The Edo State Governorship Election Petition Tribunal is set to deliver judgment in a case filed by the Peoples Democratic Party (PDP) and its candidate, Osagie Ize-Iyamu, against the Independent National Electoral Commission (INEC), Governor Godwin Obaseki and the All Progressives Congress (APC). BANJI ALUKO, who monitored proceedings of the tribunal, writes on the issues raised by parties in the matter.
Between January 9, 2017 and March 3, 2017, counsels to the parties in the dispute over the Governorship election Tribunal engaged in legal fireworks before the three-man panel constituted to hear the petition that arose from the conduct of the September 28, 2016 election.
After the tribunal, headed by Justice Ahmed Badamasi, had dispensed with a case filed by the Young Democratic Party (YDP), the focus shifted to suit filed by the candidate of the Peoples Democratic Party (PDP), Osagie Ize-Iyamu, who was credited with 253, 173 by the Independent National Electoral Commission (INEC) as against the declared winner, Godwin Obaseki, of the All Progressives Congress (APC), who was credited with 319, 483.
Having sorted out the pre-hearing proceedings done on December 12, 2016, counsels in the case commenced legal fireworks in defence of their clients’ positions on January 9.
It was indeed a galaxy of some of the best lawyers in the land. The PDP and Ize-Iyamu, who both filed a joint petition, went for Yusuf Alli (SAN). He was joined by Roland Otaru (SAN), Emmanuel Ukala (SAN), Kemi Pinhero (SAN), Adebayo Adelodun (SAN), Ferdinand Orbih (SAN), Kehinde Eleja (SAN), among others. The first respondent, INEC, chose Onyechi Ikpeazu (SAN), A.B. Mahmoud (SAN), H.M. Liman (SAN), Ahmed Raji (SAN), Onyinye Anumonye, among others. Obaseki, who is the second respondent, hired Chief Wole Olanipekun (SAN), Ken Mozia (SAN), Adetunji Oyeyipo (SAN), A.J. Owonikoko (SAN), Dr. Oladapo Olanipekun (SAN), among others. The third respondent, the APC, was represented by Lateef Fagbemi (SAN), Ricky Tarfar (SAN), Adeniyi Akintola (SAN), Rotimi Ogunesan (SAN), Dr J.O. Olatoke (SAN) and others.
According to the petitioners, the issues before the tribunal were simple and the petition should be taken on its merit. Lead counsel to the petitioners, Yusuf Alli (SAN), noted that the petition was largely documentary, meaning that it was basically hinged on documentary evidence of key materials used in the conduct of the election, especially the voters’ registers and the result sheets. The eminent lawyer stated that the tribunal only needed to reconcile figures to establish a case of fraud perpetrated by the electoral umpire, the INEC. For this reason, Ali, who led other lawyers, produced as exhibits the voters’ register in 16 of the 18 local government areas of the state. The petitioners also produced the Forms EC8A, Form EC8B and EC8C, being results sheets for all the polling units, wards and local government areas of the state.
The petitioners averred that there were lots of invalid votes arising from non-compliance to the Electoral Act in the contested units. The petitioners also pointed out that the most credible way to confirm non-compliance was through the voters’ register, adding that anyone who voted without accreditation renders the total votes of the unit invalid. Counsel to the petitioners also submitted that when reconciled, the figures of ballot papers used and unused in the contested units did not add up.
Another contention at the tribunal was the issue of what constitutes accreditation of prospective voters in an election as contained in relevant statutes. counsels on the two sides took time to argue this point by backing their claims with relevant sections of the Electoral Act and other relevant statutes. For the petitioners, accreditation is completed when a prospective voter has his name ticked on the left side of the voters’ register, while ticking to the left is marked by ticking to the right side of the voters’ register. To back the claim, Ali stated that the Supreme Court had made it clear in Faleke vs INEC that the 2015 manual for election officials is a part of the guidelines guiding the conduct of election and that it should be used when found relevant. He also pointed out that an amendment was made in 2016 to the 2015 manual for election.
Counsels to respondents were unanimous in their position that the manual was meant for the training of election officials and not for the conduct of the election itself.
Another point raised by Alli was that the second respondent in its reply claimed to be dissatisfied with the conduct of the election, thereby raising objections to votes scored by the petitioners, who are equally dissatisfied with the conduct of the el ection. He therefore argued that if all parties involved are dissatisfied with the conduct of the election, the duty rested on the tribunal to give strength to the dissatisfaction of the petitioners and the second respondent.
One of the reasons the petitioners think judgment should go their way later this week is the refusal of the INEC to present any witness during the trial. Recall that INEC did not present any witness as its counsel stated that they would prefer to rely on the cross-examination of the petitioners’ witnesses to prove their case. In his final address, Alli said all allegations of non-compliance were made against INEC and by virtue of the allegation, only INEC can provide answers to the allegations. He added that the petition was largely documentary and that it was not hinged on alleged thuggery or ballot box snatching, but on documents issued and certified by INEC.
However in his final address to the tribunal, counsel to INEC, Onyechi Ikpeazu (SAN), who led other lawyers, said the burden was on the petitioners to prove their case in all the polling units they alleged electoral malpractices. Recalling that the petitioners only called 29 witnesses, who gave evidence in respect of 29 polling units, Ikpeazu argued that if the tribunal were to act on settled cases, the evidence from 29 polling units cannot affect the entire election. He urged the court to rely on the provisions of Section 138 sub-section (2) of the Electoral Act, contending that non-compliance with guidelines of instructions for election cannot erode the provisions of the Electoral Act. According to him, the argument of ticking register or non-ticking amounted to no issue, urging the tribunal to hold that issue was immaterial.
On the issue of INEC not calling evidence raised by the petitioners, Ikpeazu said by the results of every polling unit before the court, the electoral body has called evidence, even as he added that by cross-examining witnesses, INEC has also called witnesses, stressing that there was a difference between calling evidence and witnesses. On the issue of over-voting alleged by the petitioners, the INEC counsel argued that the only way to show over-voting was to tender the voters’ register, ballot papers and establish over-voting after the ballots had been counted.
He said: “Whether the point is some imperfections in form EC8A, or swapping of votes or accreditation or improper accreditation, are all matters which transpired at the polling units. However, they have pleaded that there are 2,627 polling units. From their pleadings, they have challenged 2,423 polling units. If you look at their evidence, particularly areas they have abandoned, it appears they have reduced that to about 1,200.” On alleged over-voting, he said, “the ballot papers have not been counted, therefore, there is no way over-voting can be proved,” pointing out that the petitioners invented figures that were not before court and were contradictory to the pleadings and evidence they led. He, therefore, urged the tribunal to hold that the petitioners abandoned their pleadings, and dismiss the petition.
Counsel to Governor Godwin Obaseki, Wole Olanipekun (SAN), leading other lawyers, in his final address, focused on the identity of the candidate of the PDP and urged the tribunal to dismiss the petition because the petitioner’s identity was doubtful, as he is different from the person sponsored by the PDP for the election. He based his argument on the fact that whereas the petitioner’s identity was stated as Pastor Osagie Andrew Ize-Iyamu, his identity in INEC documents did not bear Pastor and Andrew.
On the above, Yusuf Alli (SAN) countered Olanipekun, saying the identity of the petitioner (Pastor Osagie Ize-Iyamu) was not in doubt because the introductory paragraph of INEC’s reply states thus, “the first petitioner (Pastor Osagie Ize-Iyamu) was the candidate of the second petitioner (PDP).” He cited authorities from the case of AD vs Fayose and Sheriff Vs Liman, saying “the courts held that when you dispute the candidacy of a party, you have to present the real candidate.”
However, Olanipekun (SAN) also took time to speak on the uncompleted ballot recount that was sought and given by the petitioners. Recall that the tribunal had approved recount of ballot papers in Etsako West, Etsako East, Egor and Akoko-Edo local government area but the recount was not completed when the 14 days given to the petitioners to prove their case ended.
Olanipekun argued that he was not aware of any ballot recount as the result of the counting was never admitted in evidence. Citing Supreme Court decisions, Olanipekun said document brought for identification without tendering go to no issue, even as he drew a distinction between Oshiomhole and Agagu’s cases and pointed out that after the counting of their ballot papers, the report of the counting was tendered in court unlike the instant case.
Aligning himself with the submissions of Ikpeazu and Olanipekun, counsel to the All Progressives Congress (APC), Lateef Fagbemi, SAN, who led other lawyers, said the petition has “failed in stem and branches and urged the tribunal to dismiss it. He said even if the tribunal believed the result computed by the petitioners, the APC still won the election with 59,696 with spread in two-thirds of the 18 local governments of the state.
All eyes are now on the tribunal which is bound to deliver ruling within the 180 days stipulated by the law.