The Appeal Court judgment against Ikpeazu can never stand – Okorie

The Appeal Court Judgment, which annulled the election of Governor Okezie Ikpeazu of the Peoples Democratic Party (PDP) in Abia State, has continued to generate a lot of anxiety among party faithful and other stakeholders in the State. Hagler Okorie, a don and a well-known constitutional lawyer, in this interview with GODFREY OFURUM, gives insight into the judgment and why he considers it, an anomaly. Excerpts

Can you introduce yourself to me, Sir?
My names are Haggler Okorie, I have a PhD in law and teach at the Abia State University, Uturu. I am a practicing lawyer. I am presently the commissioner for Youth Development. I handled the Governorship election petition matter at the tribunal level, where I was a Council to the Independent National Electoral Commission (INEC).
Then after the tribunal, the Governor deemed it fit to appoint me as a commissioner. But, I played a part in the drafting of the appeal to the Court of Appeal and because I was appointed a Commissioner, I can no longer appear formally in court, but I was a backroom staff, if I may use that word in the matter.

I heard that the PDP from the outset faulted the constitution of the Appeal Court Panel. What was their reason for doing so?
On December 31, 2015, when the judgment was delivered, I was also in court and I listened to all that the court said and the judgment and finally I was able to lay my hand on the copy of the 78 page judgment of Justice Oyebisi Omoloye, chairman of that panel.

One is that the constitution of the panel was faulted by both the first and second respondents-Governor Okezie Ikpeazu and the PDP, because the plank of their opposition is that procedurally, you cannot nominate four Justices from one judicial division to be panel members. Court of Appeal panel is constituted by picking Justices from different divisions and so, if they are five, you go to five divisions and pick.

The Court of Appeal panel that determined the Governorship election petition appeal in Abia State was impaneled by four justices from Lagos division and Justice Omoleye, from the Makurdi division.

And the first and second respondents raised objections to that and wrote petitions to the President of the Court of Appeal, who impaneled them, a copy was also sent to the panel, telling the panel that they don’t have confidence in it, which ordinarily that panel ought to have dissolved itself from hearing that appeal, but they persisted and went ahead to hear the appeal. And they gave the judgment, which is the most perverse judgment I have seen in my life as a practitioner.

What are the ingredients of the judgment?
The major plank of Justice Omoleye’s judgment was three Local Government Areas-Obingwa, Osisioma and Isiala Ngwa North. She found as of facts by her own reasoning and as of law that there were over voting and electoral irregularities in those three local Government Areas and she anchored that her reasoning, pursuant to evidence of PW 19 and PW20. PW 19 is a woman identified as Bunmi, from INEC office, Abuja, who came to tender the card reader report, while PW20 was one Ahamdi Nweke, who also contested for Abia Central Senatorial seat. The judgment was based on the evidence of these witnesses.

However, the evidences of these witnesses were highly corrupted, by law and fact at the lower tribunal. For example, for PW19, APGA applied for Subpoena, which bore the name of the director ICT, INEC, but instead of the man appearing in court, he sent Bunmi, a woman, who works in the Abuja office of INEC.

And the PDP raised objection to the fact that this woman cannot testify and cannot also tender any evidence, because the subpoena was not addressed to her. And more fundamentally, the All Progressives Grand Alliance (APGA), the petitioners, did not lay foundation as to why the INEC ICT director could not come. So, the court and the other parties were put in darkness as to why he couldn’t come.

We now said that this woman, not being the person whom the subpoena was addressed to, not being the person, who made the documents in question and she does not also work in the ICT department at INEC, cannot tender any document, but the tribunal in its wisdom, allowed the woman to testify and tender the documents.

Now PW20 happens to be APGA State collation agent at INEC headquarters in Umuahia. And in his written deposition, he crisscrossed as what happened in different poling units in the three LGAs. And under cross examination, we asked him, were you in those poling units, he said he was not in those poling Units. We also asked him, were you in those wards, he said no, but that what he did was to just go round and went back to INEC State headquarters.

We now in our Address told the court that this man’s testimony and written disposition are just mere hear say, because he did not see anything himself at the poling units and the Supreme Court has said in different decisions that once a person did not see anything himself, all that he said will be hearsay.

We now asked rhetorically, why is it that APGA could not bring party agents from those wards to testify. In law, if you have opportunity to bring evidence and you withhold that evidence, it will be counted against you and that was our argument in the address and indeed, the tribunal believed us that the man’s testimony was mere hearsay.

In law the two scenarios are not admitable and the lower tribunal struck out the two evidences. However, the Court of Appeal readmitted those two evidences and considered its ruling based on those documents.

Just five days ago, the Supreme Court in the case of Zanfara Governorship election petition said for any document to be admitted, it must be admitted through the maker of that document. And the issue of over voting, the Supreme Court said to prove over voting that you must provide a voter register and APGA did not tender any voter register. To prove that there was over voting in the three LGAs, APGA ought to have tendered voters register, which they did not. So, the Court did not have the opportunity to look at the voters register and indeed see what transpired-how many persons were registered and how many people voted, they did not see it, because APGA did not present voters register.

Consequently, the only thing the Appeal Court used in its judgment was only the card reader without a register. The Card Reader is novel, it is not part of the Electoral Law, and where there is conflict between an Act and a manual, a law prevails.

And that was the judgment of the Court of Appeal in Lagos in Ambode’s case and we cited Ambode’s case in our brief, but that court decided to forget Ambode’s case. It also forgot to look at and digest what is in the electoral act.

Moving forward, the court now said that in the three LGAs there was over voting and cited section 53 sub-section 2 of the Electoral Act, which says where it is found by a court or a tribunal that there was over voting in any poling that court shall nullify the election in that area and call for a re-run. Justice Omoleye cited that and also other cases on that and now moved forward to say that they have a “discretion” and in saying they have a discretion, She did not cite one case and one law.

Note that this is a positive law, there is no inference or deduction. The law positively provided that where there is over voting, it shall be nullified and a re-run asked for.
However, because the panel was constituted to do a hatchet man’s job, they ignored that and used what they call discretion”. And what the Appeal Court panel ended up doing was to cancel the three LGAs that have 300,000 registered voters.

Based on the judgment of the Appeal Court, the excess votes between Otti and Ikpeazu are about 50,000 and in the three LGAs that the Appeal Court canceled, there are 300,000 registered voters. And the law says, where the total number of voters in areas that elections have not been conducted is in excess of the number that the first is leading the second, there should be a re-run.

The worst the Court of Appeal would have given to the Governor of Abia State was a re-run, because Obingwa LGA is the local Government of the sitting Governor and Osisioma and Isiala Ngwa North are siblings where the sitting Governor has majority of his supporters.

It was a contraption by that Court to disqualify those people and make it difficult for the sitting Governor to win.

Is this issue of discretion allowed in the electoral law?
It has no place in the electoral law. Where a case of over voting happens, the worst scenario is to nullify the election and call for a re-run. And that is where we are and like I have said, this judgment can never stand.

What are the chances of PDP as the case stands now?
The chances of the PDP is what can be pinned in the case of Zamfara State, which the Supreme Court decided on January 8, 2016, which was mainly on over voting and production of a document by a person, who is not the maker.

What is your advice to youths and other members of the PDP?
I want to use this opportunity to call on all Abians, especially the youths from the affected three LGAs, to remain calm, faithful and steadfast with the party and their performing Governor, Okezie Ikpeazu, because he has done so well in short a time. If you go to Aba, you’ll see what he’s doing there even with limited resources at his disposal.

At the last count the Government is constructing about 45 roads, 24 in Aba, while others are spread across Abia Central and Abia North senatorial zones.
The mandate given to Governor Ikpeazu will be reclaimed at the Supreme Court.

The worries of APGA is that if you call for a re-run in those three LGAs, Okezie will defeat them and that is the fix they find themselves. And so they were able to negotiate with these people for this kind of judgment, which is a calamity to the judiciary in Nigeria.

If this judgment is allowed to stay, what to your opinion does it portend to our judicial system?
It is a judgment, which I know cannot stand legally and factually. What this judgment did in cancelling these 3 LGAs was to disenfranchise the 300,000 voters, who come from that area and it cannot stand.

 

GODFREY OFURUM