Judicial Application of Election Petition Laws at the 2017 Anambra State Governorship Election Tribunal [2]

Judicial Application of Election Petition Laws at the 2017 Anambra State Governorship Election Tribunal [2]


PROCEEDINGS AND OUTCOMES OF THE ELECTION PETITIONS:

  1. APP V. CHIEF WILLIE OBIANO & 2 ORS (EPT/AN/GOV/01/2017)
On the 5th day of March, 2018 the Anambra State Election Tribunal dismissed Petition No. EPT/AN/GOV/01/2017 for failure by the Petitioner to file the mandatory Pre-Hearing Notice in Form TF007 as required by Paragraph 18(1) of the First Schedule to the Electoral Act, 2011.[1] Counsel for Governor Obiano, the 1st Respondent, Dr. Onyechi Ikpeazu SAN leading Ken Mozia SAN, Emeka Etiaba SAN and Pat Ikwueto SAN, in moving an application brought pursuant to Paragraph 18 Subparagraphs 3 & 4 of the 1st Schedule to the Electoral Act[2], submitted that failure on the part of the Petitioner to file application for issuance of Forms TF007 and TF008 for Pre-Hearing Conference was a fundamental default, the consequence of which was dismissal of the Petition.
 
Mr. Kingdom Okorie Esq. counsel for the Petitioner prayed the Tribunal for a Stand-down or an adjournment to enable him produce a letter he claimed to have filed, applying for issuance of the said Forms. The Tribunal had no such application in its file and the Registrar denied that any such application was actually filed. The Tribunal’s Chairman, Honourable Justice Olusiyi refused to stand the petition down or grant and adjournment, and ruled that the Petitioner did not present any application for issuance of the said Forms necessary for commencement of hearing as required by the Electoral Act, and accordingly dismissed the Petition. This was a fatal blow for the rather promising Petition of the APP, because the dismissal was final and the Tribunal became functus officio upon that Ruling.[3]
  1. PRAISE OKECHUKWU & MPP V. CHIEF WILLIE OBIANO & 2 ORS (EPT/AN/GOV/02/2017)
The petition filed on 9th December, 2017 was predicated on the grounds that the election was invalid by reason of corrupt practices and non-compliance with the Electoral Act, and that the 1st Respondent was not duly elected by majority of lawful votes cast at the election. The Tribunal was therefore prayed to make declarations validating the grounds of the Petition and to declare that the return of Governor Obiano by INEC was “unconstitutional, irregular, null and void and of no effect whatsoever.” The 1st Respondent filed a Reply along with a Notice of Preliminary Objection on 14th February, 2018. The 2nd Respondent filed a Reply along with Notice of Preliminary Objection on 1st January, 2018. The Petitioners filed Reply to the Respondents’ Reply on 20th February, 2018. Thereafter Pre-Hearing Conference was conducted and the Petition set down for hearing on 7th March, 2018.
 
The Respondents’ Preliminary Objections were for the most part predicated on Paragraph 4 (1) (c) of the 1st Schedule to the Electoral Act.[4] On 23rd April, 2018, the Tribunal directed that all pending applications shall be heard together with the substantive Petition,[5] that is to say, written arguments in respect of the applications will be adopted during the adoption of final written addresses in respect of the substantive Petition.
 
During hearing, the Petitioner gave evidence in support of her petition as PW1. She did not call any other witness. The 1st Respondent also called one witness as RW1, one Sir Chikodi Anarah, Collation Agent of the 1st Respondent at Awka North Local Government Area. The 2nd and 3rd Respondents did not call any witness. In summary the evidence-in-chief of the PW1 as contained in her Written Deposition was that the 3rd Respondent (INEC) during the election used the Card Reader Machine for accreditation of voters but when the machine failed or had issues, the Voters Register was used. However, during collation of results, the 3rd Respondent discounted votes by voters not captured by the Card Reader Machine, thus disenfranchising those voters who were accredited using the Voters Register, and awarded votes arbitrarily to the 1st Respondent. She also alleged that the election was marred by wanton corrupt practices in the form of open ballot or vote buying, whereby agents of the 1st Respondent gave voters sums of money ranging between N1,000 to N5,000 or in some cases food items or clothes. Led by her Counsel, Prince Chris Nkem Ekweozoh, Esq., PW1 tendered 9 documents 2 EC8 Forms and 7 newspaper publications. A VCD she attempted to tender in evidence was rejected as inadmissible.
 
Under Cross-examination, PW1 said she did not know the number of polling units in Anambra State, even the number of polling units in her own ward was unknown to her. She did not know the number of voters manually accredited and the number accredited using the Card Reader Machine.
 
On the other hand, RW1 in his deposition on oath maintained that the election was conducted in substantial compliance with the Electoral Act. Led by Counsel for the 1st Respondent, Dr. Onyechi Ikpeazu, SAN, RW1 tendered 23 Certified True Copies of EC8 Forms authenticating the results of the election. His testimony was not discredited during cross-examination.
 
At the conclusion of hearing, the Tribunal adjourned to 5th June, 2018 for Judgment. Delivering its judgment on 5th June, 2018, the Tribunal decided to determine the Preliminary Objection of the 2nd Respondent first. It held that because one of the grounds of the Petition was that the 1st Respondent was not validly elected by majority of lawful votes cast at the election, the Petitioner thereby made the scores of candidates an issue but failed to state those scores. The Tribunal held that such default rendered the Petition incompetent.[6]It held further that, compliance with Paragraph 4 (1) (c) of the 1st Schedule to the Electoral Act requiring a Petitioner to state the scores of the election was a condition precedent  to filing a competent Petition.[7]The Tribunal thus held that the Petition was liable to be struck out for non-compliance with that mandatory provision of the Electoral Act, and accordingly, struck out the Petition based on the Preliminary Objection of the 2nd Respondent.
 
The Tribunal went ahead to consider the Petition on the merits, in case it turned out that it was wrong in its determination of the Preliminary Objection. The Tribunal held that the Petitioner did not adduce evidence that the 1st Respondent did not score majority of lawful votes cast at the election. That apart from the evidence of PW1, no other eye witness account was given as to what transpired in the polling units. The Tribunal placed reliance on the Supreme Court decision in Buhari v. INEC[8] to hold that the law is settled that a Petitioner contesting the legality or lawfulness of votes cast and result thereof must tender necessary Forms and call sufficient number of eye witnesses to prove the allegation.[9]In the instant Petition, the Tribunal found that the allegations by the Petitioners against INEC were mere generalizations lacking of any specificity. Allegations of non-compliances and corrupt practices in the form of vote buying were held not to have been substantiated. It was held that the Petitioners needed to have called at least one eye witness from each of the 21 local government areas in the State for their Petition to succeed.[10]
 
The Tribunal took the view that PW1 gave a lack-lustre performance during cross-examination, giving the impression that she did not know much about the election she was challenging, and failed to call any other witness to authenticate her story. The Tribunal therefore opined that the Petitioners failed woefully to reach the threshold of standard of proof to even warrant any rebuttal from any of the Respondents. Newspaper publications[11] relied on by the Petitioners in their bid to establish corrupt practices and non-compliance were held by the Tribunal to be worthless, without any scintilla of evidential or probative value.[12]
 
In the final analysis, the Tribunal held that the Petition failed because it was patently lacking in substance and merit. The Petition was accordingly dismissed, with an affirmation by the Tribunal that the election and return of Chief Willie Obiano, the 1st Respondent, by the 3rd Respondent (INEC) was valid.
  1. DR. PAUL CHUKWUDI OBIANASO V. WILLIE MADUABUCHI OBIANO & INEC. (EPT/AN/GOV/03/2017)
The Petition was filed on 10th December, 2017 and was predicated on the grounds that the election was invalid by reason of corrupt practices or non-compliance with the Electoral Act, 2010. The Petition prayed for nullification of the election, conduct of fresh election by the 2nd Respondent (INEC), and disqualification of the 1st Respondent (Willie Obiano) from participating in the fresh election to be conducted. The 1st Respondent’s Reply was filed on 14th February, 2018 while that of the 2nd Respondent was earlier filed on 31st December, 2017. The 1st Respondent’s Counsel, Dr. Onyechi Ikpeazu SAN, on the 28th of February, 2018 filed a Notice of Preliminary Objection, the substance of  which was that the Tribunal lacked the jurisdiction over allegations of expenses purportedly made by the 1st Respondent prior to the election, since they were pre-election matters involving commission of electoral offences.
 
The Tribunal said the Preliminary Objection would be heard jointly with the substantive Petition in accordance with the provisions of paragraph 12(5) of the 1st Schedule to the Electoral Act. The Petitioner neither filed a Counter Affidavit nor a Written Argument in opposition to the Preliminary Objection.
 
At the conclusion of Pre-Hearing Conference, hearing commenced in the Petition on 5th March, 2018. The Petitioner called one witness and also gave evidence for himself. Of the two other witnesses he intended to call objection was raised on the competence of one, which the Tribunal sustained. The other intended witness absconded after entering the witness box, even when the case was stood down at the Petitioner’s instance to enable him locate the witness, the fellow could still not be secured to testify for the Petitioner. Two witnesses testified for the 1st Respondent. No witness was called by the 2nd Respondent.
 
PW1, Mr. Chritopher Echezonachukwu Okeke, a Journalist, maintained that the election was marred by corrupt practices as he personally observed during his monitoring of the election. Indeed, he wrote a published article deprecating the integrity of the election.[13]Under cross-examination he admitted he was not present at all 4,664 polling units, hence did not know what transpired in all the other polling units apart from the one where he monitored election. The Petitioner himself testified as PW2, averring that he contested the election as the candidate of African Democratic Congress (ADC), and that he would have been returned as winner but for the corrupt practices of the 1st Respondent in connivance with the 2nd Respondent. He further testified that the 1st Respondent spent far in excess of the maximum allowed campaign expenses of N200,000,000 (two hundred million naira). He alleged that the 1st Respondent bought 326 shuttle buses for Ward Chairmen at the cost of N600,000 each, 21 Toyota Corolla cars for Local Government Chairmen at a unit cost of N1,600,000 and 21 Toyota buses for the 21 Local Government Care-taker Chairmen at a unit cost  of N9,000,000. He also claimed that the 1st Respondent engaged in massive sharing of money to voters on the election day using his agents. He went on to aver that agents of the 1st Respondent infiltrated his party to ensure that he was rigged out. That the 1st Respondent gave the sum of N500,000,000 to the Police to ensure that the security apparatus worked to his advantage during the election. He named two persons whom he claimed were agents of the 1st Respondent who were involved in sharing money to voters on the election day.
 
Under cross-examination, the Petitioner said he did not attend any meetings of APGA were the vehicles were distributed, he also did not receive any money and could not present any receipts in respect of the allegedly distributed vehicles. He did not hear the announcement of the results.
 
The 1st Respondent’s witness, RW1, Barrister Obiade Ayodele Ndubisi, the APGA Chairman of Anaocha Local Government Area, refuted the allegations of purchase and distribution of vehicles. Under cross-examination, he basically reaffirmed his position as contained in his written deposition. RW2, Mr. Chikezie Uzoezie, a member of APGA and Chairman of Fegge Ward IV Onitsha South Local Government Area, during cross-examination also refuted all allegations of corrupt practices on the part of 1st Respondent and his agents.
Final addresses were adopted on 19th May, 2018. Petitioner filed his final address on 16th May, 2018 but did not affix NBA stamp/seal thereon. This default was challenged by Counsel for the 2nd Respondent in his Reply arguing that such default rendered the final address not properly filed. This objection was upheld by the Tribunal, and the said final address of the Petitioner was accordingly struck out.
 
The Petition was fixed for judgment on the 5th of June, 2018. The Tribunal first dealt with the Preliminary Objection of the 1st Respondent. It held that the allegations as to purchase of vehicles and campaign expenses were pre-election matters over which the Tribunal lacked jurisdiction. What was more, allegations against unnamed Ward and Local Government Chairmen who were also not joined in the Petition are incompetent and go to no issue.[14] Accordingly, the Tribunal struck out paragraphs 3 to 9 of the Petition, which made averments as to pre-election expenses. That left only paragraphs 1, 2, 10, 11 and 12 of the Petition as facts supporting the ground relied upon for challenging the election. Reliefs A and B in the Petition were supported by the grounds that the election was invalid by reason of corrupt practices and non-compliance. Relief C to the effect that the 1st Respondent be disqualified from a possible fresh election did not flow from the grounds of the Petition rendering that relief incompetent. Consequently, the Preliminary Objection succeeded only in part, and the Tribunal so held.
 
On the merits of the Petition, the Tribunal opined that the sole issue for determination was whether the election was marred by corrupt practices to warrant nullification and disqualification of the 1st Respondent from participating in a consequent fresh election.
 
The Tribunal held that the Petitioner did not lead enough evidence to substantiate the allegations of corrupt practices. He did not call witnesses to give their eye witness account of money sharing at the various polling units including the N500,000,000 allegedly given to the Police. The Polling Agents, INEC and security officers involved in sharing of money were not named. Although the Petitioner named two persons he claimed to have seen sharing money, the Tribunal held there was no evidence giving credence to that bare allegation; the Petitioner did not report them to the Police nor did he join them in the instant Petition. The Petitioner did not say at which of the polling units he observed sharing of money neither did he lead evidence in corroboration of the allegation of unlawful campaigning on the election day. Allegations of negative reports issued by election monitors were also not proved by tendering such reports or calling any of the election monitors as witness. The newspaper publications tendered by the Petitioner to support his allegations were held to have no probative value.
 
The Tribunal further observed that the Petitioner failed to call Polling Agents to testify in support of the Petition. Authorities were cited to the effect that evidence of a person not present at a polling unit is hearsay, whereas the testimony of Polling Agents is cogent because they as the eyes of the Parties and candidates who sent them, witnessed what transpired at the Polling units first hand.[15]Generally, mere allegations without more, the Tribunal held, was insufficient to prove irregularity or violence or corrupt practices.[16] The Tribunal reaffirmed the position that allegations of corrupt practices must be proved beyond reasonable doubt.[17]
 
The Tribunal therefore came to the irresistible and compelling conclusion that the Petitioner failed to prove by credible and satisfactory evidence that the election was marred by corrupt practices perpetrated by the 1st Respondent and his agents in connivance with the 2nd Respondent as to warrant nullification of the election and disqualification of the 1st Respondent in the fresh election sought by the Petitioner. The Tribunal consequently dismissed the Petition in its entirety as bereft of any scintilla of merit. Finally, the Tribunal affirmed the return of the 1st Respondent as duly elected governor of Anambra State.
 
CONCLUSION:
 
Proceedings at the Anambra State Governorship Election Petition Tribunal in respect of the 2017 governorship election were rather smooth sailing and did not present serious challenges to the Tribunal. The candidates at the election, who came 2nd and 3rd were expected to have had some fighting chances at the Tribunal given the reasonable number of votes they also garnered, chose not to challenge the outcome of the election. Hence the candidates that presented Petitions sequel to the election were those that secured insignificant number of votes, and by virtue of that fact it was ab initio a herculean task for them to upset the presumption of regularity and substantial compliance. It was even more cumbersome for the Petitioners to establish the corrupt practices they alleged as having marred the election because, as candidates of less popular political parties who were largely self funding, they could not muster enough financial muscles to deploy the massive array of evidence and witnesses requisite to upturn the apple cart, as it were.
 
The judgments of the Tribunal on the Petitions though exhibited high level of erudition were somewhat emasculated by the obvious lack of reasonable input by the two other members of the Tribunal. One member was completely absent throughout the hearing and determination of the Petitions, and the member present along with the Chairman was largely passive. There is no knowing if the fate of any of the petitions would have been different if all the Tribunal members had been actively and robustly involved in the hearing and determination. Though it is doubtful the outcome of the petitions would have been significantly different, the full participation of all the Tribunal members would have given the Judgments better hue of fairness and vigour of erudition. That is the whole essence of an election Tribunal sitting as a panel rather than a one man Judge.

Finally, it would be good to interrogate the source of funding of an election petition process by a Respondent who is an incumbent and has access to State resources. It puts the Petitioner at a serious disadvantage where the Respondent can draw from State resources to retain the best of legal minds or advocates to defend a Petition whilst the Petitioner with his or her very limited personal funds struggles to retain a relatively inexperienced lawyer to prosecute the Petition with the humongous weigh of burden or onus of proof the Petitioner is expected to discharge. This unfortunate disparity or imbalance of capacity played out very evidently in the just concluded Anambra State election petition process. The retinue of Senior Advocates of Nigeria unleashed on the Tribunal by the Governor, the principal  Respondent in the three petitions, sufficiently overawed the Tribunal, as it were, with their profound legal clout and sagacity, so much so that the Petitions were virtually dead on arrival.
 
RECOMMENDATIONS:
  1. The Burden and standard of proof: It was clear that the main tenable ground against the election was the allegation of corrupt practices in the form of votes or ballot buying. However, the standard of proof beyond reasonable doubt where a Petitioner is challenging an election on grounds of corrupt practices again proved to be a very cumbersome burden to place on a Petitioner as manifested in the two petitions above decided on the merit. The Supreme Court had actually observed that this onus of proof is a very difficult task for a Petitioner to achieve. And what with the time limit for the hearing and determination of election Petition, if a Petitioner were to go out of his way to call the large number of witnesses and deploy the massive documentary evidence necessary to discharge that heavy burden on him, he might end up running out of time in the course of hearing and run the risk of the Petition being struck out for expiration of the time limit.
It is therefore recommended, that it would be fairer to reduce the standard of proof where a Petitioner is alleging corrupt practices against the conduct of an election to proof on a balance of probabilities. In this case the onus can shift to the Respondent where a Petitioner has volunteered reasonable evidence that warrant rebuttal evidence by the Respondent.
  1. Expanding the Rule on Non-Compliance: The rule on substantial non-compliance should not be restricted to what transpired on the election day. This is so because matters such as voters registration, unlawful campaign outside of the statutory period, campaign funding, accreditation of voters, collation of results etc, form the composite process of an election, any of which could be manipulated to thwart the fairness of an election and totally change the outcome thereof. Hence, if any of these components of the election process is not conducted in accordance with the Electoral Act, it should be permissible for a Petitioner to ground his Petition on such default without being foreclosed by the argument that such default is a pre-election matter.
  1. Cost of litigating or prosecuting election petition: The cost of litigating or prosecuting an election petition is usually heinous, starting from the procurement of relevant election documents to use as documentary evidence to the hiring of competent legal representation. The Petitioners herein obviously could not afford the cost of securing the CTC of the election documents to support their petitions. Hence, they placed reliance mostly on newspaper publications, which the Tribunal held as having no probative value. Also the Petitioner in Petition No. 2 had to hire a fairly young Counsel, because she and her Party could not afford the services of a more competent senior Counsel or a Senior Advocate. The Petitioner in Petition No. 3 was even in a more dire situation hence his decision to represent himself. The fact that he failed to affix an NBA stamp/seal on his final address brought to the fore his relative inexperience. The Respondents, who had more financial muscles, were in a more advantageous position; hence they unleashed a retinue of Senior Advocates against the Petitioners who stood no chance against such highly experienced and skilled Senior Advocates.
  1. Access to election materials and documents: On the issue of access to and high cost of procuring relevant election documents needed for election petitions, it has previously been suggested by this writer that INEC should immediately after announcing the result of an election, make available at no cost, certified copies of all relevant election documents to all the political parties to facilitate fair challenges against the election outcome. Alternatively, certified copies of such documents may be made available by INEC to the National Library, which will in turn issue at nominal cost recertified copies to any person who wishes to have them be it for election petition, research, or other personal or public purposes.
[1] ‘Anambra Election: Tribunal strikes out Petition against Obiano’ Premium Times 5/3/2018 See https://www.premiumtimesng.com/regional/ssoiuth-east/260767-anambra-election-tribunal-strikes-petition-obiano.html
[2]  Subparagraph 3 provides: “the Respondent may bring the Application in accordance with subparagraph (1) where the Petitioner fails to do so, or by motion which shall be served on the Petitioner and returnable in 3 days, apply for an order to dismiss the Petition.” Subparagraph 4 provides: “where the Petitioner and the Respondent fail to bring an application under this paragraph, the Tribunal or court shall dismiss the Petition as abandoned and no application for extension of time to take that step shall be filed or entertained.” Meanwhile Subparagraph 1 provides: “within 7 days after the filing and service of the Petitioner’s Reply on the Respondent or 7 days after after the service and filing of the Respondent’s Reply, as the case may be, the Petitioner shall apply for the issuance of pre-hearing notice as in Form TF 007.”
[3]  Subparagraph 5 of Paragraph 18 to the 1st Schedule of the Electoral Act provides: “dismissal of a Petition pursuant to subparagraphs 3 & 4 of this paragraph is final, and the Tribunal or court shall be functus officio.”
 
[4] Which provides that “An election petition under this Act shall state the holding of the election, the scores of the candidates and the person returned as the winner of the election.”
[5]  In line with Paragraph 12 (5) of the 1st Schedule to the Electoral Act, 2010
[6]  The Tribunal relied on the authority of Nwabugwu Nwaogu v. INEC (2008) LPELR – 4644 (CA)
[7]  The Tribunal relied on the authority of Dara & Anor. v. Anagboso & Ors. (2015) LPELR – 25672 (CA)
[8]  (2008) LPELR – 814 (SC)
[9]  The Supreme Court in that case of Buhari v. INEC observed that the burden of proof in this circumstance is quite onerous but not an impossible task.
[10]  The Tribunal relied on the authority of Buhari v. Obasanjo (2005) All FWLR pt. 273 pg. 72 @ 199.
[11]  The decision of the Petitioners to rely on newspaper publications exclusively may not be unconnected with the high cost of securing CTC the election documents from INEC.
[12]  The Tribunal placed reliance on the authority of Kashamu v. Attorney General of the Federation (2013) LPELR – 22357 (CA).
[13]  ‘Anambra Guber: The day After” published in page 28 of Orient Newspaper 22/11/2017
[14]  The Tribunal relied on the authority of CPC v. INEC (2011) LPELR – 2654 (CA)
[15]  The Tribunal relied on the authority of Olusola v. Mimiko (2013) LPELR – 21368 (SC)
[16]  The Tribunal relied on the authority of Buhari v. Obasanjo (2005) LPELR – 815 (SC)
[17]  The Tribunal relied on the authority of Omisore v. Aregbesola (2015) LPELR – 24803 (SC)
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