There were disturbances on the Ogun State Election Petition tribunal as tension mounted on who carries the day as Justice Henry Olusiyi-led panel made their verdict on the case that lingered for almost six months. While the case has been adjudicated upon especially on social media, the reality of event at the tribunal was a pointer to the fact that the petition was lost right from the first day writes Sulaiman Fasasi

 

“The petitioners have failed to satisfy the tribunal, by cogent, credible and reliable evidence, that their petition ought to succeed and that they are entitled to the reliefs sought by them…The election of the 1st respondent, as the Governor of Ogun State, on the platform of the 2nd respondent, in the April 11, 2015 governorship election is hereby affirmed.”
Those were the strong words of Justice Henry Olusiyi-led three man panel of Ogun State Governorship Election Tribunal in a unanimous decision to dismiss the petition brought before it by the governoship candidate of Peoples Democratic Party; PDP (2nd petitioner), Gboyega Nasiru Isiaka (1st respondent) in respect of the election.
Dissatisfied by the announcement of Senator Ibikunle Amosun (1st respondent) of All Progressives Congress (2nd respondent) by the Independent National Electoral Commission (3rd respondent), the petitioners approached the tribunal to seek redress claiming, especially to have won the election by recording the highest number of valid votes in the election.
In their petition marked EPT/GOV/ABK001/2015, the petitioner predicated their argument on the ground that the election was marred by electoral malpractices; manifestation of bias, nepotism and favouritism to the benefit of the 1st and 2nd respondents; non compliance with provisions of Electoral Act (2010) as amended; unlawful and illicit use of incident forms in lieu of card readers; voting without accreditation and above all the Governor Amosun was not validly returned.
The petitioners prayed for an order that the election was marred by malpractices; that Senator Amosun was not duly elected and didn’t score the highest number of lawful votes cast, and more importantly, a declaration order to the effect of the 1st petitioner as the winner of the election having scored the highest number of lawful/valid votes at the election.
The result of the election was specifically contested in nine local governments of Ifo, Abeokuta South, Obafemi Owode, Ado Odo/Ota, Sagamu, Abeokuta North, Odeda, Ewekoro and Remo North areas of the state.
Prior to the judgment by the tribunal which dismissed the petition for lack of evidence, it appeared to sincere followers of the proceedings of the court that the case was lost right from the drafting of the petition itself and that what remained of it might not be more than an ordinary academic exercise or a move by the party, PDP to continue keeping the party faithful together.
Section 138 (1) of the Electoral Act, 2010 as amended stipulated clearly the grounds upon which an election result can be challenged at the tribunal and it states thus:
An election may be questioned on any of the following grounds, that is to say:
(a) that a person whose election is questioned was, at the time of the election, not qualified to contest the election;
(b) that the election was invalid by reasons of corrupt practices or non-compliance with the provisions of this Act;
(c) that the respondent was not duly elected by majority of lawful votes cast in the election; or (d) that the petitioner or its candidate was validly nominated but was unlawfully excluded from the election.
Without paying due regards to the section of the Electoral Act, the petitioners in their paragraph 9 of the petition set out grounds that are not within the purview of the provision of the Act especially in subparagraphs (a), (b), (d), (g) and (h) which later became fatal for the petition.
For the avoidance of doubt, the petitioners stated in the above paragraphs thus:
a. The election was marred by Electoral Malpractices such as rigging, snatching of Ballot Boxes, thuggery, violence, declaration of false result, etc.
b. The conduct of the Election was characterized by manifestation act of bias, nepotism and favoritism to the benefit of 1st and 2nd Respondents…
(d) Votes were cast at an unauthorised, illegal and secret Polling Units and voting points.
(g) Unlawful and illicit use of incident forms in lieu of card readers…
(h) Voting without accreditation, non use of card readers and incident forms…
Contrary to section 140(2) of the Electoral Act, which stated clearly the cause of action to be taken in the effect of nullifying an election, Counsel to the petitioners in the prayers 6 and 7 of the petition sought for ‘an order declaring the 1st Petitioner as the winner of the 11th April, 2015 governorship election in Ogun State having scored the highest number of lawful/valid votes of the total votes cast at the said election’ and an order that certificate of return be presented to Isiaka as the winner of the election.
In the event that the petitioner was able to prove substantial irregularities or non-compliance as alleged in the extant case, the petitioner must satisfy the provisions of the section 140 (2) of the Act in its prayer which states, “Where an election tribunal or court nullifies an election on the ground that the person who obtained the highest votes at the election was not qualified to contest the election, or that the election was marred by substantial irregularities or non-compliance with the provision of this Act, the election tribunal or court shall not declare the person with second highest votes or any other person as elected, but shall order a fresh election.”
Although the petitioners must have relied heavily on the provisions of 140 (3) which empowers tribunal or court to make declaratory order if satisfied with the plea that the person returned was not validly elected on the ground that the person did not score the majority of valid votes cast at the election, they failed to prove same before the tribunal.
Justice Olusiyi said in his judgment said, “A mere allegation of electoral malpractice or invalidity of votes without showing how the result of the election substantially will not constitute a reasonable cause of action.
“The petitioners in the extant case left the tribunal with no other option than dismissing the case. One would have expected an alternative prayer to the effect of first seeking for the nullification of the result which returned Amosun and secondly, a call for rerun. This, tribunal described as fatal to the petition.
“The petitioners could not in one breadth be contending that the election was invalid, null and void by reason of irregularities and not compliance with the law and guidelines and in the same breadth be praying that the 1st petitioner be declared the winner…It is incongruous and inconsistent,” the tribunal held.
Sighting an appeal court case in Opia vs Ibru, 1992, the panel explained that the proper order to ask for is a fresh election and that is a contradiction in terms of petitioner to ask that an election be declared void and the same time ask that he be declared winner.

One other fatal area to the petition was the number of witnesses the petitioners called to prove their case. The petitioners have alleged irregularities in nine local governments consisting 1, 673 polling units but only succeeded in calling just seven witnesses marked PW1-PW7 and only gave evidence to the effect of meager 12 polling units.
The petitioners have ample opportunity to call far more witnesses than they did since they have agents in all the polling units under contention. Party agents are in the best position to give account of events in their areas. Even one of the witnesses who was a polling agent for PDP, Aliyu Musa testified under cross examination ‘that he learnt from several sources that votes were counted at Ado Odo Police Station…’
The panel held, “His evidence that he learnt from several sources that votes were counted at Ado Odo Police Station is clearly hearsay evidence, which is inadmissible.
“The testimonies of PW1 to PW7 were largely unsubstantiated. Even if they had been substantiated, they would have amounted to a mere drop of water in an ocean and grossly insufficient to support the petitioners’ case.
“The petitioners had polling agents in all polling units in nine local governments areas in dispute, but chose to call only a handful as witness….The petitioners ought to have listed far more witnesses than they did, in view of legion of allegations of wrong doing they made against the respondents in their petition.”


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