On the 7th day of May, 2011 Owelle Rochas Anayo Okorocha (OON) the candidate of APGA was declared the winner of the Imo State Governorship Election, having scored 336809 votes as against Chief Ikedi Ohakim’s 290496 votes. Not satisfied with this declaration, the PDP, being the party that sponsored Chief Ikedi Ohakim for the said election , filed an Election Petition at the Imo State Governorship election Tribunal headed by Hon. Justice E.N. Kpojime as Chairman and Hon. Justices M.I. Sirajo and E.O. Osinuga as members. The petition was numbered EPT/IM/GOV/O4/2011.
The main grounds of the petition were:
1. That the PDP candidate scored the majority of the lawful votes cast at the said election and
2. That the supplementary election held on the 6th of May, 2011 was invalid being in breach of the provisions of both the Electoral Act 2010 (as amended) and the 1999 Constitution (as amended).
On Saturday 12th day of November, 2011, the Tribunal delivered its judgment which spanned a total of 50 pages and took about 3 hours to be delivered.
The judgment began by reviewing the pleadings in the petition (see pages 2-6); the pleadings in the replies and reply to the replies (see pages 6-9 of the judgment).
At the close of the pleadings and pre-trial sessions, the Tribunal, with the concurrence of all the Lawyers in the matter, formulated 2 issues for determination:
1. Whether the supplementary election conducted on the 6th day of May 2011 was held in compliance with the provisions of both the Constitution and the Electoral Act and
2. Whether the Petitioner’s candidate i.e. Ikedi Ohakim scored the majority of lawful votes cast at the election (see page 10 of the judgment).
Consequent upon this directive, the petitioner opened its case and led evidence in support of its pleadings and called a total of 33 witnesses and tendered hundreds of exhibits (see pages 10 -24 of the judgment). The first and second respondents, that are Owelle Rochas Okorocha and APGA, called a total of 3 witnesses only while 3rd – 11th Respondents (i.e. INEC and its officials) called only 1 witness (see pages 24-25 of the judgment).
At the close of the cases of all the Parties, Counsel to all the Parties filed, exchanged and later adopted the written Briefs of Argument, based on the 2 issues which were identified by the Tribunal at the pre-trial session and consented to by all the Counsel to the Parties. Consistent with the above, the Court based its consideration of the case on the issues as formulated.
In its judgment on ISSUE NO.1 – that is to say, whether the supplementary election of 6th May, 2011 was held in compliance with the provisions of the Constitution and the Electoral Act, the Tribunal, after analyzing the relevant statutory provisions, especially Section 178, Sub Sections 1 and 2 of the 1999 Constitution (as amended) and Section 26 of the Electoral Act 2010 (as amended) and after reviewing all the decided cases cited before it came to the conclusion that the supplementary Election held on the 6th of May, 2011 was held in compliance with the provisions of the Constitution of the Federal Republic of Nigeria (as amended) and Electoral Act 2010 (as amended) and consequently held further that the petition, on this ground, is accordingly dismissed (see pages 27-37 of the judgment).
In so doing, the Court noted that “Section 27 of the Act requires that results of the elections be announced at each level and a winner declared.
The pleading in paragraph 14(i) of the petition is to the effect that no declaration and no return were made by the 3rd respondent concerning the election of 26th April rather the 3rd respondent declared the said election inconclusive.
The implication is that the process was not yet completed. It is to be borne in mind that only the 3rd respondent has the Constitutional power of declaring the result of an election conducted under the Act, and as long as an election process has not been concluded, no winner can be declared.
If we accept the interpretation urged on us by petitioner’s counsel, it would amount to an absurdity as it would amount to basing the result on an incomplete election. Bearing in mind that an election is a process commencing from accreditation, voting, collation, recording on INEC forms and declaration of result, it cannot be said that the election to the office of the Governor of Imo State held on 26th April, 2011 was conclusive in view of the non-declaration of result.
The election which commenced on 26th April, 2011 was only concluded on the 7th May, 2011 with the declaration and return of the 1st respondent as winner of the election. We are therefore persuaded by the argument proffered by the two sets of respondents to the effect that the supplementary election of 6th May, 2011 is only a continuation and conclusion of the election that was conducted on 26th April, 2011, and not a fresh election whose timing could be said to be in violation of section 178(2) of the Constitution.”
On ISSUE NO.2 formulated; which is whether the petitioner’s candidate scored the majority of lawful votes case at the election of April 26, 2011 and/or the supplementary election of May 6th 2011, the Tribunal, after a thorough, detailed, and pains-staking review of the evidence led before it by both the petitioner and respondents especially in relation to Mbaitoli, Oru West, Oguta, Ohaji/Egbema and Ngor Okpala Local Government Areas, and after a thorough review and analysis of all the evidence led in the matter held that “from the above analysis of the evidence as presented by the petitioner and the respondents, we come to the irresistible conclusion that on issue number 2, we hold that the petitioner has failed to prove that its candidate scored the majority of the lawful votes cast at the election.”
In so holding, the Court noted that “the petitioner has pleaded that 1st respondent scored 336,809 votes. There is no proof before us that this number consists of unlawful votes. The petitioner has also not disproved the presumption of regularity of this result. See section 150(1) of the Evidence Act.
In the case of Ogu Vs Ekweremadu (2006) 1 NWALR (pt. 961) 255 at 282, relied upon by counsel to 1st and 2ndrespondents, the Court of Appeal held thus – “where the petitioner fails to rebut the presumption in favour of due return his petition must fail.” The petitioner can only be declared the person with the majority of lawful votes if it proves that is scored even one vote above the 336,809 scored by the 1st respondent, or that this number consists of unlawful votes which when subtracted will make it the winner. We have not seen any such proof from it in this petition. It cannot therefore be declared the winner of any election.”
Under the circumstance and in consequence therefore, the Tribunal, in its unanimous judgment held that the petition lacks merit, and is accordingly dismissed in its entirety.
Dr. Obinna Duruji
Hon. Commissioner for Information & Strategy