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From Godwin Tsa, Abuja
The Senator representing North-East senatorial district of Benue State, Emmanuel Udende has recorded a major victory in his challenge against the judgment of the State National Assembly Election Tribunal which nullified his election.
This followed the judgment of the Abuja division of the Court of Appeal quashing the evidence of the 11 witnesses who testified for his political rival, Senator Gabriel Suswam in his petition against Udende at the tribunal.
The appellate court reached its decision after holding that the 11witnesses gave their testimonies after the former Governor, Suswam was forclosed by the tribunal from calling further witnesses.
The appellate court held that the tribunal was wrong for setting aside its order foreclosing Senator Suswam from calling further witnesses in his petition.
Consequently, the three-member panel of the Court of Appeal led by Justice Mohammed Shaibu ordered that the evidence of the 11 additional witnesses called by Suswam after the foreclosure should be expunged from the record of the tribunal.
Senator Udende filed the notice of appeal after the tribunal set aside its own ruling foreclosing Suswam from further calling witnesses in his petition.
The tribubal had in its earlier ruling that it later set aside, foreclosed Suswam from calling further witnesses on the grounds that the five weeks allowed him by law had elapsed.
He had called eight witnesses at the time his petition was set down for adoption of final written addresses.
Before the judgment of the appellate court, Suswam had through his legal team urged the court to strike out the notice of appeal on the ground that the interlocutory appeal had been overtaking by events.
However, he was overruled by the court which agreed with counsel to the appellants, Innocent Da’agba for APC and Wilson Iorshe for Udende, that the appeal was meritorious.
In its judgment, the Court of Appeal held that after making an order foreclosing Senator Suswam from calling further witnesses, the tribunal was funtus officio from setting aside its order.
It held that there was apparently no justification by the for the reopening of the case after rightly making an order foreclosing the petitioners from calling further witnesses.
The appellate court agreed with counsel to the appellants that by the provisions of paragraph 40 (10) of the first schedule to the Electoral Act, 2022, an election tribunal in a senatorial dispute has only five weeks to hear and determine an appeal.
That the tribunal has no powers to set aside its own ruling in the absence of special circumstances.
It held that “once a judge delivers a ruling, he no longer has competence and jurisdiction to reopen the issue.
” In the instant case, the time set for hearing of the petition is five weeks. After the expiration of the five weeks, the tribunal rightly foreclosed the petitioners from calling further witnesses.
“But strangely when the matter came up for adoption of briefs, the tribunal strangely, revisited its earlier order foreclosing the petitioners from calling further witnesses by setting aside its earlier ruling.
” It is trite law that once a court deliver its decision, it does not have power to set it aside except in very rare and specific circumstances.
“In the instance case, the weeks set time for the hearing of the petition had expired and the tribunal rightly foreclosed the petitioners.
” The discretion for the setting aside of its ruling must be exercised very reluctantly and in very special circumstances stipulated by law. Thess special circumstances are absent in the instant case,” the court held.
Reacting to the judgment, counsel to Senator Undede and the All Progressives Congress (APC), Wilson Iorshe and Innocent Da’agba both expressed confidence that with the evidence of the 11 witnesses expunged from the petition by Sen. Suswam and the PDP, the petition is standing on only one leg and will not survive on appeal.
In his own reaction, counsel to Suswam, Eko Ejembi Eko (SAN), howver said the petition by his client borders on substantial issues of law and can survive even with the ruling of the court.
The Benue State National Assembly Elections Petitions Tribunal presided over by Justice Ori Zik-Ikeorha has nullified the election of Senator Emmanuel Udende of the All Progressives Congress, APC, representing Benue North East Senatorial District in the National Assembly.
Senator Udende was declared winner of the February 25, 2023, National Assembly election after polling a total of 135,573 votes to defeat Senator Gabriel Suswam of the Peoples Democratic Party, PDP, who garnered 112,231 votes.
Not satisfied with the outcome of the election as announced by the Independent National Electoral Commission, INEC, Senator Suswam approached the Tribunal on the ground that the election was marred by over-voting, irregularities, alterations and falsification of results.
The former Governor challenged the results from 474 polling units across five Local Government Areas, LGAs, in the Senatorial Zone which is made up of seven LGAs with 1,844 polling units.
In her ruling in a judgement that lasted over three hours, Justice Zik-Ikeoha declared that the evidences provided by the petitioners’ counsel established that there were cases of over-voting, falsification and mutilation of results sheets as well as malpractices “in five out of the seven LGAs that make up the Senatorial District.”
The Tribunal held that “the petitioners establish that the result from the affected polling units were falsified.”
The tribunal therefore cancelled 51,895 votes entered for Senator Udende and also cancelled 21,229 votes entered for Senator Suswam.
After subtracting the padded votes, Senator Suswam was left with 90,590 while Senator Udende scored 82,699 votes.
Upholding the petition, Justice Zik-Ikeorha held that “the Tribunal is satisfied that the petitioners have fulfilled the requirement of the law and judgment is entered in their favour.”
The court ordered INEC to issue a fresh certificate of returns to Senator Suswam as he stood duly elected.
