Akpabio suffers judicial defeat, tribunal dismisses ex-governor's preliminary objection against Okori

As early as 9am the courtroom was filed to capacity. Counsels, APC supporters, journalists, tribunal staffs all took their seats in preparation for the commencement of the day's proceedings. The main agenda was the tribunals ruling on the two preliminary objections filed by former Akwa Ibom state Governor, Godswill Akpabio of the People's Democratic Party (PDP) against his rival, Chief Inibehe Okori of the ruling All Progressives Congress (APC).
The ruling earlier scheduled for 9am was rescheduled for 12.30pm. The shift in time further heightened the tension within the court premises especially against the background that it was initially meant for ruling on Monday.
After hours of anxious waiting, the judges drove in at about 1.55pm and at exactly 2.36pm, the three man panel of Judges comprising the Chairman, Hon Justice Goddy Anunihu, Hon Justice A. O. Adebusoye and Hon Justice A. M. Lamido walked into the courtroom and took their seats to commence the business of the day. For moments, a pin drop silence enveloped the court, thick enough to be cut with a butcher's knife.
Delivering judgement , Chairman of the tribunal, Hon Justice Goddy Anunihu, in his ruling said Akpabio contending that Okori was not a candidate of the APC is premature to decide now at this stage and therefore the issue of Okori not having the locus standi would be considered as the trial progresses.
He maintained that Akpabio's claim of Appeal Court rulings on the issue of Oath of witnesses are contradictory but there was significant substantial compliance with Okori's witness statements as deposed and therefore struck out the preliminary objection.
On Akpabio's claim that Okori's witness statements were not deposed before a competent authority, the tribunal ruled that the stamp and signature used by the secretary of the tribunal clearly stated that she was acting as Commissioner of Oath and therefore Akpabio can't fault Okori's witness statement.
Reacting to the ruling, Akpabio's counsel, Dr. J. O. Ogunyomi , while thanking the tribunal for the ruling however pleaded that trial and witness testimony should be deferred till next day. While counsel to Okori, Chief Assam Assam (SAN) said he was ready for trial, counsel to INEC, S. N. Mbaezue also pleaded that trial be postponed till next day.
The tribunal therefore ruled for witness testimony to begin July 29.
It could be recalled that the former Governor had filed a preliminary objection on July 14 and 15, 2015 before the tribunal. His counsel Paul Usoro (SAN) had last Thursday told the tribunal that the essence of the first motion is to seek an order of the tribunal declining jurisdiction to entertain the petition, striking out same on the grounds that the petitioners lack the requisite locus standing to challenge the conduct and result of the March 28th, 2015 National Assembly elections.
He prayed the tribunal that his objections is hinged on Sections 85(1) and 137(1) of the Electoral Act, explaining that only a candidate for an election and a political party in an election can challenge the outcome of an election. He also claimed the APC did not give INEC the mandatory 21 days notice for is nomination, hence the purported candidate filed by the APC with respect to the Akwa Ibom North West Senatorial seat was not a valid candidate.
Usoro told the tribunal that based on a notice for nomination sent to INEC by the APC and dated November 18, 2014, the APC had said their senatorial nomination will hold on the 8th of December, 2014 which makes it a 20 days notice thereby violating the mandatory provision of not less than a 21 days notice, thus the violation violates Section 15(2)(a) of the Interpretation Act. Neither Okori nor the APC satisfied this statutory provisions, he claimed and prayed the tribunal to uphold his preliminary objection and dismiss Okori's petition as entirely incompetent as the petitioners never had the locus standing to institute the petition.
On the second preliminary objection dated July 14,2015, Akpabio in a motion on notice before the tribunal and supported by a 6-paragraph affidavit said his grounds for bringing his preliminary objection before the tribunal for the petition to be struck out is premised on the fact that the petition is incompetent and the tribunal has no jurisdiction to entertain it in that:
1. A condition precedent to the presentation of the petition has not been fulfilled in that
a. the purported witness statements were not deposed in accordance with the provisions of the Oath Act.
b. the purported witness statements were not sworn to before a competent authority as required by law.
2. The petition is not supported by any valid ground or grounds.
3. One of the grounds pleaded is unknown to law.
4. The grounds pleaded are inconsistent with one another.
5. The ground that the 1st Respondent was not nominated or sponsored by any political party is inconsistent with the facts pleaded.
6.The grounds pleaded are inconsistent with the relief sought.
7. The reliefs sought are inconsistent with one another.
8. The petition does not disclose any reasonable cause of action to warrant a hearing on the merit.
He therefore prayed the tribunal to determine :
1. Whether in the light of the fact that a condition precedent to the presentation of the petition has not been fulfilled in that the purported witness statements were not deposed to in accordance with the provisions of the Oath Act and were not sworn to before a competent authority as required by law, this petition is not incompetent and liable to be struck out.
2. Whether having pleaded that the 1st Respondent was sponsored by the 2nd Respondent to contest the election, the Petitioners could challenge the election of the 1st Respondent on the ground that he was not so sponsored quite apart from the fact that the Petitioners have no standing in law to challenge the candidacy of the 1st Respondent on the ground of sponsorship by his political party.
3. Whether the grounds pleaded in support of the petition are inconsistent with each other and inconsistent with the reliefs sought and if so whether this Petition is not incompetent and liable to be struck out
and
4. Whether the reliefs sought are inconsistent with one another and if so whether this Petition is not incompetent and liable to be struck out.
Akpabio said he is objecting to Okori's petition because is was not accompanied by any valid witness statement as required by law.
"All the witness statements filed are invalid in the light of their failure to comply with the mandatory provisions of our laws relating to statements made on oath. The invalidity of the so called witness statements attached to the petition he said, are manifested in the fact that none of the witness statements was sworn in accordance with the mandatory provisions of the First Schedule to the Oath Act as well as the fact that none of the witness deposed to the statements before an appropriate authority duly authorized by law to administer oaths", he submitted.
He argued that the witness statements were purportedly administered by the secretary of the tribunal. The secretary of the tribunal, he insisted cannot lawfully administer oaths because "Nothing in the Electoral Act empowers a secretary to administer oaths ",he declared.
He argued that written statements of witnesses which are not in conformity with the provisions of the Oath Act cannot be regarded as written statements on oath accompanying the petition as required by the Electoral Act, therefore Okori's petition is incompetent as it contravenes
Paragraph 4(5)(i) of the First Schedule to the Electoral Act, 2010(as Amended).
The embattled former Governor also contended that it was wrong for Chief Okori to challenge his sponsorship or otherwise as a candidate of the PDP when he is not a member of the party. "Furthermore, under our Electoral law and practice, a Petitioner who is not a member of the 1st Respondents political party does not have locus standi to question the nomination and sponsorship of the 1st Respondents. The only persons who can validly complain against the 1st Respondents nomination and sponsorship are members of the 1st Respondents party or the party itself ", he submitted.
He noted that the 3rd Respondent has not denied nominating and sponsoring the 1st Respondent. "In the light of the above facts and decisions, it is submitted that the Petitioners ground questioning the alleged non sponsorship of the 1st Respondent by his party for the elections is founded in error and the issue therefore misplaced ", he pleaded. He posited that the nomination of a candidate by a party is an internal matter which the court or tribunal is not competent to entertain.
In his defence, counsel to the petitioner, Chief Assam Assam (SAN), last Thursday told the tribunal that the said exibit filed by Akpabio is not what is envisaged under Section 81(5) of the Electoral Act.
Rather, it is a revision of the date for the conduct of primary. He posited that the applicant have not brought the original notice before tribunal. "They withheld the evidence because bringing same before the court would have been unfavourable to their case",and urged the court to to rely on Section 167(d) of the Evidence Act 2011.
The exibit tendered in court by the 1st Respondent he said, is a revised notice of a notice for primary. "Why did they withheld the original notice issued to INEC by the APC and come to court with only the revised notice"? The original notice he said, complied with the law and they cannot be a revised notice if there was no original notice, he submitted.
He noted that the 21 days notice was never violated even if the tribunal was to go by the exibit submitted by the 1st Respondent as 18th November - December 8th, 2014 gives 21 days when the date of notice and primary is being taken into consideration. Moreover, Section 85(1) carries no penalty, if it does, the law would have so expressly stated so, he submitted.
Section 85(2) he said , takes precedence over 85(1). INEC's attendance at primaries is what validates a nomination and not by days of notice given. If Okori was not a candidate, how then did INEC publish his name? Was his name not sent to the Electoral Commission ? INEC he said has not complain and cannot complain and Okori has the locus standing to institute the petition, he submitted.
On Akpabio's claim that the purported witness statements of Chief Okori were not sworn to before a competent authority as required by law, Chief Assam explained that any person duly authorized can sign an affidavit and thus the 1st Respondent's claim that the tribunal secretary signing the affidavit was invalid holds no waters.
On the July 14 motion, Assam said the affidavit filed by Akpabio is with respect to the Governorship election and therefore needs no comment. This application was brought by way of motion on notice and in the absence of a valid affidavit it died on arrival, he submitted.
Assam prayed that the application be struck out for not being sworn to in respect for the Akwa Ibom North West Senatorial election and therefore both preliminary objection be dismissed as they constitute a storm in a tea cup. "If there is a petition worthy of hearing, it is Okori's petition", he submitted.
Formal trial in the petition is expected to begin on Tuesday July 28 with Chief Okori leading 19 witnesses to testify. A total of 102 witnesses are to testify before the tribunal. Akpabio is expected to call 63 witnesses. On it's part, both the Independent National Electoral Commission (INEC) and the People's Democratic Party (PDP) hopes to invite 10 witnesses each.
Based on the scheduling of the tribunal, Okori has seven days from Tuesday, July 28- August 4, 2015 to make his case while Akpabio has nine days from August 5-14th,2015 to make his defence. INEC was given three days from August 15-18,2015 while the PDP was given three days from August 19-21st, 2015. Each witness will have ten minutes and ten minutes will also be given for cross examination while five minutes will be given for re-examination should the need arise. At the end of the trial, ten days will be given for all parties to submit their written addresses while respondents will have seven days to file their reply. Five days was also given for respondents to reply on point of law.