By Adediwura Aderibigbe
With bated breath, everyone is anxiously awaiting the outcome of the petition filed by Dr. Kayode Fayemi and the AC against the return of Governor Segun Oni of Ekiti State. This is the second Elections Petitions Tribunal since the gubernatorial election of April 14, 2007.The present Election Petition Tribunal was consequent upon the Appeal Court Judgment which nullified the election of Mr. Segun Oni on the grounds of non- compliance with the Electoral Act and ordered a rerun election. Mr. Segun Oni pooh-poohed and lambasted the judiciary for this historic judgment alleging that the court wore a garb of bias in relying on the glaring inconsistencies in the said election to order a rerun in the areas complained of. Mr Oni held on to the use of the colour of biro, even though the court’s findings included over-voting, alterations, ballot paper swapping etc. Supplementary elections were ordered in 10 local governments of the State. Results came in from 48 wards: Ise Orun(10), Ekiti West(3), Ekiti South West(1), Gbonyin (3) Ekiti East(6), Ikole (9) , Irepodun /Ifelodun(8) and Ijero(8). However, no election was held in Oye where suspected PDP thugs reportedly waylaid and killed one AC member, Ahmed Sadiq in front of Arise’s house few days to the rerun election.
While not disputing the fact that this is a season of all sorts of analysies from the sublime to the outright the stupid. In justifying the perfidy and the electoral irregularities of the PDP in Ido/Osi Local Government in particular, such analysts have reeled out a roll call of who is who in the PDP on town by town basis in the local government areas where the rerun was held and how powerful, popular and influential they are. However, this is a mere fallacy as all those mentioned featured prominently in the petition as ballot box snatchers and heavyweight riggers. To put a lie to these unconvincing analyses, in Ise where the current Chairman of State Universal Basic Education (SUBEB), Mr. Dayo Adeyeye, a house of representative member, 2 commissioners, Local Government Chairman, A Special Adviser and Assistants all come from, AC still won. In Ipoti and Ifaki especially, traditionally AD/AC had been winning until the latest controversial elections which had not been finally resolved.
Another fallacy of PDP apologists is the Oye election which was postponed twice because of violence. Iwu and Oni had used Oye’s result as a fallback position and boasted of a non-existent 18, 000 votes with which they would cancel the 12,000 lead of Dr. Fayemi as computed by the Appeal Court since Ido/Osi became very controversial and may likely be cancelled. Alas, the much touted and expected 18,000 votes did not materialize because Oye town was diligently monitored by Action Congress leaders including Otunba Niyi Adebayo. At the end of the polls, only 2,039 votes were recorded by both parties as a result of which Iwu and his Resident Electoral Commissioner, Adebayo Ayoka who had earlier rejected the results of the two Ifaki wards, Usi and Orin/Ora later went back and recorded them for Mr. Segun Oni. Ifaki and Usi alone polled 11,000 votes for Mr. Segun Oni in an election that generally recorded a low voters’ turnout where a whole local government of 10 wards (Ise) known for the presence of PDP’s so called heavyweights, polled only a little above 7,000 (AC won in the Local Government). When Oye failed, rejected Ido/Osi votes came in handy after 10 days of disappearance and reappearance of Ayoka Adebayo who did not come to court to defend her volte-face. It is interesting to note that contrary to the claim of Akintola, AC won convincingly in Oye polling 11,337 to PDP’s 8,746.
However, the rerun election witnessed more violence and irregularities than the April 2007 general elections. The result of the supplementary election on the basis of which Segun Oni was declared winner was so contentious that nobody could wait to sign the final result as there was a rowdy and tense atmosphere at the venue of the declaration of final results. The strange happenings that characterized the conduct of the election makes it unique in Nigeria. The State’s Resident Electoral Commissioner disappeared shortly after she cried out to the public that some people were pressurizing her to announce fake result. She was thereafter declared wanted by the security High Command and she reappeared only to bow to pressure by announcing a controversial result which she had earlier rejected. The combination of all these factors was responsible for the petitioners going to the tribunal for the second time in two years. Dr. Fayemi and the AC challenged the result of the gubernatorial election in 6 wards viz- Ifaki wards I and II, Usi, Orin /Ora and Ipoti wards A and B.
The Elections Petitions Tribunal which was set up to adjudicate the issues arising from the supplementary elections had Justice Hamman Barka as Chairman, with Justices S.U Dikko, A.A Adebara, Obande Ogbuiya and Justice M.B Goji as members. The trials started by calling of witnesses by the Petitioners, Dr. Kayode Fayemi and the Action Congress who opened its case and called 47 witnesses. The eight Respondents are: Mr. Olusegun Adebayo Oni (67 witnesses), Peoples Democratic Party (31winesses), Independent National Electoral Commission (32 witnesses), Resident Electoral Commissioner of Ekiti State, Returning Officers for Ido/Osi & Ijero Local Government Areas, the Nigeria Police Force & Inspector General of Police.
The proceedings lasted between July 25, 2009 and March 15, 2010. Adoption of Addresses took place on April 13, 2010.
Issues raised by the Respondents Counsels in their written submissions at the adoption are: Counsel to Mr. Segun Oni, Adenipekun submitted that the petitioners’ pleadings are contradictory to their written submissions. They pleaded there was no election but they submitted that there was no election known to law. Adenipekun caused a stir in court when he said that the Supreme Court has said there must be irregularities in elections because of the aggressive nature of Nigerian politicians but cited no authority to back the assertion.
Counsel to the PDP, Obafemi Adewale dwelt on substantial compliance and though he admitted that there were infractions, they were not enough to nullify the election more so when nobody is above mistake. He dwelt severally on section 146(1) of the Electoral Act 2006.
Counsel to the Electoral Officers of Ido-Osi and Ijero Local Government Areas, Tayo Oyetibo harped on the fact that the petitioners did not present before the tribunal an alternative result with which the tribunal would declare them winners and that the tribunal cannot manufacture any for them since they are not magicians. He argued that the burden of proof is on the petitioner who asserted that there was no election.
Counsel to the Nigeria Police Force and the Inspector General of Police, argued that there was no demand for the police to produce form EC 8A but was only contained in the final address of the petitioners. He urged the tribunal to hold that there was no evidence against the police. He maintained that the Police did not conduct an election but to provide security which it did perfectly well.
In his reply to the issues raised by the Counsels to the respondents, Yusuf Ali, counsel to the Petitioners argued that there was no election and if any had been purportedly conducted, it was not known to any Nigerian law and the electoral Act. He explained that it is implied that if you hold an election not founded on any law, it means there is no election. He said the gist of his pleadings is that there was no election in Ifaki wards I and II known to law. He referred to the evidence of PW 34, Peter Oladosu alias Erinmoje concerning massive violence, multiple thumb printing and disenfranchisement. He said the respondents were unable to rebut the evidence of PW 34 and other witnesses concerning violence and were unable to vitiate the evidences adduced from video of violence perpetrated by agnts of 1
st and 2nd respondents (Mr. Segun Oni and PDP). He cited the case of Omoworare vs Omisore. On the issue of substantial non compliance raised by counsel to the PDP Obafemi Adewale, Ali argued that since Adewale had admitted that the election was not perfect just as the petitioners were not perfect, it shows that any other defence by Adewale is an afterthought.
On the argument of the Counsel to INEC and the REC, Rowland Otaru that there was no over voting because the number of accredited voters in the units concerned did not exceed the number of registered voters; Ali argued in his written submission that Otaru glossed over the issue. He didn’t show the essence of accreditation if the number of votes recorded is more than the number of voters accredited. The tribunals and Courts of Appeal both in Edo and Ondo States in the cases of Osunbor vs Oshiomhole and Agagu vs Mimiko relied grossly in their judgments on the issue of non- accreditation.
In his reply to Counsel to the Electoral Officers that the petitioner did not present an alternative result, Ali replied that where there is no rejoinder to any fact raised either oral or documentary, there is no burden of proof. It is not in all cases that a petitioner is expected to present results of an election. It is only when the document is in dispute. The law is clear on this. He referred to- paragraphs 39-41 of the petition where results were pleaded. Ali further argued that the petitioners pleaded a copy of the result as attached by the Respondents and which is the same as the one pleaded by the petitioners in the aforementioned paragraphs. Ali cited precedents where Appeal Court in the case of Mimiko vs Agagu and that of Oshiomohle and Osunbor the tribunal relied on charts prepared by the petitioners showing what the true results ought to be after deducting the unlawful votes. The same decision was arrived at by the Appeal Court in Ilorin in the case between Fayemi vs Oni where the learned Justices affirmed the chart drawn by the petitioner and sanctified it as the true and lawful result upon which the supplementary rerun was ordered. Even though it had been argued in many quarters that the Appeal Court validated results was enough to declare Dr. Fayemi winner having met the constitutional requirement for such, the Appeal Court in their own wisdom decided otherwise.
Ali argued that the burden of proof is no longer static in law but shifts to the Party that affirms the positive to proof its positivity. One can only proof the positive and not the negative; therefore it is INEC and the other respondents who affirm there was an election that need to proof it. He cited the Enugu Appeal Court Judgment of Igbeke vs Emordi.
On the negligence of duty on the part of the Nigerian Police, Ali argued that the Police did not arrest anybody for the burning of INEC Local Government collation centre in Ido Ekiti despite claiming its men were on ground. To make matters worse, INEC did not lodge a complaint that the place was burnt until 4 months later. In the police extract diary that was tendered in court, it was stated that the INEC office was burnt by yet to be identified hoodlums. Ali argued that the petitioners only joined issue that the Police did not tender their own copies of forms EC8A as a neutral party as provided for by the Electoral Act.
The summary of the petitioners’ argument was to seek a relief for outright declaration as the lawfully elected governor of Ekiti State having polled the majority of lawful votes in both the Court of Appeal validated 2007 election and the lawful votes at the supplementary election of 2009.
However, the contentious final result declared by INEC was, Fayemi-107,017. Segun Oni- 111, 140 leaving a difference of 4, 300 succumbed to vitiation as Innocent Akao the Electoral Officer for Ido-Osi, the purported maker of forms EC 8B and 8C disowned under cross- examination, the results from Ifaki I and II and Orin/Ora Wards.
The petitioners, in paragraph 127 of the petition wish to be declared winner with total lawful votes of 103,880 against Mr. Segun Oni’s (1
st Respondent) 93,104.
Curiously, the respondents’ counsels both in their written and oral submissions failed to address the lacuna of the non-provision of the voters’ register by INEC despite the fact that all the Presiding Officers and RW77 a Professor of Political Science agreed that accreditation of voters is the fulcrum on which an election is built.
Equally, the submissions failed to address the flagrant disregard for INEC’s Election Manual concerning punching and marking of voters’ cards, stamps, colour of ink and initialing results/alterations.
Earlier, before the day of adoption of addresses (April 12, 2010) there was an application which had been made to the Tribunal by the Counsel to the PDP, Obafemi Adewale and supported by other respondents’ counsels that the adoption of addresses be postponed to a later date. The tribunal Chairman reiterated an earlier rejection of the application and ruled that petitioners and respondents should adopt their addresses.
It was alleged that a combination of the above was responsible for the attack on the convoy of Fayemi after the adoption of addresses on April 13, 2010. The expectant judgment has given way to anxiety and paralyzed social and economic activities in Ekiti State. The tribunal had become a sanctuary of hope where people are expecting succor arising from the unease which the unresolved April 2007 General Elections had visited on the fountain of knowledge.
Source:www.thenationonlineng.net
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