From the very onset in 2003 as a Politician , even when I was not a Lawyer, I have always known that the Law of Election Petition is skewed against the Petitioner and rather stands in favour of the Respondents. However, yesterday when we were putting final touches to our final written Address, which we were given only 24 hours to file, the plethora of Laws and the avalanche of decided Cases against the Petitioner made me come to an even more informed and obvious realization of this undisputable fact and I made two personal RESOLUTIONS viz:
1. From now on, If I contest an Election and I am not declared the Winner by the Electoral Body I will not go to the Elections Petition Tribunal to go and say there was no Election – Except, there is a ground of Law to cancel the Election on grounds of non compliance.
2. I will not Act as anybody’s Lawyer to go and canvass the argument of Election did not take place – Again, except there is a ground of Law to cancel the Election on grounds of non compliance.
The reason for the afore – stated Resolutions is simple. The Law on Election Petition does not only stand against the Petitioner but the Courts are WICKED against the Petitioner. Just few instances will elucidate what I mean.
1. By Section 139 (1) of the Electoral Act even PROVEN non compliance with the Electoral Act will not invalidate an Election as long as the non compliance is not substantial – The Supreme Court interpreting this Section in ALIUCHA V ELECHI (2012) said “Election and its victory is like soccer and goals scored”. That is even if the Refree (INEC) makes an obvious blunder, once it is a goal, it remains a goal. Infact, in PDP V INEC (2014), the Supreme Court said a Petitioner claiming non compliance with the provisions of the Electoral Act in the conduct of an Election has a duty to prove it Polling Unit by Polling Unit, Ward by Ward and he must establish that the compliance is substantial and further prove that the substantial non compliance affected the result of the Election. How will APC and Dakuku call Witnesses to prove no Election in at least 2500 Polling Units out of the over 4500 Polling Units in Rivers State in 180 Days? An IMPOSSIBILTY, if you ask me!
2. Again, there is also at all time a presumption of regularity of Acts of Public Officials under Section 168(1) of the Evidence Act. The Supreme Court in BUHARI V OBASANJO (2005) stated the law that once the Electoral Commission announces the result of the Election, it is presumed correct and authentic. To add insult to injury, the Petitioner must by Law quote the figures scored in that very result he is petitioning for his Petition to be even valid! CHECKOUT!
3. Another one has to do with the Law on the standard of proof that an allegation of crime must be proven beyond reasonable doubt. Most, if not all, of non compliance in an Election have Criminal element intertwined with Civil elements and the Petitioner is not allowed to separate them in proving non compliance. The implication is that in most, if not all Cases, the Courts have unintentionally raised the standard of proof of non compliance in Election Petition from that of the Balance of Probability to Proof Beyond Reasonable Doubt. The Supreme COURT have since in NWOBODO V ONOH(1983) set the law as such and it has been religiously followed. Infact in FALAE V OBASANJO (1999), the Supreme Court added another dimension to the Burden on the Petitioner in that if the Criminal non compliance is proved beyond all reasonable doubt, for it to invalidate the Victory of the Candidate , the Petitioner must additionally show that the acts of Criminal non compliance of the Political Party and its members was authorized by the victorious Candidate of the Party. The decided authorities says the Respondent in an Election Petition must be put in the same pedestrain like the Accused in a Criminal Trial and so all doubts must be resolved in his favour. CAN YOU IMAGINE!
So many other grounds of Law as interpreted by the Courts exist that informed my Resolutions that I can not put down here for instance, the Petitioner needs Certified True Copy of all documents used in the Election from INEC, his opponent in the Case, amongst others.
Uptill 2011 when I was in the Opposition and Petitioning Elections, one man on the side of the PDP who I personally know is aware of these facts I have stated and perhaps even more is Chief Barrister Nyesom Wike. That is why when the Petitioners in the current Governorship Tribunal were busy calling Army, DSS, INEC and Police Officials based in Abuja untill their time to adduce Evidence ran out, I said authoritatively that Rivers State will remain NEW till 2019!
Even though the Respondents need not prove anything as the Petitioners have FAILED WOEFULLY to discharge the onus on them – A situation akin to a No Case Submission, I am sure the Petitioners, DAKUKU and APC, have seen the class of Witnesses ie Presiding Officers, Registered voters in the Units and Party’s Polling Unit Agents that the Respondents are calling? These are the only class of people that can give Evidence of whether or not Elections held as Election, or VOTING if you like, only takes place in the Polling Units alone and no where else.! I think the Court said this much in CHIME V ONYIA (2009).
Though I know the Petitioners, to a large extent, built their case around the Card Reader issue. But now that the Court of Appeal decision in favour of their Party men in Lagos State Election Petition Tribunal, APC V AGBAJE (2015) have eroded that ground in that Card Reader is a product of the Election Manual made by INEC, a non legislative body and is totally alien to the Electoral Act and can not be a ground upon which to challenge the outcome of an Election conducted under the Electoral Act, one would have expected the Petitioners to throw in the towel and start early preparation for 2019 as advised by the Rivers State Chief Electoral Officers, Dame Gesilia Khan. Especially now that they have a Candidate in Dakuku Peterside and in a way avoid a reoccurrence of the DOOMSDAY of non compliance with the mandatory provisions of Section 85(1) of the Electoral Act.