BETWEEN THE MAJORITY AND DISSENTING DECISIONS OF NAS. STATE GOVERNORSHIP ELECTION PETITION TRIBUNAL

By Shareef Mohammed Esq

By a split decision of 2:1, the Nasarawa State Governorship Election Tribunal on 2nd October 2023, set aside the election and return of Governor A.A Sule and declared Emmanuel David Umbugadu of the PDP as the winner of the March 18th Governorship Election conducted in Nasarawa State.

The majority decision of two out of the panel of three justices delivered by the Chairman of the Tribunal, Hon. Justice Ezekiel Oyeyemi Ajayi upheld the sole ground of the petition that the Governor, was not elected by majority of lawful votes and in so doing, countenanced virtually all evidence led and documents tendered by the petitioners and found albeit erroneously that Emmanuel David Umbugadu of the PDP and not Governor A.A Sule was the Governor elect of Nasarawa State by majority of lawful votes with a margin of lead of 841 votes from the total scores of 293, 287 for PDP and 292, 446 for APC.

In proof of their case, the petitioners called 22 witnesses out of which, 8 were subpoenaed witnesses who testified without written deposition on Oath and tendered mass documents admitted as exhibits while others were either polling unit, ward, or LG collation agents.

The 1st Respondent did not call any witness, while the 2nd Respondent called a total of 21 witnesses and the 3rd Respondent called only one witness.

However, in a dissenting judgment of Hon. Justice Ibrahim I. Mashi, the opposite was the case in which the entire petition was dismissed as being unmeritorious and devoid of evidential support base or pillars.

While the majority of 2 Justices were of the considered opinion that the petitioners have proved their petition, the dissenting jurist took a swipe on the evidence led and the documents tendered by the petitioners and radically disagreed with the majority decision that the petitioners have establish their case and in consequence dismissed their petition as unmeritorious and affirmed the election and return of Engr. A.A Sule as the winner of the18th March 2023 Governorship Election conducted in Nasarawa State with a margin of lead of 3,799 votes, from the total scores of 295, 402 for APC and 291, 603 for PDP.

In so holding, the dissenting judge, took a step-by-step review of evidence led and documents tendered by the petitioners in proof of their petition particularly in all areas of their complaints and came to the conclusion that they are grossly insufficient as to entitled them to the reliefs sought of being declared winners of the 18th March 2023 Governorship Election of Nasarawa State.

Before returning anon to present details of the majority and minority decisions on the areas of complaints of the petitioners, it is apposite to present their decisions on the various preliminary objections raised at the hearing of the petitions among which the objection challenging the jurisdiction of the Tribunal to grant the principal relief of the petitioners seeking an order setting aside or withdrawal of certificate of return of Governor A .A Sule in the absence of a prior declaratory relief setting aside his election and return and objections to admissibility and tendering of documents including objection to subpoenaed witnesses giving evidence without written depositions on oath etc.

While both the majority and minority decisions dismissed the objection on jurisdiction, the case was not the same with the objections to admissibility and tendering of documents. While the majority decision dismissed all objections to admissibility and tendering of documents, the minority decision thinks otherwise and upon critical evaluation, expunged enormous documents and testimonies of some witnesses majorly of the petitioners.

DECISIONS OF THE DISSENTING JUDGMENT ON COMPETENCE OF WITNESSES AND ADMISSIBILITY/TENDERING OF DOCUMENT ON COMPETENCE OF PETITIONERS’ SUBPOENAED WITNESSES TO TESTIFY WITHOUT STATEMENT ON OATH.

While the majority decision is of the opinion that the petitioners’ subpoenaed witnesses can testify without witness statement on oath, the dissenting decision thinks otherwise and held that the correct position of the law is that where there are divergent and or conflict decision of the court of Appeal, the rules is that the later decision in time prevails and therefore, the tribunal is bound by the later decision in Peter Obi’s case which is the latest decision delivered on the 6th September 2023 in the Presidential Election Petition Tribunal.

Accordingly, the dissenting Judge held that by the decision in the Peter Obi’s case, subpoenaed witnesses are not witnesses of the court but witnesses of the Petitioners.

He identified the Petitioners’ subpoenaed witnesses to include PW5 who represented INEC Director of ICT who tendered photocopy of the subpoena served on him as opposed to the Original, PW6, PW7, PW8 who testified under cross examination that the CTC of IREV copies of FORM EC8As were earlier given to the Petitioners and was part of the team that certified the document for the Petitioners, PW7 and PW8 who metamorphose to PW20 and PW21, PW12 who was Petitioners’ subpoenaed Agent of PRP at Gayam Electoral Ward and who testified under cross examination that the Petitioners had their own Agent at Gayam Ward, who they never called. PW13 also a Petitioners’ subpoenaed Action Alliance’s Agent at Chiroma Ward who also testified during cross examination that the Petitioner had their own Agent at Chiroma Ward, who they never called.

The Dissenting Judge held that the above 8 Petitioners’ subpoenaed witnesses were all witnesses who were available to the petitioners at the time of filing the petition and that PW8/PW21 by name AMA IBOM AGWU was the same subpoenaed witness whose competence was challenged in the case of ARARUME v. INEC and therefore, all of them were not adversaries and consequently held that their oral testimonies sworn and unsworn without written deposition on oath are incompetent and the witnesses lack vires to testify in this petition.

Accordingly, their testimonies including that of RW22 are struck out while all the exhibits tendered through them were also expunged.

ON INADMISSIBILITY OF DOCUMENT TENDERED THROUGH WITNESSES WHO ARE NOT MAKERS AND INADMISIBILITY OF ORAL EVIDENCE OF THE SAID WITNESSES.

The dissenting judge held contrary to the majority decision that it is trite law that polling Agents can only testify on what transpired in their own polling units and it is also settled law that a person who is a ward supervisor is a competent witness under the evidence Act save that what matters is the probative value to be attached to his evidence.

The Dissenting Judge held that it is settled law that while polling agents and ward supervisors are competent witness to testify, the question as to who is an agent and how an agent can be appointed is as provided by section 43 (1) of the Electoral Act 2022 which allows each political party in consultation with its candidate by notice in writing to REC appoint polling agents stating their names, address, contact details, passport photograph and sample signature 14 days before the date for the election.

He held that from the above provision of the S.43(1) PW1, PW2, PW3, PW11, PW15, PW17 and PW22 are not polling or collation agents of the petitioners as contemplated by the law having not been able to show or tender items required under section 43(1) of the Electoral Act 2022 and therefore incompetent to testify on ground of not having been appointed in accordance of law.

In consequence, their testimonies were expunged on the record of the tribunal including those of RW21 and RW22.

ON OBJECTION TO TENDERING AND ADMISSIBILITY OF DOCUMENT USED IN THE ELECTION OF NASARAWA STATE HOUSE OF ASSEMBLY

The dissenting judge disagreed with the majority decision and held that the tribunal lacks jurisdiction to countenance documents used for State House of Assembly election in governorship election tribunal more so when none of those documents was used in returned of the 2nd respondent or used as the basis for the petitioners’ loss and therefore they are not relevant for the purpose of prosecuting the governorship petition.

Accordingly, all such documents were expunged from the record of the proceeding of the tribunal.

ON OBJECTION TO TENDERING OF DUPLICATE COPIES OF RESULTS FROM THE BAR

On this, the dissenting Judge disagreed with the majority decision and held that all the duplicate copies of the results being original results tendered either from the bar or through respondent witnesses are inadmissible as the witnesses and counsel were not the makers.
Accordingly, they were expunged from the record of the tribunal.

ON OBJECTION TO TENDERING OF SAMPLE IREV RESULT FROM THE BAR

The Judge also contrary to the majority decision held that the fact that they were tendered as sample of IREV from the Bar and question asked to the witness concern who was not from that polling unit or ward is irrelevant and inadmissible.

Accordingly, the two sample exhibits tendered by the petitioners were expunged from the record.

ON OBJECTION TO COMPETENCE OF PW9, PW10, PW14, PW15, PW16, PW17 AND THEIR CAPACITY TO TENDER DOCUMENTS (page 51)

The tribunal disagreed with the majority decision and held that these witnesses having admitted that they were not accredited by INEC to serve as agents and had nothing to show that their political parties complied with Section 43(1) of the Electoral Act 2022 are incompetent to testify and consequently, their testimonies were expunged along with documents tendered through them.

ON THE SUBSTANTIVE PETITION

The judge distilled two issues for determination to wit; whether from the evidence adduced, the Petitioners have established that the 2nd Respondent was not duly elected by the majority of valid votes cast at the election of Governorship of Nasarawa State held on 18th March, 2023?

Whether the 1st and 3rd Respondents have no replies before the Tribunal owing to the fact that they put the name of one Sule Audu Adamu in their replies to the Petition?

The dissenting judge, upon detailed analysis of evidence presented before the tribunal by the petitioners resolved the two issues in favor of the Respondents and held thus;“Having, resolved the two issues against the Petitioners, and the fact that the Petitioners presented subpoenaed witnesses whose testimonies are incompetent and the other witnesses who claimed to be agents but could not comply with the section of the Electoral Law on the appointment of agents, this Tribunal found the Petition to be unmeritorious and the same is hereby dismissed”.

In his very critical analysis of issue one, the judge laid the foundation that it is the trite position of the law that the petitioners who are seeking declaratory reliefs must succeed on the strength of their case and not on the weakness of the respondents’ case.

He noted that the complaint of the Petitioners cut across Ashige ward, Chiroma ward, Gayam ward, Kanje/Abuni ward, Azara ward, Alwazan Mada ward polling unit of Sabon Gari ward, Bohar Sarki polling unit of Ningo/Bohar Sarki ward, Gadabuke polling unit of Gadagwa ward and Ihenkpe polling unit of Shege ward.

PETITIONERS’ AREAS OF COMPLAINTS, REVIEW AND FINDINGS.ASHIGE WARD

For instance, in Ashige Electoral Ward where INEC declared that Election in 35 out of 36 polling units were canceled as evidenced by Form EC40G tendered, the Petitioners who contend that election held and result were properly collated/counted and want restoration of same, only presented three (3) witnesses PW1, PW2, PW11 & PW17 out of which two were polling unit agents while the others were ward and LG Collation agents.

While the majority decision saw the Evidence of these 4 witnesses sufficient to restore 4, 488 votes for the petitioners and 2, 673 for 2nd and 3rd respondents, the dissenting judge disagreed and held that they are insufficient to established that election actually took place without any hitch.

He held that polling unit agents are most competent to testify and the petitioners have a duty to call polling unit agents to proof that election at all the polling units of Ashige ward and having failed, their claim for restoration of the alleged votes also failed.

ALLEGATION OF WRONG ENTRIES FROM FORM EC8A INTO EC8B IN AZARA AND KANJI WARD OF AWE LG.

The complain of the Petitioners in Azara and Kanje/Abuni wards is that there were wrong entries of scores from form EC8As to EC8Bs and the alleged wrong entry has affected the total scores of the parties. In an attempt to prove this, the Petitioners called PW3 and PW4, who claimed to be Petitioners ward collation agents. However, PW3 and PW4 were not in all the polling units.

Held contrary to the majority decision that it is settled law that in election Petition, polling unit agents are competent witnesses but they can only testify on their polling units. However, in respect of PW3 he testified for all the 31 polling units of Azara ward thus making his testimonies as hearsay and therefore inadmissible. While PW4 who is a ward collation agent of Kanje/Abuni ward though he can be a competent witness in law but the probative value to be attached to his evidence is what matters. It is in evidence that PW4 admitted that Exh A1 and his table on his statement are different. As in Exh A1 the scores of APC was 169. While in his table he stated that A.P.C scored 167. In fact, he admitted inconsistencies between his statements and the exhibits and admitted all the exhibits with the exception of A1 are not correct.

In view of the foregoing, the Petitioner have failed to establish their claim in respect of Azara and Kanje/Abuni as required by law.

On the allegation of over voting in Gadabuke P.U of Gadagwa ward and Ihankpe B Polling Unit of Shege ward and others

Here, the Petitioners alleged that there were over voting in Gadabuke, Ihenkpe, Kofar Magajin Gari, Anguwar Makama (P.U), Bohar Sarki. In their bid to prove the said allegations of over voting, the Petitioners called PW14, PW15 and PW18. PW15 who claimed that 276 voted in excess of 270 accredited. PW18 claimed that 476 voted in excess of 176. PW14 stated that the presiding officer recorded more than the accredited voter, as ballots papers were not counted.

Held, contrary to the majority decision that It is trite that over voting is when the total votes cast outnumbered the accredited voters and by section 51 (2) of the electoral Act, 2022, when such occurred, the result would be cancelled. The Supreme Court has set out the requirements of establishing over voting in an election Petition in the case of OYETOLA & ANOR vs INEC & ORS (2023) LPELR-60392 Where Per AGIM JSC thus: “The evidence required to prove non-accreditation, improper accreditation and over voting under the electoral Act, 2022, are BVAS, register of voters and polling unit result in INEC form EC8As by virtue of section 47 (1) (2) and 51 (2) of the electoral Act, 2022. Regulations 14, 15, 19(b) (i-iii) and 48(a) of INEC regulations and guidelines for the conduct of the election, 2022.” It was the contention of the Respondent that the Petitioner have not met the requirements established by the Supreme Court (Supra) as there was no voters registers in some of the polling units. While the Petitioners stated that they tendered voters register in some polling units while praying the Tribunal to evoke section 167 of evidence Act, for withholding of evidence as the 1st Respondent was subpoenaed to produce them. However, it seems to this Tribunal that even in some areas of accreditation, the BVAS machines were bedeviled with human errors. These made Petitioners to approbate and reprobate. In Sub23 of Sabon Gari Doma, accreditation failed yet got 326 as accredited voter in the BVAS screen shot. While in Exh BV200 accreditation was successful but difference with Exh Sub21 in terms of number of accredited voters so also in Alawaga polling unit of Azara ward, accreditation failed, yet the Petitioners wanted the votes to be restored to them. So also in Kofar Magajin Gari, Anguwan Makama accreditation failed, and yet the Petitioners claimed over voting and want the parties scores to be deducted from that polling units. In view of the foregoing, this Tribunal will examine the forms EC8As of these polling units complain of to see whether there is over voting or not even though the Petitioners ought not to be said to tender voter register as required by the decision of Oyetola’s case.

As such in Kofar Magajin Gari Anguwan Makama, the total number of accredited voters is 522. The total valid votes is 517 and the total invalid votes is 6. Thus 517 + 6 = 522. As such, there is no over voting established here. While in the Bohar Sarki code 005 in Exh Sub21, the total accredited voters is 747, the total valid votes for the parties is 747.

Thus, there is also no over voting, While in Gadabuke A of Gadagwa ward of Toto Local Government in exh Sub22 code 006 the total accredited voters was 277. The total valid votes is 276 and the invalid vote is one. Thus 276 + 1 = 277, thus there is no over voting. So also in the case of Ihankpe unit 010 in Shege1 ward of Toto Local Government, the number of voters in Exh TOT2 and Sub237, did not exceed the total number of accredited voters. Even though the witness tendered the ID25 of his wife and he could not trace his name on the voters register. It was his wife’s name and not his name on the voters register.

In view of the foregoing, I hereby hold that the Petitioners were unable to establish over voting in these polling units and their claim therefore failed on these polling units. While in the case of Alwazan Mada code 009 of Sabon Gari ward of Doma L.G. the scores of the parties being the total valid votes is 326. While the invalid vote is one (1). The total accredited voters on Exh DOM, Sub3 and Sub234 was 326. While the total valid votes cast was 326 and the total invalid vote was one (1) making the total of 327 number of total votes cast.
Thus, the total votes cast is in excess of accredited voters with one vote, thereby establishing an over voting in the polling unit.

The Petitioners therefore, are unable to establish wrongful exclusion of votes by or none collation of the same.

On the allegation of inflation of result in Gayam and Chiroma wards of Lafiya Local Government.

The Petitioners claimed in Gayam, is that the result of the election was inflated in favour of 2nd and 3rd Respondents by 29, 857 votes for APC instead of 9, 753 votes while that of PDP was reduced to 1, 453 votes instead of 2, 979. In proof of this, the Petitioners called only one witness, in fact, a subpoenaed witness identified as PW12 who claimed to be a ward collation agent of PRP in Gayam Ward by name James Allu. He had no INEC Accreditation tag to confirm he was truly a ward collation agent and as a subpoenaed witness, did not also have any written statement/witness deposition on oath.

In the case of Chiroma Ward, the petitioners claim that the election result was inflated in favour of APC to 50, 944 instead of 14, 474 while those of PDP were reduced to 851 instead of 3, 506. In proof of their claim, the petitioners called one subpoenaed witness, PW13, who claimed to be Action Alliance agent for Chiroma ward.

The minority decision held contrary to the majority decision that It is trite position of the law that polling unit agents are competent to testify of what transpired at the polling units. See …. In the instant case, no any polling unit agent was called as a witness. In fact the witnesses called were having legal disabilities PW12 and PW13 testified without written deposition. While PW17 gave a hearsay evidence when he identified Exh 109-208. As such, the Petitioners could not call genuine witness as such their claim failed. Assuming without conceding that this Tribunal agreed with the conclusion of the Petitioners as to the scores of the parties and that the Petitioners are leading with 841 votes. That the scores of the parties according to the Petitioners counsel are as follows:- P.D.P 293, 287 While A.P.C is 292, 446 leaving his earlier assertion that they would lead with 4, 130. But if you add up the figures arrived by the 2nd Respondent in his objections, the total scores of the parties will read as follows: P.D.P 293, 287 – 1684 = 291, 603 A.P.C 292, 446 + 2, 956 = 295, 402

Thus, the scores of parties will be like this:- A.P.C – 295, 402 P.D.P – 291, 603 The margins of lead between the parties is 3, 799. From the above calculation therefore, the issue No.1 is hereby resolved in favour of the Respondents against the Petitioners”.

ON THE SECOND ISSUE THAT WHETHER THE 1ST AND 3RD RESPONDENTS HAVE NO REPLIES TO THE PETITION SINCE THEY PLACED THE NAME OF ONE SULE AUDU ADAMU IN THEIR REPLIES TO THE PETITION?

The Petitioners challenged the competence of the1st and 3rd Respondents replies to the petition for inserting the name one Sule Audu Adamu instead of Sule Audu Alhaji as a party/2nd respondent. Petitioners contend that Sule Audu Alhaji is a complete stranger and an unknown party to the proceedings. He referred to RE-APEH & ORS vs (2017) LPELR-42035. The petitioners are of the opinion that this issue cannot be treated as a mere misnomer because according to them, the 1st and 3rd Respondents repeatedly listed unknown party as their 2nd Respondent to the proceedings in the entirety of their process. They urged the tribunal to struck out their replies as being incompetent. The majority decision agreed with the submissions of the petitioners, and held that by this error, the 1st and 3rd respondents have technically knocked themselves out and the contest was now between the petitioners and the 2nd respondents. They however considered the replies of the 1st and 3rd Respondents regardless of their decision above.

However, the minority decisssion disagreed with the majority decision and held that the Petitioners having not shown in any way how they were misled by the name of Sule Audu Adamu instead of Sule Audu Alhaji, the error is a mere misnomer which is not fatal to the defence of the 1st and 3rd Respondents and that ‘the case of Re-Apeh’s is inapplicable and it is also too late for the Petitioners to complain that since the Petitioner have ample time to complain ought to do so from the time the replies were filed up to the pre-hearing session. In fact, the Petitioners filed a motion on notice on the objection to votes accredited to them by the 2nd Respondent…In view of the foregoing, the 2nd issue is also resolved in favour of the Respondents against the Petitioners.

Having, resolved the two issues against the Petitioners, and the fact that the Petitioners presented subpoenaed witnesses whose testimonies are incompetent and the other witnesses who claimed to be agent but could not comply with the section of the Electoral Law on the appointment of agent, this Tribunal found the Petition to be unmeritorious and the same is hereby dismissed’.

What can you make out of these opposing decisions?

Shareef Ahmed Mohammed Esq., is part of the legal team in this matter.