There are palpable fears in the streets of Asaba the Delta State Capital over moves by the Court of Appeal sitting in to Nullify the April 11 Governorship election which brought Sen Ifeanyi Okowa As governor of Delta State.
Of course, it is no longer news that the battle to control the levers of power between Governor Ifeanyi Okowa of Delta State and the candidate of the All Progressive Congress (APC) in the April 11 election, Olorogun O’tega Emerhor has shifted to the Court of Appeal following the dismissal of the latter’s petition by the Governorship Election Petition Tribunal sitting in Asaba recently.
Emerhor in petition number EPT/DT/GOV/32/2015 had dragged Okowa of the Peoples Democratic Party (PDP) before a three-man panel of justices headed by Justice Nasir Gunmi, alleging that the governor was fraudulently returned as winner by the Independent National Electoral Commission (INEC).
Okowa did not treat the matter with levity. He assembled a 20-man legal team with Dr. Alex Iziyon (SAN) as lead counsel while the PDP had a legal team with Mr. Timothy Kehinde (SAN) as lead counsel. Damian Dodo (SAN) and Thompson Okpoko led the legal team of Emerhor and the APC.
Recall that INEC declared Okowa winner with a total of 724,680 votes as against the 67,825 votes polled by Emerhor in the said election that was also contested by sixteen candidates of other political parties.
But Emerhor disagreed with the outcome and approached the tribunal with a petition of 17 paragraphs typed on seven pages of A4 paper alleging that the election was conducted in substantial breach of the Electoral Act and guidelines.
While praying the tribunal to annul the entire exercise as the non-compliance substantially affected its outcome, Emerhor alleged further that the election was fraught with corrupt practices/electoral fraud, rigging and violence.
At the initial stage, Okowa (first respondent), the PDP (second respondent) and INEC (third to fifth respondents) evaded service of the court processes until the tribunal ordered a substituted service on them.
Following the successful service on the respondents, issues were joined by the parties, and the tribunal reported five isolated issues for determination from the various issues submitted by the parties.
The issues included: whether the petitioner has constituted its competence bearing in mind the requirements of the 1999 Constitution as amended, Electoral Act, 2010 as amended and the First Schedule to the Electoral Act, 2010; whether the petitioner has the locus standi to maintain the petition; whether the election was not conducted in substantial compliance with the provisions of the Electoral Act and which non-compliance substantially affected the outcome of the election; whether the election was marred by corrupt practices/electoral fraud, rigging and violence; and whether the petitioner has been able to prove that the first respondent was not elected by majority of lawful votes cast at the election.
The fourth issue which bothered on allegations of corrupt practices/electoral fraud, rigging and violence was abandoned by the petitioners, hence was no longer available for determination at the long run.
While issues three and five bothered on the merit of the petition, issues one and two should have been determined at the pre-hearing stage but the tribunal in a ruling on June 30, 2015 held that all pre-hearing applications should be collapsed into the trial of the main petition.
The ruling sustained the petition up to the final day of judgement as it ought to have been given a technical knock-out at the pre-hearing stage following one of the applications of preliminary objection filed by the respondents.
The application challenged the competence of the petition on the ground that it was wrongly initiated as it was not signed by one of the petitioners which is an infraction on the provisions of Section 4(3b) of the First Schedule to the Electoral Act, since it was a joint petition.
This particular issue of competence as regards proper signing of the petition was resolved in favour of the respondents while issue two which bothered on locus standi was resolved in favour of the petitioners.
In paragraph six of the petition, the gravamen of the petitioners is to the effect that the election was invalid by virtue of corrupt practices/electoral fraud, rigging and violence and for non-compliance with Electoral Law, regulations and directives issued by INEC.
Since the petitioners had conceded initially that allegations of corrupt practices/electoral fraud, rigging and violence were not proved, the petition was therefore bound to rise or fall with the proof or disproof of the issue of non-compliance with Electoral Law, regulations and directives issued by INEC.
It follows that some of the basic rules of civil litigation including the law of evidence are applied, even though election petitions matters are Sui generis. Hence, the burden of proof of the allegations raised by the petitioners was placed squarely on their shoulders by virtue of Sections 136 and 137 of the Evidence Act.
Besides, the petitioners sought a declarative relief in paragraph 17 of the petition. As a result, they must adduce credible evidence to establish their entitlement to the declaration. And in doing so, they cannot rely on the case of their adversary.
The kernel of the petition was the alleged non-compliance to the instruction issued by INEC, as contained in a press release which was admitted in evidence, that card reader should be used for the election as accreditation instrument.
They contended that the card reader was by-passed by the third to fifth respondents in the conduct of the election, a situation, they alleged resulted in over voting which was credited to the first respondent. The petitioners claimed that the number of those processed through the card reader were fewer than the number of votes recorded which robbed the entire election of its credibility.
In trying to prove the allegations, the petitioners called only five witnesses to testify in an election that was conducted in 3,624 polling units across 25 local government areas of the state. The first respondent called three witnesses while the second and third to fifth respondents did not call any witness but relied on the evidence elicited from other witnesses during cross examination.
Among the documents tendered by the petitioners to buttress their case, were Exhibit P1 which is an accreditation figure of 709,700 certified on April 29 with 3,329 entries; and Exhibit P1a which is also and accreditation figure of 715,392 certified on August 13 with 3,624 entries.
The difference showed that data from the card reader were not automatically uploaded to INEC server in Abuja where Exhibits P1 and P1a were downloaded. Moreover, it means that not all card reader data were uploaded as the server was shut down in May. Besides, Exhibit R30 tendered by INEC which was card reader data upload accreditation status as at April 16 gave 67.8 as the percentage of completion of uploading as at that date.
Meanwhile, from the oral evidence elicited from witnesses, it was clear that the card reader was an instrument of verification and authentication of the biometrics of the holder of the Permanent Voter Card (PVC), and not an end means of accreditation as the prospective voter would still need to be checked through the manual voter register for accreditation to be complete.
Perhaps, the master stroke that knocked out the petition was the unchallenged evidence of RW3 to the effect that to have an accurate reading of those voters that were processed through the card reader, there must be evidence that all the information contained in the card reader were uploaded to the server.
Although, the petitioners tendered Exhibits P34, P35 and P36 to prove that there was over voting, they were however struck out by the tribunal because they were not annexed with the petition, neither were they front loaded but were only attached to the reply filed to the reply to the petition, a situation that offended the provision of paragraph 15(1) of the First Schedule to the Electoral Act.
In its judgement, the tribunal held that the “petitioners could have done themselves a lot of good by proving that the marking of the voter register was lower than the number of votes recorded. This would have proved that there was over voting.
“The petitioners have not be able to displaced the presumption that the figure of the voters accredited which are stated in the result are less than the total number of votes returned in the election.
“The attempt by the petitioners to rely on the figures downloaded from the servers of INEC which saw the number of accreditation through the card reader deployed for use was insufficient because there was no conclusive evidence that all those that were accredited through the use of the card reader had their data uploaded to the servers where the data used by the petitioners were downloaded.
“The concomitance of this is that the petitioners have not be able to prove that the election was not conducted with substantial compliance with the provisions of the Electoral Act, 2010 as amended. Issue three is resolved against the petitioners in favour of the respondents.”
According to the tribunal, the petitioners also failed to prove that toxic votes were credited to the first respondent, adding that it was after toxic votes have been established that the issue of whether the remaining votes were enough to grant the first respondent majority lawful votes can be considered.
“The petitioners having not proved the toxic votes that accrued to the first respondent, the issue whether the first respondent was elected by a majority of lawful votes at the election becomes mute in view of his return by INEC which is the lawful authority to act in the matter. Issue five is resolve in favour of the respondents,” the tribunal held.
“In recapitulation, it continued, “issue two is resolved in favour of the petitioners as they have requisite locus standi to file and maintain this petition. However, issue one is resolved against the petitioners and in favour of the respondents. This is sequel to the finding that the petition was initiated contrary to the provisions of Section 4(3b) of the First Schedule to the Electoral Act in that only the first petitioner signed the petition.
“The third and fifth issues are resolved in favour of the respondents and against the petitioners. The issues were not established in accordance with extant laws. The petitioners having withdrawn issue four and it having be dismissed, it means that all the issues except issue two are resolved against the petitioners and in favour of the respondents.
“The concomitance of the conclusion of the aforesaid is that this petition is without merit, it is bound to fail, and it failed. It is hereby dismissed. It follows that the election and return of the first respondent as the duly elected governor of Delta State on April 11, 2015 is affirmed. Each set of respondent shall be entitled to N50,000 as cost of prosecuting the petition.”
The judgment sparked off a familiar scene in Asaba, the state capital as the members of the benefiting party hailed it, saying that it would deepen the nation’s jurisprudence while the opposition have since picked holes in the judgment and have made strong indications to appeal against it.
Senator Ighoyota Amori (PDP) representing DOf course, it is no longer news that the battle to control the levers of power between Governor Ifeanyi Okowa of Delta State and the candidate of the All Progressive Congress (APC) in the April 11 election, Olorogun O’tega Emerhor has shifted to the Court of Appeal following the dismissal of the latter’s petition by the Governorship Election Petition Tribunal sitting in Asaba recently.
Emerhor in petition number EPT/DT/GOV/32/2015 had dragged Okowa of the Peoples Democratic Party (PDP) before a three-man panel of justices headed by Justice Nasir Gunmi, alleging that the governor was fraudulently returned as winner by the Independent National Electoral Commission (INEC).
Okowa did not treat the matter with levity. He assembled a 20-man legal team with Dr. Alex Iziyon (SAN) as lead counsel while the PDP had a legal team with Mr. Timothy Kehinde (SAN) as lead counsel. Damian Dodo (SAN) and Thompson Okpoko led the legal team of Emerhor and the APC.
Recall that INEC declared Okowa winner with a total of 724,680 votes as against the 67,825 votes polled by Emerhor in the said election that was also contested by sixteen candidates of other political parties.
But Emerhor disagreed with the outcome and approached the tribunal with a petition of 17 paragraphs typed on seven pages of A4 paper alleging that the election was conducted in substantial breach of the Electoral Act and guidelines.
While praying the tribunal to annul the entire exercise as the non-compliance substantially affected its outcome, Emerhor alleged further that the election was fraught with corrupt practices/electoral fraud, rigging and violence.
At the initial stage, Okowa (first respondent), the PDP (second respondent) and INEC (third to fifth respondents) evaded service of the court processes until the tribunal ordered a substituted service on them.
Following the successful service on the respondents, issues were joined by the parties, and the tribunal reported five isolated issues for determination from the various issues submitted by the parties.
The issues included: whether the petitioner has constituted its competence bearing in mind the requirements of the 1999 Constitution as amended, Electoral Act, 2010 as amended and the First Schedule to the Electoral Act, 2010; whether the petitioner has the locus standi to maintain the petition; whether the election was not conducted in substantial compliance with the provisions of the Electoral Act and which non-compliance substantially affected the outcome of the election; whether the election was marred by corrupt practices/electoral fraud, rigging and violence; and whether the petitioner has been able to prove that the first respondent was not elected by majority of lawful votes cast at the election.
The fourth issue which bothered on allegations of corrupt practices/electoral fraud, rigging and violence was abandoned by the petitioners, hence was no longer available for determination at the long run.
While issues three and five bothered on the merit of the petition, issues one and two should have been determined at the pre-hearing stage but the tribunal in a ruling on June 30, 2015 held that all pre-hearing applications should be collapsed into the trial of the main petition.
The ruling sustained the petition up to the final day of judgement as it ought to have been given a technical knock-out at the pre-hearing stage following one of the applications of preliminary objection filed by the respondents.
The application challenged the competence of the petition on the ground that it was wrongly initiated as it was not signed by one of the petitioners which is an infraction on the provisions of Section 4(3b) of the First Schedule to the Electoral Act, since it was a joint petition.
This particular issue of competence as regards proper signing of the petition was resolved in favour of the respondents while issue two which bothered on locus standi was resolved in favour of the petitioners.
In paragraph six of the petition, the gravamen of the petitioners is to the effect that the election was invalid by virtue of corrupt practices/electoral fraud, rigging and violence and for non-compliance with Electoral Law, regulations and directives issued by INEC.
Since the petitioners had conceded initially that allegations of corrupt practices/electoral fraud, rigging and violence were not proved, the petition was therefore bound to rise or fall with the proof or disproof of the issue of non-compliance with Electoral Law, regulations and directives issued by INEC.
It follows that some of the basic rules of civil litigation including the law of evidence are applied, even though election petitions matters are Sui generis. Hence, the burden of proof of the allegations raised by the petitioners was placed squarely on their shoulders by virtue of Sections 136 and 137 of the Evidence Act.
Besides, the petitioners sought a declarative relief in paragraph 17 of the petition. As a result, they must adduce credible evidence to establish their entitlement to the declaration. And in doing so, they cannot rely on the case of their adversary.
The kernel of the petition was the alleged non-compliance to the instruction issued by INEC, as contained in a press release which was admitted in evidence, that card reader should be used for the election as accreditation instrument.
They contended that the card reader was by-passed by the third to fifth respondents in the conduct of the election, a situation, they alleged resulted in over voting which was credited to the first respondent. The petitioners claimed that the number of those processed through the card reader were fewer than the number of votes recorded which robbed the entire election of its credibility.
In trying to prove the allegations, the petitioners called only five witnesses to testify in an election that was conducted in 3,624 polling units across 25 local government areas of the state. The first respondent called three witnesses while the second and third to fifth respondents did not call any witness but relied on the evidence elicited from other witnesses during cross examination.
Among the documents tendered by the petitioners to buttress their case, were Exhibit P1 which is an accreditation figure of 709,700 certified on April 29 with 3,329 entries; and Exhibit P1a which is also and accreditation figure of 715,392 certified on August 13 with 3,624 entries.
The difference showed that data from the card reader were not automatically uploaded to INEC server in Abuja where Exhibits P1 and P1a were downloaded. Moreover, it means that not all card reader data were uploaded as the server was shut down in May. Besides, Exhibit R30 tendered by INEC which was card reader data upload accreditation status as at April 16 gave 67.8 as the percentage of completion of uploading as at that date.
Meanwhile, from the oral evidence elicited from witnesses, it was clear that the card reader was an instrument of verification and authentication of the biometrics of the holder of the Permanent Voter Card (PVC), and not an end means of accreditation as the prospective voter would still need to be checked through the manual voter register for accreditation to be complete.
Perhaps, the master stroke that knocked out the petition was the unchallenged evidence of RW3 to the effect that to have an accurate reading of those voters that were processed through the card reader, there must be evidence that all the information contained in the card reader were uploaded to the server.
Although, the petitioners tendered Exhibits P34, P35 and P36 to prove that there was over voting, they were however struck out by the tribunal because they were not annexed with the petition, neither were they front loaded but were only attached to the reply filed to the reply to the petition, a situation that offended the provision of paragraph 15(1) of the First Schedule to the Electoral Act.
In its judgement, the tribunal held that the “petitioners could have done themselves a lot of good by proving that the marking of the voter register was lower than the number of votes recorded. This would have proved that there was over voting.
“The petitioners have not be able to displaced the presumption that the figure of the voters accredited which are stated in the result are less than the total number of votes returned in the election.
“The attempt by the petitioners to rely on the figures downloaded from the servers of INEC which saw the number of accreditation through the card reader deployed for use was insufficient because there was no conclusive evidence that all those that were accredited through the use of the card reader had their data uploaded to the servers where the data used by the petitioners were downloaded.
“The concomitance of this is that the petitioners have not be able to prove that the election was not conducted with substantial compliance with the provisions of the Electoral Act, 2010 as amended. Issue three is resolved against the petitioners in favour of the respondents.”
According to the tribunal, the petitioners also failed to prove that toxic votes were credited to the first respondent, adding that it was after toxic votes have been established that the issue of whether the remaining votes were enough to grant the first respondent majority lawful votes can be considered.
“The petitioners having not proved the toxic votes that accrued to the first respondent, the issue whether the first respondent was elected by a majority of lawful votes at the election becomes mute in view of his return by INEC which is the lawful authority to act in the matter. Issue five is resolve in favour of the respondents,” the tribunal held.
“In recapitulation, it continued, “issue two is resolved in favour of the petitioners as they have requisite locus standi to file and maintain this petition. However, issue one is resolved against the petitioners and in favour of the respondents. This is sequel to the finding that the petition was initiated contrary to the provisions of Section 4(3b) of the First Schedule to the Electoral Act in that only the first petitioner signed the petition.
“The third and fifth issues are resolved in favour of the respondents and against the petitioners. The issues were not established in accordance with extant laws. The petitioners having withdrawn issue four and it having be dismissed, it means that all the issues except issue two are resolved against the petitioners and in favour of the respondents.
“The concomitance of the conclusion of the aforesaid is that this petition is without merit, it is bound to fail, and it failed. It is hereby dismissed. It follows that the election and return of the first respondent as the duly elected governor of Delta State on April 11, 2015 is affirmed. Each set of respondent shall be entitled to N50,000 as cost of prosecuting the petition.”
The judgment sparked off a familiar scene in Asaba, the state capital as the members of the benefiting party hailed it, saying that it would deepen the nation’s jurisprudence while the opposition have since picked holes in the judgment and have made strong indications to appeal against it.
Senator Ighoyota Amori who was sacked by the Appeal court told newsmen that “the people freely gave their mandate to Okowa and the PDP. It will be impossible for any court to reverse the judgment. The petitioners are only in court to draw attention and sympathy from their few supporters and the ACP-led Federal Government.
“They knew that they can never win at the poll or at the tribunal. I am using this opportunity to appeal to the opposition to join hands with the PDP and the governor so that we we can take the state to the next level.
But state chairman of the APC, Prophet Jones Erue described the judgement as a miscarriage of justice which cannot stand any legal at a high court, alleging that members of the tribunal were compromised.
“From what we saw,mother judgement is a miscarriage of justice. The analysis that the issue of over voting was not proved is laughable. If you followed our case, our analysis was clear and we have laid a foundation for our case.
“We will meet Okowa and the PDP at the Court of Appeal in Benin. We are very sure of victory at the appellate court, they can move up to the Supreme Court,” Erue stated.
But the President of the Court of Appeal Justice Bulkachuwa has relocated the Judgement From the Benin division of the Court to its Abuja headquarters.
The Judgment comes today
