By Daniel Aroren Noah Osa-Ogbegie, Esq. PNM, FCAI
INTRODUCTION
Before going into the nitty gritty of this essay, it is essential to, by way of preliminary statement, make the point that this legal analysis is purely for educational purposes, to satisfy the frenzied curiosity of a wide range of Edo people, who daily inundate me with questions on the Tribunal and the fate of the mandate they freely gave Asue Ighodalo.Another reason for this exegesis of the Asue Ighodalo Petition is because I am a democrat and I also believe the current administration of Bola Tinubu holds a critical supervening influence on the sustenance of our democracy, being an Apostle of democracy himself.
Democracy, the cornerstone of modern governance, is more than just a system of government; it is a beacon of hope, a promise of progress, and a testament to the power of the people. At its heart lies the principle of periodic elections, a mechanism that ensures accountability, responsiveness, and the peaceful transfer of power. In an era marked by globalization and rapid technological advancements, the importance of democratic principles have never been more pronounced. Democracy, with its emphasis on individual rights, freedom of expression, and the rule of law, provides a framework for just and equitable societies. It empowers citizens to participate in the decision-making processes that affect their lives, fostering a sense of ownership and civic responsibility.
Periodic elections, the lifeblood of democracy, serve as a critical mechanism for ensuring that government remain accountable to the people. By providing citizens with the opportunity to elect their representatives, elections empower them to hold their leaders responsible for their actions and to demand transparency and good governance.
In Nigeria, for example, citizens are given the opportunity to elect their representatives in the federal and state level, every four years. This way, the people get empowered to hold their leaders responsible and to demand transparency and good governance adhering to democratic principles.
In light of the above, the good people of Edo State came out enmasse on the 21st of September 2024 to elect the person who would be the next Governor of the state. After the election, the Independent National Electoral Commission (INEC) announced the candidate of the All-Progressive Congress (APC), Senator Monday Okpebholo as the winner of the 2024 Edo State Governorship Election. Dissatisfied with the result, the candidate of the Peoples Democratic Party (PDP), Mr. Asuerimen Ighodalo filed a petition to the Edo State Governorship Election Petition Tribunal challenging the results of the election of Senator Monday Okpebholo of the APC.
This article is aimed at analysing the said petition and the reply of INEC vis a vis the position of the law. INEC was sued as the principal respondent in the petition.
BACKGROUND
The Petitioner, Asuerimen Ighodalo, as earlier stated was a candidate at the election of the office of the Governor of Edo State which held on Saturday, 21st September 2024, across Edo State. He contested the said election on the platform of the PDP. In the petition, he stated that he has a right to be returned as elected at the said election. The 2nd Respondent, Senator Monday Okpebholo on the other hand was also a candidate at the election of the office of the Governor of Edo State. He contested the election on the platform of the APC.
After the election, specifically, on Sunday, 22nd September 2024, he was announced and declared as winner of the election, and was said to have polled 291, 667 votes as against his closest rival, Asue Ighodalo, who was said to have polled 247, 274 votes. Dissatisfied with the outcome, Dr. Asuerimen Ighodalo, the PDP candidate filed a petition to challenge the results of the election at the Edo State Governorship Election Petition Tribunal. In his petition, he stated amongst many things that INEC unduly returned the APC’s candidate as the winner of the election and issued him a certificate of return. He pleaded and relied on all electoral forms including the summary of results and collation of results. In his petition, he also pleaded and relied on the reports and evidence by experts, including statisticians, forensic document examiners and other witnesses, as well as the report of Inspection of electoral materials and documents obtained from INEC. He prayed that the tribunal invalidates the election of Senator Monday Okpebholo.
INEC on the other hand filed a reply and stated that the tribunal should not invalidate the election as everything was done according to laid down rules and regulations.
THE CASE OF BOTH PARTIES
THE CASE OF THE PETITIONER, ASUE IGHODALO.
The grounds upon which the petition by the petitioner is based are as follows:
That the election was invalid by reason of non-compliance with the provisions of the Electoral Act , 2022.
That the 2nd respondent was not duly elected by majority of lawful votes cast.
On the first ground, the petitioner argued that the election of the APC candidate was invalid by reason of non- compliance with the provisions of the Electoral Act 2022, in that there was no prior recording of the quantity, serial numbers and other particulars of result sheets, ballot papers and other sensitive electoral materials as prescribed by the Electoral Act, 2022 such as Forms EC258 (series), Form EC40A (Ballot Paper Account and Verification Statement), Form EC40B (Statement of rejected and spoilt ballot), and Forms EC40C (statement of used and unused ballot paper). Another of such sensitive electoral materials was the Bimodal Voter Accreditation System (BVAS). The petitioner stated that in 320 polling units across the 18 local government areas of Edo state, INEC did not record in the prescribed forms, the quantity, serial numbers and other particulars of results sheets, ballot papers and other sensitive electoral materials and therefore renders the election in the 320 polling units invalid for failure to comply with the requirement of prior recording under the Electoral Act 2022.The petitioner in the petition went further to provide the particulars of polling units where non recording of the quantity, serial numbers and particulars of result sheets and other forms took place. The particulars showed that the votes scored by the 2nd respondent in these polling units that were not recorded were higher than that of the petitioners and by the very fact that it wasn’t recorded as prescribed by the Electoral Act, such votes become null and void and upon deduction of all invalid votes in the 320 polling units due to their non compliance with the Electoral Act, 2022, it brings the scores of the APC candidate to 248,035 and the PDP 238,934.
Further, the Petitioner stated that there were over voting at the election, in that, in 58 polling units spread across 18 local government areas in the election, the number of total votes cast as recorded exceeded the number of accredited voters. He stated that according to the Electoral Act 2022 and INEC’s Manual and Regulations, where the total votes cast in a polling unit exceeds the number of accredited voters, the Presiding officer ought to cancel the result in that polling unit.The petitioner further stated that failure to cancel the results in the polling units where over voting occurred was substantial noncompliance with the mandatory provisions of the Electoral Act and INEC’s Guidelines for the Conduct of Election 2022. INEC failed to limit themselves to the record of accreditation in the BVAS and the results directly from polling units, and therefore the improper authentication of the Forms EC8A used in the collation of the election result at the various polling units was noncompliance of the Electoral Act which substantially affected the results of the election in the 58 polling units. This was particularised in the petition.
The petitioner also avered that there was no proper accreditation of voters in 58 polling units and voting was not done in accordance with the Electoral Act 2022 and Guidelines which mandated the compulsory use of BVAS for ensuring reliable, accurate and verifiable accreditation of voters to the disadvantage of the petitioner. The petitioner stated that in the said 58 polling units, the results show that the number of votes returned exceeds the number of accredited voters as reported on the BVAS. The petitioner noted that the Electoral Act 2022 and the INEC guidelines did not only make the use of BVAS mandatory but the deliberate non use attracts sanction leading to the voiding of any result emanating from such unit.The petitioner further stated that upon a deduction of all invalid votes in the said polling units where over voting occurred the scores of the APC candidate becomes 227,094 and PDP 231,051.
On ground two, the petitioner argued that INEC in the conduct of the election is obliged to comply with the provisions of the Electoral Act, its own extant Regulations for the conduct of the general election and its own Manual for Election Officials. The Electoral Act and the extant regulations make it a requirement that in the counting of votes cast at the polling units and the collation of the results of the election, it is the number of accredited voters recorded and transmitted directly from polling units and the votes or results recorded and transmitted that should be considered. They argued that an aggregation of the total number of valid votes scored by all the candidates at the Election which were directly transmitted from all the polling units in each wards were correctly transmitted and therefore constitutes the lawful votes at the ward level. It was also their argument that it is the total number of lawful votes aggregated from all the wards in any given local government area as recorded in the form EC8B, that is to be correctly transmitted and recorded as the total number of lawful votes scored by each political party/candidate at that local government collation centre to be recorded in the forms EC8C.In the petition, the petitioner averred that by the procedure prescribed by INEC, they are 14 steps which are set in the collation of Governorship Election Results at the LGA and these steps must be mandatorily taken. They mentioned these steps in the petition and argued that INEC did not follow these steps. The petitioner further averred that it is after the total number of valid votes scored by all candidates at the governorship election in each local government collation centre that the total number of valid votes in each of the local government areas shall be transmitted to the state collation centre by INEC Local Government officials and recorded in INEC summary of results from Local Government by completing Form EC8D.
It is on this ground above that they assert that in respect of this election, the valid and lawful votes cast at the polling units were not accurately and or correctly transferred from the 164 questioned polling units to the wards and transferred to the local government areas and therefore the scores announced by INEC were entirely made up and did not constitute an accurate collation of the majority of lawful votes cast at the election.
The petitioners argued that upon examination and re calculation of the valid votes at the PU level all of which can be seen on the face of the copies of the results given to the parties’ agents, INEC uploaded copies duly certified by it and some Certified True Copies, the inaccuracy of the scores announced and declared by the INEC becomes apparent. The petitioners averred that the collation of incorrect scores complained about occurred in 125 polling units of 16 Local Government Areas of Edo state which was particularised in the petition, and they relied on the Certified True Copies of the real time results uploaded by INEC to its repository of results; agents copy of result sheets and Certified True Copies of result sheets of the election.They further averred that in the 125 polling units in which INEC relied on incorrect scores contained in CTC of polling units’ results led to the overstating of the votes of the APC candidates by 16,839 and the understating of the petitioners vote by 4065. They contended that an application of the overstated and understated votes to both parties, will bring the voting scores by the parties to APC: 210,255 and PDP: 235,116They also claimed that in 10 of the polling units mentioned above in respect of the election, INEC recording of the votes was not supported by any of the iREV results, the agents copy of results and its CTC. Here, APC votes were overstated by 670 and PDP were understated by 420 votes. An application of the overstated and understated votes to the parties in the 10 polling units will bring the votes scored by the parties to APC: 209,585 and PDP: 235,536. Further, they argued that the incorrect collation of results at the ward level led to the APC votes being overstated and PDP understated, in a total of 101 polling units in 21 wards of 9 LGs.
The incorrect collation of the results above led to the overstatement of APC votes by 9,969 votes and the understatement of PDP’s vote by 1858 votes and upon correct collation of the votes arising from the 101 polling units in these wards, the actual scores of the parties will be APC: 199,616 and PDP: 237,394. In addition, the petitioners averred that in the election, particularly in Ward 2, Ikpoba Okha Local Government, the valid results in 76 polling units were not collated at the LG level by INEC and upon inclusion of these valid results to the total number of votes scored by APC and PDP, the scores will be APC: 201, 032 and PDP: 240, 234.They argued that upon a proper computation of the lawful votes at the election, the PDP scored 240, 234 lawful votes and the APC scored 201,032 votes respectively and as such the APC candidate was not duly elected by majority of lawful votes cast.
THE CASE OF THE 1ST RESPONDENT (INEC)
After receiving the petition from the petitioners, INEC who was sued as the 1st Respondent in the petition filed their reply. The start of the reply was a preliminary objection by INEC urging the Court to strike out the petition on the ground that the reliefs sought by the petitioners were contradictory, nebulous and imprecise. However, for the sake of this work, analysis will be made only on INEC’s reply to the substance of the petition. INEC in their reply averred that the election it conducted was conducted in substantial compliance with the provisions of the Electoral Act and its Guidelines. They put the petitioners to the strictest proof of the averments made in the petition.They also argued that the APC candidate was duly elected by a majority of the lawful votes cast at the election and put the petitioners to the strictest proof of the averments therein. INEC further averred that despite the fact that the Electoral Act 2022 confers power on it to prescribe the forms to be used at the election, the format and nature of the forms to be prescribed are left by the Act to the absolute discretion of INEC.They stated that FORM EC25B(series) are to be completed by the Supervisory Presiding Officer at the LG Office and not meant to be completed at the polling units before the conduct of election by Presiding officers. Further, they asserted that the said FORM EC25B were duly completed by the Supervisory Presiding Officers in each of the ward before the conduct of the Governorship Election in Edo state.They also asserted that Form EC40 (ballot paper account and verification statement) has several parts. Whereas the information in part A of the form must be pre recorded by the Presiding officers before the conduct of elections in each polling unit, Part B is to be recorded and completed post election. They averred that each of the forms were duly completed by the respective Presiding Officers in each Polling Units. Forms EC40B and EC4C are to be completed post election and have nothing to do with the requirement of pre recording of information by Presiding Officers before the conduct of election. The Respondent contended that each of these forms were duly completed by the Presiding Officers in each of the polling units after the conduct of the election.They averred that the mandatory requirement of prior recording of the serial numbers and quantities of sensitive materials before the conduct of election relate only to Presiding Officers at the respective Polling units, if and only if INEC has prescribed a form for such pre recording.
They averred that all necessary forms prescribed by it for the pre recording of the serial numbers and quantities of sensitive materials issued for the conduct of election in each of the 320 polling units challenged by the Petitioners were duly completed by the Presiding Officers.
On the second ground, they averred that all the votes cast at the election were lawful votes and that the 2nd Respondent scored the majority of the votes cast. They urged the Court to discountenance the petition by the petitioners.
On the second ground, INEC averred that they were at liberty to create what is termed voting points where the numbers of registered voters are more than the benchmark of the number of registered voters who can conveniently vote at a polling unit within the hours of election prescribed by INEC. In such circumstance, they further averred that voting will proceed with the usual electoral materials designated for the created voting points. They went further to aver that INEC was not under a duty to ensure that the agents of the political parties signed the result sheets, as its obligation terminates at availing the agents the opportunity to sign the results and receiving copies of same. They denied the alleged inaccuracies of the results between the Certified True Copies of Forms EC8A, the uploaded copies and those delivered to the Agents of the political parties and the Petitioners are put to the strictest proof. INEC also denied every allegation of overvoting and recording of inaccurate results and put the Petitioners on the strictest proof therein.
POSITION OF THE LAW
After a critical analysis of the averments in the petition and reply of both the petitioner and the INEC, it is pertinent they are analysed alongside the true position of the law to ascertain the potential nature and state of things in regard to the Edo State Governorship Election that was held on the 21st of September 2024.
After a careful analysis, two fundamental issues arise for determination, and they are as follows:
Whether or not there was substantial noncompliance with the Electoral Act that substantially affected the outcome of the election.
Whether in the counting of votes cast at the polling units and the collation of the results of the election, it is the number of accredited voters recorded and transmitted that should be considered and termed as lawful votes cast and whether the 2nd Respondent was elected by majority of lawful votes cast in the election.
GROUND 1
Substantial Non-Compliance with the Provisions of the Electoral Act 2022:
It is settled that for a petitioner in an electoral matter to bring a petition challenging the outcome of an election, he or she must come under the grounds as stated in Section 134. (1) of the Electoral Act 2022 viz: (a) a person whose election is questioned was, at the time of the election, not qualified to contest the election. (b) the election was invalid by reason of corrupt practices or noncompliance with the provisions of this Act; or (c) the respondent was not duly elected by majority of lawful votes cast at the election.
However Section 135.(1) of the Electoral Act 2022 further provides that an election shall not be liable to be invalidated by reason of non compliance with the provisions of this Act if it appears to the Election Tribunal or Court that the election was conducted substantially in accordance with the principles of this Act and that the non-compliance did not affect substantially the result of the election.
In the case of Dim C.O. Ojukwu v. Alhaji Umaru Yar’adua & Ors (2009) 12 NWLR (pt. 1154) 50 at 142 the Supreme Court, per Muhammed, JSC emphasized the need to comply with the grounds as stated in the Electoral Act. As noted by the Apex Court:“Although election cases are sui generis; the general law is that procedures, or conditions provided by a statute within which a petition can be initiated, and except where the statute admits of exemptions, such procedures or conditions must be complied with in order to inject life into the petition. Thus, claims or petitions must be made within the dictates of the statutory procedures…”It is elementary principle of law that evidence cannot be adduced in proof of facts not pleaded. The nature of pleadings in election petition depends largely on the ground upon which the election is being challenged.
The Supreme Court emphasized the importance of pleadings and the need to specifically plead material facts in election petition in the case of Ojukwu v. Yar’adua (2008) 4 NWLR 435 (pt. 1078) at page 462. Therefore, where a petition is based on the ground of substantial non-compliance with the provisions of Electoral Act, the petitioner must not only plead and prove substantial non-compliance but must also plead and prove that the non-compliance substantially affected the result of the election.
Non-compliance with the provisions of the Act without more is not sufficient to invalidate an election. See Buhari v Obasanjo (2005) 2 NWLR (pt.910) 241; Yusuf v Obasanjo (2005) 18 NWLR (pt.956) 96. It follows that where insufficient facts or none are pleaded to establish substantial effect of the non-compliance on the result of the election, no reasonable cause of action has been made out. Some species of allegations deserve some particulars.
It must be noted however, that there is nowhere in the Electoral Act where the doctrine ofsubstantial noncompliance was defined. The doctrine of substantial noncompliance in Nigeria’s electoral process presents several problems and challenges, particularly in the context of determining what constitutes “substantial” non-compliance. This challenge is often resolved by judicial discretions and interpretations.
In Akpoti v. INEC (2022) 9 NWLR (Pt. 1836) 403 the Court held that:“Where a petitioner alleges non compliance, he has the onus of presenting evidence from eye witnesses at the various polling units who can testify directly in proof of the alleged non compliance, particularly where the allegations relate to non accreditation/improper accreditation, inflation or reduction of scores, alteration of results, over voting, including and not limited to omission/exclusion of party name/logo on the ballot paper or result sheet. [Andrew v. INEC (2018) 9 NWLR (Pt. 1625) 507 referred to] (P.428, paras F-H).
Flowing from the above decision of the Court, it is safe to infer that non accreditation, improper accreditation, inflation or reduction of scores, alteration of results, over voting amongst others can all be categorised as substantial noncompliance of the Electoral Act and a successful plea of same can nullify an election.In UCHA V. ELECHI (2012) 3 SC (Pt. 1) P.26, the Court held that where a Petitioner complains of non-compliance with the provisions of the Electoral Act, he has a duty to prove it polling unit by polling unit, ward by ward and the standard of proof is on the balance of probabilities and not on minimal proof.The Petitioners must not only show substantial noncompliance but also the figures, i.e the votes that the non-compliance attracted or omitted OKE V. MIMIKO (2014) 1 NWLR (PT 1388) 332.
From the foregoing therefore, for any court or tribunal to invalidate an election, the conditions set above must be met. It follows therefore that in a situation where the irregularities do not constitute a substantial departure from the principles of the Act and had not affected the result of the election, the tribunal has no power to invalidate the election. See AKINLADE V. INEC (2020) 17 NWLR (PT. 1754) 439 SC. The law is axiomatic that proof of non-compliance seeking nullification of election must be substantial, and it must also substantially affect the outcome of the election. Thus, having failed to lead evidence, polling unit by polling unit and ward by ward, the noncompliance was not substantial to affect the outcome of the election. This is the overwhelming duality burden. BUHARI V. OBASANJO (2005) 7 SC.
It is therefore argued in this instant case that the absence of no prior recording of the quantity, serial numbers and other particulars of result sheets, ballot papers and other sensitive electoral materials like the BVAS, the overvoting and INEC’s failure to limit themselves to the record of accreditation in the BVAS and the results directly from polling units all qualify as substantial non compliance of the Electoral Act and also substantially affected the outcome of the election.
Section 73(2) of the Electoral Act 2022 provides as follows:
“An election conducted at a polling unit without the prior recording in the forms prescribed by the Commission of the quantity, serial numbers and other particulars of results sheets, ballot papers and other sensitive electoral materials made available by the Commission for the conduct of the election shall be invalid”.
As particularised in the petition, in 320 polling units across the 18 local government areas of Edo state, INEC did not record in the prescribed forms, the quantity, serial numbers and other particulars of results sheets, ballot papers and other sensitive electoral materials and therefore renders the election in the 320 polling units invalid for failure to comply with the requirement of prior recording under the Electoral Act 2022. The petitioners in the petition went further to provide the particulars of polling units where non recording of the quantity, serial numbers and particulars of result sheets. The particulars showed that the votes scored by the 2nd respondent in these polling units that were not recorded were higher than that of the petitioners and by the very fact that it wasn’t recorded as prescribed by S.73(2) of the EA, such votes become null and void and upon deduction of all invalid votes in the 320 polling units due to their non compliance with the Electoral Act, 2022, it brings the scores of the APC candidate to 248,035 and the PDP 238,934.
Further, it is argued on behalf of the petitioner that there was over voting at the election. According to Section 51(2) of the Electoral Act 2022, where the total votes cast in a polling unit exceeds the number of accredited voters, the Presiding officer shall cancel the result in that polling unit. Thus, to succeed in an allegation of overvoting, the petitioner needs to tender the register of voters for the entire constituency, the ballot boxes containing the ballot papers and the statement of result from all or at least the affected polling stations in the constituency. The petitioner would then proceed to demonstrate and establish from those documents tendered, how the overvoting occurred. He must then establish through evidence that, the total number of votes cast at the election exceeded the total number of voters accredited. See INIAMA V. AKPABIO (2008) 17 NWLR (Pt. 1116) p. 225 and AWUSE V ODILI (2005) 16 NWLR (pt. 952) p.416.
It is argued in this instant case that, in 58 polling units spread across 18 local government areas in the election, the number of total votes cast as recorded exceeded the number of accredited voters. It is further argued that failure to cancel the results in the polling units over voting occurred, was substantial noncompliance with the mandatory provisions of Section 51(2) of the Electoral Act. INEC failed to limit themselves to the record of accreditation in the BVAS and the results directly from polling units, and therefore the improper authentication of the Forms EC8A used in the collation of the election result at the various polling units was noncompliance of the Electoral Act which substantially affected the results of the election in the 58 polling units. This was particularised in the petition by the petitioners by tendering the voters register, the statement of results in the appropriate forms which showed the number of registered accredited voters and number of actual votes, which was related to each of the documents to the specific area of the petitioner’s case in respect of which documents are tendered which showed that the figure representing the overvoting if removed would result in victory for the petitioners.
It is also argued that there was no proper accreditation of voters in 58 polling units and voting was not done in accordance with the S.47(2) Electoral Act 2022 and Section 18(1) and (2) of Regulations and Guidelines for the Conduct of Elections, 2022 which mandated the compulsory use of BVAS for ensuring reliable, accurate and verifiable accreditation of voters to the disadvantage of the Petitioners. It is argued that in the petition, in the said 58 polling units, the results show that the number of votes returned exceeds the number of accredited voters as reported on the BVAS. It must be noted that the Electoral Act 2022 and the INEC guidelines did not only make the use of BVAS mandatory but the deliberate non use attracts the sanction of the voiding of any result emanating from such units or areas and the purported accreditation was not done in substantial compliance with the Electoral Act as it pertains to the election to the office of the Governor of Edo State which held on the 21st Sept. 2024. It is further argued that upon a deduction of all invalid votes in the said polling units where over voting occurred the scores of the APC candidate becomes 227,094 and PDP 231,051. It is therefore submitted that there was substantial noncompliance with the Electoral Act and INEC Guidelines and this non compliance substantially affected the outcome of the result of the election.
GROUND 2
Does the 2nd Respondent have majority of the lawful votes cast in the election?It is submitted that the 2nd Respondent does not have a majority of lawful votes cast in the election. It is settled that in counting of votes cast at the polling units and the collation of the results of the election, it is the number of accredited voters recorded and transmitted that should be considered and termed as lawful votes cast. See S.60(5) and S.64(4) (a) and (b) of the Electoral Act 2022 and S.48 (a), S.50(v)of the Regulations and Guidelines for the Conduct of Elections, 2022.
For a petition premised on the ground that the respondent did not score the majority of lawful votes cast, the Court in ANOZIE V. OBICHERE (2006) 8 NWLR (PT 981) 140 AT 155- 156 noted that it is an invitation to compare and contrast figures. To establish the complaint there must be proper tabulation of the registered voters, the total number of votes cast, the votes scored by each candidate. Further in WADA V. INEC (2022) 11 NWLR (Pt 1841) 293 the Court held that:“When a Petitioner alleges that a respondent has not won by majority of lawful votes in an election, as in this case, to succeed in his claim, the law enjoins the petitioner firstly to specifically plead the existence of two results emanating from the election. Thereafter, the petitioner must adduce credible evidence that the respondent did not score the majority of lawful votes cast at the election. Secondly, the petitioner must plead and prove votes cast at the various polling units, the votes illegally credited to the declared winner, the votes which ought to be deducted from the supposed winner in order to find out if it will affect the result of the election”It is therefore argued in this light, that INEC in the conduct of the election is obliged to comply with the provisions of the Electoral Act, its own extant Regulations for the conduct of the general election and its own Manual for Election Officials. The EA and the extant regulations make it a requirement that in the counting of votes cast at the polling units and the collation of the results of the election, it is the number of accredited voters recorded and transmitted directly from polling units and the votes or results recorded and transmitted that should be considered. An aggregation of the total number of valid votes scored by all the candidates at the Election which were directly transmitted from all the polling units in each wards and were correctly transmitted therefore constitutes the lawful votes at the ward level. The total number of lawful votes aggregated from all the wards in any given local government area as recorded in the form EC8B, that is correctly transmitted and recorded is the total number of lawful votes scored by each political party/candidate at that local government collation centre to be recorded in the forms EC8C.Therefore, the total number of valid votes scored by all candidates at the governorship election in each of the local government areas shall be transmitted to the state collation centre by INEC Local Government officials and recorded in INEC summary of results from Local Government by completing Form EC8D.
It is on this ground above that it is argued that in respect of this election, the valid and lawful votes cast at the polling units were not accurately and or correctly transferred from the 164 questioned polling units to the wards and transferred to the local government areas and therefore the scores announced by INEC were entirely made up and did not constitute an accurate collation of the majority of lawful votes cast at the election. It is argued that upon examination and re calculation of the valid votes at the PU level all of which can be seen on the face of the copies of the results given to the parties agents, INEC uploaded copies duly certified by it and some Certified True Copies all of which are pleaded before Court, the inaccuracy of the scores announced and declared by the INEC become apparent. The collation of incorrect scores complained about occurred in 125 polling units of 16 Local Government Areas of Edo state which was particularised in the petition, and reliance is placed on the Certified True Copies of the real time results uploaded by INEC to its repository of results; agents copy of result sheets and Certified True Copies of result sheets of the election. Further, in 125 polling units in which INEC relied on incorrect scores contained in CTC of polling units’ results led to the overstating of the votes of the APC candidates by 16,839 and the understating of the petitioners vote by 4065. An application of the overstated and understated votes to both parties, will bring the voting scores by the parties to APC: 210,255 and PDP: 235,116It is also argued that in 10 of the polling units mentioned above in respect of the election, INEC recording of the votes was not supported by any of the iREV results the agents copies of results and the its CTC as provided under Section 38 of the Regulations and Guidelines of the conduct of Election 2022, here, APC votes were overstated by 670 and PDP were understated by 420 votes. An application of the overstated and understated votes to the parties in the 10 polling unites will bring the votes scored by the parties to APC: 209,585 and PDP: 235,536. Further, it is argued that the incorrect collation of results at the ward level led to the APC votes being overstated and PDP understated in a total of 101 polling units in 21 wards of 9 LGs.
The incorrect collation of the results above led to the overstatement of APC votes by 9,969 votes and the understatement of PDP’s vote by 1858 votes and upon correct collation of the votes arising from the 101 polling units in these wards, the actual scores of the parties will be APC: 199,616 and PDP: 237,394.
In addition, it is argued that in the election, particularly in Ward 2, Ikpoba Okha Local Government, the valid results in 76 polling units were not collated at the LG level by INEC as evidenced in the petition and upon inclusion of these valid results to the total number of votes scored by APC and PDP, the scores will be APC: 201, 032 and PDP: 240, 234.
Therefore, upon a proper computation of the lawful votes at the election, the PDP scored 240, 234 lawful votes and the APC scored 201,032 votes respectively and as such the APC candidate was not duly elected by majority of lawful votes cast.
THE JUDICIARY, THE LAST HOPE OF THE PEOPLE: A MYTH OR A REALITY?
The Judiciary has been the last recourse for disgruntled candidates who are not satisfied with the outcome of election results. This places a heavy burden on them to rise to its billing as the last hope of the people and the ultimate guardian of justice, the rule of law and democracy.
The task of doing political justice to whom it is due while entertaining election petitions is huge. The corruption it exposes judicial officers to is mindboggling. Political interests at play can be daunting, and the very lives and well-being of those involved can be threatened.Despite these, we call on the Judiciary to stand up for Nigeria and the good people of Edo State at this moment of great need for political justice. The refusal of Nigerians to troop out in their numbers during the supplementary elections cry out to the Judiciary for justice to whom it is due. It is only when Nigerians see stolen mandates, no matter by who, systematically restored to their rightful owners by the Judiciary, that their faith in the power of their votes will be restored and our democracy uplifted.
Here, then, is the question: would the judiciary ensure substantive justice so that their decisions reflect the will of the people, as expressed in elections, instead of perverting it? Or would the tribunal or the court be the continuation of politics by other means, whereby judges give subjective judgments that are not defined by law, evidence, and justice? Sadly, based on the past experiences, few can vouch for the judiciary to do the right thing for the good people of Edo State. Winning an election petition in Nigeria is a daunting task, but that it rarely happens does not mean it cannot happen now, if only the judiciary rises to the occasion or was it not Lord Denning in Parker v. Parker [1953] 2 All ER 127 who stated:“What is the argument on the other side? Only this, that no case has been found in which it has been done before. That argument does not appeal to me in the least. If we never do anything which has not been done before, we shall never get anywhere. The law will stand still while the rest of the world goes, and that will be bad for both”.
CONCLUSION
Democracy is based on the principles of political equality where all citizens have equal rights and opportunities to participate in the political process. Majority rule where decisions are made based on the preference of the majority, while respecting the rights of the minority. Periodic elections on the other hand are a bedrock of democracy and it is the citizens who have the imprimatur to make or mar the elections of public officers.However, if such licence and rights are being stolen by unknown state actors from the people, it then behoves on the Judiciary to ensure and hear the echoes of the voices of the majority, rise to the occasion and save the day. By so doing, the common people will gain more confidence in the judiciary as an institution and believe more in democracy as a concept.
Daniel A. Noah Osa-Ogbegie is the Managing Cousel of NOAH ATTORNEYS, a Firm of Legal Practitioners in Benin City,Nigeria.
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