All four petitions brought before the three-man Anambra State Election Petition Tribunal, headed by Justice Ishaq Bello, between the 19th and 21st December 2013, listed the non-qualification of the candidate of the All Progressive Grand Alliance (APGA), Mr. Willie Obiano, for the gubernatorial election of November 2013 as a major ground to seek his disqualification, which legal luminaries say is “tantamount in law to ordering a fresh gubernatorial election in the state.”
This common aspect of the four petitions drew very expansive media attention in the trial, which just ended in Awka, perhaps because of the issues, the personality, and the twists in the adjudication.
The personality involved is one who, having been declared Governor-Elect by the Independent National Electoral Commission (INEC), the first respondent in three petitions (02, 03 and 04) by Ngige and APC, PDP and Tony Nwoye, respectively, and the Second respondent in Petition 01, brought by Dr Chike Obidigbo, was sworn in as governor two months ago. Political pundits insist that it is “a major weakness of Nigeria’s legal system” to allow someone whose election is questioned, to be sworn in.
The issue-–multiple registration--remains one in which INEC literally bared its fangs in the media, and according to the electoral umpire on 200 lesser Nigerian mortals for the infraction of Section 12 (2) of the 2010 Electoral Act. This electoral offence, INEC claims, was most prevalent in Anambra State.
The twist and turn of the matter was such that aspects of the petition dealing with this non-qualification of Obiano, for multiple registrations, supply of forged documents to the INEC, and supply of false information to the electoral umpire, were struck out by the tribunal in February, for being founded on a pre-election matter, to which the tribunal ruled that it “had no jurisdiction,” even though a Supreme Court decision was cited before the ruling.
It took the intervention of the Court of Appeals, in Enugu, vide its judgment on 15th April 2014, in an interlocutory appeal brought by all four petitioners on the ruling of the lower tribunal, to re-instate that aspect of the pleading in all four petitions, having found that qualification of a candidate in an election is a matter over which the tribunal has jurisdiction, thus paving way for evidence to be led on the segment. Hence, media reports, leveraging on the turn of the matter at that point seemed to have overshadowed other equally weighty and arguably more lethal parts of the petition.
For instance, the petition 02 in the tribunal tenders three different registers issued by INEC on 16th October,13th November and 16th December 2013, to establish that the register used on election day was not the one displayed in the statutory period of 30 to 60 days before the election.
It canvassed issues to show that the register ought to have been issued in print, and not as electronic copies, and led evidence to show that the reason given by INEC for the issuance of another electronic register, three days to the polling day, was untenable. While the INEC claimed they were correcting an age error which underestimated every voter’s age by two years, the petition and the evidence led what was to the effect that INEC did not successfully correct the age, and yet, there were over half a dozen other differences amongst the registers, beyond age.
Such, according to the petition and evidence led included blurred images, wrong description of sexes- male for female and vice versa, missing pages from voter registers- missing particulars, inclusion of inanimate objects, and infant voters.
But indeed one of the most glaring indices that the INEC did not, in the words of Den Nwigwe, SAN Counsel to Tony Nwoye, ‘lay the foundation for any valid gubernatorial election in Anambra State in November 2013, in the light of their pleadings’ was the argument placed before the tribunal, and documents admitted in evidence in the form of over 900 certified copies of INEC form EC 17-Oath of Neutrality.
This bulk evidence showed that the oath which ought to have been sworn before a high court prior to the election, was now purported to have been issued from the office of a named Notaries Public, after the election and many cases were blank in spaces provided for names, meaning that, oaths were ‘executed’ in proxy for non-existent persons after the fact of the questioned election. Some of these actions were taken one week after the election results had been declared.
Yet, the INEC, which is on the receiving end of all these allegations, did not call any witnesses, and did not tender any document beyond the result sheets at all levels of the questioned election. Rather, the electoral body speaking through its lead counsel, one month before the final address was adopted proposed, like the APGA, to rely on the information elicited from cross examination, and the documents before the tribunal.
There was no cross-examination on the INEC EC 17 from INEC, or any other defense lawyer.
Senator Ngige’s lawyers posit that this flaw alone is enough for the election to be cancelled. In their own words, as captured in the final written address adopted before the tribunal last Friday, the team with Rotimi Akeredolu, SAN and Emeka Ngige, SAN wrote and in adumbration before the tribunal fingered this, as a matter that goes to the root of the validity of the election, since all the results declared by officers who had not taken any oath could not stand.
The only visible counter to this argument was the allegation that it relates to a matter that was struck out by the tribunal, but Emeka Ngige corrected the impression, by reminding Onyechi Ikpeazu, Obiano’s lead counsel, who made the assertion that the issue of Oath of Neutrality was not part of the matter taken to the Court of Appeals, and not part of matters struck out by the tribunal, beyond allegations made against the Notaries Public.
The argument is excerpted in the final written address made by the hard-fighting attorneys on behalf of Senator Chris Ngige, and the All Progressives Congress (APC) viz:
‘In paragraph 9 of the evidence of PW 18, Hon. Bona Oraekwe at page 145 of the Petition, it was stated thus:
“In the cause of the inspection, we noticed that the 1st Respondent recruited some lawyers to notarize Form EC 17 to cover up several and multiple infractions of the Electoral Act 2010 as amended relating to the recruitment of such staff, and mutilated and backdated the said documents. We also noticed post-election filling of FORM EC25A, EC25B-Electoral material receipts”
‘This witness identified FORM EC17 tendered and admitted as Exhibits, P342(1-3550, P343(1-287) and P352(1-165) in proof of this point. Some examples will be mentioned. Blank Form EC17s were given to the Notary Public whose name appeared in the forms as Mr. M.O Ogbuoto, Esq, JP to sign without the knowledge or presence of the deponents. None of them was signed by the supposed deponents. It is obvious that the Forms were hurriedly prepared, signed and backdated after the Petitioners had raised the issue in their Petition but unfortunately for the 1st and 2nd Respondents they could not get the officers to come and sign and backdate same.
‘The 1st and 2nd Respondents in Paragraphs 32 and 33 of their Reply affirmed in the positive that their officers “duly executed the requisite forms and depositions” They ,upon request from the Petitioners supplied the certified true copies of the forms purportedly executed and what was given and tendered are Forms that were not executed by the said officers. They did not call any evidence or produce any form duly executed by any of these officers. Meanwhile neither the Resident Electoral Commissioner, Prof Onukaogu-the 2nd Respondent herein nor the Returning Officer, Prof Epoke swore to any Oath as mandatorily required.
‘Section 28 of the Electoral Act 2010 provides:
“(1) All staff appointed by the Commission taking part in the conduct of an election shall affirm or swear before the High Court an Oath of Neutrality as in the Second Schedule to this Act
(2) All Electoral Officers, Presiding Officer, Returning Officer and staff appointed by the Commission taking part in the conduct of an election shall affirm or swear to an Oath of Loyalty and Neutrality indicating that they would not accept bribe or gratification from any person, and shall perform their functions and duties impartially and in the interest of the Federal Republic of Nigeria without fear or favour.”
‘The taking of the Oath is mandatory as the word “shall” is used. The historical development of that section will show how important it is to the lawmakers. In BUHARI V OBASANJO (2005) 13 NWLR (P 941) 1 the Supreme Court held that non-compliance with the Oath is a serious irregularity which is not cured by Section 4(1) of the Oaths Act. Uwais JSC at page 137 G-H said:
“In my view, the provisions of the Oaths Act Cap 333 have no application to the election officials specified by section 18 of the Electoral Act. It follows that the provisions of section 4(1) of the Oaths Act, on the consequence of an omission by a public officer to take any Oath, must be read in the context of the Oaths Act, Cap 333 alone and cannot be extended to any other legislation in general, as was done by the Court of Appeal in this case. Therefore Tabai JCA acted in error when he held that the omission by the electoral officials to take the Oath of Loyalty and Neutrality had been cured by section 4(1) of the Oaths Act cap 333. Consequently the failure to take the oath is another irregularity, the effect of which, on the validity of the election, I will consider later in the judgment.”
‘Despite saying that, the law lord still did not invalidate the election on that ground and he stated his reason, on the basis of how the provision in the Electoral Act 2002 was drafted then. He explained his reason at page 181 par D of the Report thus:
“2.That there was no compliance with section 18 of the Electoral Act 2012 which directs that all the Electoral Officers, Presiding Officers and Returning Officers shall affirm or swear an Oath of Loyalty and Neutrality. However, neither the Electoral Act nor Oaths Act prescribes the Oath of Loyalty and Neutrality. So that it is not known exactly what this Oath is. If the form of the Oath is not known, the question is, how could it have been taken? Would the failure to take an unknown Oath have any effect? I do not think so”
‘The above shows that if the Electoral Act had contained a “form” of the Oath of Loyalty and Neutrality, the Supreme Court would have nullified the election on the basis of the failure of those who conducted the said election to take the Oath. Because of this statement, the lawmakers intending the taking of the Oath to be mandatory and make its non-compliance have effect on the validity of an election ensured that a Form of the Oath is provided in the 2006 and 2010 Act. The mischief that was prevalent was therefore that the court did not place enough weight on the effect of not taking the Oath and this mischief was cured by the new Acts.
‘It is therefore now mandatory that all officers, whether permanent or ad-hoc staff of INEC taking part in the conduct of an election must swear to an Oath of Loyalty and Neutrality before the High Court before performing their functions. By the clear words, all staff include both the Resident Electoral Commissioner, whose duties (as shown by the INEC Manual-Exhibit P414 and Police Interim Report on Anambra election-Exhibit P413.1-3) include responsibility for the day-to-day running of INEC Anambra State, being accountable to the Chairman INEC Abuja, the collection of all election materials and distribution of same to Electoral Officers and also the appointment of all ad-hoc staff including all presiding officers, collation officers and Returning Officers. In this case the Resident Electoral Commissioner and the Returning Officer who declared the 3rd Respondent the winner of the election did not swear to any Oath of Loyalty and Neutrality.
‘The Resident Electoral Commissioner is the 2nd Respondent in this case who abandoned his defence and did not tender any document to prove that he swore to any Oath. As unrepentant as he is, he ensured that the Petitioners would not be furnished with the CTC of the internet downloads from INEC website. Exhibit P461.1-2
‘The intendment of the lawmakers is to ensure the impartiality of the officers used in an election. In NGIGE V OBI (2006) 14 NWLR (999) I, the Court of Appeal condemned the role of INEC in taking sides in the following words
“By its statutory existence, INEC is an independent body with constitutional powers to conduct elections in Nigeria. The function of the commission by statutory provision is one of umpire in the conduct of an election. It should never place itself in a position where imputations may be made that it supports one party or the other in an election…. It is in the interest of the electoral process that INEC and its officials should remain as neutral as possible in election cases as its primary responsibility is to conduct free and fair election regardless of who wins. INEC should remain as an unbiased and impartial umpire. That is its constitutional role”
See also A.G.FEDERATION V ATIKU ABUBAKAR (2007) 4 SC(PT II) 62 AT 249-250.
‘Firstly, we have to ask why should INEC go to the extent of procuring a Notary Public to backdate Forms EC17 which were not filled until after the election? This shows a very biased umpire who has defeated the process of the election and therefore defeated the essence of swearing Oath of Loyalty and Neutrality before conducting the election. In BUHARI V OBASANJO (2005) 2 NWLR (PT 910) 241 @ 505 A-B The Supreme Court said:
“..equity will not allow law to be used as an instrument for fraud. But lest I be misunderstood, any act or conduct-unconscionable- constitute fraud. I am not talking of fraud within the realms of Derry v Peak at common law. No. I am talking of fraud in equity.”
‘In this case, the 2nd Respondent was accused of bias and this was demonstrated by his going out of his ways to commit such immoral or corrupt act of getting a Notary Public to backdate the signing of the Forms. The evidence therefore shows that the Notary Public signed the forms without seeing the deponents who were later asked, after the election had been had, to come and sign the said forms.
‘This failure to swear an Oath of Loyalty and Neutrality by the 2nd Respondent and the Returning Officer renders Form EC8E, Exhibit P341 issued by the Returning Officer and the return of the 3rd Respondent on the basis of that form void.
‘It is also to be noted that, in order to jettison the mandatory provisions of the Electoral Act and illicitly cover up his illegalities, the 2nd Respondent did not direct the Electoral Officers and other officers engaged in the conduct of the election to swear the Oath before the High Court as mandated by Section 28 of the Act. The Oaths swore to before a Notary Public are therefore a nullity, same having been done in a manner not provided by law. See OKEREKE V YAR’ADUA supra; COOPERATIVE AND COMMERCIAL BANK LTD V A.G ENUGU STATE (1992) 7 NWLR (PT.261) 528.
‘The effect of this non-compliance is that every Form EC8A(1) issued by the Presiding Officers, all Forms EC8Bs issued by Ward Collation officers and all Form EC8Cs issued by the Local Government Collation ‘Officers and the Form EC8D issued by the State Collation Officer are null and void. This non-compliance affecting all these officers are extremely substantial and has substantially affected the entire total of 425,254 votes recorded as valid votes in the election. The effect is that the entire votes become a nullity.
The election should therefore be nullified’.
Whether the tribunal agrees or disagrees with this submission is a matter that lies comfortably in the womb of qualified time before 16th June, for Obidigbo’s petition; before 17th June for Senator Ngige’s and before 18th June for PDP and Nwoye’s, going by the constitutionally stipulated election petition lifespan of 180 days for the determination of every election petition from the date of filing.