Edo Election Petition Tribunal – The arithmetics of Oshiomhole

1 Comment » March 28th, 2008 posted by // Categories: Elections 2007



 

THE NATION

 

Edo Election Petition Tribunal: The arithmetics of Oshiomhole’s victory    28/3/2008

 

The petition was dated 11th May 2007 and filed on the 14th May 2007 and presented by the 1st and 2nd petitioners; Comrade Adams Aliyu Oshiomhole and Action Congress (AC) challenging the return as elected Governor of Edo State of Nigeria, the 3rd and 4th respondents, Senator Oserheimen Osunbor and Peoples Democratic Party (PDP) by the 1st, 2nd, 5th to 22nd respondents, the Independent National Electoral Commission (INEC).

Hearing in the petition commenced on the 2nd of October 2007 and the petitioners called 61 witnesses, the INEC called two witnesses while the PDP called 32 witnesses. Evidences tendered were numbered from 1 to 117. The evidence of all the parties closed finally on the 25th of January 2008 and written address were ordered, filed and adopted, paving the way for the judgment on the 20th, March, 2008.

The respondents urged the tribunal to discountenance the issues for determination formulated by the petitioners. The senior counsel to INEC, Mr. Roland Otaru referred the tribunal to legal authorities to support his claim and he was supported by the PDP Counsel.

The tribunal duplicated in clear terms, the act of the Senior Counsel for the petitioners in formulating their own issues for determination. In fact, the petitioners conceded at the adoption of their address that the only binding issues for determination were those formulated by the tribunal and the Judge, Justice Peter Umeadi said “we do not think it was good practice for the Senior Counsel to the petitioners to purport to set out their own issues for determination.

“The same senior counsel for the petitioners proffered that the facts taken in their said formulated issues for determination dovetailed into those issues formulated by the tribunal and so, it was not necessary for them to operate from the brink. We however think that apart from the captions and calling them issues for determination, that the petitioners have not gone outside the issues for determination formulated by the tribunal. We think that all arguments raised by the petitioners could easily fit into the five issues for determination formulated for the tribunal and proper attention will be given to the issues for determination and the relieves for the parties”, Justice Umeadi said.

In the trial courts and the tribunals, the Judge said “greater emphasis is laid on those relieves sought by the parties”. The evidences tendered by the parties both oral and documentary were looked into and evaluated just as they were related to the issues for determinations as formulated by the tribunal and the relieves sought by the petitioners.

The tribunal took flight from Esan North East, Edo Central Senatorial District where Chief Tony Anenih and Governor Osunbor hail from. The testimonies of the petitioners’ witnesses were general chaos resulting to thugery, violence, mal-practices and disregard for the Electoral Act 2006.

Exhibit 106 tendered by PW 47 shows that a total of 65332 ballot papers used for the election were not signed and stamped at the back, the tribunal dwelt on that. There were also issues of snatching of electoral materials, especially results sheets and intimidation of voters. Next to this came the issue of over-voting “which spoke for themselves” from the unit results sheets tendered.

There was the recurrent issue of officials who are either employees of INEC or neither of the 3rd and 4th respondents and there was no serious effort to clear their names and it means those names are said to be members of the 4th respondents and it was the 4th respondent who sponsored the 3rd respondent.

“Whatever acts perpetuated by those names in furtherance of the election of the 3rd respondent under the 4th respondent are acts of the 3rd and 4th respondents. It goes beyond the issue of 3rd respondent authorizing those acts. The combined effects of all these is that the petitioners have proved the incidence of corrupt practices and non-compliance with the electoral act 2006 against the 2 sets of respondents beyond reasonable doubt in the 12 local governments in the state.

“The PW 47 testified that exhibit 70, Form EC8D, 44, exhibit 71, and 71(a) which is the final result of the governorship election in Edo state on the 14th of April 2007 , it was from Exhibit 70 that the 2nd respondent returned the 3rd respondent as the winner on exhibit 71 and 71(a).

“The main attack of the petitioners on Exhibit 70 is that it contains the results of Etsako Central Local Government Area and Akoko-Edo Local Government Area. It is contended that the results of the two local government areas was cancelled by the 2nd respondent after the election. The petitioners called PW 61, one Johnson Ewadike Ohuma on subpoena who produced Exhibit 110; a video tape and was read in the open tribunal to show that the 2nd respondent cancelled the election in Etsako Central and Akoko-Edo local government area for reasons, he claimed, of violence.

“The two sets of respondents have urged us to discountenance Exhibit 110 on grounds of not being produced from proper custody, not being a reliable document and that PW 61 who tendered same was an interested person, having a case in the tribunal and being a member of the petitioners’ political party.

“We hold that Exhibit 110 is relevant. We think that the facts of Exhibit 110 being relevant put everything to rest. We hold that Exhibit 110 show that the election in Etsako central and Akoko-Edo local government were cancelled by the 2nd respondent”.

The petitioners also called PW 60, one Joseph Tom Shakaka, a Liberian with National Library of Nigeria, Edo State branch on Subpoena tendered Observer Newspaper of 17th of April 2007 ,. The Newspaper was admitted as Exhibit 108 while the page 3 was admitted as Exhibit 108 (a).

Exhibit 108 (a) was a notice purporting to be the final result of the gubernatorial election in the state. The notice was published by INEC and signed by one Alhaji Muhammed Abubakar Ahmadu, Resident Electoral Commissioner, Edo State and dated the 15th of April, 2007 , therein, the results for Etsako Central and Akoko-Edo were not included. Votes were asterisk, which star was explained at the foot of the notice to mean that the results in the two Local Government Areas were cancelled. And, the tribunal held that exhibit 108 is a reliable document because, the fact that it was published as a notice was not derogatory at all.

“We hold that exhibit 108 will stand on its own as prove that results in Etsako Central and Akoko-Edo local government area were cancelled. Exhibit 108 (a) also corroborates exhibit 110”.

The tribunal also looked closely at exhibit 70, 71, 71(a), 110 and exhibit 108(a) and came to the inescapable conclusion that results in Etsako Central and Akoko-Edo local government were cancelled on the 14th of April 2007 .

Exhibit 110 was obviously after the election on the 14th of April, 2007 . On the 15th of April, exhibit 108 (a) was signed. Exhibit 71 was signed on the 16th of April by the 2nd respondent, he was returned by the 3rd respondent as the winner of the election. It credited the 1st petitioner with 197272 votes and the 3rd respondent with 229740 votes.

The judge said: “We think that ought to be a natural sequence what the two sets of respondents say now. The respondents claimed that exhibit 70 was the final result and that it included the results of Etsako Central and Akoko-Edo local government areas. That means the figure credited to the first petitioner to be 201116 votes and the figures credited to the 3rd respondent to be 291262 votes.

“Exhibit 70 was said to have given rise to exhibit 71 (a) which bored the same figure with exhibit 70 meaning that votes of the two disputed local government areas were added to them. We find an inherent flaw in exhibit 70 and 71 (a). Both documents were made on the 18th of April 2007 and that would be four days after elections of the 14th of April, 2007 , two days after the return on exhibit 71, two days after the notice on exhibit 108 (a) and one day after the publication of exhibit 108.

“There is no explanation from the 1st, 2nd, 5th -22nd respondents why exhibit 70 and 71(a) were brought on the 18th April 2007 . We take judicial notice that results in an election are arranged in an ascending order; results start from the units to the constituency level. So, the results on exhibit 70 form EC8A starts from EC8A, EC8B, EC8C, and then it reached EC8D. It is then that the result in EC8D would appear on form EC8E.

“We have perused the results in Etsako Central and Akoko-Edo tendered as exhibit 68, 68 (a) and (b), and 52, 52(a) and (b) respectively. The results from the units, wards and local government levels of Etsako Central and Akoko-Edo was made on the 14th of April 2007 but, these results were not entered into exhibit 108(a) which was made on the 15th of April, 2007 and were also not entered on exhibit 71 which was made on the 16th of April, 2007, these results did not exist at the time that exhibit 108(a) and exhibit 71 were made by the 2nd respondent. We discountenance 52, 52(a) (b), 58, 58(a) and 58(b) respectively.

“The next ludicrous stretch is that they took four days for those results made on 14th of April 2007 to appear on exhibit 70 and 71(a) made on the 18th of April, 2007 . PW 47 gave evidence about how Barrister Orotumhe signed as agent for PDP in all the wards and constituency levels of Etsako Central local governments, they said the anomaly came about because there was security situation which gave rise to security report, rather the PW 47 did not explain the security report but said because of that, collation could not be done in the 10 wards of Etsako Central and was brought to one place in Fugar to collate the 10 wards. It could not be very far from the reasons which 2nd respondent gave on exhibit 110 when he announced the cancellation of the results in the two local governments.

“Further, a look at exhibit 52(a), form EC8D for Akoko-Edo show that none of the agents of political parties who participated in the elections signed the result sheets. On exhibit 52 (b), form EC8C, only one Barrister Samson Ekhabafe signed under the column for party agent but, he failed to include the name of his political party. That anomaly could also be attributed to PW 7 security report. We hereby discountenance the election results for Etsako Central and Akoko-Edo local government areas which was included in exhibit 70 and 71 (a).

“We also discountenance the evidence of PW 7 that the elections in Etsako Central and Akoko-Edo local government areas were not cancelled. We hold that exhibit 70 and 70 (a) are incurably bad by containing the results from Etsako Central and Akoko-Edo local government area.

“We hold that the fact which is held to tightly by the two sets of respondents that 3rd respondent was declared and returned winner as governor of Edo State by the 2nd respondent following elections of the 14th of April, 2007 contained on exhibit 70 and 71(a) cannot stand and its bound to fail.

“We are firm in the view that the only valid document upon which the 2nd respondent could have declared the 3rd respondent winner and return him as governor of Edo state following the elections of 14th of April, 2007 is exhibit 71. We recognize only exhibit 71 and for the avoidance of doubt, we repeal the final scores of each of the parties in this petition in that election based on exhibit 71 which are 1st and 2nd petitioners’ 197472 votes and 3rd and 4th respondents 329740 votes.

The tribunal proceeded to determine between the 3rd respondent and the first petitioner who scored the highest number of lawful votes cast at the said governorship election which is the 4th issue for determination. The petitioners are disputing the results of the elections in twelve local government areas namely; Uhunmwonde, Ovia North East, Ovia South West, Esan Central, Esan West, Esan North East, Esan South East, Igueben, Owan East, Owan West, Orhionmwon and Etsako West.

The petitioners are not contesting the validity of the votes cast in four local government areas namely; Oredo, Egor, Ikpoba-Okha and Etsako East. The results for the 1st petitioners and 2nd to the 4th respondents in the local government not in dispute are Oredo AC 41711, PDP 9613, Egor AC 14959, PDP 7189, Ikpoba-Okha AC 8305, PDP 2282 and Etsako West AC 19787, PDP 10603.

The results from the two local government areas, Etsako Central and Akoko-Edo have been adjudged cancelled. The 18 local government areas in Edo State on the election have now been accounted for. The petitioners presented a chart to the tribunal containing a tabulation of the invalid votes and invalid votes cast in the governorship election and urged the tribunal to act on the chart numbering A to O.

Counsel to INEC however objected to the chart that evidence was not led by the petitioners to show that they scored majority of the lawful votes, that the chart was neither pleaded nor front loaded and that the figures in the chart were not demonstrated in the open tribunal.

Also, that the issue of multiple voting or multiple registration were not pleaded or proved by oral evidence. The Senior Counsel for the 3rd and 4th respondent contended in their reply on point of law too that chart A to O were new issues which were not pleaded specifically, that the makers of the unit results were not called to give evidence.

However, the tribunal perused chart A to O and said the complaint of the petitioners about lawful or invalid votes falls within three categories. They are as follows; invalid votes based on ballot papers not stamped and signed at the back, multiple voting and multiple accreditations as shown in voters register analysis, mal-practices as shown in the units result analysis.

Justice Umeadi at this juncture repeated that “documentary evidence can stand on its own apart from oral evidence”. “We hereby reproduce the portion of the judgment in Ngige against Obi cited above at page 338 as Hon. Justice Omokry of the Court of Appeal which we consider apt in the circumstances as follows; ‘in election petition cases, the decision of the court particularly, when the issue as to who had majority of the lawful votes is based largely on documentary evidence, mainly election result forms. So, the question of the appraisal of oral evidence and demeanor of witnesses is not that much in issue’.

“We see that the issues were pleaded. It is the law that the pleadings of a party are to be considered as a whole and not in parts. We are of the view that the case of Haruna against Modibo cited above do not apply here as the facts differ. In that case, the tribunal made a chart on its own which was with respect, adjudged to be wrong. We are aware that all the documents represented on chart A to N (1) were exhibits before the tribunal tendered by PW 47.

“The documents relating to ballot papers not stamped and signed at the back is exhibit 106 tendered by PW 47. It is a paradox that this exhibit 106 was initiated and tendered by the 1st, 2nd, 5th-22nd respondents supported by the 3rd and 4th respondents and opposed to by the petitioners. It has now come to hang on the two sets of respondents”.

Section 67 (1) of the electoral act states as follows, “subject to sub-section 2 of this section, a ballot paper which does not bear official marks shall not be counted. If the returning officer is satisfied that a b allot paper which does not bear the official marks was from a book of ballot papers which was furnished to the presiding officer of the polling station in which the votes was cast for use at the election in question, it shall not withstanding the absence of the official marks count the ballot papers”.

Section 67 (1) and (2) Supra have been judiciously interpreted to mean that ballot papers which are not stamped or signed at the back by the presiding officer are invalid. We think that the provisions at exhibit 74, manual for election officials 2007 paragraph 3.2 step 1 at page 21 put the issue to rest.

“They stipulates that ballot papers for each election should be prepared by stamping and signing the back of each ballot paper and failure to do so renders it invalid. Section 161 of the electoral act empowers the 1st respondent to issue exhibit 74 for the purpose of giving effect to the electoral act and its administration thereof.

“To that effect, and efficacy of administration was the elucidation of the official marks at section 67 (1) of the electoral act to mean stamping and signing at the back. We think therefore that since exhibit 74 paragraph 3.2 step 1 at page 21 has acted within the purview of section 161 cited above, then together with section 67 (1) form the statute on that subject and could not be derogated from.

“The provision in section 67 (2) could only be activated by the returning officer. PW 47 was not the returning officer at any of the election on the 14th of April 2007 and could not give evidence either in chief or on cross-examination on the matter. It fell on the first set of respondents to call evidence to achieve section 67 (2) but they failed to do so. What is more, even when a returning officer gave evidence on the effect of section 67 (2) cited above, the tribunal under these proceedings has power to review same. We hold that all the ballot papers shown on exhibit 106 which are not stamped and signed at the back are invalid.

“The total numbers of the invalid ballot papers in exhibit 106 are 61534 for 3rd and 4th respondents and 13610 for 1st and 2nd petitioners. We agree that these votes are invalid and are hereby cancelled and they will be deducted from the total votes of both the 1st and 2nd petitioners and the 3rd and 4th respondents on exhibit 71 and 108 (a) and exhibit 70 without Etsako Central and Akoko-Edo.

“We hold that the multiple accreditations will unendurably lead to multiple voting which could in turn vitiate the units where they occur. We hereby set out the invalid votes arising from the multiple registration and multiple voting in the affected local government areas as follows; Esan South East, voters registration in exhibit 86, from 46 units in 8 wards yielded 12202 votes for PDP, and 1801 votes for AC.

“In Esan Central, using exhibit 78, yielded from 58 units in 9 wards, 20219 votes for PDP, and 2232 votes for AC. In Esan West, using Exhibit 79, from 24 units in 7 wards, yielded 15409 votes for PDP and 1066 for AC. In Esan South East, with exhibit 80 from 41 units, in 8 wards, yielded 17390 for PDP and 11184 votes for AC, in Ovia South West with exhibit 82 yielded from 5 units in 2 wards, 1970 votes for PDP and 2019 votes for AC.

“In Owan East, exhibit 83 yielded from 9 units in 5 wards, 3324 votes for PDP and 927 votes for AC. In Owan West, exhibit 84 yielded from 14 units in wards, 2360 votes for PDP and 631 votes for AC and from Uhunmwonde, exhibit 85 yielded 29 units in 9 wards 16940 votes for PDP and 1429 votes for AC.

“The votes for PDP and AC enumerated in the 8 wards above are hereby cancelled. We have painstakingly studied the chart and we agree with the petitioners about the malpractices which appeared in the face of forms EC8A. Those malpractices of over-voting, mutilation of results sheets, alteration of figures and out right cancellation corroborates the oral evidence of petitioners’ witnesses about wild spread thugery and manipulation of process. We agree that the malpractices should be proved unit by unit but there are no barriers or Berlin walls between units on Election Day; disturbances in one unit have a spell over effect.

The affected local government areas are as follows; in Esan East, reading from form EC8A, exhibit 65, from 17 units in 9 wards yielded 5488 votes for PDP and 887 votes for AC. In Esan Central, exhibit 54 from 2 units in 2 wards yielded 767 for PDP and 67 votes for AC. In Esan West, exhibit 57 yielded from 28 units in 8 wards, 16508 votes for PDP and 691 votes for AC. In Esan South East, exhibit 56 yielded from 11 units in 5 wards, 4279 for PDP and 568 votes for AC. In Etsako West, exhibit 60 yields from 1 unit and 1 ward 4602 votes for PDP and 798 votes for AC.

“In Igueben, exhibit 61 yields from 11 units in 5 wards 3612 votes for PDP and 1044 votes AC. In Ovia North East, exhibit 65 yielded from 10 units in 6 wards 2446 votes for PDP and 209 votes for AC. In Ovia South West, exhibit 66 yielded from 18 units in 9 wards 5608 votes for PDP and 837 votes for AC. In Orhionmwon, exhibit 64 yielded from 14 units in 6 wards 5989 votes for PDP and 996 votes for AC. In Owan East, exhibit 67 yielded from 25 units in 9 wards 4737 votes for PDP and 2011 votes for AC. In Owan West, exhibit 68 yielded from 32 units in 10 wards 3670 votes for PDP and 1182 votes for AC and from Uhunmwonde, exhibit 69 from 8 units in 7 wards yielded 1577 votes for PDP and 199 votes for AC.

“We proceed to all the invalid votes which were not stamped and signed at the back which was PDP 51534 and AC, 13610 and we arrived at a grand total of PDP 273 invalid votes and AC 30895 invalid votes which are hereby cancelled. We deduct 200,722 invalid and cancelled votes from the 30029740 votes to PDP on exhibit 71 and we have 129017 votes and we deduct 30895 invalid and cancelled votes from the 197472 votes awarded to AC on exhibit 71 and we have 166527 votes. We hold therefore that for the election for the office of governor of Edo State of Nigeria held on the 14th of April 2007 , the 3rd and 4th respondents scored 129017 valid votes while he 1st and 2nd petitioners scored 166527 valid votes.

“We therefore declare that the 1st and 2nd petitioners scored the highest number of valid votes in that election. We have compared the votes scored by the 1st and the 2nd with the total of the valid votes scored in each of the 16 local government areas except Etsako Central and Akoko-Edo and it is clear that the 1st and 2nd petitioners scored at least one quarter of all the votes cast in at least 12 local governments of the 18 local government areas in Edo State. We hereby declare that the 1st and 2nd petitioners as the winner of the election to the office of the governor of Edo State on the 14th of April, 2007 having satisfied the provisions of section 179 (a) and (b) of the constitution of the Federal Republic of Nigeria and section 70 and 147 (2) of the electoral act 2006.

“It is only to be said that the 5th issue for determination has been overtaken by events. We may take out time to commend the Senior Counsels who have appeared before us in this petition. We commend their decorum, punctuality, regularity, serenity, scholarship and profound industry. We also commend their battery of juniors who have assiduously assisted them, every inch of the way.

“On our own part, we will with humility repeat the words of Sir Isaac Newton and say that “we stand on the shoulders of giants. Giants of the Nigerian judiciary which have afforded us all the judicial precedence we have used.

“The petition succeeds and makes the following orders; the 1st and 2nd petitioners hold the highest number of valid votes cast at the governorship elections in Edo state on the 14th of April, 2007 . The 1st petitioner, Comrade Adams Aliyu Oshiomhole is hereby declared as the elected governor of Edo State of Nigeria being the candidate who have scored the highest number of valid votes cast and have satisfied the requirement of the constitution of the Federal Republic of Nigeria 1999 and the electoral act 2006. It is ordered that the certificate of return issued to Senator Professor Oserheimen Osunbor as elected governor of Edo State is hereby withdrawn and nullified. The 2nd respondent is hereby ordered to issue the 1st petitioner, Comrade Adams Aliyu Oshiomhole, a certificate of return as elected governor of Edo State of Nigeria forthwith”, the judge stated.

Though, an end seems to have come to the spectre of recurrent security presence and tension in the ancient city, with the ruling last Thursday, but while some PDP stalwarts believe that was the end of the legal tussle, the Governor’s supporters believe it is not yet uhuru. They say true victory day would come after the judgment of the court of Appeal where attention has shifted this unending tango for ontrol of political power in the state by the Action Congress and the PDP.

 

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One Response to “Edo Election Petition Tribunal – The arithmetics of Oshiomhole”

  1. ABDUL SALAAM says:

    i think Action Congress won the Election, PDP IS FULL of ringing let them go we dont need them again Lets Make Nigeria Great

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