A’Ibom Senatorial Seat: The jigsaw puzzle before the Court of Appeal

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Hon Bassey Etim

Nine months after Mr Bassey Albert Akpan with the support of Senate President, Dr Bukola Saraki had illegally remained in office in defiance to the judgment of a Federal high court which sacked him from the National Assembly, a three member panel of the Calabar division of the Court of Appeal is set to deliver judgment on the critical issue of who between him (Mr Albert Akpan) and Hon Bassey Etim of the Peoples’ Democratic Party (PDP), is the lawful and bonafide representative of Akwa Ibom North East Senatorial District at the upper chamber of the National Assembly especially at a time when Mr Albert Akpan stoked a fresh controversy on the correct legal name of the senatorial district he contested election into. Specifically, Akpan appears to have abandoned his argument at the trial court to the effect that the correct legal name of the senatorial district he contested election into is Uyo Senatorial District as he is now claiming at appeal level that the correct name is Akwa Ibom North East Senatorial District which he claimed is also known as Uyo Senatorial District. Our Correspondent, Ise-Oluwa Ige writes that the fresh argument by Akpan that Uyo Senatorial District which his result sheet bore and which had been described as illegal by the trial court is the same thing as Akwa Ibom North East Senatorial District should attract the attention of the Court of Appeal to arrive at the justice of this case.

Less than two weeks ago, a three-member panel of the Court of Appeal sitting in Calabar adjourned for judgment in an appeal filed by Mr Bassey Albert Akpan to upturn a February 27, 2017 judgment of a Federal high court, Uyo which sacked him from the National Assembly.

The panel comprising some of the best brains in the Appeal Court bench though did not fix a definite date for the judgment, yet, it hinted that the verdict would be delivered as soon as practicable.

The panel members are Justices Chioma E. Nwosu Iheme, Stephen Jonah Adah and Joseph Oyewole.

The justices are known for shining integrity, hard-work and a track record of high ethical standard.

But for the insistence of the panel members that the briefs of argument in the appeals must be adopted on November 13, there were plots to force the court adjourn the case.

The background of the case is that a Federal high court sitting in Uyo, in a judgment delivered about 38 weeks ago, sacked Mr Bassey Albert Akpan from the National Assembly.

Until then, Mr Akpan was the senator representing Akwa Ibom North East Senatorial District at the upper chamber of the National Assembly.

The high court, in the judgment delivered on February 27, 2017, ousted Akpan from the National Assembly after it found that he (Mr Akpan) was not the valid and bonafide candidate of the Peoples Democratic Party (PDP) which won the 2015 general election for the Akwa Ibom North East senatorial seat.

The court, however, declared Hon Bassey Etim as the rightful owner of the seat and ordered the Independent National Electoral Commission (INEC) to withdraw the certificate of return of Mr Akpan and issue same to Hon Etim.

The trial judge in the matter also ordered Mr Albert Akpan to refund to the coffers of the National Assembly all he had benefitted at the National Assembly including salaries and allowances since he was wrongly inaugurated.

The high court had made all the pronouncements on issues raised in the pre-election dispute between the former member of House of Representatives, Hon Bassey Etim and Senator Akpan.

Recall that both Mr Albert Akpan and Hon Bassey Etim had claimed to be the winners of the primary poll for the 2015 senatorial election into the Akwa Ibom North East Senatorial District.

INEC had since complied with the court order as it issued the certificate of return to Bassey Etim.

But almost 38 weeks after INEC had complied with the court judgment and notwithstanding a letter written to the leadership of the senate by Bassey Etim that he was ready for his swearing-in, the senate has not only refused to dignify the court’s judgment but also violently violated the court’s verdict in the matter by allowing Mr Bassey Albert Akpan, the lawmaker that was sacked by the court from the Senate, to remain in office and continue to draw his salary and allowances illegally while he shut the giant gates of the National Assembly against Hon Bassey Etim whom the court ordered should be inaugurated.

The case became more disturbing because Saraki’s senate had obeyed similar court judgments on pre-election disputes in the present 8th Senate by inaugurating members who were victorious in courts notwithstanding pending appeals challenging such decisions at higher courts.

For instance, the senate, on January 10, 2017, acted on a high court judgment in a pre-election lawsuit involving Senator Atai Aidoko and Senator Air Marshall Isaac Alfa who engaged each other in a legal battle over who between them is the authentic candidate of the PDP for the Kogi North East Senatorial District.

No reason was given for the change in the standard of senate regarding court’s judgment in the case for a very long time.

However, when pressure mounted on the senate, its president, Dr Bukola Saraki said that he had referred the judgment to the legal department of the National Assembly for advice.

His explanation rather than douse, heightened, tension in the polity as he was told point blank that no legal advice could override the judgment of the court.

But he refused to inaugurate Bassey Etim notwithstanding that there was no order from any court stopping the execution of the decision.

But for Albert Akpn, when all attempts to get an injunction stopping the execution of the Federal high court judgment which sacked him from the National Assembly failed, the only straw he has clung to for survival remains the appeal he filed to challenge the decision of the trial court.

In the bulky appeal, Akpan formulated five issues for the court to determine with 18 grounds of appeal which revolve around the following:

  • Whether considering the totality of the evidence before him and the applicable laws, was the learned trial judge right in coming to the conclusion that Bassey Etim (the first respondent) was the candidate that emerged from the primary election of the PDP conducted on December 7, 2014 in respect of Akwa Ibom North East Senatorial District and in granting the reliefs sought, inclusive of the consequential orders thereof?
  • Whether the learned trial judge was right when he declined to strike out paragraphs 4,5,6,7,8 and 9 of the plaintiff’s reply dated May 11, 2015 and in coming to the conclusion that the plaintiff’s case is not an inquiry into the process of nominating PDP’s governorship candidate but that the 3rd defendant (Albert Akpan, now appellant) who was an aspirant for the governorship of the PDP (now second respondent) was foisted or forced on the party as an aspirant or winner of the Akwa Ibom North East Senatorial district election of 7th December, 2014 against the 1999 Constitution, Electoral Act and the Party’s Guidelines

The brief was settled by Akpan’s legal team headed by Paul Usoro (SAN).

Specifically, Akpan, in the main, urged the appellate court to hold that the Uyo Federal high court erred in law when it failed to evaluate the strength of Bassey Etim’s case and premised its decision on the purported weaknesses in the appellant’s (Akpan’s) case despite the fact that the main reliefs sought by Etim in his amended statement of claim dated 28 September 2016 are declaratory reliefs and that it granted the reliefs sought by Etim despite his failure to prove that he physically participated in and won the PDP’s primary election held on December 7, 2014 in respect of Akwa Ibom North East Senatorial District (also known as Uyo Senatorial District).

Akpan also attempted to smuggle an amendment of of his facts before the trial court into the case relating to the name of the senatorial district in issue by canvassing that Uyo Senatorial District which appeared on the result sheet he presented to the court is the same thing as Akwa Ibom North East Senatorial District.

Bar and Bench Watch recalls that Hon Etim had alleged before the Federal high court in Uyo that Albert Akpan presented a forged result bearing Uyo Senatorial District with numerous defects before the court while Albert Akpan had said that it was Hon Bassey Etim that actually presented forged result bearing Akwa Ibom North East Senatorial District before the court.

The trial court had extensively pronounced on the issue being the major contention by both parties (Akpan and Etim) but not until the Independent National Electoral Commission had tendered what it called Atlas of Electoral Constituency in Nigeria which showed that the correct legal name of the senatorial district in contention is Akwa Ibom North East Senatorial District and not Uyo Senatorial District.

A close study of the 53-page judgment of the Federal high court, Uyo shows that it devoted pages 37-53 of the decision to two fundamental issues including which of the results tendered by the parties is the genuine/authentic results and who are the authentic/genuine electoral and returning officers appointed for the conduct of the Akwa Ibom North East Senatorial District primary held on 7/12/2014.

Indeed, the trial judge, at page 40 of the judgment, for instance, found thus: “I have examined and compared Exhibit 8 (results) of the plaintiff (Bassey Etim) and Exhibit 19 (results of the 3rd Defendant (Albert Akpan). Exhibit 8 was signed by Michael George as the Electoral Officer with party membership card number of 2976821 and Daniel Ekanem as the returning officer with party membership card number 3872375. Exhibit 8 shows number of accredited delegates to be 375 and the plaintiff’s membership card number 4574227 and INEC Voters card number 90F5B071B7296.

“In Exhibit 19 of (Albert Akpan) the 3rd defendant (the results), the returning officer signed it on 9/12/2014 (two days after the primary was held).The electoral officer signed it on 7/12/2014 when the primary was held. The party membership card numbers of the electoral officer and the returning officer are not indicated as well as party membership card number of the 3rd defendant and his INEC voter’s card number.

“I find that if the total number of votes scored by the 7 aspirants is summed up together, it will show that the total number of delegates was 374 and not 375 as stated in Exhibit 19 as there was no vote voided.

“I find also that Exhibit 19 does not contain the party membership card numbers of both Electoral and Returning Officers. I find that the exhibit 19 is falsified. This renders it not credible but questionable

“Exhibit 15 is the Independent National Electoral Commission Atlas of Electoral Constituency. The DW1 identified Exhibit 15 when he adopted his Witness Statement on Oath. He was not cross examined by the other parties. By Exhibit 15, the name of the Senatorial District, subject of this suit, is Akwa Ibom North East Senatorial District. Uyo Senatorial District is a misnomer and unknown in law. Exhibit 15 is conclusive proof of the name of the Senatorial District; and I so hold,” the judgment added.

To further clarify on the issue of legal name of the senatorial district, the Independent National Electoral Commission (INEC) had, in its brief of argument filed at the Court of Appeal said it would not take any side other than to adumbrate on the issue of the correct legal name of the senatorial district in contention which it said remains Akwa Ibom North East Senatorial District.

The questions that arise from the issue of the legal name of the senatorial district as raised by Akpan for the determination of the Court of Appeal are: If the result sheet presented by Albert Akpan bearing Uyo Senatorial District is the authentic result, could it mean that the PDP forgot the correct legal name of the constituency it conducted the primary election into or if Uyo Senatorial District is unknown in law, what is the effect of that on the election result sheet carrying that name presented by Albert Akpan?

However, in his own brief settled by his legal team headed by Taiwo Abe, Hon Bassey Akpan first traced the history of the case to show how Mr Albert Akpan had made spirited efforts to frustrate early hearing of the appeal before he urged the court to dismiss the entire appeal in limine based on the fact that the appeal relied on by Albert in the court was incompetent.

He specifically argued that the appeal had no notice of appeal and therefore the appeal could not be countenanced by the Appeal Court..

In the preliminary objection he filed to canvass the point, Bassey Etim’s lawyer argued: “My Lords, a careful study of the records of appeal, taking into consideration when they were entered in the registry of this Honourable Court, the filing of the various notices of appeal and how they were transmitted will reveal that there is virtually no appeal before this Honourable Court. This is so because the only extant and proper notice of appeal is the notice of appeal filed on the 27th day of February 2017 which my lords will find at pages 2150-2152 of Volume 3 of the record of appeal entered on 10/03/2017

“Unfortunately for the appellant, his brief of argument is based on the notice of appeal filed on 17/05/2017 which is not properly before this Honourable Court and is not a notice of the instant appeal. Maybe, a notice of another appeal.

“We submit with due respect to the appellant that having not sought for leave to do so, the notice of appeal filed on 17/05/2017 on the basis of which this appeal is anchored is thus incompetent and ought to be struck out. The appellant cannot base his brief on an incompetent notice of appeal,” the legal team argued.

Bassey Etim however said that in the event the objection is overruled, he joined issues with Akpan and formulated two fundamental issues out of what he called “the 18 repetitive, verbose, narrative and argumentative grounds of appeal” for the court to decide

In summary, he argued that contrary to the claim by Akpan, he said he was an aspirant who participated in the PDP’s primary election which took place on December 7, 2014 at the Uyo Township Stadium and that he won that election overwhelmingly with 150 votes and that Albert Akpan who was a governorship aspirant was smuggled into the senatorial contest and was defeated as he came a distant 5th position with 27 votes in the primary election.

He also argued that contrary to Akpan’s argument, Exhibit 28 is unreliable and the learned trial judge was right in not relying on it and that the consequential orders made by the learned trial judge was proper as it gave effect to the declaration made while Exhibit 29 is also self-contradictory, discredited and unreliable and therefore the learned trial judge was right in not striking out paragrahs 4,5,6,7,8 and 9 of the plaintiff’s reply to the 1st and 3rd defendants’ statement of defence.

He finally argued that the judgment of the learned trial judge is founded on the evidence before him and the applicable laws to the subject matter, urging the court to uphold the preliminary objection raised by him and dismiss the suit or in the alternative decide the merit of the case in his favour.

The Peoples Democratic Party (PDP) which had earlier withdrawn its appeal in the case later filed an application to re-enter it.

The political party however did not adopt any brief of argument in the case as it agreed to be bound by whatever judgment is entered in the case based on the brief of argument of Albert Akpan.

The intermediate appellate court has however adjourned sine die for holistic consideration of all arguments in order to enter a well-considered judgment in the case which may come very soon.

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