Edo Guber: All Eyes on the Supreme Court

As the Supreme Court has reserved the judgment on the dispute arising from the Edo State gubernatorial election, many analysts want the apex court to demystify the Independent National Electoral Commission, which is always quick to tell aggrieved parties in disputed elections to ‘go to court’ despite its infractions, Wale Igbintade writes

The Supreme Court last week reserved judgment in the appeal challenging the declaration of Monday Okpebholo as the winner of the September 21, 2024 governorship election in Edo State.

After hearing arguments from lawyers, a five-member panel of the apex court, led by Justice Mohammed Garba, said the date for judgment would be communicated to the parties.

The appeal was filed by the Peoples Democratic Party (PDP) and its candidate, Asue Ighodalo. 

Ighodalo and his party have maintained that both the tribunal and Court of Appeal failed to properly evaluate the case they filed to challenge the outcome of the election, which they insisted was not conducted with substantial compliance with provisions of the Electoral Act.

While arguing the appeal, appellants’ lawyer, Ken Mozia (SAN) prayed the court to allow the appeal, set aside the earlier decision of the Court of Appeal and return Ighodalo as the winner of the election with the majority of the lawful votes cast.

But the lawyers to the respondents sought a dismissal of the appeal.

For instance, lawyer to the All Progressives Congress (APC), Emmanuel Ukala (SAN), argued against the appeal and urged the court to dismiss it in its entirety.

Also, counsel to the Independent National Electoral Commission (INEC), Kanu Agabi (SAN), asked the court to dismiss the appeal. 

The electoral body said, having declared the election as unlawful and illegal, Ighodalo and PDP cannot ask the court to declare them as winners of the poll. 

INEC accused the appellants of being “inconsistent” in their grievances against the election and pleaded that their case be dismissed for want of merit. 

INEC had declared Okpebholo, candidate of the APC, as winner of the election.

While Okpebholo polled 291,667 votes, Ighodalo of the PDP, who got 247,274 votes came second, while Olumide Akpata, candidate of the Labour Party (LP), finished a distant third with 22,763 votes.

Dissatisfied with the result, the appellants approached the tribunal, alleging that the election was not conducted in substantial compliance with the provisions of the Electoral Act, 2022.

 They alleged that Governor Okpebholo did not secure the highest number of the lawful votes cast during the election.

It was equally the contention of the petitioners that INEC failed to serialise and pre-record some of the sensitive materials that were deployed for the poll, a situation they said aided the rigging of the election in favour of the APC and its candidate.

Delivering judgment on April 2, a three-member panel of the tribunal, led by Justice Wilfred Kpochi, held that the PDP and Ighodalo failed to prove the allegations against the respondents. It held that “no competent witnesses were called” to prove the averments in their petition.

The petitioners went further to challenge the election at the Court of Appeal. However, on May 29, a three-member panel of the appellate court, led by Justice Mohammed Danjuma, dismissed the appeal for lacking merit.

As the Supreme Court has reserved judgment, analysts hope that it would carefully consider the issues in contention in order to give credibility to Nigeria’s electoral process. They want the court to demystify those, especially INEC and the declared winners who are always quick to tell the aggrieved parties to “go to court” when issues of fraud are raised after every election.

For an election to pass integrity test and  be declared credible, all the processes and arrangements leading to the election as well as the actual conduct of the election must be transparent, fair to all parties, and not deliberately skewed in favour of any contestant.

Did the Edo State governorship election satisfy these requirements?

First, before the governorship election, all the odds were stacked against Ighodalo and PDP, as many questioned the neutrality of the police and INEC. The concerns followed allegations that the Resident Electoral Commissioner (REC) posted to the state, Anugbum Onuoha, and the Commissioner of Police, Mr. Nemi Edwin-Iwo, were allies of Minister of the Federal Capital Territory (FCT), Nyesom Wike.

While the REC was alleged to be Wike’s cousin, who had also served as his Special Adviser on Lands when he was the governor of Rivers State, the police commissioner, who was said to be an indigene of Rivers State, was alleged to be an associate of Wike.

The FCT minister whose political camp in Edo PDP worked against the party’s governorship candidate, is also a known political enemy of the then Governor Godwin Obaseki, who sponsored the PDP candidate.

Despite the objections raised by the PDP that the posting of the police commissioner and the REC to the state could not have been a coincidence, but a deliberate plot to deliver Edo State to the APC, INEC and the police authorities ignored the objections.

But the reports of the various election observers on the collation of the results suggested that the pre-election fears were not baseless. 

According to the local and international observers, the manner of collation of the results tainted the credibility of the poll.

Interestingly, the same INEC which declared Okpebholo and APC winners of the poll, could not defend its credibility at the tribunal. The commission, which said it had a line-up of five witnesses that would give evidence to support its results, failed to field any witness to defend its conduct of the election.

Analysts and lovers of democracy are demanding that as the apex court, the Supreme Court should exhibit courage, absolute impartiality and independence.

 They argued that the outcome of the litigation would send out a powerful message about Nigeria’s commitment to democracy.

They also argued that the apex court should repeat the judicial courage it displayed in the appeals filed by Governor Caleb Mutfwang of Plateau State and Governor Abba Kabir Yusuf of Kano State respectively, after the tribunal and Appeal Court delivered their judgments which were suspected to have been based on influence peddling and the bidding of politicians.

At the Supreme Court, Ighodalo’s legal team urged the court to allow the appeal and set aside the judgments of the tribunal and Court of Appeal.

They argued that in relation to their allegations of non-compliance, the lower courts failed to appreciate the nature of the non-compliance complained about, noting that there was no record of serial number on Form EC25B as required by Section 73(2) of the Electoral Act, 2022.

The appellants’ lawyers faulted the tribunal’s verdict that the documents they tendered at trial were dumped on them. They also noted that contrary to the tribunal’s finding, oral evidence was not needed in the nature of the case of the appellants, who were petitioners before the tribunal.

According to the lawyers, their clients did not challenge the conduct of the election, but the conflict in the results collated and announced.

In conclusion, they pointed out that part of their contention is that the results that were collated at the ward level were not the results declared at the polling units.

Many lawyers had also faulted the tribunal for holding that the petitioners simply dumped documents on them. They accused the courts of working to produce predetermined judgments, noting that the judges were not patient and meticulous enough to peruse the documents tendered before them. 

Citing Section 51 (2) of the Electoral Act, those who spoke to THISDAY on account of anonymity argued that the judges did not need a witness to prove over-voting, adding that what they needed was to go through the documents to see things for themselves.

While citing Section 137 of the Electoral Act, they stated that in cases of non-compliance, oral evidence is unnecessary when documentary evidence is available. They lamented that the tribunal and Court of Appeal failed to demonstrate their commitment to justice.

They equally cited the Supreme Court’s judgment in Ihedioha vs Uzodimma, where the APC only presented two witnesses and got a favourable judgment.

The lawyers also added that Section 72(1) of the Electoral Act mandates INEC to record the serial numbers and quantities of sensitive election materials, including ballot papers and BVAS machines, before the election. 

Others were miffed beyond words at the pronouncements of the lower courts, saying they were contrary to the Electoral Act. They wondered if the panels were expecting the petitioners to produce witnesses from all the polling units where malpractices took place in a tribunal that had a very limited time to hear the petition.

“If the petitioners were complaining of over voting in 133 units and documentary evidence from the polling units showed that the number of votes cast exceeded the number of accredited voters, what else were the judges expecting to see and hear?” one of the lawyers, a SAN, queried.

They criticised the tribunal for dismissing documents that had already been accepted as exhibits, stating that even INEC did not dispute their authenticity.

This is why they expect the Supreme Court to do justice to their case.