By Akin Adewumi
The legal counsels of Governor Udom Gabriel Emmanuel of Akwa Ibom State have adduced reasons why the candidate of the All Progressives Congress (APC), Mr Umana Okon Umana’s ambition of becoming the Governor of the State will not see the light of day.
The Akwa Ibom State governorship election petition tribunal sitting in Abuja before Justices A.S. Umar, K.O. Dawodu and P.T. Kwahar resumes on Thursday, October 8, for the adoption of written addresses of the legal counsels.
The hearing of the petition spanned from July 14, 2015 to September 17, 2015. The petitioners called 52 witnesses while the first respondent called 19 witnesses and the second respondent called four witnesses. In all, parties tendered 76 exhibits, majority of them by the petitioners.
But as the tribunal resumes, exclusive scoops from the Court Registry documents shows that Mr Umana’s petition may have been an exercise in futility, a wild goose chase, according to Mr Emmanuel’s legal counsels.
One of the grounds that Mr Umana heavily relied upon to challenge the election of Mr Emmanuel is the default of the use of the card reader machine. But Paul Usoro, SAN lead Counsel to Mr Emmanuel has argued that the use or otherwise of the card reader machine due to its recent emergence, specifically in the 2015 general elections, were not contemplated howsoever by the non-compliance provisions in section 138(1) of the Electoral Act and specifically by Section 138(1) and cannot constitute a basis for nullifying the election.
According to the legal counsel, the issue was settled recently by the Court of Appeal in the case All Progressives Congress v Agbaje and 4 others. It quotes Justice Ogbuinya JCA’s lead judgment: “The evolution of the concept of smart card reader is a familiar one. It came to being during the last general election held in March and April, 2015 in Nigeria.
“On this score, it is a nascent procedure injected into our infant and fledgling electoral system to ensure credible and transparent election. Specifically, it is aimed to concretize our fragile process of accreditation – the keystone of any suffrage. The concept, owing to its recent invention by INEC, a non-legislative body, traces its paternity to the manual for Election Officials, 2015: chapter 2, pages 35–42. Put the other way round, the extant Electoral Act, 2010, as amended, which predates the concept, is not its parent or progenitor.
“Since it is not the progeny of the Electoral Act, a ground in a petition fronting it as a ground to challenge any election does not have its blessing, nay section 138(1) of it. Put simply, a petitioner cannot project the non-presence or improper use of smart card reader as a ground for questioning an election it does not qualify as one,” the Appeal Court Judgment had held, the same position that Counsels to Mr Emmanuel are also relying upon.
Counsels to Mr Umana led by Wole Olanipekun, SAN, also argued that by INEC’s directives, the use of the card reader was mandatory for the governorship election according to a press statement signed by INEC’s Secretary, Mrs Augusta Ogakwu, which was accepted by the tribunal as exhibit 322. But counsels to Mr Emmanuel held that without prejudice to their earlier submission on the card reader, cited Section 49 of the Electoral Act as being straightforward on the statutory accreditation process by stipulating thus: 49. – (1) “Any person intending to vote with his voter’s card shall present himself to a Presiding Officer at the polling unit in the constituency in which his name is registered with his voters’ card. 49. – (2) “The Presiding Officer shall, on being satisfied that the name of the person is on the Register of Voters, issue him a ballot paper and indicate on the Register that the person has voted.”
In view of this provision of the Electoral Act, it is the contention of the legal counsels of Mr Emmanuel “that any ‘instruction’ that purports to invalidate these provisions of the Electoral Act, as purported by the Petitioners, be it Exhibit 322 or any other instruction whatsoever, is null, void and of no effect whatsoever in terms of and pursuant to the afore-reproduced Section 138 (2) of the Electoral Act and must be discountenanced by Your Lordships,” they held.
Without prejudice to their position on the nullity of the card reader, the legal counsels also pointed out contradictions and inconsistencies in Mr Umana’s pleadings and evidence. For instance, according to the document, Mr Umana’s petition in paragraph 22 had claimed that “Card Readers were not used” at all and yet they expect the Judges to rely on Exhibit 317, the Card Reader data which they tendered and which clearly confirms that there were successful accreditation for the Election using the Card Reader. “Those two positions are clearly irreconcilable,” they held.