Abia Guber: Why Appeal Court Declared Alex Otti Winner

By George Ugbegua

There was jubilation in Abia State when the Court of Appeal sitting in Owerri, on December 31, 2015, declared the All Progressives Grand Alliance (APGA) governorship candidate Dr Alex Otti as the winner of the election and supplementary poll held on April 11 and 25, 2015. The court, presided over by Justice Oyebisi Omoleye, nullified the declaration of “Governor” Okezie Ikpeazu as the winner of the elections.

Otti and APGA were the appellants, while Ikpeazu, the People’s Democratic Party (PDP) and the Independent National Electoral Commission (INEC) were the respondents. In arriving at the decision, the appellate court held that Otti scored the majority of lawful/valid votes cast and satisfied the constitutional requirements of one-quarter of votes, in at least two-thirds of the 17 Local Government Areas (LGAs).

On that basis, the court held that Otti “is hereby returned as the duly elected governor of Abia State.” Also, on the panel were Justice Chinwe Iyizoba, Justice Samuel Oseji, Justice Tijani Abubakar and Justice Jamilu Tukur.

Justice Omoleye added: “It is hereby ordered that the Certificate of Return already issued to the first respondent, Okezie Ikpeazu, by the third respondent (INEC) is set aside. “It is further ordered that the third respondent, INEC, shall forthwith issue the Certificate of Return to the first appellant, Alex Otti, as the winner of the Abia State Governorship elections conducted on the 11th and 25th April 2015.”

Seventeen issues were raised in the appellant’s brief of argument filed on December 4, 2015. Among the issues were whether, in the light of the Electoral Act, the approved regulations and manual for election and evidence on record, the learned tribunal judges were not wrong when they failed to set aside Ikpeazu’s return as a winner.

Otti and APGA also urged the court to determine whether having regard to the pleadings and the evidence on record, the tribunal was not wrong in holding that the petitioners’ claims were not grantable. They also asked whether the tribunal was not wrong in failing to resolve the issue relating to who, between Otti and Ikpeazu, scored the majority of lawful votes cast in the election, an issue that was properly raised before the tribunal and supported by evidence.

It was the appellant’s contention that Section 140 (3) of 2010 Electoral Act states that if a tribunal or court determines that a candidate who was returned as elected was not validly elected on the ground that he did not score the majority of valid votes cast, the tribunal shall declare as elected the candidate who scored the highest number of valid votes and who satisfied constitutional requirement.

To be declared the governor, a candidate must satisfy two conditions, namely: the constitutional requirement of spread in two/third of the Local Government Areas, and the highest number of lawful votes – which refers to those cast in accordance with the Electoral Act. Conversely, an invalid vote cannot be used to compute the number of votes cast in an election. In HDP vs Obi (2012) 1 NWLR (PT 1282) 464, invalid means is defined as “without validity, efficacy weight or cogency and having no effect.�� According to the court, computing an invalid vote “will be like counting both the living and the dead in a census exercise.” The court also compared an invalid vote to a child asking the mother “to add chaff that has been sifted from the wheat into the wheat meal on the fire.”

Otti and APGA’s prayer was that the votes recorded for Obingwa, Osisioma and Isiala Ngwa were characterised by malpractices, and were, therefore, invalid and should be cancelled. The appellate court agreed with the submission, contrary to the tribunal’s position that there was a rerun in those areas and that Otti and APGA participated.

The tribunal had ignored exhibits showing over-voting and other irregularities. It ruled that having gone through a rerun, all exhibits tendered by Otti’s witnesses would not be considered. The tribunal, therefore, did not look at documents tendered by the appellants to show substantial non-compliance and over-voting.

The law is that once over-voting is established, results of those areas must be cancelled, and if the leading candidate has enough spread constitutionally, he will be declared a winner. This is because there is no rule that everybody must participate in an election. Even if the election did not hold in those areas, results will still be declared.

Otti’s lawyers referred to precedents, such as the case of Aregbesola vs Oyinlola, in which 10 LGAs where over-voting occurred were cancelled and Rauf Aregbesola was returned after more than 300,000 votes were invalidated; as well as the case of Agagu vs Mimiko, in which the result for wards in Ese Odo, Okitipupa and Akoko Northeast were nullified and Olusegun Mimiko was declared the winner.

Other precedents include Fayemi vs Oni, in which results were also invalidated and Kayode Fayemi was returned as having scored the majority of lawful votes, and INEC vs Oshiomole, in which results for Etsako Central, Akoko Edo LGA and several wards were cancelled yet Oshiomole was declared governor. Otti’s lawyers argued that it is only when there is no winner of majority votes and with the constitutional spread that rerun can be ordered.

On whether Otti’s reliefs were grantable, the appellate court said it found it quite perplexing that the tribunal, instead of reading and considering carefully the pleadings and evidence adduced in Otti’s petition and determining all the issues raised, seemed more concerned with getting rid of as many of the reliefs as possible by striking them out for one “unacceptable” reason or the other. “All the reasons given are untenable and at the end of the day amount to depriving the appellants of fair hearing guaranteed under the Constitution. These generalisations that the claims of the appellants/petitioners were not grantable without giving plausible and definite reasons are unacceptable in law. The view of the tribunal that the claims of the appellants were not grantable is clearly misconceived in law and facts,” Justice Omoleye said. On the issue of over-voting, the appellants had complained that the tribunal wrongly concluded that there was proper accreditation of votes and that there were other modes of accreditation recognised by INEC.

Upholding the appellants’ arguments, the appeal court held: “The finding of the tribunal that the card reader data is not the primary and sole source and record of a number of accredited voters was wrong.”

On annulment of elections in Obingwa, Isiala Ngwa North and Osisioma, the appellate court faulted the tribunal for not going ahead to consider the appellants’ grievances on merit after holding that the State Returning Officer had no power to annul and de-annul the election results. “In what appeared to be a conscious resolve to avoid and evade the determination of the petition on the merit, (the tribunal) chose to embark on swinging forward and backward, delving into imaginations that results were cancelled and elections declared inconclusive and that re-run elections were held in the disputed three LGAs. The conclusion does not represent the correct position of the law, based on the evidence before the tribunal,” the Court of Appeal held.

The appellate court found that the results from the LGAs tally with the appellants’ grievance that they do not represent the correct outcome of the election. The appellate court said ordering of fresh election could only arise where a clear winner did not emerge after deduction of illegal votes. Having established that there was over-voting in Isiala Ngwa, Obingwa and Osisioma, the court said the entire votes recorded there would be deducted from the overall result declared by INEC. The Court of Appeal held: “Following the deductions of the unlawful votes garnered from the disputed three LGAs, the first appellant (Otti) having scored 164,332 valid votes, as opposed to the first respondent (Ikpeazu) who scored 115,444 votes, ought to have been declared the winner of Abia State Governorship elections conducted on 11th and 25th April, 2015.”

The Court of Appeal, therefore, set the tribunal’s judgment aside. It held: “Having resolved all the above issues other than the issue relating to the powers of the Returning Officer with regards to cancellation and de-annulment of election results in favour of the appellants, we hereby hold that this appeal has merit and out to succeed. “The appeal is accordingly allowed. The judgment of the tribunal delivered on the 3rd of November, 2015 is hereby set aside.”