Special Report: Abia: Why Appeal Court’s Sham Won’t Stand

Tongues have been wagging, and rightly so, since the Appeal Court judgment

of December 31, 2015 declaring the Candidate of the All Progressives Grand

Alliance (APGA), Dr. Alex Otti as the duly elected Governor of Abia State

in the April 2015 governorship election.
Besides the obvious reduction of the otherwise hallowed upper echelon of

the Nigerian judiciary to a Tower of Babel, it is fast emerging the

abattoir of justice to the extent that it has drawn the public ire of the

Chief Justice of the Federation.
It is, therefore, sad to see some commentators, even some lawyers take it

upon themselves to also defend the indefensible due to partisan and

patronage interests. However, an in-depth analysis of the Abia imbroglio

will clearly show why the miscarriage of justice cannot stand.

The demographics and Geaography of Abia
Understanding the demographics and geopolitical structure of Abia State

is very imperative to appreciating the stakes, especially as they concern

the two big masquerades in the Abia gubernatorial tussle- Governor Okezie

Ikpeazu (Ph.D) of the Peoples Democratic Party (PDP) and Dr. Alex Otti of

the All Progressives Grand Alliance, APGA.
Abia State has two major political power blocks, namely, Old Bende and

Ukwa-Ngwa. The Old Bende comprises eight Local Government Areas (LGAs),

whereas nine LGAs are in Ukwa-Ngwa block. Whereas the Old Bende axis has

produced the Governors of Abia State since the creation of the State, both

during the military and the present democratic dispensation, the Ukwa-Ngwa

axis has not tasted power before the election of Governor Ikpeazu, despite

having more local governments and population.
From the geopolitical equation also, Abia North Senatorial District

produced the first Governor in the current dispensation, Chief Orji Uzor

Kalu, who hails from Bende L.G.A (1999-2007 or eight years). Abia Central

produced his successor, Chief T. A. Orji who also did eight years

(2007-2015). Orji hails from Umuahia North, also Old Bende block). . Both

were on the PDP platform.
It was, therefore, not surprising that the PDP naturally shopped for a

quality governorship candidate from Abia South Senatorial District in

2015, which resonated very well with the people of Ukwa-Ngwa political

block and all Abians with sense of justice and fairness. But, certainly

not so with a few who were so blinded by lust for power that they did not

mind sacrificing justice and peaceful coexistence. Dr. Alex Otti, one of

the aspirants under the PDP as the rallying point.
He denounced his indigenship of Arochukwu and rather adopted that of

Isiala-Ngwa South, where he claimed his parents had resided for years and

where he and his siblings were born and raised- all in an attempt to

clothe himself with the Ngwa toga to qualify for the PDP nomination.

But the PDP faithful and Abians were not fooled. PDP zoning was on basis

of geopolitical equation (by Senatorial Districts), not ethnicity. Thus,

it meant that only the people from the six LGAs of Abia South Senatorial

District were qualified to vie. That obviously disqualified Dr. Otti,

notwithstanding his claim to Ngwa indigenship. He was evidently on the

wrong side of the Ngwa geopolitical equation.
And all entreaties by Ukwa-Ngwa clan for him not to tear apart their

brotherly bond, and to ensure that a position they had long craved for did

not elude them, fell on deaf ears.
He decamped to the APGA in the hope perhaps, that he could change the

perception and narrative. As if to add salt to injury, he choose his

running mate from Ndi Uduma Awoke in Ohafia, next LGA to his own Arochukwu

LGA all of the same Bende geopolitical block.
Equally, Arochukwu and Ohafia LGAs constitute the Arochukwu/Ohafia Federal

Constituency. Dr. Otti and APGA, therefore wanted to foist on Abians a

situation where both the Governor and Deputy Governor come from one

Federal Constituency, contrary to PDP philosophy and constitution as well

as the spirit and letter of Federal Character as enshrined in the 1999

Constitution. What an effrontery!
It was, therefore, not surprising that he lost woefully as the people of

Abia queued behind the PDP and Governor Ikpeazu, being the face of equity

and justice.
Questionable Appeal Panel
Although the Abia State Governorship Tribunal dismissed Dr. Otti’s

petition challenging Governor Ikpeazu’s election, the Appeal Court thought

otherwise on grounds that have drawn understandable opprobrium across Abia

and Nigeria.
But, for the PDP, it wasn’t surprising because they had cried foul ab

initio over the constitution of the Panel. The Appeal Court of Nigeria has

16 Divisions with over 64 Justices; thus, it is the practice not to allow

the panel of a local division of the Court of Appeal to hear appeals

emanating from its Jurisdiction. It has also been the universal and

age-long practice for members of appeal panels, in election matters to be

drawn from different Divisions of the Court of Appeal. In fact, the

practice is that no two justices come from the same division. The logic is

simple: their Lordships are human beings with social relations and it is

always better to avoid familiarity and conspiracy.
It was, therefore, quite curious to the PDP that apart from Chairman of

the Panel, Hon. Justice Oyebisi Omoleye from Makurdi Division, the

remaining four of the five-member Appeal Panel were drawn from the Lagos

Division where Dr. Otti has lived and worked all through his banking

career. He was also alleged to be a well-known close friend of the

Presiding Justice of the Lagos Division of the Court of Appeal, Justice

Amina Augie.
The PDP proactively protested and sent a detailed and strongly-worded

petition to the President of the Court of Appeal, Hon. Justice Zainab

Bulkachuwa, requesting the dissolution and reconstitution of the panel in

line with the general practice of drawing justices from different

divisions.
The Party also petitioned President of the Federal Republic of Nigeria and

copied the petition to the President of the Court of Appeal to each of the

five Justices of the Appeal panel, requesting them to disqualify

themselves since the PDP had expressed lack of confidence in the panel as

constituted.
Therefore, to the PDP, what eventually played out at Owerri on December

31, 2015, the PDP did not only confirm the red flag raised by PDP, but

actually appeared to justify its suspicion that the panel was in Abia with

a mandate to uphold Dr. Otti’s appeal.
Questionable Witnesses
The panel anchored its decision on the testimonies of Prosecution Witness

(PW)20 and PW19 at the Election Petitions Tribunal. It is bewildering that

their Lordships had dwelt so much on the credibility of PW20, and argued

that there was no way in the record of proceedings that PW20 (who was the

star witness of the Appellants at the tribunal) had stated that he was a

legal practitioner either in Nigeria or in England and rather found him a

credible character. The panel went ahead to give credence to his report,

in his capacity as the State Collation Officer of APGA.

Notwithstanding that he was stationed at the INEC State headquarters in

Umuahia, he was giving/tendering reports of purported occurrences at the

units, wards and local government areas where he was never present and

could never have been at the same time. The Appeal Panel proceeded to

state that it believed the testimony of a witness that never appeared

before it, over and above the Tribunal that not only witnessed the

cross-examination of the said witness, but saw and assessed his demeanor

and disposition before arriving at its informed decision.

This is a sharp contradiction to Section 84 of Evidence Act and the

landmark cases of Haruna vs Modibo and Orji vs Ugochukwu on documentary

hearsay, which the panel failed, neglected or refused to take judicial

notice of, or be so guided.
PW19 was the INEC official who testified on the Card Reader. She had,

incidentally made a written report in May 2015 when the petition was

filed, but tried to corroborate her report with her oral testimony in

August during trial. The Tribunal as that would amount to amending her

pleading, which was unacceptable.
The Appeal Panel also erred in relying on the figure contained in the said

report as the authentic number of accredited voters in arriving at its

decision of over-voting. The panel grossly refused to appreciate that Card

Reader alone could not contain the accurate number of accredited voters.

In fact, Card Reader is not recognized by the Electoral Act as Section 49

of the Act provides for the Voters Register and Section 53(2) specifically

stipulates that the people should vote and not to be disenfranchised, as

the panel’s decision to cancel election results in Osisioma, Isiala-Ngwa

North, and Obingwa (with a total registered voters strength of over

200,000) amounted to.
This is a deprivation of the people’s inalienable right to vote and be

voted for as guaranteed by the 1999 Constitution. More so, when

considering that such spurious cancelation and re-computation left Dr.

Otti of APGA with a higher number of votes that formed the basis of his

declaration as the winner of the gubernatorial election.

This is in total contradiction of the spirit and letter of the Electoral

Act and similar cases decided by sister appeal panels, which in the worst

case would have been a re-run in those areas where results were canceled.

More so since Alex Otti’s purported votes in the panel’s re-computed

figures upon which he was declared winner was merely 50,000 votes, a far

cry from the over 200,000 votes canceled in Governor Ikpeazu’s stronghold.

The cancelation in Obingwa LGA, for instance, leaves Dr. Okezie Ikpeazu

with no single vote whatsoever in his own LGA, meaning that no one at all

voted for him, including himself. Yet this is the LGA that has always

recorded the highest number of votes in the state since 1999.

Powers of the State Returning Officer to cancel results

Another issue that begs the question is the power of the State Returning

Officer to cancel the results of the election in the aforementioned three

LGAs in the first place, and his purported reversal of the action! In

fact, INEC and Ikpeazu had rightly argued that the Returning Officer acted

ultra- vires his powers. But the Panel went further to state that it also

didn’t recognize the supplementary election of April 25, 2015 so ordered

by the Returning Officer, because by its evil genius mathematical

computation, Dr. Otti had already won based on the offense or mortal sin

as it were committed by the 3 LGAs on April 11, warranting the punitive

cancellation of their results.
Paradoxically, the same Panel, on page 74 of its hogwash, disjointed, and

marathon judgment stated: “It is ordered that the results of Isiala-Ngwa

North, Obingwa, and Osisioma Local Government Areas of Abia State be and

are hereby cancelled… The election, return and declaration of the 1st

Respondent, Okezie Victor Ikpeazu, as the Governor of Abia State are

hereby nullified and set aside.
“The 1st Appellant, ALEX OTTI, having scored the majority of lawful/valid

votes cast at the elections/supplementary elections of 11th and 25th

April, 2015 respectively, held in Abia State for the occupation of the

seat of Governor of Abia State and having satisfied the constitutional

requirement of one quarter of the votes in at least two-thirds of the

Seventeen Local Government Areas of Abia State is hereby returned as the

duly elected Governor of Abia State”.
This volte face by the Panel in, first recognizing the April 25

supplementary election as ordered by the Returning Officer, and finally

recognizing 17 local government areas as opposed to 14, having earlier

cancelled 3, is manifestly glaring! This exposes the entire untidy

exercise.
Failure of Alex Otti to testify
It was a gross error and contradictory on the part of the five-man Appeal

Panel to decide that the failure of Dr. Alex Otti, the first

Petitioner/Appellant, to testify in his own petition was of no material

importance. In fact, on the contrary, it remains fatal to his case.

Instructively, an earlier panel of the same Court of Appeal, Owerri

Division, in dismissing the Interlocutory Appeal by Dr. Otti seeking to be

allowed to testify out of time had this to say in October 2015: “On the

merits, this conduct of approbating and reprobating on the same point the

Appellants are estopped from insisting on a longer period than the 7 days

they had agreed on, or consented to, for the presentation of their case at

the lower Tribunal, since they had consented to the 7 days to do so. See

UDE vs. NWARA (1993) 2 NWLR (part 278)638 at 662 – 663….

“The Petitioners/Appellants had, in my view, approached the proceedings at

the lower Tribunal as if they had all the time in the world to prosecute

their petition in whatever laissez faire manner or that they had the magic

of Joshua to arrest the sun or time from moving.
“It is clear…that delay defeats equity and that equity only aids the

vigilant and not the indolent…”
From the above comments of the erudite justices, it is obvious that an

unserious party or candidate who abandons the serious and arduous task of

proving the facts of his petition cannot expect victory at the end of the

day. In law, a sworn witness deposition does not become evidence until the

deponent has adopted such testimony under oath in the witness box. In this

case, Dr. Otti adduced no evidence to support his petition and for the

five-man Appeal Panel to hold contrary is a grave error in law. Therefore,

Dr. Otti’s failure to testify at the Election Petitions Tribunal meant

that he had abandoned his petition.
The Issue of over-voting: The Zamfara State case
In a similar case of alleged over-voting in the Zamfara State governorship

election the full panel of the Supreme Court unanimously decided on

January 8, 2016 that: “The grouse of the appellants in this issue,

basically, is that there was over-voting and that because of that there

was substantial non-compliance with the Electoral Act.

“To prove over-voting, the law is trite that the petitioner must tender

the voters’ register. The Court must also see the statement of result in

the appropriate forms which would show the number of registered accredited

voters and number of actual voters”.
In delivering the judgment, Justice John Okoro JSC, said: “From the

finding above, I agree with the court below that the appellants failed

woefully to prove over-voting in accordance with the principles laid down

by law.”
The Supreme Court equally said that, the appellant must also relate each

of the documents to the specific area of the case in respect of which

documents were tendered.
In other words, the Supreme Court is emphatic that the allegation or issue

of over-voting is Polling Unit-specific and not Ward or LGA-specific as

the five-man Appeal Panel in Owerri grossly misinterpreted and misapplied,

culminating in their so called cancellation of votes in Obingwa, Osisioma,

and Isiala-Ngwa.
The import of this is that whereas over-voting as it were may occur in one

or two or more polling units in a Ward and similarly ten or more wards in

a LGA, it will be gross injustice to cancel the votes of the entire Ward

or LGA because of an infraction of just about 10 percent or less of the

total registration area. It will amount to an unwarranted and unmitigated

punishment of a larger innocent group, which is what the five-man Appeal

Panel has done in the Abia case.
Moreover, the law provides for a rerun in areas where cancellation is done

as a result of over-voting and not a punitive punishment of

disenfranchising, even the voters that participated in the alleged

over-voting.
Juxtaposing the Supreme Court decision in Zamfara’s case with a sister

Court of Appeal Panel in the Taraba case, it is glaringly evident that the

5-man Appeal Court of Appeal Panel in Owerri grossly erred in interpreting

and applying the law on the issue of over-voting.
The Supreme Court further stated that: “The reliance on the evidence one

of the witnesses through a document he did not make has not made any

difference”.
This decision by the Supreme Court is in sharp contrast with that of the

five-man Appeal Panel, which erroneously and laboriously strove to give

admissibility to the evidence of PW 19 in the Abia case.

Little wonder Abians have trouped out en masse to show their

dissatisfaction over what they see as miscarriage of justice. The Appeal

Panel’s verdict has equally elicited a lot of reactions, commentaries and

discourse in many fora, albeit in defense of and solidarity with Dr.

Okezie Ikpeazu.
Governor Ikpeazu’s rising goodwill
However, the Appeal Court travesty, notwithstanding, political observers

have noticed with keen interest that the enormous show of solidarity

ironically comes more from the areas and people that had prior to Governor

Ikpeazu’s election, shown palpable apprehension regarding his ability to

perform as a Governor. But with just six months in office, it is entirely

new stories and testimonies for the ebullient and performing Governor.

With a plethora of groundbreaking achievements, the Governor is the

darling of the Abia people, and Aba in particular ironically, who have

never seen it that good before. From the cement pavement-metal rod

basket/9 inch thick asphalt road construction technology with modern wide

drains and solid bridges to the construction and major rehabilitation of

over 40 roads across the state, the landmark reconstruction and equipping

of public primary and secondary institutions as well as the unprecedented

free feeding of primary school pupils starting January 2016, Governor

Ikpeazu is on lips of the young and old even as hitherto doubting Thomases

have wholeheartedly embraced him.
Therefore, for Abians, all eyes remain on the Supreme Court for true

justice and redress so their joy will not be caught short.

––Elder Ndukwo wrties from Umuahia