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.
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.
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.
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.
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.”
“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.