Godwin Tsa, Abuja
The Kogi State Governorship Election Petition Tribunal sitting in Abuja in a 2-to-1 split decision has affirmed the declaration and return of Yahaya Bello by the Independent National Electoral Commission (INEC) as the validly elected governor of Kogi State.
The majority judgment delivered by the Chairman of Tribunal, Justice Kashim Kaigama, dismissed the petition brought by the Peoples’ Democratic Party (PDP) and its candidate in the November 16 governorship election, Engineer Musa Wada, against the outcome of the election for lacking in merit.
But in a swift reaction, counsel to the petitioners, Jibril Okutepa, SAN, has vowed to challenge the judgment at the Court of Appeal.
Justice Kiagama with another member of the three-man panel, Justice Baraka Wali, dismissed the petition on the grounds that the petitioners failed to prove any grounds for their petition.
He awarded the cost of N500,000 against the petitioners in favour of the respondents.
However, in his dissenting judgment, Justice Ohimai Ovbiagele upheld the petitioners’ case by nullifying the results in seven out of the 21 local government areas in the state.
He ordered the Independent National Electoral Commission (INEC) to withdraw the certificate of return issued to governor Bello and ordered the electoral body to conduct a fresh election in seven local governments within three months.
Wada and his political party had in their petition contested the outcome of the governorship election in seven out of the 21 Local Government Areas of the state.
They are Adavi, Ajakuta Kabba/Bunnu; Okehi; Okene; Lokoja and Olamaboro Local government Areas of the state.
The petitioners complain that the governorship election in these local governments was characterised by corrupt practices, irregularities, over-voting, violence by armed men and other forms of electoral malpractices.
But in its majority judgment, the Tribunal held that the petitioners had through their witnesses and documentary evidence failed to established their claim.
Justice Kiagama in his judgment held that most of the evidence adduced by the petitioner’s witnesses were unreliable and hearsay.
Although the petitioners had through their lead counsel, Jibril Okutepa, SAN, argued that the election be voided by corrupt practices in breach of the provisions of the Electoral Act, 2010 (as amended), which substantially affected it’s results, the Tribunal held that they have failed to prove the allegations.
The Tribunal equally dismissed the evidence adduced by the forensic expert, Prof Tanko Ishaya, and the Deputy Vice Chancellor(Academics), University of Jos.
Prof Ishaya, who testified as Petitioners Witness (Pw19) is a professor of Computer Science with a Mathematics background and specialisation and experience in Data Engineering, Computer Security and Forensics.
The Tribunal held that it is not bound by his evidence on the grounds that he ‘went beyond the order of the court as contained in the supeona issued to him.
‘He cannot be counting and re-counting the ballot papers. That is the exclusive duty of an electoral officer or a represented of INEC.
The Tribunal further held that ‘Pw19, the forensic expert, was hired by the petitioners to do his job and he could not prove allegations of over-voting. His evidence requires collaboration by other witnesses and relevant electoral materials “and this was lacking.
‘The Tribunal is not bound to swallow his evidence hook, line and sinker, but to evaluate same to see if it has any probative value.’
Citing some case laws, the Tribunal held that the ‘court are enjoined to be circumspect while acting on expert opinions. This is because there is the likelihood of bias in favour of those that engaged them as he who pays the pipper dictates the tune.
‘In the final analysis, after going through the evidence of the witnesses and documentary evidence before us, we are unable to agree with the Petitioners that the election of the 2nd responded (Yahaya Bello) be nullified as the Petitioners have failed to prove the allegations contained in the petition.
‘Accordingly, the petition is hereby dismissed for lacking in merit. The election and declaration of the 2nd respondent as the validly elected governor of Kogi State is hereby affirmed.’
But in his minority judgment, Justice Ovbiagele disagreed with his colleagues and upheld the petition. He predicated his judgment on the evidence of Pw19 which he held was valid, unchallenged and uncontroverted by the respondents.
‘Failure to controvert the evidence of Pw19 was fatal to the case of the respondents and the court have no reason to doubt his evidence.
‘His testimony was straight forward, accurate, unbroken and in consistent with the evidence that the election was deeply flawed.
‘There is no reason to doubt the veracity of his evidence which was not contradicted by therespondents. Besides, the documents presented by him are valid and admissible.
‘His evidence was collaborated by other witnesses who testified on the side of the petitioners, who demonstrated massive rigging and electoral violence.
‘On the whole, I find that the 2nd respondent was not validly elected as the governor of Kogi and I make an order directing that his certificate of return issued to him by INEC to be withdrawn and a fresh election conducted within three months.’