Kogi gov election: What chance for PDP at appellate court?



Bello

OYIBO SALIHU looks at the issues in the recent victory of Kogi state Governor Yahaya Bello at the state election petitions tribunal and the PDP’s chance at the appellate court to upturn the judgement.

The litigation started after the November 16, 2019 governorship election where Governor Yahaya Bello of the All Peoples Progressives Congress (APC) roundly defeated his major rival,  Engr. Musa Wada, to return  to Lugard House,  Lokoja, Kogi’s seat of power for a fresh tenure of four years.

Interestingly, while Governor Bello who hails from central senatorial district of the state sought he people’s mandate for a fresh term, the major  opposition party in the state- Peoples Democratic Party (PDP)- presented Engineer Musa Wada from the eastern senatorial flank as their best to give Bello a fight for the top seat.

Apparently, at the end of the contest, Bello  scored 406,222 votes to emerge winner of the contest, beating Wada,  his closest rival, to a distant second with 189,704 votes to emerge first runner-up.

With a wide margin of 216,518 votes, Bello sets the record as the governorship candidate with the highest number of votes in the history of the state.

PDP rejects result

Dissatisfied with the outcome of the governorship election, Wada and his party – PDP-through their counsel, Jibril Okutepa, SAN, headed to the Kogi state Governorship  Election Petition Tribunal sitting in Abuja via a petition marked EPT/KG/GOV/06/2019 to  challenge Bello’s victory.

The petitioners alleged the poll was  marred by violence, over-voting and manipulation of figures and prayed  the tribunal to declare him and his party winners of the election having scored the highest number of valid votes.

Wada’s prayers

The petitioner had in the petition alleged that APC, being winner of  the said election and Bello, the 2nd respondent, should not have been returned as the duly elected governor of Kogi state  despite obtaining the highest number of valid votes cast at the election.

Dissatisfied with the said declaration and return of  Bello as winner of the said election, the 1st and 2nd petitioners herein- Wada and PDP  respectively- filed the petition seeking the following reliefs:

That it may be determined and thus declared that     the Respondent          was not   duly elected and / or  returned  by  a  majority  of lawful            votes   cast     in         the       Kogi    State Governorship    election            held                on                    16th November, 2019 and therefore his election/ declaration  and return  as  the  Governor of Kogi  State  is  null , void  and  of  no  effect whatsoever.

A declaration that neither the 2nd respondent nor 1st Respondent scored the majority of lawful votes cast at the election to the office of the Governor of Kogi State held on I6th November, 2019 upon cancellation by this Tribunal of the unlawful votes allotted to them in all the Polling Units complained of where there were over voting and non-accreditation.

An Order of this Honourable  Tribunal nullifying the Certificate  of  Return  issued   to   the  2nd Respondent by the 1st respondent.

An Order declaring that the  1st  Petitioner scored the majority of lawful  votes cast at the Governorship election held in Kogi State on 16th November, 2019 amongst other reliefs. 

Fireworks/dissenting judgement  

Expectedly, after months of legal fireworks, the  tribunal headed by Hon. Justice Guima Kashim Kaigama, found no merit in the petition and ruled that Bello of the APC was validly elected at the poll.

Though, there was a dissenting judgement delivered by Hon. Justice Ovbiagele Ohimai, it wasn’t however sufficient to alter the decision of the electorate.  

In the dissenting ruling, Justice Ohimai was said to have relied substantially on the opinion of Professor Tanko Ishaya of the University of Jos, a forensic expert, who the PDP and its candidate hired to prove their case of multiple voting.

Cross examination

However under cross-examination, INEC submitted that the election was conducted in substantial compliance with the extant laws and also denied knowledge of any court order to count the ballot papers, insisting that the election was free and fair.

In line with these submissions, they averred that since none of the other parties’ agents was called as witnesses, it affirmed that the evidence tendered by the petitioner amounted to ‘documentary hearsay.

Majority ruling

However, the majority ruling held that it was not sufficient to rely on the expert opinion of Professor  Ishaya, noting that his opinion should have come as a collaboration of other  witnesses, which, albeit, the PDP and its candidate ignored.

The duo of  Justices Kaigama and Baraka I. Wali held that having agreed that he did the job for a fee, the forensic expert  made it obvious that he worked to protect the interest of his clients. 

The tribunal further held that Ishaya, one of the 32 witnesses presented by the petitioner, acted beyond his briefs by counting or recounting the ballot papers, which the panel ruled that it was the responsibility of the Independent National Electoral Commission (INEC).

They further ruled that the onus of proof lies with the petitioner on all grounds of relief it sought, but maintained that he was not able to convince the tribunal. 

The judges affirmed that the petitioner could not sufficiently prove that he did not rely on hearsay and therefore, was unable to show proof to invalidate the election.

In other words, the tribunal held that against the basic principle of pleadings, the facts pleaded by the petitioner were largely given to speculation and conjecture.

However, the tribunal agreed with the respondents’ lawyers that he who alleges must prove, noting that in election petitions, it is trite law that the result declared by INEC is prima facie correct and the burden of proving the contrary lies with the person disputing the result.

They affirmed that a petitioner alleging over-voting or other malpractices in an election must tender and demonstrate in evidence the allegations, as it is enough to “dump” these pieces of evidence on the tribunal. 

The panel also affirmed that the petitioner merely succeeded in discharging his burden of proof and the tribunal had aligned itself with the position of the respondents’ lawyers that the petitioner made their “facts vague, ambiguous, imprecise and nebulous” and saddled the tribunal with the task of helping the petitioner straighten out the facts.

The tribunal ruled that “generally  speaking, in election petition  proceedings,  the  Petitioner  is duty   bound  to   establish   the   averments   contained  in  his  petition. It however relied on Omoboriowo & Ors Vs.Ajasin (1984) LPELR 2643 (SC) the Supreme Court as per Obaseki JSC (of blessed memory) said thus:-

“The burden of proof lay on the Petitioner to prove the averments and a/legations in

his petition in areas where issues have been joined.”

That is not to say that the burden is static throughout the course of proceedings, for the burden shifts depending on the state of pleadings at each turn.

The ruling proper

On the claim seeking for nullification of an election, the panel ruled that  the burden is on the petitioner to establish his case on the strength of the  evidence  presented by  him. 

It relied on Agbaje  Vs.  Fashola (2008) 6 NWLR (Pt.1082) at 133-134, in which the court said:”The heavy weather made by the appellant in which he seeks to capitalise on the failure of the Respondent to counter or controvert his evidence by not calling any witness in support of their reply to his petition is clearly misconceived as his petition is on action seeking for declaratory reliefs. 

“As a petition that seeks for nullification of an election and other declarative reliefs, he should succeed on the strength of  his  own  case  and  not on the weakness of the Respondent’s case. 

“It is trite that in cases where declaratory reliefs are claimed  as in   the   present  case/ and notwithstanding  that the        defendant (Respondent)  did  not  call   any   evidence   to challenge the Appellant’s evidence/ that failure of  the Respondent would not relieve the said Appellant from satisfying the Tribunal by cogent and reliable proof or evidence in support of his claim or petition…..”

Further to this, the jurists reiterated that  on  the  proof  required,  the  Supreme  Court  has stated  that  the petitioner   or  claimant  seeking  declaratory   relief  cannot  be  entitled  to judgment   even  on  admission  except  on  the  strength  of  his  case. 

They further premised their ruling on the position arising from Andrew VS.   NEC (Supra) where Akaahs, JCS  said: “person who seeks to nullify an election must succeed on the strength of his case as pleaded and not on the weakness of the case of the Respondents since the main reliefs sought were declaratory reliefs. 

 The tribunal agreed  with  the Court of Appeal in its judgment where it stated: “From whatever angle this petition is looked at, it is clear that the burden of proof of the allegations contained in the petition, be they criminal or substantial non-compliance, rested on the petitioner.”

It averred that the petitioner did not discharge the burden to warrant the evidence of rebuttal of the evidence to be adduced by the 1st set of Respondents.

 “We have earlier  in the judgment  reproduced the three(3)  grounds of the   petition   and   the   allegations   raised   consist   of   substantial   non-compliance, violence,  voter  disenfranchisement, thuggery, falsification  of results, ballot box snatching, intimidation multiple thumb  printing etc.

“The Petitioners narrowed  down  their   particulars  of  non-compliance  to  over voting,  multiple  thumb  printing  of  ballot  papers  and  disenfranchisement which  are  species  of  irregularities  and  also  electoral  offences  under  the Electoral Act, 2010 (as amended) (hereinafter referred to as “the Act”),” the tribunal noted.

Upon reviewing counsel’s addresses,  the panel  affirmed: “We have gone through the pleadings and the evidence presented by the Petitioners and the Respondents. 

“We have also perused through the written addresses of counsel as well as the objections raised by them to the documents tendered in evidence. We are unable to agree with the learned senior counsel for the Petitioners Okutepa SAN that the 1st Petitioner, Musa Atayi Wada of the PDP be declared winner of the November  16th, 2019   Kogi  State  Governorship  election…we confirm  that the  2nd Respondent Yahaya  Bello of the APC was the winner  of the November  16th 2019 polls having scored the  highest  votes  cast  and  we  have  our  reasons  for  arriving  at  that decision.

“We have herein before set out the pleadings in respect of each of seven (7) Local Governments in contention vis-a-vis the evidence adduced in respect of each one of them. It appears crystal clear from the evidence adduced by the Petitioners that they rely heavily on the evidence of P19 (Prof. shaya Haruna); PW26 Samuel Oduntan the statistician and PW32 Joe Agada (the PDP State Collation Officer) and Exhibit P185 (A & B) the report of an expert i.e. PW19; P196 (Statistician report tendered by PW25) and P203 – 217 tendered by PW32, the 79 Ghana Must Go Bags containing the scanned ballot papers used in election in the 7 Local Governments. Exhibit P3 – P90 CTC of voters register.

“All the evidence of the witnesses were shown to have been unreliable, inconsistent, having no probative value and same are hereby discountenanced. 

“Secondly, PW19 was engaged/employed to do the professional job for consideration. When asked under cross-examination by the Respondent counsel whether he was paid for the job, he looked very much reluctant to answer it. He eventually answered by saying that he was paid out of pocket expenses. This we view as a payment for the job done; a very good job.

“Thirdly, PW19 stated that he was given a copy of the Petition since December  2019  consequently  he was  fully  aware  of what  the  Petitioners wanted him to do even before embarking on the journey.  Thus he becomes a person interested in the petition. 

“Fourthly, PW19 could neither not tell when and where the over-voting and multiple thumb printing were carried out nor could he tell how and who did the thumb printing. This is not surprising as he was nowhere in Kogi State on the 16th  of November, 2019.

“Fifth, the  evidence  required  to  establish  over-voting  and  multiple thumb   printing  are   electoral   offences which  must   be   proved   beyond reasonable   doubt. Thus,   his   evidence  requires corroboration   in   some material particular otherwise  it would  be unsafe to swallow  his report hook line and sinker and act on it.

“Sixthly, evidence  of  an  expert  can  only  be  adopted  in  conjunction with  other  pieces  of  the  expert  opinion.  The  Petitioners  did  plead  over

voting  but failed to  produce  any  iota  of evidence  outside  exhibit  P185  in support  of their contention. 

“By reason of the relationship the Petitioners  have established  between them and PW19, the report exhibit 185 is capable of manipulation and fabrication.”

The tribunal consequently held that “in view of the foregoing,  we view  exhibit P185 with circumspection and accordingly we hereby jettison exhibit P185 in its entirety.

“Having found that exhibit P185 as having no probative value, the same fate shall equally befell exhibit P196 the statistician report, and is also discountenanced…the final analysis, we find and hold that the Petitioners  have failed to prove beyond reasonable doubt the allegations of over-voting and multi thumb printing.”

Petition fails  

“The result is that the Petition fails and is hereby dismissed and awarded  costs  assessed  at  N500,000.00  in  favour   of  each  of  the  2nd   and  3rd Respondents.”

“For  the  avoidance  of  doubt, we  hereby  make  the  following  specific Orders: “We declare and affirm the declaration  and return of Yahaya  Bello by the 1st  Respondent INEC as the duly elected Governor of Kogi State having scored the majority of the  valid votes cast at the November 16th 2019, elections.

“Each of the Petitioners shall each pay the sum of N500,000.00 to each of the 2nd and 3rd Respondents.” 

PDP set for appeal

Despite the fact that the petition fell like a pack of cards, the PDP and Wada, its flag bearer kicked and pledged to  appeal the judgement they described “as a miscarriage of justice.”

Wada’s media aide, Austin Okai, who stated this, claimed  the tribunal went on an adventure, looked the other way without looking at the issues raised by the petitioners.

Confirmation of people’s verdict- APC

But, Hon. Osanaiye Francis Oluyori, an APC  chieftain described the verdict  as a confirmation of the people’s overwhelming verdict.

Oluyori called on the governor to continue with his good works in the transformation of the state, pointing out that the governor has good intentions for the state and should not be distracted by unnecessary litigations.

As the battle shifts to the appellate court, what chance does the PDP have to upturn the judgement in view of the ‘overwhelming evidence’ against its petition.

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