Election Tribunal winds up in Asaba as Okowa, PDP, INEC urge dismissal of APC, Emerhor, LP, Ogboru’s petitions

Proceedings at the Governorship Election Petition Tribunal, Asaba, Delta State came to official end Tuesday after counsels to the petitioners and respondents adopted their addresses with counsels for Governor Ifeanyi Okowa, Peoples Democratic Party (PDP) and the Independent National Electoral commission (INEC) submitting strongly that the petitions be dismissed with substantial cost against the petitioners.

Gov. Okowa, Ogboru and Emerhor

 In the first address, which has to do with the petition filed by All Progressives Congress (APC) and its governorship candidate, Olorogun O’tega Emerhor, challenging the declaration of Dr. Ifeanyi Okowa, the PDP candidate as winner of the April 11, 2015 elections in Delta state, Dr. Alex Iziyion (SAN), with Ken Mozia (SAN) for Okowa, Mr. Akinlolu Kehinde (SAN) for PDP and Mr. Demian Dodo (SAN) and Dr.

    Respondents' counsels, Dr. Izinyion, (right), Ken Mozia (SAN), and A.T. Kehinde 

Onyechi Ikpeazu (SAN) for INEC submitted at different times that the tribunal provide justice by dismissing the petitioners’ petition because they were bound to fail.

Dr. Iziyion submitted that APC and Emerhor did not comply with the requirement of the law with regard to paragraph 18 of their petition. He said the effect is that the petitioners must be circumspect in the matter

Lawyers at the Governorship Election Tribunal, Asaba, Delta State capital.

because having failed to comply with the requirement of the law which the Supreme Court has already decided must be complied with. “I submit that this petition is bound to fail,” Iziyion said.

Besides, he argued also that they also abandoned paragraph 6A of their petition, pointing out that since the paragraph is rooted in the petition, abandoning it would mean that all the other paragraphs in the petition cannot stand. Iziyion also argued that since they admitted to abandoning the

Party faithful at the tribunal.

paragraph 6A, “then this petition is bound to fail by their admission”. The onus is on the petitioners to prove their case, he said.

On the card reader issue, Iziyion said this is the ground of petitioners’ submissions, as they continually referred to the card reader. While submitting that he was adopting his written address and reply on the card reader issue, he urged the tribunal to substantially reject the petitioners’ submission and disregard it “Because when a dog sees excreta he barks on it and runs away.” Pointing out that that was exactly what the petitioners’ did in the matter of the card reader, he then urged “that the petition be rejected with substantial cost.”

In his submission, the PDP counsel, Mr. Kehinde (SAN) while adopting the tribunal’s ruling of 30^th June, 2015, and his preliminary objection and their processes are hereby, he said he had filed additional written address in support of it. “We submit that this particular process before your lordships are flawed and refuse to be persuaded by the petitioners’ submissions,” Kehinde said.

He pointed out that the APC-Emerhor petition is based strictly on the card reader, submitting that he has shown in his address that the records of the card reader is most unreliable, as it is speculative. “And more important, same is not provided for in the Electoral Act, and that was why Section 49 says the voters register is the main instrument for voters’ accreditation. The conscious refusal of the petitioners to rely on the voters’ register a pointer to the unassailable fact that the petition is doomed to fail,” Kehinde submitted.

The PDP counsel also objected to APC and Emerhor’s final written address which is over 60 pages, saying: “We urge your lordships to discountenance that address and hold that the petitioners have no competent address and have not addressed the tribunal.” On the issue of the card reader, Kehinde submitted that the card reader is an orphan that cannot trace its paternity to the Electoral Law and it should be cast.

In his submission, Mr. Dodo (SAN),one of  INEC’s senior counsels in adopting their final address of 4^th October, 2015, and the reply on point of law of 11^th October, 2015 urged the tribunal dismiss the APC-Emerhor  petition. “The petitioners have made a desperate attempt to get  out of the grips of the Balogun v Akpatason case by arguing strenuously that where there are two conflicting decisions of the appellate  court, that your lordships are at liberty to pick and choose. That is unconstitutional and not the position of the law. The position of the law is that with respect to decisions of the court of Appeal, the tribunal is bound to follow the latest. It is the reason why this tribunal is bound by the latest in the Balogun v Akpatason  case, “ Dodo argued. He also cited the case of Mkpedem v Udo and another to buttress his points.

Dodo said: “On that score this petition must fail. The other argument is the failure of one party to the petition to sign the petition. The position of the law is that the moment they sign a joint petition they have taken a covenant to swim or sink together. They must now embrace their defeat which is total annihilation, a catastrophe they must embrace.”

He also pointed out that since APC and Emerhor anchored their petitions consciously and deliberately on the card reader without appreciating the process involved, he said the card reader cannot be the ground for allowing this petition.

Dodo’s last point is on the relief sought by APC and Emerhor contained in paragraph 17 of the petition. He argued: “This is not a relief the court must give you. You must ask for it. The law abhors vacuum. And the Supreme Court has said that the relief sought cannot be one to be sought consequentially. This petition must suffer judicial suicide. It should be dismissed. This petition ought to rest, and Delta State has to move forward.   

APC and Emerhor counsel, Chief Thomson Okpoko (SAN) argued against all the submissions of the respondents’ counsel, and urged the tribunal to discountenance the submissions and uphold the petition by rejecting the declaration of Dr. Okowa as governor and calling for a re-run election. He submitted that the Court of appeal cannot over rule itself, and that this type of issue is only applicable to the supreme court case. “It does not apply to conflicting cases of the Court of Appeal , because they are intermediate courts they cannot over rule themselves,” Okpoko argued.

He said the card reader can be used to prove an existing ground and that “our paragraph 6 falls within Section 38 (10 of the Electoral Act.”

On the argument that the use of the card reader is not accommodated by the electoral Act, Okpoko submitted that INEC was established by the constitution, which prescribes its duties in Paragraph 13 of the third schedule, to organize and supervise elections. “The body with that power made rules and my learned friends are saying they are ultra vires?

“Further, Section 153 of the Electoral Act conferred on INEC the power to make regulations for the conduct of the election and they issued a notice by way of press release, informing Nigerians to use card reader on the day of elections. That INEC made the rules and prescribed that card reader should be used. The respondents have not shown that the approved guidelines are invalid,” Okpoko submitted.

In the submissions and address of the lawyers in the second petition brought by Labour Party (LP), and its governorship candidate, Chief Great ovedje Ogboru, also challenging the declaration of Okowa governor of Delta state, Akinlolu Kehinde (SAN) for PDP submitted that evidences given by the petitioners’ witnesses are hear say and contradictory. He then urged the tribunal to dismiss the LP-Ogboru petition and affirm the election of Governor Okowa as duly elected by the people of Delta state. He called the tribunal’s attention to his reply on point of law, and sought to rely on the argument marshaled therein by the Governor Okowa, and urged the tribunal to dismiss the LP and Ogboru petition.

Dr. Ikpeazu (SAN), one of the senior counsel’s of INEC argued that in the case of the card reader, that his third submission is connected to it, but that the petitioners called it “multiple swiping”. Ikpeazu said it was not possible to swipe and move data into the card reader, and cited many cases to back up his submission including the Buhari v Obasanjo case of 2005. He argued : Any regulation or directive made by INEC which precludes the use of voters’ register is contrary to section 49 (1) and (2) of the Electoral Act. Section 49  (1) and (2) prescribes the use of the voters’ register. Section 138 (2) provides that election cannot be based on voters’ register. Accreditation done in excess of the card reader report but done in compliance with the Electoral Act in Section 49 (1) and (2) is good accreditation.”

He pointed out that INEC’s instructions such as press statements, etc  must be made in strict compliance with the intention of the law. Ikpeazu then urged the tribunal to dismiss LP, ad Ogboru’s petition.

Mr. Femi Adesina (SAN), senior counsel for LP and Ogboru relied on his submissions in respect of the issue of the signatures in his written address and adopted as final address. On the issue of locus raised by the respondents, Adesina said he was shocked that a submission was made in the tribunal on locus. He said to question locus of the petitioner there must be a cross petition by the respondents. “They cannot challenge the locus of the petitioners without a cross petition,”  he said.

Besides, Adesina said the card readerdid not offend any of the provisions of the Electoral Act, adding that Section 49 did not prohibit the use of the card reader. “Section 52 of the Electoral Act prohibits electronic voting and not Electoral act,” he argued. He urged the tribunal to nullify the election of Okowa  and order a fresh election.

The tribunal Chairman, Justice Nasiru Gunmi thanked the counsels and the audience for exhibiting good conduct all through the proceedings and thereafter announced that the tribunal is adjourned for judgment, and that the judgment date will be communicated to the counsels.