David Diai




Dr. Alex Iziyon, SAN is not just an outstanding legal luminary, his knowledge and handling of the law is phenomenal. He combines authority, experience, a stimulated confidence shaped and honed from his superlative victories in several landmark cases both nationally and internationally and of course an impressive silo of election tribunal matters.

Pitched against his wizened, elderly teacher, Chief Thomson Okpoko, SAN, who himself, is a legal colossus in his own right, having mentored and is still mentoring several generations of Nigeria’s finest Lawyers, the titanic battle of final addresses was always going to be quite robust and laced with an under-current of a simmering confrontation that had spiced their previous encounters during the trial.

For the records, trial proceedings at the Delta State Governorship Election Petition Tribunal, sitting in Asaba, the Delta State capital, formally ended on Tuesday, October 12, 2015, when counsels to the petitioners and respondents filed and adopted their final addresses, before the Justice Nasiru Gunmi led three-man election petition panel.

As to be expected, the respondents counsels, Dr. Alex Iziyon, SAN, (Okowa, 1ST Respondent), Chief A.T Kehinde, SAN,( PDP 2ND Respondent) and Damien Dodo, SAN, (INEC, 3RD Respondent), submitted strongly that the petition, filed by the All Progressives Congress, APC and its governorship candidate, Olorogun O’tega Emerhor, represented by its lead counsel, Chief Thomson Okpoko, SAN, challenging the declaration of Senator Ifeanyi Okowa, PDP, as the governor of Delta State, by INEC, after the April 11, 2015, Delta State governor elections, be dismissed and substantial costs awarded against the petitioners.

The tone of the day’s proceeding was set when Chief Okpoko, SAN, sensing a legal backlash from his opponents, quickly informed the tribunal before the commencement of the process, that his final address was more than the 40pages, stipulated by the law, but the fact that the respondents had all replied to the address, indicated that they had accepted it and he was thus making an application to the court to allow him file the address for adoption as it is.

The Tribunal Chairman, Justice Nasiru Gunmi, indicated that Chief Okpoko can go ahead to file and adopt his final address but the issue of the excess number of pages will be determined at the appropriate time.

Dr. Alex Iziyon, SAN, lead counsel to 1st respondent, Governor Okowa, opened his presentation by filing and adopting his written final address, the replies on points of law to the petitioners own written final addresses, the three pending motions which the tribunal had earlier rules will be collapsed into the substantive trial, namely the issues of jurisdiction and the filing of pre-trial hearing application amongst others.

Iziyon equally adopted and relied on all the motions already before the tribunal and tendered the further authorities which he had pre-informed the tribunal during trial, including relevant sections of the Evidence Act, the Electoral Act, cited Supreme Court judgments like Yakowa vs Saidi, and Omisore (supra) and CPC vs INEC, to buttress earlier arguments on pre-trial hearing application.

According to Iziyon, and with special reference to Paragraph 45 of the Electoral Act, the need for pre-trial application and the trial proper “is like the famous statue of Madonna and Child. If you remove one then the other has no relevance and is a mere skeleton,” adding that the petitioner has not only graciously abandoned paragraph 6A of their petition, but has also failed to prove paragraph 6B of the petition and so cannot rely on the admission of the respondents.

stressing the point, the 1st Repondent’s counsel further argued that the abandoned paragraph 6A of their petition, was central to the petition, pointing out that since the paragraph is rooted in the petition, abandoning it would mean that all the other paragraphs in the petition cannot stand and having themselves admitted to abandoning the paragraph 6A, “then this petition is bound to fail by their own admission”, as the onus is on the petitioners to prove their case, he said.

Dr. Iziyon, SAN told the tribunal, amongst other points, that the Supreme had already ruled on the number of pages for the final written addresses to be not more than 40 pages, in order to avoid the situation where counsel would write hundreds of pages and waste the time of the court; a rule which Chief Okpoko is well aware of, and on this ground alone, “there is no process before your Lordships, so no oral application can be made to correct it,” he said.

On the card reader issue, Iziyion while submitting that he was adopting his written address and reply on the card reader issue, told the tribunal that the petitioners were masquerading under the paragraph of the Electoral Act, which deals with substantial irregularities as the ground of their submissions, when their entire case is based on the card reader.

In concluding his presentation, Dr. Alex Iziyon averred that the petitioners have not even crossed the threshold of their case, that their star witness had crumbled during cross examination, and while emphasizing that the application on the over pagination of the petitioners final written address be disregarded, urged the tribunal to dismiss the petition as very unmeritorious and with substantial costs awarded, describing it as a “judicial time wasting of tax payers money.”

In his presentation, the PDP counsel, A.T Kehinde (SAN), while adopting the tribunal’s ruling of 30th June, 2015, and his preliminary objection and their processes are hereby, affirmed that he had also filed an additional written address, as had been earlier indicated during trial, in support of the adopted processes.

Citing several authorities, including Buhari vs Obasanjo, as well as the latest Court of Appeal decision in Bankole Balogun vs Akpatasson, Kehinde challenged the petition on the grounds of pre-trial hearing application, card reader issues.

“We submit that this particular process before your lordships are flawed and refuse to be persuaded by the petitioners’ submissions. We urge the tribunal to stick by their decision and refuse to be persuaded by the petitioners as this would amount to judicial rascality and swimming against the tide,” Kehinde said.

While pointing out that the petitioners case was based strictly on the card reader accreditation, which according to him is the magic word of the petition, Kehinde told the tribunal that he (2nd respondent) has proved in his address that the records of the card reader accreditation “is most unreliable, speculative and more importantly, not provided for in the Electoral Act, and that was why Section 49 of the Electoral Act says that the voters register is the only document to confirm over voting”, adding that “the conscious refusal of the petitioners to rely on the voters’ register has confirmed the unassailable fact of the 2nd respondent, that the petition is doomed to fail,” Kehinde submitted.

The PDP counsel also objected to APC and Emerhor’s final written address which he said was over 60 pages combined, and urged the tribunal to strike out the petition for incompetence and lacking particulars, even as he noted this over-pagination was done, after all parties had argued profusely in line with issues formulated for the trial and after holistic considerations by the tribunal.

According to him, what the petitioner has done was contrary to the practice directives and consequently the petitioner has not responded. “We urge your lordships to discountenance that address and hold that the petitioners have no competent address and have not addressed the tribunal. There is no room for sentiments especially since this case is sui-generis. Once a petitioner runs afoul of any directive it must not be allowed. Every party must open their eyes wide and keep strictly to the provisions of the law,” Kehinde averred.

On the issue of the card reader, Kehinde, citing the rulings on the case of APC vs Agbaje in the recently concluded Lagos State Governorship election petition, both at the tribunal and Court of Appeal, submitted that the card reader is an orphan that cannot trace its paternity to the Electoral Act and it should be cast out.

In his own presentation, Mr. Damien .D Dodo, SAN, and co-lead consel to INEC (3rd respondent), while also adopting his final address and replies to petitioners addresses on points of law, urged the tribunal dismiss the APC-Emerhor petition. “The petitioners have made a desperate attempt to get out of the grips of the Balogun v Akpatason case by arguing strenuously that where there are two conflicting decisions of the Court of Appeal, your lordships are at liberty to pick and choose. That is incorrect and not the position of the law. The law with respect to conflicting decisions of the Court of Appeal is that the tribunal is bound to follow the latest in time and it is in that regard that this tribunal is bound to follow the latest decisions in the Balogun v Akpatason case”. Dodo also cited the cases of Mkpedem v Udo; Osakwe vs Federal Technical College of Education and Nwangwu vs Ukachukwu to buttress his points.

Still challenging the petition filed by APC/Olorogun Emerhor, Dodo equally raised the issues of signing the petition, stating that the petition must fail on that score. “The failure of one party to sign the petition should not affect the party that signed according to the law. When they signed a joint petition, they took a covenant to swim or sink together. They must now embrace their defeat which is total annihilation by a catastrophic on the part of the law,” he said.

Dodo also averred that the petitioners anchored and concluded their case deliberately and consciously on the card reader, without fully appreciating the challenges associated with it, adding that they took a calculated risk on the card reader without appreciating the process involved and the 3rd respondent has proved that the card reader has not availed them of the case they had intended to establish with it.

In his final argument of address, Damien Dodo, SAN, who also told the tribunal that he had 3 motions pending before the tribunal which he has tendered for adoption, pointed out categorically that the Relief of Paragraph 17 of the petition was un-grantable because the petitioners did not ask specifically for fresh elections.

“The relief of paragraph 17 of the petition is un-grantable. The petitioners did not ask for fresh elections and they must ask for it specifically because the law abhors a vacuum. There cannot be anarchy in Delta State. The Supreme Court has already ruled that the relief for fresh elections cannot be granted consequentially. This petition has committed judicial suicide. If you don’t ask for it, it cannot be given to you. Delta State must move forward”, Dodo concluded.

Responding to all the addresses by the respondents, Chief Thomson Okpoko (SAN), lead counsel to the APC and its governorship candidate Olorogun O’tega Emerhor, argued against all their submissions and urged the tribunal to discountenance their prayers and uphold the petition challenging the declaration of Dr. Ifeanyi Okowa as governor by INEC, and calling for a re-run election in Delta State.

Chief Okpoko, SAN, in responding to the issue of the over 40 pages final written address told the tribunal that since the respondents addresses and replies to his own address have already been adopted, he was applying that same be done to his own, irrespective of the number of pages, adding that it is the function of the tribunal to do justice and that since none of the respondents had said in their addresses that the over pagination would injure or affect their presentations, he was appealing for it to be adopted, in addition to all the counter affidavits to each of the motions and affidavits in support of the applications.

Okpoko, who referred to Paragraph 5 of the Practice Directives, avered that the tribunal has the power to act on its own discretion in conflicting Court of Appeal decisions, and while dismissing the case of Osakwe vs Federal College of Education, said that the rule of being bound by the latest rulings in conflicting decision was only applicable to the supreme court case. “It does not apply to conflicting cases of the Court of Appeal, because they are intermediate courts they cannot over rule themselves,” Okpoko argued.

With specific reference to the case of APC vs Agbaje, and citing Section 138 A&B of the Electoral Act, Okpoko, while responding to the argument that the petitioners cannot project the card reader as grounds for validating an election, said that the view of the Court of Appeal was that, you cannot question the improper use of the card reader as ground for validating an election, but if you have a proper case of non compliance then you can use the card reader to your case. “The card reader can be used to prove or support an existing ground of irregularities in an election”, he said.

Despite the fact that Dr. Iziyon quickly challenged this assertion by pointing out that it was not contained the petitioners final written address but was only an oral submission, Chief Okpoko went on to tackle the issue of jurisdiction and the signing of the petition, and citing the cases of Omisore vs Aregbesola, Belgore vs Ahmed and Yakowa vs Said, ultimately submitted that one petitioner can sign for all the petitioners in a joint petition.

Chief Okpoko then went on to definitively buttress the argument of his petition by citing Section 140 (2) of the Electoral Act, 2010 as amended, which states that when a tribunal nullifies an election on the ground of irregularity and non compliance, the tribunal shall grant a re-run or fresh election.

On the issue of the use of the card reader by INEC for the election, Chief Okpoko went to great lengths to show that the card reader was not an orphan that should be ‘bulldozed’ out of the way as suggested by the respondents but that the card reader is accommodated by the electoral Act, adding that INEC was established by the constitution (section 153), which prescribes its duties in Paragraph 15 of the third schedule, to undertake, organize and supervise elections of public officers in the state and INEC , as the body with that power made rules, which he admonished the respondents for describing as ‘ultra vires’, when it indeed conforms with INEC’s duties.

Chief Okpoko noted that the Electoral Act conferred on INEC the power to make regulations for the conduct of the election and this gave rise to the Approved Guidelines for the 2015 elections, the Manual for election officials for the conduct of the 2015 elections and indeed the Press Release on Card Reader issued by INEC for the April 11 elections across the country, none of which have not been disputed or invalidated by the respondents.

In rounding up, Chief Okpoko, SAN said, “The old order has passed and we are at the threshold of our freedom and salvation in this state”.

Having listened patiently to all the final addresses by the respondents and petitioners and intervened with great diplomacy and brinkmanship when and where necessary, the three-man Delta election petition panel, headed by Justice Nasiru Gunmi, assured all parties that it would devote ample time to the final written addresses already adopted.

The tribunal chairman then promised that they would communicate the date for the final ruling to all parties, which should be before October 28, adjourned the sitting until the date of the final ruling.

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