Judicial Misstatement: Akwa Ibom Tribunal Goofed By Imo E. Akpan Esq

The National and State Houses of Assembly Petitions Tribunal
sitting in Uyo the Akwa Ibom State capital recently delivered
judgment in the case of Godswill Akpabio v. Chris Ekpenyong.

In its majority judgement, the Tribunal dismissed the petition
of Senator Godswill Akpabio and affirmed the declaration of Senator
Christopher Ekpenyong as winner of the said election.

Senator Akpabio (1st Petitioner) had complained of unlawful
cancellation of his votes and challenged the outcome of the
elections on the following grounds;

a) That Senator Christopher Ekpenyong was not duly elected by
majority of lawful votes cast at the February 23, 2019 elections
for the Akwa Ibom North-West Senatorial District;

b) That the election that produced Senator Christopher Ekpenyong
as winner was invalid owing to non-compliance with the provisions
of the Electoral Act in the conduct of the elections.

In consequence, he sought a declaration of the following:

1) That the 1st Respondent was not duly returned or elected by
majority of lawful votes cast at the February 23, 2019
elections;

2) That the result of the election held on the February 23, 2019
elections be nullified same being held, not in compliance with the
provisions of the Electoral Act and a re-run ordered thereto;

3) An order of court declaring the 1st Petitioner, Senator
Godswill Akpabio as the winner of the elections having polled the
highest number of valid, lawful votes at the elections.

In arriving at its decision, the Tribunal in its wisdom
formulated the following issues for determination, to wit:

a) Did the Petitioner prove by admissible evidence that the
election was invalid?

b) Did the 1st Petitioner establish that he, Senator Godswill
Akpabio won the elections by polling the highest number of votes
cast at the elections against Senator Christopher Ekpenyong who was
declared winner by the INEC?

In resolving the issues, the Tribunal relied heavily on the case
of ANDREW v. INEC and held that the petitioner failed to discharge
the burden of proof by calling polling unit by polling unit
evidence to show that he polled the highest number of votes cast at
the elections.

By Section 132 of Evidence Act, it is clear that the burden of
proof lies on that person who would fail if no evidence at all were
given on either side. So also, he who alleges must prove.

It goes without saying therefore, that he who alleges that an
election was not conducted in substantial compliance with the
Electoral Act 2010 (as amended) or INEC Regulations and Guidelines
for the Conduct of Elections 2019 and Manual for Electoral Officers
and seeks nullification in that behalf, must prove substantial
non-compliance. This position has received judicial concurrence in
several cases at the Supreme Court.

The gist of the case of Senator Akpabio is very narrow in scope
and it is that of unlawful cancellation of collated votes in Essien
Udim LGA. His case is that he polled 61, 329 votes as against his
opponent’s 9,050 votes in Essien Udim Local Government area. That
his already collated votes were canceled arbitrarily by the
Returning officer in Uyo. The evidence of the Returning officer is
that he was ordered to effect the cancellation when he arrived INEC
office in Uyo.

The question is: Does a Returning Officer have the powers to
cancel polling unit results or already collated results on any
ground in Law? This is the question that the Tribunal was called
upon to provide an answer to.

The answer is an emphatic No! This is the position of the Law.
In the case of Adeleke v. Oyetola (2019) is still fresh. The
Supreme Court is very clear that only a Presiding officer has the
powers to cancel votes if need be and not the Returning officer. In
this case where the Returning officer was compelled to cancel
votes, it was clear that the electoral umpire, in the words of
Galinje, JSC “had something up its sleeves”.

The Tribunal cannot formulate issues for itself and resolve
them, while avoiding the issues formulated by the parties. It is
akin to setting examinations for oneself and answering the
questions and also marking the answers, as in this case.

The case of ANDREW v. INEC cited by the Tribunal to the effect
that no evidence was called from the polling units is with the
greatest respect, immaterial in the present proceedings.

For clarity, the case of ANDREW v. INEC is reported in (2018) 9
NWLR (pt. 1625) at 507 – 585. In that case, the Governorship
Candidate of PDP in Edo State PastorIze-Iyamu Osagie Andrew
challenged the outcome of the elections wherein Godwin Nogheghase
Obaseki was declared as winner. It was his contention that the 2nd
respondent (Obaseki) was not duly returned by majority of lawful
votes cast at the election; that the election of the 2nd respondent
was invalid by reason of non-compliance with the provisions of the
Electoral Act 2010 (as amended); and that the election of the 2nd
respondent was invalid by reason of corrupt practices. At the
Tribunal, the petition was dismissed and affirmed by the Court of
Appeal. On further appeal to the Supreme Court, their Lordships
held that in proving substantial non-compliance, the petitioner has
the onus of:

“…presenting credible evidence from eye witnesses at the various
polling units who can testify directly in proof of the alleged
non-compliance for him to succeed on that ground,…”

The foregoing is the premise upon which Justice Akanbi dismissed
Senator Godswill Akpabio’s petition and held that the “Petitioner’s
evidence was too weak in all ramifications to prove non-compliance,
not to mention substantial non-compliance, which is the only ground
for nullification of the elections”. He held that it was the more
so that the petitioner failed to bring any witness from the polling
units and thus could not prove substantial non-compliance with the
Electoral Act.

In resolving the issue of cancellation of results, a pure issue
of law, does the petitioner need to go scavenging for evidence from
polling units even in areas where the petitioner never pleaded or
complained about the conduct of the elections? Is the calling of
evidence polling unit by polling unit the only way of proving
substantial non-compliance?
That was the basis of the decision of the Tribunal, hence the furor
it has generated since its delivery.

The Tribunal in the end, by a majority Judgement of two members
dismissed the petition and upheld as valid the declaration of
Senator Christopher Ekpenyong as the winner of the February 23,
2019 elections.

Justice Sheriff Hafizu while dissenting held that the Petitioner
had proved his case. His lordship rightly, in our view, queried why
the majority decision did not resolve the legality of cancellation
of already collated votes nor make a finding on the powers of the
Returning officer in that regard, the major plank of the petition
in the first place. He held that the unilateral cancellation of the
Petitioner’s votes to give advantage to the Respondent was a clear
case of robbery that must not be condoned by the Tribunal.

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