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How Udom Emmanuel Defeated Nsima Ekere At The Tribunal 

By Essien Ndueso 

After Akwa Ibom people had on Saturday March 9, 2019 overwhelmingly re-elected Governor Udom Emmanuel for a second term, the stage was set for a legal battle, as the candidate of the APC, Mr. Nsima Ekere would not accept defeat. Ekere, a former Deputy Governor and former NDDC MD had approached the Governorship Election Petition Tribunal which sat in Uyo, asking the tribunal to invalidate Governor Udom Emmanuel's victory over alleged irregularities.

The petition was filed on the 29th of March, 2019 by Mr. Nsima Udo Ekere.

Ekere had asked the tribunal to declare the election 'invalid' claiming that it was marred by corrupt practices and non-compliance with the provisions of the Electoral Act, 2010 (as amended).

He had also contended that The 1st Respondent (Governor Udom Emmanuel of the PDP) was not duly elected by majority of lawful votes cast at the election. Joined in the petition was the PDP as 2nd respondent, while INEC appeared as 3rd respondent.

The petitioner also claimed that the Governorship election of March, 9, 2019 was characterized by violence, killing of voters, hijacking of election materials, destruction of election materials, preventing of counting of voted at polling unit, monetary inducement of members of the opposition party, ballot box snatching, non-collation of results at designated centers as well as suppression of voters.

Ekere also averred that he won the majority of lawful votes in some local government areas, but that the results which were earlier announced and pasted at the polling units were unilaterally canceled or rejected during collation in Etim Ekpo, Ikot Abasi, Essien Udim, Ikot Ekpene, Esit Eket, Mbo, Ika, Urueoffong/Oruko, Oruk Anam, Nsit Ubium and Uyo. That in other instances , results from other polling units which were in favour of the petitioners were altered and in some other instances the 3red Respondent's officials used fake collation forms EC8B to record scores that were in favor of the petitioners only to bring out the original collation forms to change the figures.

As expected in law, it was up for the petitioner to prove his allegations. Ekere's witnesses were called upon to testify at the tribunal and he opened his case on 4th of July filing 47 witnesses, but Counsel to the Petitioner applied that testimonies of 4 witnesses should be set aside for want of jurisdiction, leaving the number of witnesses at 43.

To compound the woes of the petitioner, a former Member of Akwa Ibom State House of Assembly who represented Etim-Ekpo/Ika State Constituency, Engr. Akanimo Edet, who is a chieftain of APC, distanced himself from claims by his party that it won the elections in Etim Ekpo.

On cross examination, Chief Assam Assam(SAN) Counsel to Governor Udom Emmanuel asked Engr. Edet if his party won the governorship election in Etim Ekpo, to which he answered with a very harsh tone, "there was no election so there is no way APC could have won".

Most witnesses caused great discomfort for the petitioner, Mr Nsima Ekere who had to storm out of the tribunal midway, as his witnesses contradicted themselves during cross examinations by defence counsel at the tribunal.

On a particular day, six witnesses that were called by the petitioner to testifyat the tribunal contradicted themselves by saying that there was no election in their local government areas, and thereafter admitted that APC won the election in some units and wards. One of the witnesses, Mr Emmanuel Atakpo who testified before the tribunal said that there was no election in Ibesikpo Asutan local government area, but when cross examined by Counsel to the Peoples Democratic Party (PDP), Tayo Oyetibo SAN,said APC won in Ward 1, Unit 6. The witness also admitted that there was election in Ibesikpo Asutan Ward 10, Unit 6 but confessed he didn't know which party won the election. When asked how he knew that elections were not held in the entire local government, Atakpo told the tribunal that, "I personally drove around most of the polling units within my ward to confirm that election didn't take place."

He further alleged that the election results were manipulated at the local government coalition center, but when asked if he had the election result as the party agent for the local government before it was manipulated, he said he had no result.

Another witness, Dr Ita Udosen who was the second witness to testify for the petitioner had said he registered to vote at the Primary School Mbierebe Akpawat when evidence before the tribunal showed he actually voted at Ibesikpo Asutan Ward 3 Unit 4.

According to his statement before the tribunal which he asked the court to adopt as evidence in the petition, he said there was no election in his unit, and during cross examination, he admitted that election took place, and it was later that problem started and he ran away to the local government coalition center.

On his part, the first witness, Mr Effiong Bassey Etim from Ikot Akpabio in Nsit Atai local government told the tribunal that there was no election in his polling unit which he served as APC agent because there was violence immediately the election materials arrived, but in Paragraph 5 of his earlier deposed statement, Etim had claimed that there was no violence but massive thump printing at his unit.

*Petitioner's u-Turn*
At a point, Mr. Ekere had to make a U-turn during one of the sittings of the tribunal when he contradicted himself, saying he didn't win the Governorship election as earlier deposed to in his petition. He even asked the tribunal to call on INEC to conduct a fresh election in the state.

This was an apparent disregard to almost all the averments in his written statement on oath.

Ekere by his own admission, pointedly told the Governorship Elections Petitions Tribunal that he did not win the 2019 elections.

While testifying as principal witness (PW46) in his petition against Governor Udom Emmanuel's re-election, he said he could no longer stand by his written deposition and wanted the entire election nullified.

Similarly, the APC deputy governorship candidate in the election, Amadu Attai had announced that the ballot papers his party obtained from INEC as exhibits in the case, were no longer useful and and as such, would not be tendered before the tribunal.

Attai, PW47, in reference to Paragraph 32(6) confessed that he had no evidence to authenticate his claims that voter’s cards of other people were used by PDP members for multiple voting, neither could he present any data to back his card reader report in his Paragraph 33.

On his part, Ekere, during cross examination by 2nd Respondents' Counsel Tayo Oyetibo SAN, dismissed his earlier claims that he won in some local government areas in the state including Essien Udim and Etim Ekpo during the March 9 Governorship elections.

Confronted with his earlier deposition and the evidence by the Essien Udim Divisional Police Officer, Samuel Isiek, that election in Essien Udim was free, fair and credible, he(the petitioner) admitted that eventhough his tendered result showed he won in Essien Udim, he wants the election also canceled.

“My plea is for full nullification of the entire elections, including Essien Udim, because by the time we went through documents provided by INEC we later discovered that election was not conducted according to the provisions of the electoral law.” he said.

Referring the petitioner to Paragraph 15 Sub 11 of his statement, Oyetibo asked if accreditation took place in the areas that he allegedly won, Ekere replied that he was no longer in support of his previous statement about winning in those areas.

“My lord, I have abandoned the areas I won”

When confronted with his statement on oath in paragraphs 15(18) where he claimed to have figures of accredited voters for the March 9 election, Ekere confirmed that he got it from INEC sever but failed to provide the data source before the tribunal.

The APC governorship candidate who had alleged in Paragraph 44 of his deposition that INEC recruited PDP members as electoral officers, also failed to provide the list of PDP members who he claimed were recruited by INEC as Assistant Polling Officer, Supervisor Polling Officers and Returning Officers for the election.

Sensing frustration at some point during cross examination, Mr Ekere sought the protection of the Tribunal panel chairman, A. M. Yakubu who in response asked him to answer the question, as his request for protection at that point was unwarranted.

During the defence, the first Respondent opened his case on 31st July, and called 20 witnesses in all.

The second Respondent who opened his case on August 23 presented 11 witnesses from nine local government areas while the third Respondent, INEC preferred to rely on the evidences already put forward by the 1st and 2nd Respondents.

On the allegation of corrupt practices, Petitioner had alleged that

a. The election was characterise by violence, kidnapping of voters, killing of voters hijacking of materials, destruction of materials, preventing of counting of votes, monetary inducements of members of the PDP, ballot box snatching, and non collation of results at designated centres.

b. That the petitioner won the majority of lawful votes in some LGAs but the result which were earlier announced and paster were unilaterally cancelled and rejected during collation.

c. Some instances, results which favoured the Petitioner were altered.

d. Agents of first and second respondents collaborated with INEC to distribute uncollected PVCs to their supporters who were not registered to vote.

e. Collation was abandoned in various collation centers

f. That out of 2980 polling units in the State, total votes cast exceeded number of accredited voters in more than 1500 polling units

The 1st respondent filed a reply to the Petition on 6th June, 2019 and did put the Petitioners to the strictest proof of paragraphs of the Petition alleging corrupt practices, criminality and non-compliance. Replied that

a. Votes were sorted, counted and recorded in form EC8A designed for the polling units.

b. That 1st Respondent scored majority of lawful votes cast not the Petitioners as alleged

c. Accreditation duly took place
d. No part of the election was arbitrarily done
e. Election was not characterised by violence
f. That it is not correct to say that results were unlawfully cancelled as alleged by Petitioners

g. That corrections necessarily were done in the presence of agents of political parties

h. That petitioners agents were not chased out from any polling unit in the state

i. There were no discrepancies with respect to the results of the election, no over voting as alleged by petitioners, not in more than 1500 polling units they claimed or at all

j. Collation of results was not aborted at any stage across the state

In his final written address, the first respondent submitted that

a. Election cannot be invalidated by reason of noncompliance when the election was conducted substantially in accordance with the principles of the Electoral Act and non-compliance did not affect substantially the results of the election

b. That the result declared by INEC was prima-facie correct and that the burden to prove the contrary polling unit by polling unit rested on the Petitioners

c. Stated that in law, a party/witness who has given a contradicting evidence is unreliable and the evidence is to be rejected.

d. That all allegations should be proven in line with established principles of law.

e. Observed that the Petitioners counsel tendered and dumped exhibits at the Tribunal without linking them to their case, and witnesses who were called to purportedly identify some of the documents only attempted to touch some of the exhibits in a failed attempt to demonstrate them.

Summary of Second Respondent's Final written address:

a. On burden of proof of lack of accreditation as argued by the Petitioners, Learned Senior Counsel submits that Election petition is sui generis and there are specific principles of law which have been developed by our superior courts over the years and that results announced by INEC enjoy the presumption of correctness and regularity.

b. That petitioners allegation of alteration or falsification of results was not proved by them and therefore urged the Tribunal to discountenance the Petitioners argument

c. On over voting, that argument put forward by petitioners is not supported by any evidence in the pleadings

d. That petitioners have failed to adduce relevant, cogent and material evidence of probatice value to support their allegations.

SUMMARY OF INEC’s FINAL WRITTEN ADDRESS:
a. The petitioners who founded their petition on the ground of non-compliance could not prove substantial non compliance as it affected the result of the election.

b. That reliefs sought by the petitioners are declaratory in nature and was mandatory on the Petitioners to not just lead evidence but credible and sufficient evidence polling unit by polling unit.

c. On inconsistence and contradictions in the Petitioners pleadings/evidence, counsel submitted that in civil matters inclusive of election petition, pleadings constitute the bedrock of the petitioner’s case, as such he cannot make a case and suddenly change or reverse position to make a difference case.

d. Petitioners alleged there was no voting in about 30 LGAs but they also claimed to have won in other paragraphs of their pleadings.

e. In paragraph 40 of petition, petitioners said there was over voting in 1,500 polling units but in paragraph 6 of petitioners reply to 3rd Respondent, petitioner made reference to 512 polling units. He asked which one is correct, over 1,500 or 512?

f. On dumping of documents without use, counsel submitted that Petitioners did not use vital evidence to prove their allegations, up till the time that trial was concluded.

JUDGEMENT DAY
The ruling by the tribunal presided over by Justice A. M. Yakubu, with members Justice A. O. Oyebiyi and Justice Thelma Achom ruled on 19th September, 2019 as follows:

"The proof required of the petitioners is that beyond reasonable doubts, having raised and given evidence on several criminalities and election malpractices. The petitioners on this, we hold did not discharge the burden on them. The ward, Local Government and State Collation Agents and the testimony of PW 46 and PW47--Dr. Ikpeazu, SAN, Mr.. Tayo Oyetibo, SAN and Mr. Sylva Ogwuemoh, SAN for all Respondents contended in their respective submissions that the witnesses gave hearsay evidence which are inadmissible and with no evidential value".

Contrary to petitioner's claim that election did not hold at some local government areas he listed in his petition, the tribunal in its ruling held that election was duly conducted based on evidence before the court and that witnesses who testified for APC, PDP, and INEC had confirmed that election actually took place in those areas.

The tribunal also countered Ekere's claim, ruling that the results which were announced and pasted at polling units were not ''Unilaterally canceled or rejected during collation", insisting that "only valid votes were reckoned in the process, and results and votes were deliberately excluded in the process, and results favourable to the petitioners were not altered.

The tribunal also ruled that, "It is not correct to say that results were unlawfully canceled as alleged by the petitioners in each of the polling units shown at pages 27 and 28 of (Ekere's) petition".

During the hearings, the petitioner, according to the tribunal made a case against 28 local government areas, but could only present witnesses to testify for him in 20 local government areas, leaving 8 local government areas with no witness.

"We should however, be quickly reminded that earlier in this judgment, this Tribunal found that out of the 28 Local Government Areas, no single witness was called by the petitioners to give evidence in respect of eight (8) Local Government Areas of Abak, Eastern Obolo, Esit Eket, Ika, Itu, Okobo, Udung Uko, and Uyo".

Analysing the petition and evidence before the tribunal, the tribunal reasoned that, "From the above analysis, it is very clear that the petitioners did not call any oral evidence in eight (8) Local Government Areas of Abak, Eastern Obolo, Esit Eket, Ika, Okobo, Udung Uko, and Uyo. Therefore all the exhibits PT series, PTA series, PTB series and PTC series tendered in evidence from the Bar for these 8 Located Government Areas have not been linked by oral evidence. Having not been so linked, they are only but dumped on the Tribunal without any evidential value".

The petitioners' witnesses failed to present their voters' card before the tribunal.

Citing the supreme court in the case of Omisore vs Aregbesola (2015) 15 NWL (pt. 1482) 205 at 225 R. 20 and n21, the tribunal further held thus:

"Documentary evidence, no matter its relevance, cannot on its own speak for itself without the aid of an explanation relating its existence. The validity and relevance of documents to admitted facts or evidence is when it is done in the open court and it is not a matter for counsel's address..."

“Where a party dumps documents on the court without showing how the documents affect his case, it is not the duty of the court to embark on an independent enquiry to fix the documents on the evidence".

The tribunal therefore held that: "With above decision of the apex court, we hold that the said exhibit having been dumped lack evidential value before this Tribunal.”

The tribunal also averred that the petitioners failed woefully to discharge the burden of proof as well as the standard of proof required of them by sections 131 to 135 of the Evidence Acts,2011.

The tribunal also decided that, "Whether the non-compliance with the provisions of the Electoral Act, 2010 (as amended) in the conduct of the said election is substantial to affect the outcome of the election. We have earlier determined issue No. 1 that the petitioners have failed to prove that the said election was invalid by reason of non-compliance with the Electoral Act, 2010 (as amended), the Guidelines/Regulations and manual for the conduct of the 2019 General Electronics. To therefore proceed to give further details of the arguments proferred on this issue will amount to repetition and waste of judicial time. This is automatically succeed in favour of the Respondents that the non- compliance complained of by the petitioners is not substantial to affect the outcome of the said election".

THE VERDICT:
The tribunal in upholding the Governor's victory said "Having resolved both issues in favor of the Respondents, this petition is hereby dismissed for lacking in merit. The return of Udom Gabriel Emmanuel of the Peoples Democratic Party (PDP) by the 3red Respondent (INEC) as the winner of the Governorship election in Akwa Ibom State held on the 9the March, 2019 is hereby affirmed"

Not still satisfied with the tribunal ruling, the petitioner on October 7th,2019 appealed the judgement at the Appeal Court, Calabar.