A three-man tribunal headed by Justice Adekanye Lekan Ogunmoye has reserved judgement for a later date in a petition filed by the Governorship candidate of the All Progressives Grand Alliance (APGA), Professor Benard Ifeanyi Odoh, challenging the election of Governor Francis Nwifuru in the March 18, 2023 governorship election.
In its ruling on Friday, August 18, at the National Judicial Institute (NJI) Abuja, the tribunal said the date for judgement will be communicated to lawyers of all parties involved in the matter.
Recall that Odoh through his senior counsel, Jibrin S. Okutepa, leading a team of 27 other lawyers, filed a 104 paragraph final written address before the Governorship election petition tribunal in July.
In the said address, Okutepa had prayed the tribunal to rely on Section 177 (c) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
According to the petitioner’s counsel, who presented a sole issue for determination; whether the second Respondent, (Nwifuru) was qualified to contest the said election, it read; “The summary of the Petitioners’ petition is that the 2nd Respondent who was until and after the election, a member of the Ebonyi State House of Assembly and also occupied the office of the Speaker of the said house under the platform of Peoples Democratic Party (PDP) was not qualified to contest the election to the seat of Governor of Ebonyi State conducted by the 1st Respondent on the 18th of March 2023, wherein the 2nd Respondent was wrongfully returned elected.”
It said, “In prove of the petition, an avalanche of documents, Exhibit P1-P9, duly certified as required by the provisions of the Evidence Act were tendered and evidence was led by PW1 to prove the facts contained in the Petition. Exhibit R6, was tendered through the 2nd Respondent’s witness also in proof of the Petition.
“It is based on the above facts which became evidence in the course of hearing that the petitioners at paragraph forty (40), pages 11-12 of their petition sought for five reliefs chief amongst which was that the 1st Respondent should order for a fresh election excluding the 2nd Respondent pursuant to section 179 (3) and (4) of the Constitution of the Federal Republic of Nigeria1999 as amended”.
The address further highlighted the arguments of the petitioners that the second Respondent (Nwifuru) who was elected a member of the State’s House of Assembly under the platform of the PDP and thereafter appointed Speaker of the same House never resigned his position nor vacated his seat as required by the provisions of Section 177 of the 1999 Constitution of the Federal Republic of Nigeria as amended.
While stressing in it’s legal argument that the Respondents in their bid to oppose the Petitioner’s petition failed to present any substantive and credible defense, the petitioners remarked that, “The vacuum left by their feeble defense calls for scrutiny and demands that this Hon. Tribunal examines the merits of the Petitioners’ Petition and consequently grant the reliefs sought by the Petitioners.”
The Petitioners further posited that, “Firstly, it is a settled position of law firmly rooted in the Constitution of the Federal Republic of Nigeria, that a person aspiring to contest the election for the office of Governor in a Nigerian State must fulfill the dual prerequisites of political party membership and sponsorship. This provision is unequivocally captured in Section 177 (c) of the 1999 Constitution of the Federal Republic of Nigeria, where it is provided as follows; “A person shall be qualified for the election to the office of Governor of a state if;(c)he is a member of a political party and is sponsored by that political party”.
Still laying emphasis on the provisions of the cites Section 177 (c) of the 1999 Constitution as amended, the petitioners argued that, “This provision of law is well established without any proviso or exception. It is like the rock of Gibraltar which cannot be moved. It is therefore needless to belabor this point. Can this Hon. Tribunal come to the conclusion based on the evidence that the 2nd Respondent belonged to A (singular) POLITICAL PARTY as at the time he was purportedly nominated and sponsored by the 3rd Respondent? The answer will be a sharp and resounding NO!
The Petitioners also drew the attention of the tribunal judges to the express provisions of Section 109 (1)
(g) of the 1999 Constitution as amended; if being a person whose election to the House of Assembly was sponsored by a political party, he becomes a member of another political party before the expiration of the period for which that House was elected. This Constitutional provision is so clear that it does not require any other interpretation.
“We submit that the approach of this Hon. Tribunal in construing the provisions of section 109 (1). (g) of the 1999 constitution and indeed other provisions to which the attention of this Hon. Tribunal is to be drawn is that of liberalism and to give effect to the plain meaning of the language used therein. This will be consistent with the principles well settled in long line of cases. In the interpretation of constitutional provisions, the courts have always been enjoined to adopt a liberal approach and in so doing to give the provisions an interpretation that accords with the intention of the framers of the document”, the petitioners further averred, insisting that liberal approach should always be adopted by courts when they embark on construction of statutory provisions and they must avoid construing a provision of law in such a way as would defeat the intent or purpose of the enactment of such provisions by the lawmakers.
The Petitioners further maintained that, the evidence is that, the 2nd Respondent continued to receive salaries and other entitlements as a House member and speaker of the Ebonyi State House of Assembly meaning that he did not vacate his seat as a House member of the Ebonyi State House of Assembly. Exhibit P3, affidavit of the clerk of the Ebonyi State House of Assembly shows beyond doubt that the 2nd Respondent was a member of the PDP and not the 3rd Respondent at all material time in issue in this petition.
Again, the 2nd Respondent’s purported membership card of the 3rd Respondent Exhibit P5 when juxtaposed with the 3rd Respondent’s counter affidavit in Suit No FHC/ABJ/CS 1041/2021:PDP vs. INEC & 21Ors,(Exhibits P6 and P7) deposed to on 24/11/2021 and 11/1/2022 respectively in paragraph 4 wherein the 3rd Respondent stated that the 2nd Respondent was not a member of the 3rd Respondent supports the position of the petitioners that the 2nd Respondent was not a member of the 3rd Respondent at all material time to the present petition. It opined that by the said 3rd Respondents membership card Exhibit P5 the 2nd Respondent purportedly became a member of the 3rd Respondent on the 9/2/2021.
“However, on the 24/11/2021 and 11/2/2022, the 3rd Respondent in the said counter affidavit (Exhibits P6 and P7) stated clearly that the 2nd Respondent was not her member. Following from the above, it is clear that the three exhibits which are documents of the 3rd Respondent are self and materially contradictory and cannot be reconciled or explained. The law is that the honourable tribunal in such instance is enjoined to disregard the said exhibits and not attach any legal value to same as the contradictions are material”, the petitioners further averred.”
In it’s concluding points, the Petitioners urged the tribunal to bring to bear the import of Section 134 (1) (a) of the Electoral Act which had hitherto not been considered at the early stages of the other processes on the matter.
“On the whole, it is submitted that the Petitioners have made out a case for the relief seeking the order of the Hon. Tribunal for a fresh election excluding the 2nd Respondent whom a valid case has been made out for his disqualification.
The petitioners further contended that “The relief for a fresh election is predicated on the fact that upon the disqualification of the 2nd Respondent, non of the remaining candidates would have satisfied the Constitutional requirement of being declared Governor of Ebonyi State having regard to the result declared in Exhibit P1 and P8. Section 179 Governor of a State shall be deemed to have been duly elected where, there being two or more candidates-
(a)he has the highest number of votes cast at the election: and
(b)he has not less than one-quarter of all the votes cast in each of at least two-thirds of all the local government areas in the State.”
They therefore finalized that “It is submitted that from Exhibit P8, it is apparent that there are a total of
(thirteen)13 local governments in Ebonyi State. It is apparent that upon the disqualification of the 2nd Respondent, none of the remaining qualified candidates would have satisfied the requirement of the Constitutional spread as provided for under Section179(2)(b)as to be declared winner, hence the prayer for a fresh election which we most humbly urge your lordships to so order”.
In his adumbration during the adoption of the final written address today, counsel to the petitioner, John Mathew urged the tribunal to accede to the prayers of the petitioners, praying it to throw out all the counter affidavits and exhibits of the Respondents.
“By way of adumbration, Section 179 (3) of the 1999 constitution empowers this Honourable Tribunal to order for a fresh election where the Court finds out that the first Respondent is not qualified and the first runner-up did not meet up with the needed spread. The best thing to do is to order for a fresh election.
Submitting further, the petitioner’s counsel contended that, “based on exhibits P4, he, the second Respondent (Nwifuru) could not be said to have been validly sponsored by the third Respondent, APC.”
“On (challenge of) jurisdiction, their Lordships are clothed with it which is that membership and sponsorship of a candidate in an election are constitutional imperatives for the second Respondent to satisfy before being declared winner”, he submitted, noting that all documents tendered by the petitioners were not objected to by the Respondents.
On their parts, counsels to the second and third Respondents, Onyechi Ikpeazu, SAN and A. A. Ibrahim, SAN argued while adopting their final addresses urged the tribunal to dismiss the petition.
Ikpeazu had argued that an annulled judgement of a Court cannot be a basis for bringing an action. “The jurisdiction of the tribunal confered by Section 285 (2) of the 1999 Constitution does not extend on the claims founded on alleged constitutional infringement, refer to INEC v. Jegede and Azubuogu v. Nwankwo by the Court of Appeal relying on Section 109”.
Counsel to the third Respondent, Ibrahim on his part cited Section 176(2) of the Electoral Act and insisted that the case serves no practical utilitarian value to the petitioners, adding “the allegations of forgery brought by the petitioners were not proved beyond reasonable doubt”.
He held the view that “the issue of membership of a political party cannot be questioned because parties know their members.
Meanwhile, the tribunal did apologize for the change in adoption date from Monday to today, Friday which it blamed on flights cancellations by Airline operators.