The electoral woes of Otunba Alao-Akala, the former Governor of Oyo State were further compounded as the Governorship Election Petitions Tribunal sitting in Ibadan, Oyo State on Wednesday dismissed the petition filed by the People’s Democratic Party to challenge the electoral victory of Governor Abiola Ajimobi in the April 2011 Governorship election in Oyo State.
The decision was taken by the trio of Justice Abdulkadir M. Pindiga, A.I Kutigi and Umukoro who made up the Tribunal. The PDP had claimed that the Action Congress of Nigeria candidate, Abiola Ajimobi was ineligible to contest based on his alleged dual citizenship of Nigeria and the United States.
Immediately the Tribunal resumed sitting on Wednesday, Justice Pindiga announced that there was a motion to be heard.
When the respondents were to speak, Lead Counsel, Chief Rotimi Akeredolu pointed out that petitioners who are respondents should speak before the respondents.
Biodun Azeez, counsel to the second petitioner respondent in the matter disclosed that a counter affidavit dated 9th, November, 2011 was filed by the Action Alliance and that the said affidavit was in support of the written address earlier filed.
In his own address, Ahmed Raji who appeared for the Independent National Electoral Commission urged the tribunal to dismiss the application on the basis that it lacked merit. He argued that election petitions tribunals have been given time lags within which to work to prevent situations where petitions would not end before the expiration of the tenure of the office in dispute. He also pointed out that there is already a working paper to reduce the 180 days given to tribunals to 120 days. He wondered why the applicants had been sleeping since, only to wake up three days to the expiration of the time mandate given to the tribunal and apply to relist its petition.
He brought out a copy of the Nigerian Tribune of Wednesday, 10th, November, 2011 and urged the Tribunal to take judicial notice of a story on page 10 where the National Chairman of the Action Alliance allegedly stated that his party has no case against Ajimobi and that the party did not authorize anybody to file any petition against him.
By the time Chief Akeredolu rose to speak on behalf of the Governor and the Action Congress of Nigeria, he picked holes in the petition and urged the tribunal to dismiss it on a number of grounds, firstly he pointed out that the petition stated that it is before “the Election Petition Tribunal holden at Ibadan.” He averred that that Tribunal is unknown to law and since it is not the Tribunal that they are appearing before, it should be dismissed forthwith. Secondly, he called for the dismissal of the petition because it was being resuscitated four months after the counsel handling it had withdrawn.
Akeredolu told the Tribunal that Action Alliance have indicated that they are no longer interested in the petition, the names of their candidates have been listed as those who are no longer interested. If eventually they win, who will now be their candidate? He asked. He went further that “in matters of this nature, one would expect the counsel who withdrew to depose to an affidavit that he erred by withdrawing the matter and that it was not done in consultation with his clients.”
Titilola Dauda, the counsel to the 4th respondent stirred up a heated argument when he said the Nigerian Tribune brought by the INEC counsel was not before the Tribunal. He urged the Tribunal to disregard it so that a bad precedence will not be set. The INEC counsel however took objection at the statement. The judges waded in and kept the situation under control.
Dauda also made it known that the State arm of the party gave the duo of Alhaja Sikirat and Taiwo Otegbeye the authority to withdraw their petition.
Azeez submitted that it was not too late to relist the petition. He cited paragraph 53 (2) of the Electoral Act and argued that a petition can still be relisted provided there is still reasonable time.
While ruling on the Action Alliance petition about the non-inclusion of the name of its candidate on the ballot papers, the Justice Pindiga led Tribunal noted that when the matter was withdrawn, the Chairman of the party was present and he did not make any complaints. The Tribunal noted that with the irreconcilable positions evident in the matter, an intra-party dispute is what was brought before it and it cannot entertain such.
Also considering the fact that 115 days have elapsed after the matter was ruled upon before another motion was filed, the Tribunal ruled that the application lacks merit. It was therefore dismissed and a cost of N 5,000 (Five thousand Naira) was awarded against the Action Alliance.
On the other petition before the Tribunal, which had to do with the allegation that Governor Ajimobi has dual citizenship, the Tribunal noted that the PDP who are the petitioners in the matter relied on documents from the American Embassy in Nigeria, a page on the respondent’s international passport and his social security number. The Tribunal also noted that the PDP averred that based on the ineligibility of the Action Congress of Nigeria’s candidate to contest the election, the PDP’s candidate who had the second largest number of votes in the election should be returned as Governor.
The PDP had claimed that the 1st respondent was ineligible to stand for elections having voluntarily acquired the citizenship of the United States of America.
The respondent’s counsel had however averred that his client was living in Nigeria and had not relinquished his Nigerian citizenship as of the time he won the election.
While reading the ruling, Justice Pindiga pointed out that it is one of the principles of law that averment is not evidence. He stated that despite the fact that the burden of proving the case was on the petitioner, the documents needed to support the claims made were never produced. He noted that the failure of the petitioner to produce the documents amounted to inability to prove the allegations. Justice Pindiga also stated that the petitioner did not adduce secondary evidence to the petition and that all allegations must be proved, if not, they remain mere allegations.
The Tribunal made it known that “litigation is not a game of chance, any litigant that cannot produce evidence has no business filing petitions. The failure to provide the documents makes it devoid of element.” The case of Orji vs PDP, 2008 was cited.
The Chairman of the Tribunal found claims by the petitioners that they did not get a fair hearing bizarre. He noted that the Tribunal cannot appeal to anybody for evidence; neither can it pursue any party’s case for it. He disclosed that all adjournments were at the instance of the petitioner to allow them make their case. “To therefore accuse the Tribunal of not giving fair hearing is not fair. The party certainly doesn’t have till eternity to prove its case” Justice Pindiga said.
The Tribunal stated that the issue of dual nationality was not proven.
Section 182 of the Nigerian constitution was cited that no person can be qualified to contest an election if he has a citizenship of a country other than Nigeria. Section 25 of the constitution was also applied that a citizen of Nigeria cannot forfeit his Nigerian citizenship if the citizenship was acquired by birth. The Tribunal noted that the concept of citizenship is constantly subject to change. Examples of children born to Nigerian parents in the United Kingdom and Nigerians who become American citizens through the American Green Card Lottery were cited.
It was thereafter noted that the disqualification clause in the constitution applies only to a person who acquires Nigerian citizenship by other means other than by birth and also acquiring the citizenship of another country voluntarily. “Such situation has not arisen here”, the Tribunal stated.
The Tribunal thereafter ruled that “a person that has citizenship of Nigeria by birth cannot be ineligible to contest. This petition is devoid of any merit, it is unsubstantiated and speculative. It is therefore dismissed.”
Speaking after the ruling, Chief Akeredolu said Justice Pindiga can raise his head high because he has done well.
Chief N.O Oke on the other hand said all the issues raised by his team were addressed. On whether there would be an appeal against the ruling or not, he simply said “we shall see.”
Ahmed Raji, counsel to INEC described it as a well considered judgment. He disclosed that he would be making more research in the area of citizenship and nationality. He said “here we are talking about dual citizenship while in other parts of the world, the issue is multiple nationality. Take for instance, a Nigerian marries a British girl and they give birth to a child in the US. By virtue of parentage, the child is a Nigerian and a Briton, and he might also be an American citizen.”