By Umani Uwemedimo
On August 8, 2019, Barr. Robert Emukpoeruo, Counsel to the Independent National Electoral Commission, held the National Assembly Elections Petitions Tribunal spell bound with a very well articulated response on why Senator Godswill Akpabio’s petition against his successor, Senator Chris Ekpenyong should be sent to the garbage can.
Excerpts of the reply is presented below:
1.In reaction to the Petitioner’s composite final written address, which they filed on August 5, 2019 and we filed a reply on point of law on August 8, 2019 may I crave the indulgence of My lords to adopt and rely on the 3rd-5th Respondent’s reply on point of law in urging Your lordships to dismiss this petition as lacking completely in merit.
2. My lords, two reasons why the Petitioners were obliged to proof the election conducted at the polling units and not at the collation center is firstly because of their ground of the Petition that the First Respondent was not returned by majority of lawful votes cast at the election.
That ground automatically put the votes cast at the polling units in issue because votes are not cast at the ward collation center, LG collation center or the constituency collation center. Votes are cast at the polling units.
This is the first reason they were obliged but they failed to call polling unit agents to establish that ground.
3. It of course also affects their relief, which they said that Your lordships should declare them winner of that election with the majority of lawful votes cast. So they ought to have taken us to the polling units.
4. The second reason why they needed to have established their case at the polling units and prove what happened at the polling unit is that the Petition is founded on allegation of falsification of results of the election, levelled against the 3rd-5th Respondents, by saying that their alleged votes of 61,329 in Essien Udim LGA on Exhibit P534 was altered surreptitiously to 6,241 by the 3rd-5th Respondents.
5. At paragrpaph 6.6 of our reply on point of law, we referred to the decision of the Supreme Court. My lords, you would find the case on Paragraph 4.1 of our reply, where the Supreme Court was emphatic that “to proof the faltitude beyond reasonable doubt of the collated result of the Deputy Returning Officer, a Petitioner must not only prove the results collated by the Assistant Returning Officers but must also prove the votes counted by the Presiding Officers and the scores of each candidate at the polling booths which were the basis of collation. Results counted at the polling booth is an essential element of the body of proof under the circumstances of the Petition”.
Your lordships could see that the argument of the Petitioner about collation is completely misconceived. Indeed My lords, it was this misconception that led the Petitioners not to appreciate that polling unit results can only be proved by either the Presiding Officer or Polling Unit Agents, who are the makers of the polling unit results.
My lords we cited numerous cases in our Reply on Point of Law that said the same thing, including Buhari vs Yaradua, that once the results of an election is tendered through persons other than their maker, they are absolutely inadmissible in any event. Their inadmissibility is a matter of law.
What that portends My lords, is that there is no polling unit result before this Tribunal. Exhibits P420-P530, P55(-P563 and all the other Exhibits tendered by the Petitioners as polling unit results are all inadmissible in evidence as a matter of law.
6. I also want to refer My lords to the decision of the Supreme Court in Oshiomole vs Airhiavber 2013, to support the submission that once facts in an election Petition stray outside the purview of the ground in the Petition, the Court has no jurisdiction to countenance them. My lords in this case, the criminal allegation of falsification of result of an election laid the foundation of this petition, is not within the remit of either the first ground which is non-compliance with the provisions of the Electoral Act or the ground that the First Respondent was not returned by majority of lawful votes.
The effect of it is that this court has no jurisdiction to even look into that issue on the authority of Supreme Court in this case. My lords, I refer quickly to the decision of the Court of Appeal in INEC vs Adeleke, that is a very important decision to the adjudication of this case.
This case is important in two very significant respect, the first is with regards to the absence in this Petition of a relief seeking to nullify the cancellation of the results that was done in Essien Udim LGA, Midim 1 and Midim 2 and polling units by the 3rd-5th Respondents.
What is also absent but is fatal is that there is no relief that the votes cancelled in those polling units should be restored.
The Court of Appeal had the final decision since the case of Adeleke was dismissed by the Supreme Court. The Court of Appeal also decided in INEC vs Adeleke at Paragraph 6.18, pages 17 and 18 of our Reply on Point of Law, that the absence of this relief renders the petition cadaveric or hypothetical.
My lords INEC vs Adeleke is also significant because it had to do with cancellation of results. The second thing that the Court of Appeal decided emphatically was that the Peitioners were duty bound to proof the polling units that were cancelled. Failure to proof it automatically means that the issue of the power to cancel cannot arise.
Quoting the Court of Appeal, they said ‘An inquiry into whether or not a Presiding Officer, Collation Officer or whoever has the power to cancel cannot arise unless and until you have proved the polling units that were cancelled’.
My lords, in other words you must prove first and foremost that there were elections and you must prove the documents through the makers.
My lords in this case, polling unit results were not tendered. There is no difference between a Petitioner that fails to tender polling unit results and a petitioner that tenders through means that are absolutely not admissible.
Finally My lords, I urge Your lordships to dismiss this Petition, reject all the arguments by the Petitioners, uphold the arguments of the 3rd-5th Respondents.