Barr. Uzoamaka Lawrencia Onyeama V. Barr. Ike Ekweremadu & Ors (2009)

LawGlobal-Hub Lead Judgment Report

STANLEY SHENKO ALAGOA, J.C.A

This is an appeal against the National Assembly/Governorship and Legislative Houses Election Petition Tribunal Holden at Enugu Coram: Hon. Justice S.K. Otta (Chairman), Hon. Justice W.A. Omar (Member), Hon. Justice B.G. Sanga (Member), Hon. Justice M.A.A. Adumein (member) and Hon. Justice N. Musa (Member) in Petition No. NAGL/EPT/EN/NA/34/07: BARR. UZOAMAKA LAWRENCIA ONYEAMA V. BARR. IKE EKWEREMADU & 91 ORS. delivered on the 20th November 2007. The Petition of the Appellant as Petitioner in the Tribunal below can be found at pages 28 – 39 of volume 1 of the Record of Appeal and is reproduced in its entirety below –

1. Your Petitioner Uzoamaka L. Onyeama was the ACTION CONGRESS (AC) candidate at the above election or claims to have had a right to contest or be returned at the above elections; and your petitioner states that the election was held on the 21st day of April, 2007 when Uzoamaka L. Onyeama and Ike Ekweremadu and others were candidates.

And your petitioner states that the elections was marred by TOTAL NON COMPLIANCE OF THE ELECTORAL ACT, 2006; Sections 28, 29, 44, 47, 48, 50, 53, 54(1)(2), 59 62, 64, 72 etc massive irregularities, carting away of electoral materials, absence of electoral officials, thuggery, falsification, non availability of voters register.

2. Your Petitioner states that though the senatorial election of the 21st April, 2007, was marred by these irregularities, with the connivance of INEC officials, Police and army, yet INEC declared Ike Ekweremadu winner. The petitioner has not been able to obtain the scores she had as a candidate nor the result sheets from the 2nd or 4th respondent, and the 4th respondent failed to exhibit the result of the purported election on the notice board of 2nd respondent’s office in Enugu and its website as prescribed by S. 72 of the Electoral Act 2006. The petitioner will rely on correspondence with INEC and its agents but which complaints and request were ignored by 2nd and 4th respondent and other addressees and Web site searches of INEC.
3. In the morning of 21st April, 2007, the petitioner left her village Eke in Udi Local Government by 6.30am to Enugu State INEC Office. On getting to INEC Enugu Office the petitioner was informed by the security men who barricaded the main road that all election materials have been distributed and taken to various local Government Police Station. We moved immediately to Udi Local Government Police headquarters in Udi. On getting at the Police Stat ion petitioner confirmed that the election materials for the Senate, House of Representative were in their custody but the Presidential materials were still being awaited and on account of the non-arrival of the Presidential materials there will be no distribution until the materials arrived. I left my Udi Local Government Agent behind at the police Station to monitor situation and event as they unfold. We moved to Ezeagu Local Government police station where the whole main-road to the police station was blocked by army men and policemen.
4. They refused me entry even when I had introduced myself as a Senatorial candidate for the election and my mission was solely to know what is happening to the election materials. We parked to monitor situation. Not quite ten minutes Ogbuefi Ozomgbachi the House of Representatives Candidate for PDP and Abel Chukwu the current speaker came in convoy of cars and were allowed in. At this point I insisted vehemently that I must enter the police station and after much argument I was allowed to go in. As I got in I asked the Ezeagu D.P.O. why only PDP candidate, officers, were inside the police station without one single agent of my party and other parties. Why are other party members, agents, and candidates harassed and obstructed from getting inside the police station when the whole materials for Senate and House of Representative were already inside the police station in full view of these PDP stalwarts and unprotected. He promised me that he will call in the agents of other parties as soon as materials that he was still expecting for the Presidential election arrived. I reminded him of his bias and asked HOW SAFE THE ELECTION MATERIALS WILL BE IN HIS COMPANY AND HIS PDP ALLIES? To which he had no reply/answer. I left the station for Udi police station. I got to Udi Police station by 12.10pm and yet the presidential materials had not arrived. Very large crowd had gathered by the General Hospital gate near the police station and were refused entry by combined team of army and policemen.
5. I was stopped but I insisted that as a candidate I must get to the police station to know why election materials have not been distributed. I got to the police station and noticed that the front and sides of the police station were filled with cars and a serving commission Chijoke Agu was inside the police station where the materials were kept as an agent of P.D.P. Nick Ozonsi the P.D.P. Udi local Government Chairman was there with some young men wearing INEC observer tag on them. I identified some of them who were P.D.P. ward executives and motor park touts. Moses Jackson another P.D.P. agent was there, one Tahir from Abor a development centre Chairman of P.D.P. was there with all their boys. The whole police station inside and outside were filled by P.D.P. agents who were freely mixing with policemen and army men. Most laughable was the sharing of rice from coolers by Nick Ozonsi to them to eat.
6. At this point I told my agent that on no Intimidation or fear will he leave the car park shed were he was until distribution of the materials. That he must keep close watch and listen to know when materials will be distributed. I left for Oji River police Station. I got to Oji River Police Station around 2pm and the situation was the same. No presidential materials. The materials of the Senate and House of Representatives were already in the custody of the police.

Uche Anya the A.N.P.P. candidate informed me that he was waiting for the distribution of the election materials. He further informed me that Bethel Onyenye (Onowu) a serving commission and P.D.P. agent was in the area where election materials were kept and blocking the entrance. I asked him to follow me so that we can get to Onyenye. I asked Onyenye if he was the Chief Security Officer of the election materials. I asked him why he as a serving commissioner should be an agent and be blocking the election material area. He replied that, that was his duty. I insisted that he must leave the area and also the police station. An argument ensued. It went on until an army major rudely walked up to Uche and myself and asked us to leave the place. I refused to leave insisting that Bethel Onyenye, K.G.B. – the House of Representatives candidate of P.D.P. and the State Assembly member of P.D.P. leave the election material area for only agent and observers will I leave. Uche asked me that we should leave since the army major has been hostile since morning and harassing opponents of P.D.P. We left to my car as Uche had assured me he will be there to monitor the distribution of the election material and I left the police station and immediately my phone rang that Chijoke Agu, Nick Ozonsi, Mr. Tahir, and their agents in connivance with SP Abang the D.P.O. and the Electoral officer Ngozi Obinwa were handing result sheets and other election materials of so many towns in Udi to them and they were packing them into their cars and buses and heading out of the police station. At the point of this phone call they were fighting to retrieve the materials of my ward Eke which Mr. Ifudu P.D.P. had hijacked and put in his car – (ballot Papers & boxes), Result sheets in another car. The fight was going on until Rev. Egwuonwu Oscar the D.P.P. governorship candidate passing by the station to go and vote in his home town intervened with one army man who insisted that he was tired of the fraud going on in Udi Local Government Police station and demanded that the driver of the car must open his booth. Surprisingly INEC did not hire one single car for the distribution of the election materials but left it in the hands of P.D.P. Local Government Chairmen and executives. Rev. Egwuonwu insisted that Ifudu, Tahir must return the materials in their possession and called the policemen on duty to enter another car and escort the election materials safely to Eke. My agents, Ifudu and his cohorts followed behind. I met them at Abia town.

7. We got to Eke and the Supervisor emptied the booth. All materials were brought out in the open and only Nine Originals and Nine duplicates each of the Presidential and Senate were available and none for House of Representative. Five rolls of 200 pieces each of ballot papers, no ink pad, no pen, no voters register. It was getting very late, I sent for biros to be brought from them and ink pads. He distributed the materials to the nine (9) polling booths and the result sheets for Senate and President were complete. By 9.00pm and no sign of the supervisor officer we moved round the nine polling booths and all the polling clerks gathered at the Eke Distribution Centre to write their results but Mike Oguama, Vincent Ebue, Uche Alor, Mr. Okey Ndolo and their cohorts refused the writing of any result unless we were prepared to write high numbers for Yar’Adua, Ozomgbachi- P.D.P. House of Representative but they will concede Senate to me as a daughter of the soil.

I refused and insisted that votes cast be counted. I could not vote, and my people could not vote, because the polling clerk for my booth who worked on the 14th April did not report for duty and no replacement to ensure that I should be stopped at all cost. These P.D.P. men had invaded my town with three sets of Hilux police van filled with police men and led by Hycenth Oti from my ward to carry away the materials but were blocked by the youths of my town, myself and my police security. Finally, the last Hilux van with 04 written on the body led by Supol Hillary and Abbe of the 3 Mobile Squadron arrived my ward- the only ward in Enugu West that Result sheet came asking what problems we had as the D.P.O. Udi-SP Abang requested them to proceed to Eke because that there was problem there. I told them that since voting ended around 9pm that polling clerks have refused to count the votes and record it inside the result sheets. The reasons is obvious the voters by their votes had rejected those who think they can force their way to rule again and they cannot accept it. I went with Supol Abbe and demanded for the Result sheets only to find out that one Ejike Chigbo a polling clerk had given away the whole original and duplicate result sheets of his booth. The remaining (7) seven polling clerks had given away (7) seven copies each of their originals and duplicates and the remaining two copies each they refused to record the result.

Supol Abbe now asked them where the original and duplicate result sheets handed over to them were and they claimed that Uche Alor and his collaborators collected it from them. This Uche Alor and his collaborators are P.D.P. The presiding officer and supervisor were no where to be found and when they finally surfaced they had no explanation to give for the missing result sheets and their own whereabouts. Uche Alor was no where to be seen with Vin Ebue & others. Supol Abbe now asked them to pack all their material’s to the police station for their actions were criminal. They were all taken to the police station where the D.P.O. SP Abang refused to interrogate them or detain them nor investigate them. He asked them to return to INEC office Udi. I still went before Electoral officer Udi to report but she was less concerned. I reported this matter to REC Enugu State. The Hilux 04 was one of the police vans that helped Joe Anieze the Local govt development center carter away all election materials of Affa, Akpakwume Nze. Ukana and others to his house and to Ikedinkpa, health centre for rigging and multiple thumb printing.

8. IN UDI LOCAL GOVERNMENT AREA Twenty (20) wards, there was nothing like elections their whole materials never got to their polling booths. Voters came out as early as 7.00am to vote but till 7.pm they could not vote, the reason being that in all the twenty wards except Eke there were no result sheets -original or duplicate, no ballot papers, no presiding officer. Some were harassed by thugs led by policemen shooting in the air and intimidating them. Some angry voters burnt INEC’s ballot boxes and papers since no result sheets accompanied them. Others sent INEC officials and their incomplete materials back as they INEC officials did not arrive any ward in the whole of ENUGU WEST before 4.45pm. Some of the INEC adhoc staff posted to different ward were dropped at the police stations and thugs of the town carried the Elections materials to the various homes of their masters. No voting or elections took place in Udi Local Government Area and its twenty wards.
9. IN EZEAGU LOCAL GOVERNMENT AREA: As soon as I left the police station any agent not from P.D.P. was beaten up. From the police station the whole materials were taken to IGBUDU LODGE Local Government Office and Ozomgbachi and the House of Representative candidates of P.D.P. and Tico, House of Assembly candidate and their agents loaded the materials Into their cars and took them to their various homes and homes of their cohorts. The voters in the whole twenty (20) wards of Ezeagu came out to cast their votes as early as 7.am and till 7.pm no election materials or INEC officials came to their wards or various polling booths. They were all obstructed and disenfranchised from casting their votes.
10. IN OJI-RIVER LOCAL GOVERNMENT AREA: The whole materials were carried away from the police station by Engr. Bethel Onyenye and one Manfred the Local Government chairman and taken into the Local government Secretariat in OJi-River. The gate of the local govt. secretariat was locked and no one was allowed to enter. No materials got out of the local government except for five wards Oji Urban I, Oji Urban III Awlaw, Inyi III and Inyi I, and none of the materials got there before 5.30pm. When they arrived all the Result sheets both Originals and duplicates were no where to be seen. And by the time the materials were displayed it was already very late. Most voters refused to stay late for their safety and saw no sense in voting when no result will be entered because of lack of result sheets. They insisted that they will only vote if all materials and voters register and result sheet were brought out. The presiding officers had none and the voters and agents left. By 8.30pm it became a field day for P.D.P. agents to do every malpractice they can fathom. There was no elections or any form of respect to the rules of the Electoral Act. No elections took place in Oji-River.
11. IN AWGU LOCAL GOVERNMENT AREA: The materials for the elections were handed over to the local government chairman of Awgu who is P.D.P. No one single Result sheets of Awgu Local Government Area and its eleven wards ever got to the wards/polling booths. Election materials did not leave the Awgu Police station till very late. So many agents were beaten up in Awgu. Their motorcycles were damaged.

IN MGBOWO, the ballot boxes and one roll of ballot papers got there without any single result sheet and they voters refused to vote. By 5.30pm – 6.30pm there was no presiding officer only supervisor and polling clerks. They refused to vote because the same method played itself out in the April 14 elections where no result sheet came to their various wards/polling booths and votes cast were written on a sheet of paper only to hear outrageous figures on the radio as votes scored. There were no elections whatsoever in Awgu Local Government and all its wards where the Ezra development council chairman carried the who Anike materials away and the issue of no Result sheet was the common occurrence in Enugu West as a whole and beyond.

12. IN ANINRI LOCAL GOVERNMENT AREA: The smallest of all the zone with ten (10) wards had it the roughest. Our agents were beaten by police and army men. In full view of everybody waiting for the distribution of material the whole result sheets disappeared. When the materials started leaving and got to Okpanku some voters blocked the bus only to be scarred away by policemen and thugs following IKE EKWEREMADUAND ABEL CHUKWU. In Ndeaboh only ballot boxes, few voters cards were sent there no result sheets. The material for Ndeaboh got there by 6.pm while Odume and Nenwe’s materials were seized by ABEL CHUKWU. By the time it got to Odume which is so far inside it was very late and most voters had gone home. They could not stay because the terrain is lonely, no light and the thugs and policemen of Abel Chukwu were intimidating and harassing them.

There was no election material that got there before 5pm and lack of Result sheets worsened the situation and without voters register what can anyone do. The voters were disenfranchised.

The ballot boxes/bags that came had no serial numbers, Voters registers were absent to show who was the real owner of a voters card and who was eligible to vote and who did cast his or her votes. Distribution of materials started very late that most voters did not expect any elections anymore; yet no INEC officials nor materials got to them after this long wait – dashing their hopes and zeal to cast their votes and elect a candidate of their choice.

13. WHEREFORE your petitioner prays that it may be determined that the said Ike Ekweremadu was not duly elected or returned and that his election was void. That a fresh election be conducted.

The salient aspects of the Appellant’s case as Petitioner in the Tribunal below were that elections did not hold in any of the five local Government Areas which constitute her Constituency – the Enugu West Senatorial Zone/Constituency and therefore no result emanated from any of the five local Government Areas within the Enugu West Senatorial Constituency of Udi local government Area (20 wards), Eziagu local Government Area (20 Wards), Oji-River local Government Area (20 Wards) Awgu local Government Area (11 Wards) and Aninri local Government Area, (10 Wards). The Appellant as Petitioner also alleged that there was total non compliance with the provisions of the Electoral Act 2006 particularly sections 28, 29, 44, 47, 48, 50, 53, 54, 59, 62, 64. It was further alleged by the Appellant that there were massive irregularities including carting away of Electoral materials, absence of electoral officers, thuggery, falsifications and the non availability of voters register. Inspite of the fact that there was no election because the election was marred in the manner stated in the petition and there was no published result of the election as required by sections 72, 74, 75 and 76 of the Electoral Act 2006, the Independent National Electoral Commission (INEC) went ahead to declare the 1st Respondent winner of the Election, Appellant further submitted. Appellant called ten witnesses to substantiate the claim that there was no election while the Respondents called fourteen witnesses in rebuttal of the Appellant’s claim that there was no election. Written addresses were submitted by all the parties’ counsel. The tribunal at page 1030 of the Record of Appeal formulated the following issues for the determination of the petition –

1. Did the Petitioner prove the allegations of corrupt practices in her petition?
2. Did the Petitioner rebut the presumption that the return of the 1st Respondent was proper?
3. Did the Petitioner discharge the onus of proof placed upon her by the law that there was substantial non compliance with the provisions of the Electoral Act 2006 by the Respondents that can warrant us to nullify the election?

The tribunal resolving all the issues in favour of the Respondents held as follows at page 1038 (volume 3) of the Records-

“On the whole it is our holding that upon considering the evidence of the Petitioner vis-a-vis those of the Respondents the evidence of the Respondents is more credible and we believe it that election took place and there was substantial compliance with the provisions of the Electoral Act 2006. We also find that the Petitioner has failed to discharge the burden of proof placed upon her as regards corrupt practices and did not dislodge the presumption that the 1st Respondent was duly returned as the winner of the Enugu West Senatorial elections held on the 21st April 2007. In the circumstances it is our judgment that this Petition lacks merit and is hereby dismissed.”

Dissatisfied with this judgment of the tribunal, the Petitioner, hereinafter referred to as the Appellant filed a Notice of Appeal dated the 6th December 2007 and filed on the 7th December 2007.

The Notice of Appeal which consists of six grounds of Appeal with accompanying particulars is at pages 1040 – 1046 of Vol. III of the Record of Appeal. The said Notice of Appeal is reproduced in its entirety below –