Why PDP, Ize-Iyamu’s case should be thrown out by INEC, Obaseki, APC
The Independent National Electoral Commission (INEC), Governor Godwin Obaseki and the All Progressives Congress (APC) on Monday urged the Edo State Election Petition Tribunal to dismiss the petition against the conduct of September 28th 2016 gubernatorial election filed by the People’s Democratic Party (PDP) and her candidate, Pastor Osagie Ize-Iyamu.
The parties involved in the case, PDP (1st petitioner), Pastor Osagie Ize-Iyamu, (2nd respondent), (INEC) 1st respondent, Godwin Obaseki (2nd respondent), and APC (3rd respondent), appeared before the tribunal to adopt their addresses for the final determination of the petition by the three-man panel led by Justice Ahmed Badamasi.
Taking the lead was the 1st respondent’s counsel, Mr. Onyebuchi Ikpeazu, who commenced by respectfully urging the Court to dismiss the petition
He said, “All the parties agree that the burden is on the petitioner to prove the case that they have set out in their petition. But the case they have set out to prove in their pleadings rests on allegations with respect to what transpired at the respective polling units.
“Whether the point is some imperfections in form EC8A, or swapping of votes or accreditation or improper accreditation, are all matters which transpired at the polling units. However, they have pleaded that there are 2,627 polling units. From their pleadings, they have challenged 2,423 polling units. If you look at their evidence, particularly areas they have abandoned, it appears they have reduced that to about 1,200”, he said.
He continued that the petitioners called 27 polling unit agents to witness, adding 2 agents, who doubled as collation agents (increasing the number to 29), to give evidence on what transpired at the respective polling units.
Citing the cases of Uche vs Elechi and Gundiri vs Ako, Ikpeazu (SAN) noted that the law was clear that proof must be polling unit by unit with the effect that if the court nullifies the votes in 29 or 27 polling units as the case may be, there would be no effect whatsoever on the result of the election.
Meanwhile, quoting sections 138(a) and 139 of the Electoral Act, he urged the judges to dismiss this petition, explaining that the petitioners spent time to give evidence on the voters’ 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”.
He further argued, quoting section 128, that if INEC laid down instructions in the electoral manual to guide its officers in the election process, and they failed to conform to those instructions, but that such non-conformity did not breach any provision of the Electoral Act, then it would be of no consequence.
Approaching the argument from a different angle, he, again, cited the cases of Buhari and Obasanjo among others, urging the judges to declare the case ‘completely immaterial’ and not to give any credence to it.
However, counsel to Governor Obaseki, Wole Olanipekun (SAN) claimed not to know why the tribunal was holding or who the petitioner was because there was some discrepancy in the person who contested in 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”.
Meanwhile, 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 said.
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. Explaining, he said, they alleged corrupt practices, non-compliance with manual among faults in their petition, but being unable to prove those claims, they resorted to checking for tickings. They pleaded in their petition that they are going to rely on party tags and on the list they sent to INEC but they never tendered any.
He urged the court to send the petitioners back home because they did not even know what they want anymore.
He further argued that, “In two senatorial districts, they didn’t call any witness yet they want the entire elections in Edo state to be nullified. On the issue of ticking, the Supreme Court said in the case of Agbaje and Ambode that it is not yet part of the law and so, no Court can nullify election based on that – what can be more? You cannot also nullify an election due to usage and non-usage of card readers; how much less of manuals. If there was ever petition crying for evidence and reliefs to sustain it, My Lords, this is one. May I urge your Lordships to dismiss this one.
Echoing the position of the 1st and 2nd respondents, counsel to the 3rd respondent, Lateef Fagbemi (SAN) submitted that the petitioners had only called witnesses without calling evidence.
He asked, “What is it that they have pleaded? What is it that they have attempted to prove? What is it that they want to urge your Lordships at the end of the day? The onus lies on he who wants the election to be nullified to prove that certain votes have been afflicted and that if these votes were deducted from the main votes, the declared candidate would not score majority of the lawful votes”.
Consequently, he urged the court not to grant a biased order, and that the petition should be dismissed.
The respondent further recounted that the petitioners had three grounds but had withdrawn one – the third one.
He said, “Non-accreditation and over-voting have always qualified as malpractices and therefore, it is a matter bordering on criminality. There is no doubt about what standard is required. How much of this have your Lordships been treated to? – none!”
On this score, he urged the court to declare that the petitioners had failed, even as he pointed out the redundancy of the tables they had provided.
The figure tables faced more criticism when Fagbemi questioned their sources, revealing departures between the petition, the evidence and the written address, explaining that however brilliant the petitioners’ counsels’ submissions of counsels may be, they could not substitute for pleadings because pleadings were the primary source upon which all other matters are derived.
He concluded that, “In the cross-examination, what came out shows the unreliability of their ward collation agents. Some of them were not even at the ward collation centres; neither did they go beyond their polling units because it is not humanly possible to visit all the polling units. Mark you; we had restrictions of vehicular and human movement on that day as for those who gave evidence in respect of the entire ward”.
For his part, the petitioners’ counsel, Yusuf Alli (SAN) described the petition as an unusual one, which the respondents were fighting in the ‘usual’ way.
He said, “The allegations were against INEC, and only INEC can answer them by virtue of the allegations. INEC did not field any witness and did not debunk the allegations. About the personality of the petitioner – it’s only the PDP that can disown him because that is the party that sponsored him. The Chairman of the party, Dan Orbih is here with him, he has not denied him. The identity of the 1st petitioner is not in doubt, and what is more, the 1st respondent, who conducted the elections knew the parties for whom they conducted elections and the candidates. Your Lordships should hold that there is merit in the petitioner’s petition and petitioner should be declared as the rightful winner of the election”.
After listening to the arguments and counter-arguments from both the petitioners and the respondents, the chairman of the tribunal, Justice Badamasi said that judgement would be delivered on a date to be communicated to the parties.