We now have a babel of voices concerning judgments on electoral matters before the courts. The Tribunals and Court of Appeal are singing discordant tunes, allowing political considerations to be the centrepiece of their decisions.
The situation has so degenerated that a relationship with the centre gives one a clear advantage in any electoral matter before the lower courts. Without doubt, the oil-rich states of the Niger Delta are worse hit by this sad development in the nation’s judiciary.
Rivers State has suffered the most in the current wave of judicial indiscretion at the lower bench. Once the matters involve Rivers State, the Electoral Act and the constitution are thrown out of the windows. Cases decided elsewhere based on the law are disregarded when it comes to Rivers State.
The Court of Appeal has decided on all the National Assembly elections in Rivers State and judgements have been entered for the Governorship and State Assembly Elections.
In its judgment on the governorship election, the Court of Appeal claimed that there was no election anywhere in Rivers State. The court claimed that it arrived at its decision on the strength of the use of the card readers and the testimonies of just 56 witnesses.
The judgments of the Court of Appeal on all the elections in Rivers State are flawed in all respects. However, nothing can be done for the victims of the judicial error as regards the National Assembly and State Assembly elections. They will have to make the sacrifice of approaching their constituents again for the revalidation of their earlier mandate.
However, with the unfolding scenario, it is necessary to use the the disposition of the Court of Appeal to actually analyse the situation in the state.
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First, the judgments churned out by the Court of Appeal have proved for the very first time, that the elections in Rivers State were held in compliance with the Electoral Act and the constitution. The fact that the Court of Appeal has upheld State Assembly elections from constituencies in all the three senatorial districts of the state show that the APC lost fairly and Governor Wike was duly elected by lawful votes cast. Out of the 32 State Constituencies , the Appeal Court upheld elections in 11 State Constituencies. That represents roughly 35 percent of the State. Yet the same Court said that the governorship election did not hold. This error is regrettable.
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In one of the state constituencies upheld by the Appeal Court, that is the Port Harcourt Constituency 1, the Court held that Victoria Nyeche of the APC defeated Jones Ogbonda of the PDP in a legally conducted election. Recall that both the Governorship and State Assembly elections held on same day.
The same Appeal Court held that elections held successfully in Okrika State Constituency, Etche 1 State Constituency, Ahoada West State Constituency, Ogu/Bolo State Constituency , ONELGA 2 State Constituency, Oyigbo, Khana,Phalga 1 ,Abua/Odual and Okrika constituencies.
These were constituencies where the APC claimed violence caused elections not to the hold. Two of these constituencies, ONELGA and Ahoada West were celebrated by the APC as hotbeds of electoral violence and irregularities.
If the Appeal Court has finally admitted that elections held in these constituencies, it goes to prove that no diligent judicial review was done before the decision to annul the Rivers State Governorship Election was taken.
The controversial decisions of the Appeal Court panel on Rivers election have been premised on faulty lines already disregarded by other panels of the Appeal Court and the Supreme Court. First, the Court of Appeal panel for Rivers elections shifted the burden from the petitioners (APC ) to the respondents (PDP ).
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An Appeal Court Panel sitting in Makurdi on the appeal filed by Prince Terhemen Tarzoor against the decision upholding the election of Benue State Governor, Samuel Ortom held thus:
“The complaint of the Appellant under this issue is that the Tribunal had misplaced the burden of proof on him when it said that he must win his case on the strength of his own case and not on the weakness of the Respondents’ cases or defence, was on the assertion made that the 2nd Respondent did not conduct a primary election at all for the nomination of the 1st Respondent as a candidate to contest the election in question. The Appellant calls and labels the said assertion or allegation, as a negative assertion which he has no duty to prove under the law. However, as demonstrated earlier, an assertion or allegation, can be either negative or positive, but once made by a party in a case, he owes and bears the legal burden of proof, which is fixed and static, to prove same if he expects a court or tribunal to, on its basis, make a declaration of right he claims in the case in his favour. It is a clear misconception, with due respect to counsel, to argue that the Respondents who had denied the assertion made by the petitioner as the vital and crucial point and fulcrum of his case, had the legal burden of proof of such an allegation against them merely on the basis of their denial of the assertion or allegation”.
But in the state of all Rivers State elections decided so far, the Appeal Court panel moved the burden from the APC to the PDP.
In the case of the governorship election, the Rivers State APC only called only 56 witnesses. Majority of these witnesses had nothing to do with the governorship election at the polling unit. They were soldiers, mobile policemen and DSS operatives detailed by the Security High Command to lie in court. Even where the exact officers who personally provided security for the elections testified, they were ignored.
Even at that, these few 56 witnesses’ testimonies in line with the Supreme Court position on the required proofs to void an election represent just 56 polling units out of the 4442 polling units for the entire state. It is unheard of that courts would rely on gossips or hearsay to decide electoral matters.
According to the Supreme Court, a petitioner can only prove that elections did not hold by calling a voter per polling unit to prove his case. Therefore, a petitioner cannot rely on blanket frivolous allegations like APC have done to get judgment in an electoral dispute.
Deciding the election petition filed by Senator Ucha against the election of former Governor Elechi of Ebonyi State in 2012, the Supreme Court declared:
“The results declared by INEC are prima facie correct and the onus is on the petitioner to prove the contrary. Where a petitioner complains of non-compliance with provisions of the Electoral Act, 2010 (as amended), he has a duty to prove it polling unit by polling unit, ward by ward and the standard of proof is on the balance of probabilities and not on minimal proof. He must show figures that the adverse party was credited with as a result of the non-compliance, Forms EC8A, election materials not stamped/signed by Presiding Officers. He must establish that non-compliance was substantial, that it affected the election result. “.
Now, there is the issue of the qualification to contest the Rivers State elections in the state first place. Section 85 (1) spells out clearly that a political party must give INEC 21 days notice before holding a valid primary. Failure to do this implies that no primary was held. It was on the premise of the APC’S failure to observe Section 85 (1) that the Appeal Court panel upheld the election of Prince Nnam Obi of representing ONELGA /Ahoada West at the House of Representatives. It was also on the basis of Section 85 (1) that the same Appeal Court dismissed the appeal of Labour Party against the election of Governor Wike.
Only this week, the Court of Appeal nullified the election of Senator Uche Ekwunife of the PDP on the strength that she was not validly nominated.
According to the Appeal Court panel that sat in Enugu :
“Nomination is part and parcel of qualification to stand for an election and since an election can be challenged on the grounds of lack of qualification, it follows that the appropriate forum to challenge it after the election is held is the Election Tribunal”.
However, the Appeal Court panel that that considered all the appeals on the Rivers State elections deviated from this norm. Instead, they chose to support the illegality wherein the APC conducted no valid primary in the state. Based on the Electoral Act, APC had no governorship candidate, no National Assembly candidates or State Assembly candidates.
Finally, there is the issue of card reader accreditation. The Appeal Court panel for Rivers elections elevated the card reader accreditation above the Electoral Act and the constitution. The Electoral Act spells out the process of accreditation during an election.
The electoral dispute between Jimi Agbaje (PDP ) and the Lagos State Governor, Akinwunmi Ambode (APC ) is the most prominent case to cite on the issue of card reader accreditation. The Appeal Court threw out Agbaje’s appeal in a considered opinion.
Justice Ogbuinya, the presiding judge of the Appeal Court panel held that: “The paragraph (13b) displays a vitriolic attack on the irregularities germinating from the improper or non-use of the smart card readers in the polling units.
“As it is, it has no life of its own as a ground. It endeavours to introduce the defects in the use of smart card readers. The evolution of the concept of smart card reader is a familiar one. It came to being during the last general election. On this score, it is a nascent procedure injected into our infant and fledgling electoral system to ensure credible and transparent election.
“The extant Electoral Act (2010) which predates the concept (of card reader) is not its parent or progenitor. Since it is not the progeny of the Electoral Act, fronting it as a ground to challenge any election does not have its (the Electoral Act’s) blessing, nay Section 138 (1) of it.
“Put simply, a petitioner cannot project the non-presence or improper use of smart card reader as a ground for questioning an election. It does not qualify as one.”
The preceding paragraphs on the Lagos State Governorship Dispute between the PDP and the APC rests the issue on card reader accreditation. It brings to the fore the errors that invalidate the Appeal Court judgments on Rivers elections.
In Delta State, the Appeal Court similarly dismissed the card reader as the basis for the nullification of an election in the appeal filed by Great Ogboru of Labour Party who challenged the election of Governor Ifeanyi Okowa.
Justice Abba-Aji in the lead judgment of the Court of Appeal held that Ogboru merely relied on records of the card reader accreditation without demonstrating the documents by credible evidence.
She held that Ogboru never challenged the evidence of the respondents and even his own witnesses that the card readers had challenges in many part of the states and that apart from the use of card reader, there was also manual accreditation.
While the National and State Assembly elections have come and gone, the judiciary still has the opportunity to remedy its dwindling image in relation to the Rivers State Governorship Election.
The onus to address the errors of the Appeal Court panel that sat on Rivers State elections rests squarely with the Supreme Court. These erroneous judgments of the Appeal Court panel should be confined to the dustbin of history. They have damaged the electoral jurisprudence, but the Supreme Court must come to the rescue. Irrespective of whose political ox is gored, the Supreme Court must rise to the occasion.
From all indications, immediate past Rivers State Governor, Rotimi Amaechi has concluded plans to use Rivers State as a collateral to remain relevant in Abuja after squandering over N3trillion in the worst governance tragedy of our time. Amaechi and his political crooks who have been fingered in the worst judicial misrepresentation of all time. The National Judicial Council should act on the petition filed against the Appeal Court panel that failed the Justice system. This is the only that the reforms the Chief Justice of Nigeria promised dissatisfied Nigerians will be effected. Indicted Amaechi is using these illegally acquired funds to compromise the judiciary. The facts are with the EFCC and Nigerians are waiting for the Commission to act.
Simeon Nwakaudu,
Special Assistant to the Rivers State Governor, Electronic Media.
