A'IBOM GOV TRIBUNAL'S VERDICT: MANY BATTLES AHEAD

Akpabio
Since the Akwa Ibom State Election Petitions Tribunal confirmed Governor Godswill Akpabio as the winner of the April governorship poll, divergent reactions have continued to trail the judgment, indicating that the legal tussle is not over yet, ETIM EKPIMAH reports.

From all indications, people of Akwa Ibom State have not seen the end of a petition filed by the Action Congress of Nigeria, challenging the victory of Governor Godswill Akpabio at the April governorship election. The state Election Petitions Tribunal Chairman, Justice Adam Onum, had in his judgment on July 18, 2011 confirmed Akpabio's election and dismissed the ACN's petition. After the tribunal delivered the judgment, both parties gave opposing reactions.

Obviously taken aback by the judgment, the ACN, through his counsel, Prof. Yemi Osibajo, said the judgment did not reflect the true situation in the poll. Osiyemi, who was represented by Mr. Ajibola Basiru, when the tribunal gave its judgment, accused it (the tribunal) of injustice. Bashiru added that the party was still inspecting electoral materials and had discovered monumental fraud which characterised the election.

The counsel said the party had committed millions of naira into the case and it would not be possible for it to abandon the petition. He stated that it was against all logics to confirm the election of Akpabio as the governor when substantive judgment had not been given, noting that the ACN had the option of pursuing the case up to the Supreme Court.

According to him, the tribunal erred in dismissing its petition in its entirety, following the submission of Akpabio's counsel, Mr. Bayo Ojo, and the lead counsel to Independent National Electoral Commission, Dr. Onyechi Ikpeazu, SAN, that its petition failed to comply with the rules guiding the filing of petitions as enshrined in the 1st schedule of the Electoral Act, 2010 (as amended).

Also the ACN Acting Chairman in the state, Dr. Amadu Attai, opined that the judgment which was based on pre-hearing notice was at variance with the existing law and jurisprudence in the country.

He said, 'The only ground upon which the tribunal came to its decision is that we, as petitioners, did not seek leave to bring the application for the tribunal to issue pre-hearing notice.

'While our party, the ACN and its candidates, who are co-petitioners hold and will continue to hold the judiciary in high esteem, we consider the ruling of this tribunal to be strange and in total variance with existing law and jurisprudence on issuance of pre-hearing notice,' Attai said.

But the Peoples Democratic Party and the governor were elated by the judgment, which they described as a reflection of the people's wish. The counsel to Akpabio, Mr. Duno Adeyele, SAN, who represented the lead counsel, Mr. Bayo Ojo, hailed the judgment. He stated that the petition was dead.

Adeleye said, 'You can see that the ruling was well-researched and all issues raised were touched by the tribunal and well-conserved and thereafter they came up with their conclusions.'

He, however, added that the ACN had the right to appeal the verdict of the tribunal, though he assured that the PDP would still be victorious at any level the case might be taken to. Adeyele stated that by the verdict, Akpabio's victory at the election is upheld and there was no further petition against him, INEC or the PDP.

The Commissioner for Housing and Urban Renewal, Mr. Emmanuel Enoidem, who expressed satisfaction at the ruling, said, 'The will of the people have been upheld. There is no amount of lies, blackmail and intimidation that can actually overtake the will of the people.'

Lawyers and political analysts have differed on the judgment. A legal practitioner with Victor Iyanam & Co., Ubong Offiong, said the tribunal had a right to rule on preliminary objection. He stated that if the preliminary objection had been sustained, the case would have continued.

Offiong averred that the tribunal had the power to also confirm the re-election of Akpabio since it was also a matter standing before the tribunal for confirmation. He said the ACN has a right to appeal the case up to the Supreme Court.

However, a political scientist, Abia Affiong, described the judgment as a mirage. He stated that ruling on pre-hearing notice was not legal, adding that the tribunal had no power to confirm the re-election of Akpabio since a substantial hearing has not been had in the case.

The tribunal chairman had in the ruling explained that the tribunal had made an order for the pre-hearing session in the petition upon an ex parte application filed by the petitioners for the purpose.

He said, 'On July 7, 2011, Dr. Ikpeazu, SAN, filed a motion on behalf of the Independent National Electoral Commission (4th respondent) for orders pursuant to paragraphs 47(2) and 54 of the First Schedule to the Electoral Act, 2010 and Order 26 rule 11 of the Federal High Court (Civil Procedure) Rules 2009 (as amended) for this tribunal to discharge and set aside the order for the pre-hearing session. The motion also seeks for an order pursuant to paragraph 18(3) of the First Schedule to the Electoral Act, supra, to dismiss the petition as an abandoned petition.

'The grounds upon which the motion is predicated are that the application for the pre-hearing session had been made ex parte and outside of the time limited by statute, which time the motion also evinces could no longer be extended.

'On July 11, 2011 a similar motion was also filed on behalf of Akpabio (1st respondent) and Nsima Ekere (2nd respondent). The prayers of this second motion are substantially similar to those in the motion filed on behalf of the 4th respondent.

'Suffice it to say however that the grounds of this latter motion are set out on the face of the motion papers as follows: (1) that no application known to law was ever filed before the pre-hearing notice dated 29-6-2011 was issued and served in the petition, (2) that no application on notice was ever served on the 1st and 2nd respondents/applicants for issuance of pre-hearing notice, (3) that the proceeding of 5-7-2011 granting the motion ex -parte was without jurisdiction and therefore a nullity, and (4) that the time within which an application for issuance of pre-hearing notice in the petition has expired and cannot be extended.'

Citing Prof. Osinbanjo, SAN, Onum declared that the motions were belated by reason of Paragraph 53(2) of the First Schedule to the Electoral Act, supra.

He said the motions were filed after the respondents had taken fresh steps in the petition upon becoming aware of the alleged irregularity complained of in the respective motions.

The judge added, 'In other words, that the respondents had filed necessary processes in readiness to participate in the pre-hearing session before filing the motions to seek to set aside the order made ex parte for the session.'

He further submits that for any party affected by an order made ex parte to come under Order 26 rule 11 of the Rules of the Federal High Court, supra, he must first be served with a copy of the order.

He stated that the type of order contemplated under paragraph 18(1) of the First Schedule, supra, was not such as ought to be served on the party to be affected by it. He noted that based on the foregoing, Ojo together with Mr. Anumonye for the 4th respondent, submitted in paragraph 2.15 of his reply submission to the effect that his clients were entitled to resist the order within the law since it had obviously affected their rights.

Onum, had in his inaugural speech, stated that the tribunal's decisions would only be influenced by hard facts in legally admissible evidence before it, and not from comments about the fairness or otherwise as propagated by the news media.

For the ACN, the road to justice is still long. The party has appealed the judgment, while the governor has vowed to defend his victory, which he believes, was fairly obtained.