established, the election is nullified and voided. A null and void action is without validity, it lacks force of law.
This means that as at the time the election held, it already produced a clear winner in Alex Otti. Otti met the constitutionally required 25 percent of votes cast in two-thirds of the local government areas of the state, as well as garnered majority of votes cast. Therefore, the learned justices of the appellate court decided the matter on the strength of the evidence by INEC, which gave the concluded accreditation figures in the areas where unlawful votes were exorcised.
On the possibility of a rerun, the learned justices of the Appeal Court held that there would only be a need to call for a rerun if there was no clear winner. They unanimously stated that “ordering a fresh election will only arise where a clear winner did not emerge after the deduction of the illegal votes”. In my view, this verdict can hardly be controverted.
Agwu Kamalu
