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| Chief Inibehe Okori (2nd from right) discussing with his lawyer in front of the tribunal |
It was a session of legal fireworks between Chief Inibehe Okori and Godswill Akpabio at the Akwa Ibom State National Assembly Election Petition Tribunal sitting at the Customary Court Dutsen Alhaji on Thursday, June 18th,2015 at the resumed hearing of the petition as the tribunal witnessed torrents of legal argument for and against the motion filed by the former Akwa Ibom state Governor challenging the relocation of the tribunal from Uyo to Abuja.
Akpabio whose declaration as the winner of the March 28th, 2015 Akwa Ibom North West Senatorial seat is being challenged by Chief Inibehe Okori of the APC had on June 11th,2015 filed a motion challenging the jurisdiction of the tribunal to relocate from Uyo to Abuja.
His motion was however countered by counsel to the petitioner, Chief Assam Assam (SAN ) who prayed the tribunal to dismiss the application and direct that the proceedings in the Petition proceed to pre- hearing and ultimately the hearing and determination of same within the time allowed by law.
Drawing his power from Paragraph 12(5) of the First Schedule to the Electoral Act 2010 as amended, Assam said the objection of Akpabio challenging the relocation cannot be an impediment for the petition not to proceed.
Paragraph 12(5) of the First Schedule to the Electoral Act 2010 provides as follows:
"5 A respondent who has an objection to the hearing of the Petition shall file his reply and state the objection therein and the objection shall be heard along with the substantive petition".
Continuing, Assam also drew the attention of the tribunal to Paragraph 53(5) of the same schedule to the Electoral Act which states that:
"(5) An objection challenging the irregularity or competence of an election petition shall be heard and determined after the close of pleadings".
Chief Assam urged the tribunal to rely on the case of OGBENI RAUF ADESOJI AREGBESOLA V. SENATOR IYIOLA OMISORE & ORS (2014) LPELR- CA/AK/EPT/GOV/05/237/2014 to the effect that paragraph 53(5) of the 1st Schedule to the Electoral Act having been amended by paragraph 12(5) of the same schedule, all objections to the hearing of a petition shall be raised as a defence to be heard and determined with the petition.
He told the tribunal that the Court of Appeal in considering these two provisions were of the view that election petitions being sui generis are governed by different rules. An election petition is by nature a very peculiar proceeding which distinguishes it from an ordinary civil proceeding.
Assam went further to explain that the Appeal Court had relied on the case of Abubakar V. Yar'adua (2008) 19 NWLR (Pt 1120)1. In Nwole V. Iwaagwu (2004)15 NWLR (Pt 895)61and held that
"The courts have often harped on the need to do substantial justice in most cases without dwelling much on technicalities... in all election matters, the use of technicalities should be avoided, as technicalities merely help to shut the opponent out. It never resolves basic issues in controversy. Once it is agreed that election petitions are in a class of their own, the handling of the matter too must take a form devoid of legal technicalities that tend to leave the litigants more confused. Boldness of a high degree is required of the electoral tribunal, which must never be seem to shy away from obvious grave allegations".
Continuing, Chief Assam noted that the Court went further to hold that " Paragraph 12(5) came in on the 29th October, 2010 like a Trojan Horse. Paragraph 53(5) itself came into effect on 20th August,2010. Paragraph 12(5) was undoubtedly enacted for a purpose. That purpose was to enable Election Petition tribunals to handle election petitions without undue reliance on technicalities. Although paragraph 53(5) was not repealed, the law is that the provisions of the later enactment amend the earlier so far as necessary to remove the inconsistency between them. Paragraph 53(5) is now impliedly repealed by paragraph 12(5). By Paragraph 12(5) of the First Schedule to the Electoral Act an objection to the hearing of a petition is authorized to be raised in the Respondents reply to the petition.
Chief Assam who prayer the tribunal to consider the said judgement of the Appeal Court observed that Akpabio's application is therefore a storm in a teacup designed to run the hearing clock as regards the 180 days statutorily allowed for the hearing and determination of the petition.
"In the circumstances we urge your Lordships, most humbly , to dismiss the application and refuse the prayers sought by the applicant and direct that the proceedings in this petition proceed to pre- hearing and ultimately the hearing and determination of same within the time allowed by law", he submitted.
Responding, Akpabio's defence counsel said the petitioner only filed a reply and not a preliminary objection and it is not the duty of the tribunal to convert a reply to a preliminary objection for the petitioner.
Assam explained that hearing of the motion is at the discretion of the tribunal as filing of a motion does not necessarily automatically imply that the motion could he heard.
While stating that Akpabio's motion is in itself an attack on the tribunal as it simply implies that he is calling to question the jurisdiction of the tribunal so far as it sits in Abuja and not Uyo but submitted that the tribunal can't hear or argue the motion ignoring Paragraph 12(5) of the First Schedule to the Electoral Act.
Counsel to Akpabio refered the tribunal to the Ibori VS Ogburu case, insisting that the ruling refered to had nullified any attempt to relocate the tribunal outside it's state of origin without the reasons being known to all the parties.
Responding, Assam explained that the circumstances and peculiarities between the Ibori' s case and the motion before the tribunal are not the same. He based his submission on the fact that the Ibori's case was decided based on Section 285(2) and not 285(1) of the constitution whereas the tribunal is established under Section 285(1) of the constitution.
Another significant difference between Ibori's case and this Assam noted is that Ibori's case did not decide that the tribunal cannot sit anywhere outside Delta. The error he noted, was that the factors that led to the tribunal sitting outside Delta was not on record whereas that of the Akwa Ibom State National Assembly Tribunal is on record.
He explained that for the tribunal's decision to be queried, the reasons must be exhibited. In Akpabio's case, he observed, the former governor is saying he does not know why the tribunal was relocated, how then do you query what you don't know, he asked.
He noted that the argument of sitting in Uyo for accessibility and proximity as canvassed by Akpabio are only some of the factors to be taken into consideration and not the only deciding factors as Section 285(1) of the constitution did not exclude the tribunal from sitting in Abuja so long as it is for Akwa Ibom State. He therefore prayed the tribunal to dismiss the the motion and allow the petition move on to pre- hearing, hearing and the determination of the petition.
Attempts by Akpabio's counsel to oppose the June 25th date for both ruling of the motion and commencement of pre- hearing insisting that June 25th should be for ruling alone while a later date be fixed for commencement of pre- hearing was unsuccessful.
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