Edo governorship: Clock ticks for tribunal ruling
The Tribunal that day had received written addresses from the counsels to the parties who also adopted them. It is expected that the three-man panel, headed by Justice Ahmed Badamasi would deliver its judgment on or before April 16; when the statutory 180 days for the sitting would elapse.
Ize-Iyamu and the PDP alleged that APC did not win the September 28, 2016 governorship election, as it alleged that there were irregularities, including over voting and non-accreditation of voters before they voted. They called for the cancellation of the election or in the alternative declare them winners of the election.
There was also the issue of recounting of ballot papers as requested by the PDP within its stipulated days to prove its allegation in the court. They were only able to recount very few wards in three local governments when the stipulated number of days elapsed. They are currently challenging the refusal of the Tribunal to extend their time to continue the counting of the ballot papers.
In the several days of hearing, there was also drama when the INEC did not call any witness to defend its action that APC and Obaseki actually won the election, besides witnesses agreeing to sign two different signatures for “security reasons” and the respondents questioning the candidacy of Ize-Iyamu; saying he presented a different name in the petition from what he displayed in the election materials. In his submission, counsel to the petitioners, Yusuf Alli (SAN), urged the tribunal to grant the petition and dismiss the objections of the respondents:
“The most logical thing to do is for the court to grant the petition,” he added. While hinging the success of the petition on 10 points, he noted that the petition was an unusual petition being fought in an usual way by the respondents.
He opined that all allegations in the election were made against INEC, unlike what it used to be in the past.
He averred that by virtue of the petition, only INEC can answer all the allegations and not any other party.
According to him, other respondents were not called to defend the allegations against INEC and that nobody can debunk the allegations except INEC, because of the peculiar nature of the election.
Alli, who said the petition was mainly based on documentary evidences noted that all the documents admitted in the petition were before the court.
On the identity of the PDP candidate, he argued that it was only PDP that can question the identity of the candidate and not any other party. He said no member of PDP was challenging the candidacy of the petitioner. He however urged the court to uphold the petition and declared the petitioners as the winners of the election. “I urge the court to hold that there is merit in all the complaints of the petitioners and as result of the merit the petitioners should be declared as the duly elected candidate of the election,” he stated
But in its written address on Monday, counsel to INEC, Onyebuchi Ikpeazu said: “The Supreme Court was categorical that where, in an election petition, there are allegations of non-compliance and irregularities among others, the petitioners must, prima facie, establish their case. Where they fail to, the respondents will not even be called upon to give any evidence and that is exactly where we are now.” He continued; “My Lords, we must draw a distinction between not calling evidence and not calling a witness. My Lords, if a party cross-examines, he has elicited evidence, and we have cited the cases on that point. Where a party, as in this case, whose documents are tendered in evidence, that constitutes evidence with respect to the content of such documents. In this case, the petitioners themselves had tendered polling unit results and those results are presumed valid and authentic until the contrary is established. That being the case, it means that the first respondent called evidence with respect to every polling unit whose results are now before my Lords and that is the position of the Supreme Court.”
He also noted that PDP only dumped documents on the Tribunal without producing competent evidence and so there was no basis for the burden to shift and that if the judges considered that position, it was immaterial, whether first respondent called a witness. Also, he explained that the only way the petitioners could prove over-voting was to tender the voter register and the ballot papers, and the latter should be recounted with evidence. “In this case, there are no ballot papers before my Lords. All documents produced in Court were not admitted as exhibits and cannot be documents before the court. Quoting sections 138(a) and 139 of the Electoral Act, he urged the judges to dismiss the petition, explaining that the petitioners spent time to give evidence on the voter register and as to the mode of ticking.
“The foundation in any election petition must be the Electoral Act and accreditation merged with the concept of over-voting is completely defined by the Electoral Act. By virtue of section 54, if the number of voters exceed the number of accredited registered voters then the issue of over-voting would have been established.”
On his part, Counsel to Obaseki, Wole Olanipekun (SAN), claimed not to know who the petitioner was because there was discrepancy in the person who contested the election and the person petitioning the election in court.
He said: “My Lords, why are we here? Who is the petitioner? What is his identity? The name? Who is he? My Lords, in purview of these and in the petition before your Lordships, we have Pastor Ize-Iyamu Andrew. We have identified and submitted to your Lordships that that is not the name of the person sponsored by the political party to contest election on her behalf. They have filed a reply and they have compounded the matter beyond redemption in the reply by adding another name known as Osagie.
“We have given authorities on Supreme Court decisions to the effect that if you are JT or DT, you cannot say you are TJ because they do not point to the same person or the same direction. It dovetails to the locus standi of the 1st petitioner to come before your Lordships because there must be sanctity of the person, who is the petitioner and we say for now, there is no sanctity.”
He added that the petitioners pleaded evidence, but there was no relief or correlation. He said the relief is the bus stop of whatever a party’s case is before a court, adding that according to them, the 2nd respondent won majority of the lawful votes. Pointing out the fault in the petitioners’ argument, he said if they abandoned the issue of corrupt practices, which was raised in their petition, then it meant they had abandoned their petition.
He further criticised the petition by noting that the petitioners alleged a ballot recount had taken place, but he was not aware of such a recount. “First, my Lords, where are the ballots recount? Where did they get these figures? Law is a disciplined profession, procedurally or adjectivally. If you want to tender a document, you apply for the documents to be tendered; the documents would be considered, and it would be marked and admitted as exhibit. Where is the exhibit?” he asked.
Citing the cases of Agagu vs Mimiko and INEC vs Oshiomhole, he recalled that after the recounts, the ballot papers were tendered to the tribunal and admitted in evidence. The petitioners, he bemoaned, were holding on to a weak straw.
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