Posted by By PROFESSOR I. E. SAGAY, SAN on
The judgment in the governorship election petition brought by Onyema Ugochukwu, the PDP candidate against Chief T.A. Orji, Governor of Abia, the PPA candidate, which was delivered on 25th February, 2008, has quite rightly, generated considerable controversy and criticism.
The judgment in the governorship election petition brought by Onyema Ugochukwu, the PDP candidate against Chief T.A. Orji, Governor of Abia, the PPA candidate, which was delivered on 25th February, 2008, has quite rightly, generated considerable controversy and criticism.
The problem with the judgment, unlike that of the Presidential Election Tribunal, was not lack of thoroughness or superficiality. No. The Abia State Tribunal was thorough and painstaking and, in fact, detailed in its consideration of the issues and authorities. What went wrong was its inexplicable, almost perverse decision, contrary to its findings on one issue, and failure to give proper consideration to what constitutes a secret society and resignation in the other issues.
There are four major issues in this case, namely, (i) allegations of election malpractices, (ii) Ugochukwu's claim to have scored the highest number of votes, (iii) allegation that Chief Orji did not resign at least 30 days before the election and (iv) that he was a member of a secret society.
Election Malpractices
The Tribunal's consideration of alleged election malpractices, was very thorough. The allegations were legion and they included stuffing of ballot boxes, over voting, partisanship of election personnel, manipulation of election results through arbitrary entries into election result forms, thumb imprinting of hundreds of ballot papers by the same persons, polling agents being compelled to sign results against their will, etc.
All these allegations were contained in the witness statement of Ugochukwu, first plaintiff's witness. Unfortunately for him, he could not sustain his allegations under cross-examination. He could not state how many ballot boxes were stuffed, he did not remember the number of polling units affected by over-voting, he could not say whether or not the adhoc staff were recruited by the PPA or INEC, he could not state the number of polling units affected by arbitrary entries of results by the same persons, he could not remember the number of persons engaged in the imprinting (neither did he subject the ballot papers to forensic examination). Indeed, the petitioner could not substantiate any allegation under election malpractices.
He admitted that he did not himself observe the irregularies and frauds and that he went straight to his home after voting and remained there for the duration of the election. He also admitted that the information on election malpractices were given to him by his agents, who in turn received the information from their party's polling agents and supervisors. Yet none of the people was produced to give direct evidence of what they had observed.
In dismissing the allegations of election malpractices, the Tribunal, held that the petitioner was unable to substantiate his allegations and that he failed to adduce cogent and verifiable evidence in support of his claims.
The petitioner's claim in this respect was plagued by two other problems.
(i) The witnesses he called did not testify favourably for him.
(ii) Second, the standard of proof which required proof that malpractices substantially affected the result of the election, was not met.
Majority votes
On the issue whether Ugochukwu scored a majority of the votes cast during the elections, the petitioner had collected and tendered his own independent set of election results. Not only that, he tendered results from all the 188 wards in the state. With regard to 90 wards in which he was unable to obtain results, he produced figures based on projections from the 98 wards in respect of which he was able to produce results. The idea was that on the basis of the figures from such wards, he could project what he ought to have scored in the 90 wards in respect of which he had no figures.
The Tribunal rejected these results tendered by the petitioner because they were based on hearsay and projections. The makers of the documents ought to have tendered the documents and be subjected to cross-examination. On the contrary, the plaintiff, as his own first witness, admitted receiving the said results from his party agents. He was thus not present during the making of the documents. He was, therefore, tendering hearsay evidence.
The petitioner should have called the witnesses capable of testifying as to the contents of the documents since he was not present when the documents were made. 'If a party fails to call the party agents or presiding officers who were privy to the preparation of the documents, such party does so at his own peril and to the detriment of his case before the Tribunal, as in the petition before us," said the Tribunal.
So, on the two issues of election malpractices and the issue of who scored a majority of votes, the Tribunal dismissed the allegations of the petitioner, and the election results thus stood undisturbed.
Resignation
The well reasoned and methodical arguments and conclusions noted earlier, appear to have been abandoned when the Tribunal came to the issue whether Orji and Akomas (The Deputy Governor) had resigned at least 30 days before the election day. The Petitioners alleged this in their petition and in their witness statement on oath. The respondents: Orji and Akomas denied it in their own reply and exhibited their letters of resignation to buttress their case.
The Tribunal concluded that the claim of non-resignation had not been rebutted by the respondents because they did not file witness statements denying the allegation, and thus make themselves available for cross-examination.
The main error of the Tribunal in this regard, is that it placed the respondents who were merely denying an allegation, in the same position as the petitioners who were alleging and thus had the duty to prove their case. Of course, the petitioner who was basing his case on non-resignation had to make a witness statement on Oath in support of his case. But the respondents who are merely denying this did not need to prove anything and thus did not need to file a witness statement on oath on that point. They exhibited their letters of resignation, whose authenticity the Tribunal dismissed without any cogent reason. The Tribunal derided the letters on that grounds that they were not stamped by the receiving authority, to show that they were received and including the date of receipt.
The absence of those two factors cannot render the letters useless as evidence, particularly as the petitioner admitted that he had no access to the service records of Orji and Akomas. In the absence of such a cogent indispensable evidence, how was the petitioner able to satisfy the court that the first two respondents did not resign, at least, 30 days to the election? Other than allegations contained in their witness statements, the petitioners did not provide any evidence of non-resignation. Within the Nigerian context, a politician who has formally resigned can still remain in his official residence and drive in government cars, so long as the party to which he belongs is still in power as it was in Abia State. The Tribunal ought not to have based its decision on such superficial evidence.
In any case how can a serious institution like a court or Election Tribunal rely on such ‘gossip' evidence in coming to judgment? To be seen in a government vehicle is no evidence of being a public servant. Many private citizens ride in government vehicles. As for the claim that the first two respondents were still living in government accommodation fewer than 30 days to the election, this is laughable. I know of retired public officers who still live in their former official accommodation, years after retirement. In any case, in the Nigerian environment, it is not realistic to expect a retired public officer to vacate his official accommodation within 30 days of retirement.
This type of evidence was really too trivial, petty and ridiculous for the Tribunal to rely on.
On the question of the first respondent not being available for cross-examination, the petitioner should have subpoenaed him to the witness box to be cross-examined on the letter of resignation.
Membership of a Secret Society
The finding that the governor and his deputy were members of a secret society, is particularly strange. Assuming that Orji visited the Okija shrine for any purpose, the Tribunal would still have been confronted by a major problem. 'What is a secret society?" Is a shrine the centre of an African traditional religion, the way a church, a mosque and a synagogue are to Christians, Moslems and Jews? A Christian or Moslem may have a feeling of revulsion about someone going to an African traditional shrine of one of the traditional gods. But our moral disapproval cannot constitute a legal bar or prohibition.
Okija shrine is well known. It is the centre of a traditional religion. It is not the headquarters of a secret society. To ban anyone from holding an elected office for worshiping an African traditional god at its shrine, could constitute a violation of section 42(1) of the 1999 Constitution which prohibits discrimination, based on one religion. Section 42(1) (a) particularly provides as follows:
'42. - (1) A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person -
(a) be subjected either expressly by, or in the practical application of, any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinion are not made subject."
Also, Section 10 of the same Constitution provides that the Government of the Federation or a state shall not adopt a religion as state religion. So, all religions are equal before the constitution.
All these constitutional provisions should have acted as a caution or restraint on the Tribunal. It should have dwelt extensively on the meaning of secret society, before determining whether or not Okija shrine, is a secret society, which is caught by Section 182 (1)(h) of the constitution, or a centre for a traditional African Religion, which is protected by Section 42(1) of the same constitution. The failure of the Tribunal to do this constitutes a grave omission and defect in the judgment.
Declaration of Ugochukwu as Winner of the Election
Perhaps the most disturbing aspect of this judgment is the declaration of Ugochukwu and his running mate, governor and deputy governor respectively. This same Tribunal had earlier in the same judgment upheld the results declared by INEC after the election, namely, 265, 389 votes for Orji and his running mate and 136, 858 votes for Ugochukwu and his running mate. This decision not only flies in the face of their own finding, but is a violation of section 179(2) (3) (4) and (5) of the constitution which prescribes that only a person who has the highest number or majority of votes cast in an election could, in addition to satisfying the requirement of spread, be declared winner.
In fact, by Section 179(5) a candidate who scores a majority of the votes can be declared winner without the requirement of spread. But under no circumstances can a loser of an election be declared winner, even if the winner is disqualified. The only avenue open to a Tribunal in such a circumstance is to nullify the election and order a fresh one.
In fact, the Tribunal admits this and cites a Court of Appeal case, Bayo v. Njidda [2004] 8 NWLR (Pt. 876) 544 to buttress it.
Of course, if an Election Tribunal finds that the declared winner obtained some of his votes fraudulently, and if after the subtraction of the fraudulent votes, the second candidate's votes now becomes the highest, he, the runner-up, can be declared winner. But that is not what happened in this case. The Tribunal expressly found that Governor Orji and his running mate Akomas scored the highest votes 265, 389 to Ugochukwu's votes, 136, 858. Having made this finding, the same Tribunal could not declare the loser, winner of the election. This is a gross violation of the constitution.
Luckily, the right to appeal will create an opportunity for re-opening this case and exposing these serious shortcomings and gross errors of the Abia Tribunal.