By Nathaniel Ikyur
Benue State Governor Samuel Ortom on Monday, September 7th 2015 asked the Benue State Governorship Elections Petitions Tribunal to dismiss the petition challenging his election instituted by the defeated governorship candidate of the PDP, Rt Hon Terhemen Tarzoor in the April 11th governorship elections.
The governor spoke through his lead counsel, Chief Niyi Akintola, SAN when the Tribunal resumed proceedings to take written addresses from both parties.
He told the three-member, all women tribunal that the petition in it’s entirety is “incompetent, frivolous and lacking merit” and as such should be dismissed.
But before the Tribunal properly kicked off at about 9:43am, a mild drama ensued. Chief Niyi Akintola, SAN, lead counsel to Governor Samuel Ortom drew the attention of the tribunal chairman, Elizabeth Karatu how the court room was becoming uncomfortable for the lawyers. He sought that more space be made available for the legal teams since according to him, it was their “market.” The Tribunal Chairman too did not hesitate and immediately granted the request.
The following dialogue ensued:
Akintola: – We are feeling very uncomfortable that other people are sitting while lawyers are standing up. Those without business should leave so that lawyers can sit. This is our market.”
Karatu – (Tribunal Chairman reacts) It’s a good observation. If you have no direct business in court please leave. (Proceedings were then held up for about 5 minutes)
Karatu: We will give one hour to the parties to move for the adoption of the written address.
Akintola – We will prefer 30 mins for each of us. I assure my Lords that we will keep to time.
Karatu – Ok, you move your preliminary objection and adopt.
When Akintola took the centre stage, he admonished the Tribunal to “adopt his final written address and all the processes he has identified in the petition. We submit that the petition on its face value is incompetent. The petition on its face was signed but the person who did the signing is unknown to law.”
It was the position of the governor’s counsel that given the provisions of Sec 2 (i) of the Legal Practioners Act Laws of the Federation, it is clearly spelt out that “a legal practitioner who signed must be ticked,” citing the Supreme Court ruling in 2012 in Bala vs Diko.
On the face of the paper a lawyer signed but not ticked. Also in a pre-hearing notice Exh R18 (a) before your Lordships also suffered the same fate. The petitioners’ answers to our preliminary objection also suffered same fate. On that score alone, your Lordships should dismiss this petition.
He maintained that the issues he has raised “it’s not procedural. It is a fundamental issue. The petitioner, I submit has made heavy reference of the Court of Appeal Makurdi and Abuja Divisions and the cases decided. I stand to say it does not represent the law.”
It was the submission of Akintola, SAN that the two authorities the petitioners cited are not similar to the situation in the extant case.
On the Dangana vs Usman which the petitioners referred to very often, Akintola argued that a look at that case, shows clearly that the Supreme Court has no jurisdiction to entertain Appeals on National Assembly Elections petition but Court of Appeal. The confusion of the Court of Appeal in Abuja and Makurdi is that the petitioner failed to differentiate between CAUSE of action and LOCUS STANDI. Even within the Court of Appeal, there is confusion.”
According to Akintola, the “Makurdi Court of Appeal decided the case referred to by my learned brother in Tsegba vs Senator Akume delivered by Makurdi CA 7/1/2012. The first ground of this petition is same as what is obtained in the Kenneth v Daman. Happily enough we have Supreme Court decision on all these and they have not set aside their decision on the matter as in Kuffor vs Dickson before your Lordships. Governor Ortom’s lead counsel continued: “The point I’m making is that in the case of Dangana, the petitioner also referred to Wamba’s case. In Wamba’s case, the Supreme Court advised counsels to stop confusing the court. In Wamba, it was a case of substitution so it has no bearing on this matter.
DOES TARZOOR’S CASE HAVE MERIT?
On this score, it was the reasoning of Akintola, SAN the question to determine is whether the petitioner has proven it’s case. Hear him:
“Let’s look at Exh. P4, P6, P7 and the evidence of Pw1 and also the evidence of RW3 as shown in Exh. R16, R18 R18(a) & (b). My submission is that it was an ambition against interest. He then urged the Tribunal members to refer to page 31 of records of proceedings.
RELIEFS SOUGHT BY TARZOOR:
Akintola was emphatic when he touched on this. And he did not mince words. In his words, “I go to the reliefs by sought by the petitioner. My Lord, there is no grantable relief being sought. See 140 (2) of the Electoral Act 2010 as amended and the reliefs being claimed by the petitioner. That section is clear that when you are complaining that one is not qualified to contest, you ask for nullifaction and not that you be declared the winner. To further buttress his arguments, Akintola referred the Tribunal to the 2015 gubernatorial elections in Lagos state between Agbaje vs Ambode & others and in the case of PDP vs INEC & 4 Others in CA/L/762A/15 delivered on 26/8/2015. The matter was dismissed when evidence were taken. He pointed out that the “laws allow you to nullify and not declare a winner” citing Ige vs Olunloye (1984) Vol. 15 NSCC P.104@ p.107 para 20. The governor’s lead counsel’s argument were that “the law court is not a father Christmas and hence does not give what is not asked for. No court grants reliefs of what not asked for. I asked you to dismiss this petition, stressing that the petition “is frivolous, lacking in merit and has been abandoned long time ago.”
Sebastian T. Hon, SAN is the counsel to the 2nd Respondent, the APC. Hon addressed the Tribunal after counsel to the 1st Respondent and Benue state Governor, Samuel Ortom, Chief Niyi Akintola, SAN had given reasons why Tarzoor’s petition should be discountenanced. He identified his clients further amended reply to the petition filed 8/7/2015 and also their Motion on Notice challenging the jurisdiction of the tribunal dated and filed on the 24/6/2015. The APC’s lead counsel also identified his final written address date, his reply on points of law and adopted all. With these, he urged that the petition be dismissed.
The Senior Advocate went on to argue that since they also filed a Motion on Notice, he prayed the Tribunal to grant him leave to move the same. The tribunal chairman granted same immediately and Hon went on:
“My Lord, before you is a Motion on Notice praying for a dismissal and striking out in the alternative. The motion is supported by 8 grounds and 13 paragraphs affidavit deposed to JI Tyoapine Esq. We’ll rely on all the grounds and pleading attached therein. The most portent defense for us is premised on the principles of res judicata. We urge you to hold it. It is settled beyond per adventure on the fact that both the political party and the person being sponsored are one and the sane. See S221 of the constitution 1999 as amended. This provides that there’s no independent candidature. This is further fortified in the case of Azubuike vs PDP where the court held inter alia that the political party contest along the candidate and the interest of one cannot be separated from another. In this case, the Supreme Court held that what affects one affects the other.”
Hon went further to argue that “the decision of the Federal High Court Makurdi in Ex R15 which dismissed the same case by the PDP based on the same complaint definitely affects the fortunes of the petitioner. See in Okorocha vs PDP (2014 7NWLR) Pt 1406, PW1 @262, para 5. When one of the grounds sustained by the Supreme Court is that the petitioner Ararume was part of an earlier one. The Supreme Court upheld the objection raised and granted the plea of res judicata to the effect that the party and the candidate cannot be separated. The other emphasis we want to lay is on the finality of the dismissal of that suit at the Federal High Court. I emphasis para 62 of our motion on notice and the authority cited therein Eronini vs Eheuko’s case. It was a Supreme Court decision. The formal judge dismissed. The Supreme Court held that the dismissal order constituted res juicata. That is exactly what happened here. Exh R15 is on all force in the present circumstances.”
Giving reasons to substantiate his argument on the position of res judicata as it relates to the symbiotic nature between the party and its candidate Tarzoor, Hon maintained that the PDP’s suit which was dismissed by the Federal High Court in Makurdi, forms a strong point why the tribunal should dismiss the petition. According to him, “in matters commenced by originating summons, oral evidence is not canvassed. A dismissal of such a suit constitutes a final judgment of the said suit.
He added that after the APC and the 1st Respondent had filed their written addresses in the suit the PDP had instituted at the Federal High Court Makurdi, the PDP, sensing defect in the process, filed a withdrawal but it was dismissed. The SAN went on:
“The trial judge looked at the affidavits presented and dismissed the matter. In attacking our plea of res judicata, the petitioner placed heavy reliance on Court of Appeal decisions which in themselves are inferior to Supreme Court decisions.
TARZOOR AND LOCUS STANDI
“On Locus standi, the petitioner celebrated authority in Dangana’s case which is distinguishable in law from the present circumstance. Refer to Yar’Adua vs Yandoma 2015 ALL NWLR Pg106 315 @ where the court held that nomination resides within the political party. The court has no business to look into the process of emergence of a candidate. Any person that did not contest that election has no locus standi. I submit that and law has moved from the Obita Dictum in Dangana’s case. The opinion of the courts held that power of nomination of a candidate is an exclusive power of the party.
“Also look at Daniel vs INEC , (2015)9 NWLR pt 1463, pa 113@153-154 where the court held that since the appellant did not participate in the re-run primaries, he did not have any power to challenge its outcome. In Osakwe vs FCE Technical Asaba where there are two conflicting judgements of the Supreme Court on the subject matter, the later takes precedence.
ST Hon submitted that “the petitioner did not prove anything to merit a defense. The entire petition is based on the allegation that the 1st Respondent was not qualified to contest and they are not contesting the votes scored at the election of April 11th, 2015.”
The APC lead counsel at the Tribunal further submitted that “the only eyewitness to the APC primaries, PW1 who tendered Exh P7 destroyed the case of the petitioner completely. He gave evidence that he did not sign Exh P7 against his name. Further on, the witness gave evidence that the congress was to hold on 10th and 11th December 2014. But under cross examination, he admitted that he left on the 10th December, 2014. Meanwhile, the documentary evidence shows that the APC held its primaries on 11th December after witness left.
“My Lord, before the enactment of sect 87(9) of the Electoral Act 2010 as amended, all courts up to the Supreme Court refused to interfere in the nomination process by parties. It was only when Sec 87 (9) was introduced that assumed jurisdiction on such an issue. To the extent that jurisdiction is limited to contestants within the same party. We should therefore not mix it up. As submitted by the petitioner, he is not a member of the APC and did not contest in the APC primaries, hence has no locus standi to invoke provisions of the Electoral Act hiding under the guise of the constitution. I therefore urge your Lordships to hold that Sec 177 (c) of the constitution does not apply in this matter.
3rd Respondent Address:
The 3rd Respondent, the Independent National Electoral Commission, INEC was represented at the Benue Governorship Elections Petitions Tribunal by Prof Tony Ijohor, SAN. Ijohor was also emphatic in his address to the Tribunal. After his preliminary submissions, he urged the Tribunal to grant him leave to adopt “all of these processes” and prayed their “Lordships to dismiss the petition.” INEC’s preliminary objective is comprehensive. It’s made up of 32 pages while the Commission’s reply on the points of law is just 13 pages.
In Prof Ijohors submission, “by virtue of sect 140 (2) of Electoral Act 2010 where there is no prayer for fresh election in the reliefs of the petition, that therefore renders the petition incompetent. The court has no jurisdiction to grant the relief sought. I wish to state that the Supreme Court has given effect to section 140 & 141 in the appeal NO: SC/164/2012 in Orker Jev vs Sekav Dzua Iyortyom delivered on 27th February, 2015. The effect that there has been no prayer for fresh election, the court could not grant the reliefs sought. Hence court has no jurisdiction to grant a fresh election.
“It is also seen that the couching of the reliefs and grounds of the petition, no facts were presented to support grounds 2 and 3 of the petition. And the grounds therefore are incompetent and therfore should be struck out. The petitioner cannot sever pleadings.” Subsequently, INEC submitted that the petitioner cannot seek solace under severance of pleadings without a formal application to that effect. See Gundiri vs Nyako (2014)2NWLR Pt 13 91, Pg211 @ 284-285 per Odili JSC.
To the lead counsel for INEC, “the bulk of the evidence of PW3 is based on inadmissable hearsay as he was not at the primaries of the APC. He stated he was not at the primaries so we can’t tell where he got his evidence.”
Another disservice according to Ijohor, which the position of PW1 did damage to the petitioners case was his unstable line of answers in the course of cross examination. In the INEC’s counsel’s words, “we submit that the witness having given evidence that severely damaged the petitioners petition, if they want to disown him, they ought to have applied to treat the witness as a hostile witness, failing which the petitioner is bound by the evidence of that witness. See Odi vs Iyala (2014) ALL FWLR pt 207, Pg106 570 @572. It is therefore my humble submission that the petitioners have to swim or sink with their star witness Pw1. It is also our submission that INEC is not bound to attend or monitor a party primary election. INEC has the discretion to attend and not by law. See section 85 (2) electoral Act 2010). Under section 86(2) Electoral Act where INEC is not satisfied it can seek clarification from a political party. No evidence has been provided by the petitioner whether directly or indirectly as to any querry of the primaries of the APC held on 11th December, 2014. INEC has not issued any queries to the APC. Infact under S. 86(3) where INEC requires information and same is not given, INEC can prosecute the party or an individual.
“We urge your Lordships to invoke the presumption of regularity in favour of the official acts of the 2nd Respondent with reference to the nomination of the 1st Respondent in line with 167 and 168 of the Evidence Act. By the facts pleaded before you, the burden is on the petitioners to prove their case. This burden has not been discharged at all to prove this petition. On the contrary we have provided adequate evidence before you that the first respondent was qualified to contest the election, as a member of the APC. We are unbiased umpire. He is a member of the APC and was sponsored by the APC. That is my humble submission.”
Adebayo Adenipekun, SAN, counsel to Terhemen Tarzoor after his preliminary address adopted all the processes he had filed in the course of the case and urged the Tribunal “to grant our reliefs in the petition,” pointing out that “the written addresses are very copious as already alluded my learned silk.”
He began: “It is now settled that a party who participate in an election is cloth with Jurisdiction and locus standi to approach the Tribunal to seek reliefs under Sec 138 EA 2010. Precisely 138(a) which deals with qualification to contest.
CAUSE OF ACTION
“My lords, the cause of action in this case arose out of the conduct of election on the 11/4/2015. I submit with all respect that the petitioner has not taken any action outside of the present petition. This is doing so as provided in Section 138(i) EA. The election petition is ‘sui generis.'(this translate to mean it’s in a class of its own)…
Tarzoor’s counsel went on to butress his arguments thus:
“The matter being referred to at the Federal High Court was a pre-election matter. Section 138(i) is a special provision that awards election petition ‘sui generis’. The sub-section highlighted played out in Ogboru Vs Ibori, 2004, 7 NWLR, Pt 871, Pg192 @pg 214-217 where the provision of Sec 138 (I) was applied relating to disqualification. When the case of the petitioner is to contest the validity of the election, the venue is the electoral tribunal.
“The star witness, RW3 (Barr Bala Dala) who allegedly monitored the nomination of the 1st Respondent admitted on oath that the nomination was held on 11th December 2014 when delegates were still in Lagos for the presidential primaries of the 2nd Respondent. PW3 (Dr Cletus Tyokyaa) stated on oath that he was together with the 1st Respondent (Gov Samuel Ortom) on the 9th of December, 2014 and therefore the 1st Respondent couldn’t have been in Gbajimba on the 9th of December to be registered as a member of the APC.”
This position, the counsel to Tarzoor claimed was not contradicted.
According to Adenipekun, “the 1st Respondent (Gov Samuel Ortom) on his own stated that the second Respondent (APC ) did not conduct primaries.” (This too Akintola dismissed as false inferences when he replied on points of law.)
SIGNATURE OF PERSONS UNKNOWN BY LAW:
There has been arguments to the effect that Titus Hyundu Esq, one of the counsels on the petitioners team who signed the processes did not tick same on the list of counsels representing the petitioner which in itself renders the petition incompetent. So when Adenipekun was responding on the issue of signature on the Processes of the petitioner allegedly signed by persons unknown to law, Counsel referred the Tribunal to “para 4 sub 3 of the 1st Schedule to the Evidence Act that the law requires that the petition be signed by the petitioner or solicitors at the foot of the address. That under cross examination of RW3, he identified ExhR20, R16, R18A and R18B and identified the persons who signed the documents.” He also referred the tribunal to Adighije vs Nwaogu 2010, 10 NWLR, pt 1209, Pg419 @476 where the Court of Appeal held that “the issue of who signed a process should be resolved at oral testimony and not at address stage.” Similarly, Adenipekun cited ECO International Bank vs NULGE, 2014 NPELR, 241 pg 71; Atanda vs INEC delivered on 7th August, 2015. He canvassed that the petitioner did not abandon any relief. He made reference to Sec 140 of the Electoral Act and challenged the votes scored by the 1st Respondent referring to them as wasted votes. He submitted that the 1st Respondent (Gov Ortom) was not sponsored by the 2nd Respondent (APC).” He summed up that “the political parties are under obligations to notify the Independent National Electoral Commission, INEC not later than 21 days on the date, venue and time of the primaries, which according to the petitioners para 19 of the petition, the 1st Respondent did not discharge their burden.”
REPLY ON POINT OF LAW BY NIYI AKINTOLA, SAN, COUNSEL TO 1st RESPONDENT
Replying on point of law, the 1st Respondent’s counsel relied on the authorities of Amaechi vs INEC and submitted that it’s the party that contests election and not the candidate. He further distinguished qualification with S.87 and S 138 of the Electoral Act and relying on the authority of Ogboru vs Ibori 2008 5 NWLR pt 1080, pg 227@ 318-319. Counsel submitted that “qualification under S 87 sub (9) cannot be brought before the election tribunal.” It was Akintola’s submission that “a candidate who was not screened, cleared or participated cannot challenge the validity of that primaries.
That is the prerogative of the political party to produce a candidate.” He relied on the authorities of Awuse vs Odili 2005, 16 NWLR pt 952, pg 416 @500 where the court held that “a petitioner is to succeed on the strength of his case and not the weakness of the defence.” Consequently, Akintola urged the court to “expunge the DVD tendered by the petitioner hence PW3 (Dr Tyokyaa) was not the maker of same”. See also the authority of Flash Fixed Odd Ltd vs Akatugba ,(2001)9 NWLR, pt 719, pg 46 @ pg 43.