Kogi guber: Suspense as apex court rules tomorrow

APC, PDP, SDP Hopeful
The final word on the 2019 Kogi Gubernatorial Election dispute would be heard tomorrow when Nigeria’s Supreme Court hits the gavel to sign off its ruling on the consolidated appeals before it.

Ahead of Monday’s verdict, the governing All Progressives Congress (APC), main opposition Peoples Democratic Party (PDP) and hard fighting Social Democratic Party (SDP), are hopeful that justice would be done on the matter.

Following the adoption of the final briefs by all parties on August 25, the seven-man panel of justices led by the Chief Justice of Nigeria (CJN), Tanko Muhammad, adjourned proceedings for final judgment in the appeal brought by the PDP governorship candidate, Engineer Musa Wada and his party.

Wada and PDP are challenging the election of Governor Yahaya Bello of APC, who earlier survived the petitions both at the Kogi State Governorship Election Petition Tribunal and the Court of Appeal respectively.

Both cadres of lower courts had entered their separate judgments affirming APC’s victory on the grounds that Wada and PDP failed to prove allegations of electoral misconducts in their petition.

It would be recalled that the Independent National Electoral Commission (INEC) had on November 18, 2019 declared Bello and APC, as winners of the governorship poll, stressing that the party and its candidate won majority of votes cast in the election.

However, four other parties that participated in the election, including PDP, SDP, Democratic People’s Party (DPP) and Action Democratic Party (ADP), approached the Kogi State Election Petitions Tribunal to challenge the authenticity of the results declared by INEC.

But after the four petitions were dismissed at the tribunal for lacking in merit, the opposition parties expressed their dissatisfaction with the judgments and headed for courts of superior jurisdiction.

Based on in its strength and votes tally, PDP’s petition gained prominence. Wada, who had approached the appeal court, decided on scaling up his petition to the apex court after suffering similar fate as at the tribunal, asking it to set aside the concurrent judgements of the tribunal and the court of appeal.

The PDP standard bearer asked the court of final adjudication to set aside the judgments of the appellate court on the grounds that the Court of Appeal wrongly discarded evidence of rigging, state sponsored violence, over-voting, multiple thumb-printing, and results falsification, particularly in seven local government areas of the state.

A poignant feature of the petitions, which the electorate feasted upon was the aspect of forensic analysis, because of diverse interpretations. While the majority judgment at the three-man Election Tribunal delivered by Justice Kashim Kaigama favoured Bello’s re-election, Justice Ohimai Ovbiagele in his dissenting judgment, which leaned heavily on the forensic analysis earlier adopted by the panel, held that there was evidence of electoral malpractices in seven councils.

Ovbiagele subsequently invalidated Bello’s election and ordered a rerun in the seven affected local government areas of the state.

Puzzling Appeal
DESPITE the divided verdict at the tribunal, but the unanimous judgment of the five-man panel delivered by Justice Haruna Tsamani, the appeal court upheld Bello’s election. It held that the appellants merely dumped documents on the tribunal without calling relevant witnesses to link the documents to the allegation of over-voting.

Justice Tsamani declared that a party who alleges over-voting must tender the voter registers for the affected polling units and their results showing how, without over-voting, the results would be in his or her favour.

Yet, the PDP contended that the Appeal Court panel of justices erred in their judgment for failure to address the matter of forensic evidence. The party and its candidate, Wada, subsequently approached the Supreme Court, praying it to set aside the appellate court’s decision.

At the apex court, PDP is relying on the likelihood that the forensic analysis would be adopted on the strength that it was the Supreme Court justices that ordered for the adoption of the forensic analysis after it was rejected by INEC at the lower tribunal and appeal court.

The appellants, Wada and PDP, believe that the justices of the apex court would not turn around to discard the same forensic analysis it earlier ordered its adoption.

Jubilant Expectation
THE forensic report is said to be the basis of jubilant expectation within the PDP camp ahead of tomorrow’s final ruling. While many PDP supporters have celebrated it, some stakeholders even deem the forensic analysis to be legally superior to both the majority decision of the lower tribunal and unanimous appellate court ruling.

The Kogi State Governorship Election Tribunal and Appeal Court had in its ruling dismissed INEC’s opposition to the adoption of forensic analysis. But dissatisfied, INEC had approached the Supreme Court, which also dismissed INEC’s appeal and ordered for its adoption.

Nonetheless, the forensic analysis could not influence the majority judgment of the three-man Kogi State Governorship Election panel as it upheld Bello’s election.

In a contrary ruling, Justice Ovbiagele not only recognised the potency of the forensic analysis, but also dwelt heavily on the scientific analysis to sack Bello and ordered a fresh election in the affected seven councils.

Reiterating the salient points in Wada and PDP’s optimism, a source within the opposition camp confided in The Guardian as follows: “The essence of the forensic evidence is that it detected 257,274 unlawfully thumb printed ballot papers from the seven LGAs examined. Of this 257,274, a total of 239,000 thumbprints were done for APC, while 14,832 were thumb printed for PDP.

“Section 140 (3) of the Electoral Act enjoins the Courts to discountenance such unlawful votes before computation of votes for candidates.

“The forensic evidence and report were not challenged at all by lawyers of Bello or APC at the tribunal. If those unlawful votes are deducted, final valid votes will be APC 166,330, while PDP is 174,000. Wada already has 25 per cent in 17 LGAs; hence he ought to be declared outright.

“We expect the Supreme Court, having dismissed INEC’s Appeal on forensic, to give full effect to the forensic result as same was left unchallenged. The dissenting judgement has simplified the work of Supreme Court. The apex court has a duty to save democracy and reposition public perception of their image.”

Justice Ovbiageli’s dissenting judgment at the Kogi State Tribunal held that the forensic examiner’s report prepared by an expert, Professor Tanko Ishaya, captured the alleged irregularities by the petitioners.

While ruling that the expert report of PW19 i.e. exhibit 185A, clearly showed wrong computation of results and multiple thumb printing of ballot papers. Justice Ovbiagele stressed: “That PW19 is indeed a well-qualified expert with regards to forensic examination and that exhibit P184 (E) was a Certificate in Forensic Examination.

“That his credibility and professional competence was not impugned under cross examination. That he relied on the order of the tribunal made on the 15th day of January 2020 to carry out the forensic examination of electoral materials.

“That the respondents failed to controvert PW19’s testimony hence it stands unchallenged as no witness was called to controvert his testimony.  That PW19 did not work with the petitioners hence he is an independent witness who is not interested and is thus detached from the outcome of the litigation hence not a ‘person interested’ in view of the definition of the Evidence Act to exclude the report prepared by him from admission as evidence.”

Contrasting Opinions
Commenting on the expectations on the possible outcome of the petition, a lawyer based in Abuja, Felix Are, said the dissenting judgement of May 23, 2020 should not and cannot stand to be equated to the majority judgment, which upheld Bello’s re-election.

He posited that the Tribunal’s ruling was a split decision of two against one justice, adding that the panel’s majority judgment affirmed INEC’s return of Governor Bello as winner and accordingly dismissed the Wada/PDP’s petition.

Are insisted that athough Justice Ohimai Ovbiagele differed with his co-judges, “It is pertinent to point out at the outset that a dissenting judgment, however powerful, learned and articulate, is not the judgment of the court and therefore not binding.

“Indeed, the judgment of a Court/Tribunal is the majority judgment, which is the binding judgment. Hence, the majority Judgment read out by the chairman, Justice Kaigama, is the judgment of the Kogi Governorship Election Petition Tribunal.

“Despite the foregoing, the dissenting judgment has been celebrated by many as legally and factually correct, while some have even taken it to be the majority decision of the tribunal. This (opinion) seeks to dispel those insinuations.”

Also, discounting the possibility of a rerun in the controversial seven councils, some stakeholders contended that rerun was not part of PDP’s prayers, but outright declaration of its candidate as winner of the election.

Justice Ovbiageli’s minority judgment seems to support that view as he ruled that after deducting votes cast in the affected seven councils, Wada scored superior number of total votes cast. Yet, despite its 30,000 votes lead, going by the minority judgment, analysts claim that Wada’s total votes would still be lower than the total cancelled votes.

The implication of that, observers said, is that the apex court may not declare Musa Wada as outright winner of the November 16 Kogi State governorship election.
SDP’s Sidekick

ANOTHER appeal pending at the apex court is the one filed by the SDP, which ruling also comes up tomorrow. SDP and its candidate, Natasha Akpoti, are challenging their alleged exclusion from the election. Having failed to prove their allegations at the tribunal and Appeal Court, the party prays the apex court to determine whether INEC had any right or reason to disobey Abuja Federal High Court order, which faulted the commission’s initial disqualification of Akpoti and ordered it to include her party on the ballot.

As the wait continues, Bello and Wada’s loyalists have been engaging in contrasting positive expectations as confidence booster ahead of the all important final verdict.

Speaker, Kogi State House of Assembly, Matthew Kolawole, expressed confidence that Governor Bello would emerge victorious, noting that APC is more popular party in the state.

Kolawole, who spoke shortly after judgement in the matter was adjourned to tomorrow, said issues canvassed by the petitioners are not such as could elicit worries. He noted that the lower courts have done justice to those cases, saying that the apex court would affirm them.

On his part, spokesman for Wada, Faruk Adejoh-Audu, described the enthusiasm in the Bello/APC camp as amusing and antics of drowning men.

He said: “In the last few days, several functionaries of Bello’s government have resorted to sub judicial public comments that give the impression that they are privy to the judgment.

“My guess is that they are overwhelmed with tension and apprehension, because they know the trophy they are desecrating is a stolen one. Every thief will remain restless knowing the rightful owner of his loot is out for justice.

“That is why they have been unrestrained in their vociferations. A drowning man will clutch at even a straw in one last desperate bid to survive. That is what is at play.”