Kogi governorship tribunal ruling in perspective
By Ike Okafor
THIS analysis is without prejudice to the rights of the parties who are on appeal. Rather, it seeks to shed light on why the lead judgment is not only persuasive, but eminently sound in law.
The law makes the polling unit the hub of any election in Nigeria with the Supreme Court holding that: “In an election, the crucial place to be x-rayed is the polling unit and a situation as the case in hand where the appellants failed to call the polling agents at those units who saw, heard or took part in the transaction on which such a witness is testifying has no substitute if the appellant is serious about establishing substantial non-compliance or irregularity or malpractices. Such direct testimonies are essential and failure could be interpreted that the appellant’s case would have been jeopardized if such witnesses testified or that the allegations which the appellants are hanging on did not take place.
I rely on Hashidu V. Goje (2003) 15 NWLR (pt. 843) 352…” In A.C.N v. Nyako (2013) ALL FWLR (PT. 686) P. 424 @ 477 paras. A-D.
Section 138(1) of the Electoral Act stipulates the several heads of claims a petitioner can adopt, but having so adopted, the evidence of those who saw, heard or took part in the transactions that culminated into the complaint, in this case, the polling agents of the petitioners, is very essential to the success of the petition.
Both the lead and minority judgments acknowledge that after much ado, Musa Atayi Wada and the PDP essentially narrowed their case to only seven of the 21 local government areas – Adavi, Ajaokuta, Kabba/Bunu, Lokoja, Okehi, Okene and Olamaboro – thus reducing their complaints to about 75 out of the 2,548 polling units in Kogi State. In essence, they accepted INEC’s declared results in 14 local governments, specifically, 2,473 polling units.
Recall that the petitioners wanted the tribunal to find that Yahaya Bello was not duly elected by majority of lawful votes cast at the election; that the election was invalid by reason of non-compliance with the provisions of the Electoral Act; and that the election was invalid by reason of corrupt practices.
In attempt to prove their case, they called 32 witnesses out of which only about 11 were polling unit agents, contrary to the legal backdrop that in election petitions, the law requires petitioners to call their polling agents in all affected polling units.
Consequently, the lead judgment observed (and rightly so) that by section 53(2) of the Electoral Act, over-voting arises only where the total number of votes cast is above the number of registered voters and that card reader is not the yardstick for determining this.
The dissenting judgment preferred to dwell on perceived ‘weaknesses’ in the respondents’ case, especially that they failed to call their own expert to contradict the evidence of the petitioners’ expert. This, with due respect, is contrary to the established principle of law that petitioners must succeed on the strength of their case and not on the weakness of the respondents’ case.
Petitioners, as well as the dissenting judgment, relied entirely on the evidence of experts against evidence of polling agents who saw all that transpired first hand. While expert evidence is good evidence on a good day, it is my humble view, supported by law, that evidence of experts is to be considered in conjunction with all other relevant evidence in law available to the petitioners. See Ngige v. Obi (2006) 14 NWLR (Pt. 999) 1. In this case, the evidence of the expert would have been good evidence only if polling agents were called to give evidence that was supported eventually, by that of the expert witness.
Curiously too, the dissenting judge found that the crux of the petitioners’ case is that 282,612 ballot papers were used for the election but that 324,745 votes were cast in the election. With due respect, even though the dissenting judgment is not the judgment of the tribunal, may I state categorically that from the records, that was not the case presented by the petitioners and a Court/Tribunal cannot go outside the case pleaded by parties in arriving at its decision.
The minority judgment also applauded the expert witness (PW19) for going completely outside the scope of the order of the tribunal made on the January 16, for inspection of election materials. The order for inspection did not include that ballot papers be counted and/or recounted. In fact, the petitioners never prayed for an order to count or recount ballot papers. Clearly, the respondents’ lawyers recognised the gaping holes where the respondents refused to call evidence, or exceeded their latitude and knew that the court should rightly refuse to plaster those for them.
This analysis is abridged to say the least due to constraints, including space but it must be said that since the law requires polling agents to testify in prove of allegations of what transpired at polling units and the petitioners failed to call their own agents to so testify, the testimony of people who did not see what transpired at the point where elections were conducted and results generated in law are at best unreliable. Also, since the law stipulates that for non-compliance with the Electoral Act to lead to the nullification of an election, it must be substantial non-compliance; how substantial is the alleged irregularity in 75 polling units compared to the over 2,000 polling units? It must not also be forgotten that no witness was called to testify in respect of Adavi, Okehi and Okene Local Government Areas, while only one was called in respect of Ajaokuta Local Government even when the complaint was not in respect of only one polling unit there.
Cases are not determined based on emotions; the law requires that he who alleges should prove his allegations. Election petitions are even a class of their own in law hence, having set how allegation of infractions in an election are to be proved. To go contrary to the laid down rules is to the peril of the petitioners. For these and many more reasons, the lead judgment, which is in law the decision of the tribunal, and which considered the relevant laws on election petitions displays a soundness that is hard to impeach.
Okafor is an Abuja-based lawyer and commentator on public affairs.
Kogi governorship tribunal ruling in perspective