As judgement day inches closer in the election petition case filed by the Cross River State PDP gubernatorial candidate, Prof Sandy Onor, tension has continued to rise in the state. This is coming even as Onor and the PDP have remained positive that the tribunal will annul the election.
Onor believes that he and his party presented a valid case before the tribunal and is upbeat, that since the APC candidate and current governor of the state, Senator Bassey Otu and his deputy, Peter Odey were not qualified abi initio to contest the election, the tribunal will soon end their reign in the Government House.
Penultimate week, all the parties adopted their written addresses to signal the end of the tribunal hearing, while the tribunal also reserved judgement.
Dr J.Y. Musa, SAN, lead counsel to the PDP candidate said having led evidence to show that both Otu and Odey were not qualified, the votes awarded them by INEC were wasted. Through his counsel, Onor asked the tribunal to declare him winner of the election.
In the written address, Onor dissected the brought to the fore, the lies told on oath by Odey concerning his dual citizenship as well as the issue of his membership of the PDP. He said as at the time of the election, the deputy governor was still a member of the PDP and could not have run the election under the APC.
He also disclosed that Otu did not possess, neither did he present before INEC, the required minimum educational qualification to become governor. This is what he told the tribunal: “The 2nd Respondent(Otu) was nominated by the 4th Respondent(APC) as its Governorship candidate and the 2nd Respondent in turn nominated the 3rd Respondent(Odey) as his running mate and both contested in the Cross River State Governorship Election of 18th March, 2023 and were purportedly declared and returned by the 1st Respondent as winners of the election.
“All the candidates for the election and their running mates, including the 2nd and 3rd Respondents filled form EC9/affidavit of personal particulars under oath as a mandatory requirement of the law. The 3rd Respondent by the information in his Form EC9 (Exhibit D54B), affidavit of personal particulars, acquired the citizenship of the United Kingdom but declared in the said form that he did not swear to an oath of allegiance to the United Kingdom.
“Another issue of disqualification is the fact that the 3rd Respondent at all material time remains a member of the 2nd Petitioner(PDP) up till date as evident in Exhibit D55B which is the certified true copy of the 2nd Petitioner’s membership register of Mbube West Ward 1, Ogoja Local Government Area of Cross River State.
“The 3rd Respondent did not resign his membership of the 2nd Petitioner before contesting election under the platform of the 4th Respondent(APC) The 3rd Respondent as a member of the 2nd Petitioner was elected to represent the Ogoja State Constituency in the Cross River State House of Assembly in 2015 and 2019 under the platform of the 2nd Petitioner.
“He continued to perform his parliamentary duties and collected salaries on the ticket of the 2nd Petitioner up till when he was sworn in as the Deputy Governor of Cross River State.”
Onor also stated in his written address that Otu did not show the tribunal that he possessed the educational qualification as he did not provide any information to that effect in his INEC form. “By his own deposition on oath in Form EC9 (Exhibit D52B) the 2nd Respondent failed to show that he has been educated to at least School Certificate Level and therefore not qualified to contest for the Office of the Governor of Cross River State at the time of the Governorship Election of Cross River State, held on the 18th of March, 2023.
“Even in Exhibit D53B, the final list of candidates, the 2nd Respondent had no qualification shown against his name. It is not correct as submitted by the 2nd and 3rd respondents’ counsel in paragraphs 7.05 and 7.06 that the issue of the 2nd Respondent’s non qualification up to secondary school certificate level was abandoned as there was sufficient evidence in proof thereof was led and elicited by way of cross examination in support of the petitioner’s pleadings.
“Under oath, in Exhibit D52B, Part C thereof titled “Schools Attended/Educational Qualifications with Dates”, the 2nd Respondent did not state his qualifications because there was none to state. The 2nd Respondent’s Form EC9 (Exhibit D52B) obtained from the 1st Respondent has some purported certificates of the 2nd Respondent attached.
“Whereas by the 2nd Respondent’s own deposition in his form EC9 (Exhibit D52B), he did not state that he has any certificates; and by the 1st Respondent’s(INEC) own publication of the Final List of Candidates (Exhibit D53B) it is not also stated that the 2nd Respondent has any certificate(s).”
Onor insisted that having sworn on oath in his INEC form, that he had no educational qualification, he could not turn back to show WAEC certificates. Even at that, Onor said the WAEC certificates presented by Otu were forged.
“We therefore urge this Honourable Tribunal to find and hold that the purported certificates later provided by the 1st Respondent when the Petitioners applied for the Form EC9 (Exhibit D52B) of the 2nd Respondent is nothing but documentary afterthought and an exhibition of 1 st Respondent’s glaring partisanship in this matter.
“Curiously, the WAEC Certificate attached to the Form EC9 (Exhibit D52B) of the 2nd Respondent bears the name of a school different from the secondary school the 2nd Respondent stated in the said Form EC9 (Exhibit D52B) that he attended. The name of the school in the 2nd Respondent’s form EC9 is Salvation Army Secondary School and the name on the 2nd Respondent’s purported WAEC Certificate of June 1977 is Secondary School Akai-Ubium.
“What is apparent here is that the certificate attached to the 2nd Respondent’s Form EC9 (Exhibit D52B) is in conflict with the contents or information supplied in the Form EC9 (Exhibit D52B) and cannot be regarded as evidence of the 2nd Respondent’s education to School Certificate Level, thereby making both documents unworthy of belief, not being credible evidence.”
He added: “In a frantic bid to cure the conflict in the said certificate and the Form EC9 (Exhibit D52B), the senior counsel to the 2nd and 3rd Respondents tendered another certificate from the Bar which is Exhibit 2 & 3 R4 which the Learned Senior Counsel stated that is the original certificate in his cross examination of RW1, Agwu Kenneth.
“Clearly, there are material contradictions in the certificate attached to the 2nd Respondent’s Form EC9 (Exhibit D52B) and the certificate tendered as Exhibit 2 & 3 R4, all dated June 1977. Exhibit 2 & 3 R4 is said to be an attestation of the certificate attached to Form EC9 (Exhibit D52B).
“May we use this opportunity to itemize the differences in the two (2) certificates. (i) The secondary school certificate attached to Form EC9 (Exhibit D52B) is: (i)General Certificate of Education (GCE) while Exhibit 2 and 3 R4 is West African Senior School Certificate (WASSC); (ii) The certificate attached to form EC9 certifies that Otu Bassey Edet, the 2nd Respondent, attended Secondary School Akai-Ubium, while Exhibit 2 and 3 R4 certifies that same Otu Bassey Edet attended Salvation Army Secondary School, Akai-Ubium; (iii) The certificate attached to Form EC9 has no photograph of Otu Bassey Edet while Exhibit 2 and 3 R4 has the current photograph of Otu Bassey Edet embossed thereon, even though it purports to be a June 1977 certificate.
“It is very instructive to point out that embossment of WAEC certificates started in 2002, while the purported certificate of the 2nd Respondent was purportedly gotten in 1977. RW1 testified to this during cross examination.
“We submit that with these material contradictions none of the certificates can be relied on as evidence of the 2nd Respondent’s education to school certificate level. In furtherance of this falsity, the 2nd and 3rd Respondents in their reply to the petition stated at paragraph 15 thereof that the 2nd Respondent attended Secondary School Akai-Ubium and graduated in 1977 and was issued with a testimonial (Exhibit 2 & 3 R16) upon his graduation but this Testimonial is dated 24th of May, 2022 from Salvation Army Secondary School and stating that Bassey Edet Otu participated in senior Secondary School Certificate/Junior Secondary School Certificate Examination in May/June, 1977, whereas the 6-3-3-4 system of education which introduced Junior and Senior secondary schools in Nigeria began in 1983. This is a fact of common knowledge in Nigeria which does not require proof. (See Section 124 of the Evidence Act, 2011).”
In defending his case against the deputy governor over his qualification to contest the election, Onor said “it is our respectful submission that from the content of Exhibit D54B (Form EC9 of the 3rd Respondent), the relevant foreign laws tendered and marked as Exhibits D63A, D63A1, D63A2, D63A3, D63A4, D63A5, D63A6 and D63B, Section 182(1)(a) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), the 3rd Respondent is not eligible or is disqualified from contesting as the Deputy Governor of Cross River State.
“By the provisions of section 29(2) of the Electoral Act, 2022 the information submitted by each candidate to 1st Respondent shall be accompanied by an affidavit sworn to by the candidate which is Form EC9 and by section 29(4) of the Electoral Act, 2022 INEC is mandated to issue a CTC of the affidavit (Form EC9) to any person who applies to it on payment of the prescribed fee. Pursuant to the provisions of this section the petitioners applied to INEC for the 3rd Respondent’s Form EC9 for the 2023 elections.
“It is from this Form EC9 admitted as Exhibit D54B that the petitioners got the information that the 3rd Respondent lied under oath that he did not swear to the oath of allegiance to the United Kingdom. It is further submitted that the argument of the 2 nd and 3rd Respondents in paragraph 7.55 of their final written address is suspicious as it is unreasonable to state that the 3rd Respondent did not submit Form EC9 to the 1st Respondent. In any case, the 3rd Respondent never produced any other Form EC9 of his before the honourable Tribunal other than Exhibit D54B.
He took time to adumbrate on the alleged forged information concerning the deputy governor’s dual citizenship. He said “it is submitted that the courts have taken the position that submitting false information in Form EC9 which is the Affidavit in Support of Personal Particulars to INEC amounts to presenting forged or false certificate which is a disqualifying factor.
“The British Nationality Act, 1981 and the Nationality, Immigration and Asylum Act, 2002, are foreign laws which regulate the acquisition of citizenship in the United Kingdom and the administration of the oath of allegiance and we have invited this Honourable Tribunal to interpret these laws.
“The point must be made that personal documents of both the 2nd and 3rd Respondents were either tendered from the Bar or through persons other than the 2nd and 3rd Respondents themselves. Personal allegations were made against the 2nd and 3rd Respondents but they failed to turn up to testify in their defence. 6.1.16Even the 3rd Respondent who filed a statement on oath, did not turn up to testify; he chose to send his personal documents through proxies. We understand that they have been sworn in as Governor and Deputy Governor, respectively, and might consider themselves now too big to come to this Honourable Tribunal to testify, but the law remains the law; personal documents cannot be tendered from the Bar or through third party proxies who have no connection to the said documents.
“With these conditions met, this Tribunal will find that there is a conclusive presumption of law that the 3rd Respondent swore to the oath of allegiance to the United Kingdom and the British Monarch. This is direct evidence against the 3rd Respondent and affecting him which he ought to have challenged by evidence coming directly from him, but the 3rd Respondent abandoned his witness statement on oath and chose not to rebut the evidence against him, thereby surrendering to the weighty evidence of the Petitioners and the presumption of law that he took the oath of allegiance.”
He cited various legal authorities to back his position, including the assumption that having not been present at the tribunal to personally defend his case, he did not rebut the allegations against him.
Onor argued that the deputy governor was not truthful when he said on oath, that he did not subscribe to the citizenship of the UK on oath. He told the tribunal that Odey did not show proof in this direction.
According to him, the “3rd Respondent has also tacitly asserted in his Form EC9 (Exhibit D54B) that he did not subscribe to the oath of allegiance and going by the cross examination questions posed by all the Respondents’ lawyers including his lawyer to PW3, tending to show that he was granted some sort of waiver or his own case comes under an exception under the same law, the 3rd Respondent then has a bounden duty to prove that he was granted a waiver of any sort or that the Secretary of State disapplied or modified the effect of the law in his favor to enjoy any exemption from the compulsory oath.
“ It is submitted that by the provisions of Section 140 of the Evidence Act, 2011 ‘When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.’ We submit that the 3rd Respondent has submitted false information to INEC that he did not subscribe to the oath of allegiance to the United Kingdom and the 3rd Respondent who has the burden of proving that contrary to the evidence led by the Petitioners, he has reasons or justification for claiming that he did not subscribe to the oath of allegiance woefully failed to discharge that burden.”
On the issue of Odey’s membership of the PDP as at the time of the election, Onor said he had “established in evidence that at the time of the nomination, sponsorship and election of the 3rd Respondent by the 4th Respondent, he remained a member of the 2nd Petitioner.
“To buttress this, the Petitioners tendered a certified true copy of the Membership Register of Mbube West Ward 1 of Ogoja Local Government Area of Cross River State admitted and marked as Exhibit D55B.
“The said membership register was duly certified by INEC and produced from proper custody. By virtue of Section 77(2) and (3) of the Electoral Act 2022, INEC as the 1st Respondent is the custodian of the Register of Members of all the political parties in Nigeria, including the 4th Respondent. By the same provision, all political parties must maintain their register of members with the 1st Respondent.
“To establish whether a person is a member of a political party, it must be shown that his name is on the register of members with INEC. In trying to disprove the Petitioners’ assertion that the 3rd Respondent is a member of the 2nd Petitioner, the 3rd espondent tendered Exhibit 2&3R17 (a purported Membership Register of the 4th Respondent). This exhibit lacks probative value and proves nothing, for the following reasons: (a) It was not produced from proper custody as provided for in Section 77(2) and (3) of the Electoral Act, 2022 (b). It did not show the date and time the 3rd Respondent became a registered member of the 4th Respondent.
“We submit that what is in issue is not merely a question of membership of a political party but a question of the constitutionality or the legality of a member of the 2nd Petitioner being presented by the 4th Respondent as a candidate at the election. 6.2.4 My Lords, there are two fundamental issues touching the membership of the 3rd Respondent. One, our submission is that the 3rd Respondent is not even a member of the 4th Respondent by the 4th Respondent’s own admission in Exhibit D56B, the Counter Affidavit in Suit No: FHC/ABJ/CS/976/2021; the second point is that the 3rd Respondent did not resign from the 2nd Petitioner before or after decamping from the 2nd Petitioner.
“We reiterate that the 3rd Respondent has been a member of the 2nd Petitioner and was elected on the platform of the 2nd Petitioner in 2015 and 2019 to represent the Ogoja State Constituency in the Cross River State House of Assembly. At the time of filing this Petition, the 3rd Respondent was still in the Cross River State House of the Assembly on the mandate given to him by the electorates on the platform of the 2nd Petitioner.
“The 1st Respondent only lamely argued in Paragraph 4.27 of its Written Address that the 3rd Respondent resigned, decamped, defected from the 2nd Petitioner; no evidence whatsoever was adduced as required by law to show that the 3rd Respondent resigned. The 1st Respondent’s Counsel during cross examination only led the 4th Respondent’s witness, RW3, to state that he believed that resignation and decamping mean the same thing. Unfortunately, the effect of resignation and/or decamping is not a matter of fact but an issue of law. 6.2.7 The 1st Respondent’s counsel objected to the admissibility of Exhibit D55B which is the Certified True Copy of the PDP Register of members for Mbube West Ward 1 which was certified by the 1st Respondent on 27th April, 2023. Surprisingly, when RW1 (INEC witness) testified, none of the Respondents asked questions on the said register of members.
“The Respondents did not just fail in exhibiting a letter of resignation as required by law, the 3rd Respondent did not resign from the 2nd Petitioner before or after decamping to the 4th Respondent because he wanted to be seen on the floor of the house that he has left the 2nd Petitioner while he refused to resign so as to hold on to the ticket of the 2nd Petitioner to derive benefit thereof. But this is not the law. In law, resignation from a political party and decamping from a political party are two different things with different legal implications.
“It is not legislative coincidence that there is section 77 of the Electoral Act 2022 which requires every political party to maintain a register of its members with the Commission; it is for a time like this, a time when who is truly a member of a political party depends on the authenticity of the register and its custodian. By Exhibit D55B, the 2nd Petitioner’s Membership Register for Mbube West Ward 1, the name of the 3rd Respondent appears clearly as No 36; therefore, proving beyond every scintilla of doubt that the 3rd Respondent is a member of the 2nd Petitioner.
“We further submit with emphasis that is the current membership register of the 2nd Petitioner for Mbube West Ward 1 and that is evident from the date of certification on the 27th day of April, 2023 which was after the election contrary to the submission of the 2nd and 3rd respondents which is in paragraghs 7.47 and 7.48 of their final written address.
“ To prove the assertion by the 3rd Respondent that he is a member of the 4th Respondent, Exhibit 2 & 3 R17 was tendered through RW2. The said Exhibit is purported to be a membership register of Mbube West One Ward of Ogoja Local Government Area in Cross River State. The document has no date on it and no date of registration of any member written against his or her name and some of the persons written on the register did not sign against their names, including the 3rd Respondent who appears as number 001 without a date of registration against his name.
“ In Exhibit 2 & 3 R17, the 3rd Respondent who said he decamped from the 2nd Petitioner to the 4th Respondent appears as No 001 indicating that he was the first to register in the Ward; for a party that has been existing in the Ward before the 3rd Respondent’s defection. This document clearly lacks credibility and cannot be relied upon in the face of the superiority of Exhibit D56B, the PDP Membership Register of Mbube West Ward 1.
“This document was obviously made after the election of 18th of March, 2023 but in a futile bid to cloth it with credibility it was needlessly certified by a body not legally required to do so, and the purported certification backdated to 15th September. It is submitted that it is not the register of members and membership slip or card alone that proves that a person has left one political party and joined another political party.
“A similar situation arose in the case of Rt Hon Prince Terhemen Tarzoor vs Ortom Samuel Ioraer & 2 Ors (2016) 3 NWLR (Pt. 1500) pg. 463 @ 423 para B – D, the apex court, per Okoro, JSC, held inter alia as follows “Evidence on record shows that by Exhibit R3, the 1st Respondent resigns his membership from the Peoples Democratic Party. He subsequently joined the All Progressives Congress.
“This is confirmed by Exhibit R1: his membership card of APC, Exhibit R4 which is APC Membership of the ward where he registered.” We further submit that resignation from the 2nd Petitioner is a sine qua non to the validity of the 3rd Respondent’s purported membership of the 4th Respondent.
The evidence of such resignation is lacking in the defence of the Respondents. We urge the Tribunal to hold that the 2nd Petitioner has proven that the 3rd Respondent is its member.”