Ekiti election: How PDP, Olusola lost

The Ekiti State Governorship Election Tribunal upheld the victory of Governor Kayode Fayemi of the All Progressives Congress (APC). Eric Ikhilae identifies factors that informed the tribunal’s decision.

Dissatisfied with the result of the last July 14 governorship election in Ekiti State, the Peoples Democratic Party (PDP) candidate, Kolapo Olusola, who came second, filed a petition at the Governorship Election Tribunal.

The Independent National Electoral Commission (INEC) returned the All Progressives Congress (APC) candidate, Dr Kayode Fayemi, as the winner.

Fayemi scored 197,459 votes; Olusola, who was Deputy Governor at the time of the election, polled 178,121.

In their 712-page petition dated last August 2, but filed on August 3, Olusola and his party prayed the tribunal to declare them winners, declare the election inconclusive and order supplementary rerun, or nullify the election outright on four grounds.

First, the petitioners claimed that the third respondent (Fayemi) was not qualified/was disqualified from contesting the election based on his indictment by a commission of inquiry; and that he was not duly elected by majority of lawful votes cast in the election.

The petitioners’ third ground was that Feyemi’s election “was invalid by reason of substantial non-compliance with the provisions of the Electoral Act 2010 (as amended);” and fourth, that Fayemi’s election “was invalid by reason of corrupt practices.”

In relation to the first ground, the petitioners urged the tribunal to hold that Fayemi was disqualified or not qualified to contest election to the office of Governor of Ekiti S      tate having allegedly been indicted for fraud against the interest of the state by the Justice Silas Oyewole-judicial commission of inquiry set up by the state government.

They claimed that the state government subsequently accepted the indictment and issued a white paper based on the commission’s reccommendation.

In relation to the second, third and fourth grounds, the petitioners urged the tribunal to upturn Fayemi’s victory and declare that Olusola scored the highest number of lawful votes cast and therefore the winner of the election.

In the alternative, the petitioners prayed the tribunal to declare the election inconclusive and order supplementary election in places where it found that the election was not properly conducted.

In further alternative, the petitioners sought a total cancellation of the election and urged the tribunal to order fresh governorship election in the state.

INEC’s response

In its response, the first respondent (INEC) filed a notice of objection and a reply to the petition.

In its objection, INEC faulted some portions of the petition where the petitioners made criminal allegations against some unidentified individuals, and where the individuals were identified, they were not made parties to the petition.

INEC argued that the non-inclusion of the identified individuals, against who criminal allegations were made, denied them the right to fair hearing and to attend court to defend themselves against the allegations.

INEC said contrary to the petitoioners’ claim, the election was held in substantial compliance with relevant laws and under a conducive atmosphere.

Fayemi, APC’s response

The second and third respondents (APC and Fayemi) filed notices of objection and replied the petition.

In their notices of objection, they faulted the aspect of the petition dealing with the petitioners’ claim that Fayemi was not  qualified by virtue of the said indictment by the Justice Oyewole commission.

They argued that indictment by commission of inquiry or any other administrative body for embezzlement or fraud no longer forms a factor for disqualifying a candidate from contesting  election.

They added that Section 182(1)(i), on which the claim was based, has since been deleted from the Constitution by virtue of the First Alteration Act 2010.

APC and Fayemi insisted that the election was duly held. They denied the petitioners’ allegations of corrupt practices, non-compliance with the Electoral Act, among others and urged the tribunal to dismiss the petition.

The trial

After all the preliminary proceedings, including the pre-hearing session, trial commenced last October 17 when the petitioners opened their case.

They closed their case last November 1 after calling 71 witnesses and tendering 2,952 documents.

The first respondent (INEC) conducted its case between November 5 and 14, 2018 during which it called 16 witnesses and tendered 31 documents.

The second respondent (APC) conducted its case between November 15 and 16, during which it called 43 witnesses and tendered no document.

The third respondent (Fayemi) opened his defence on November 20 and closed on November 29, 2018 after calling four witnesses and rendering two documents.

One of the documents he tendered was the judgment by Justice A. O. Musa of the High Court of the Federal Capital Territory (FCT) in Bwari, Abuja in the suit marked: FCT/HC/BW/CV/57/2018.

In the judgment, Justice Musa set aside Fayemi’s purported indictment by the Justice Oyewole commission, and voided the white paper issued by the Ekiti State Government based on the said indictment.

Parties adopted their final written addresses on January 9 following which the tribunal, headed by Justice Suleiman Belgore, adjourned for judgment.

Other members of the tribunal were Justices E. G. Omukoro and Aliyu Usman.

The verdict

Justice Belgore read the unanimous judgment of the tribunal on January 28, this year.

The tribunal Chairman identified two issues for determination.

They are: “Whether, having regards to the 1999 Constitution (as amended) and the evidence on record, the 3rd respondent (Fayemi) is qualified to contest for the office of the Governor of Ekiti State at the election held on July 14, 2018.

“Whether, having regard to the pleadings and totality of evidence led in this petition by the parties, the petitioners’ claims/reliefs ought not to be dismissed by the tribunal.”

In resolving the first issue, Justice Belgore concluded that the petitioners acted on a dead constitutional provision when they sought to disqualify Fayemi on the basis of a purported indictment and white paper.

He noted that although Olusola, who testified as the petitioners’ 31st witness, denied knowledge of the judgement by Justice Musa, another witness, Sunday Olowolafe (a lawyer), said he knew that “indictment by a commission of inquiry is no longer a criteria to disqualify a candidate.”

‘Indictment lacks constitutional basis’

Justice Belgore also noted that the petitioners’ contention that Fayemi was not qualified to stand for election was based on the provision of Section 182(1)(i) of the Constitution.

He said that portion of the Constitution was only a live provision until 2010 when the National Assembly passed an Act titled: “The Constitution of the Federal Republic of Nigeria (First Alteration) Act 2010,” which in Section 19, provides that “Section 182(1)(i) of the Principal Act is deleted.”

Justice Belgore added: “The effect simply is that since the commencement date of 16th July 2010 when the First Alteration came into being, disqualification on the ground of indictment for fraud or embezzlement no longer form part of our law.

“In effect, to now allege in 2018 that a person indicted by a judicial commission of inquiry for fraud or embezzlement is disqualified to contest election into the office of a Governor, is to say the least, not in accordance with the law and therefore fallacious.”

In further determining the issue, Justice Belgore observed that by the evidence provided by the petitioners, the Justice Oyewole commission indicted Fayemi and Dr. Vincent Dapo Kolawole (an ex-Finance Commissioner in the state) and recommended that they were unfit to hold any public office in the state for their refusal to appear before the commission.

The judge added: “The evidence of PW31 (Olusola) and PW32 (Olowolafe) vide their written testimonies seems to say so as well.

“So, clearly, though the report of the commission is not in evidence, certainly, indictment for failure to appear before a commission of inquiry is not an integral part of Section 182(1)(i) of the Constitution, even if it was not deleted.”

Justice Belgore also noted that Justice Musa’s verdict effectively neutralised whatever life there was on the indictment and white paper (if any).

He resolved the first issue against the petitioners and said: “The ground of the petition and indeed this first issue is dead on arrival. The first issue is therefore resolved in favour of the 3rd respondent and against the petitioners.”

‘Petitioners’ witnesses scanty’

On the second issue, Justice Belgore noted that, though the petitioners alleged non-compliance with the Electoral Act, non-holding of election in some wards and polling units, lack of improper accreditation, alteration of results, violence, among others, they failed to meet the standard of prove required.

The judge was of the view that, not only was the number of the petitioners’ witnesses scanty, they also provided no evidence to ground the petitioners’ claims.

He added: “There are 2,195 polling units in Ekiti State. The petitioners’ complaints were in relation to 1,458 polling units, meaning that there were no complaints whatsoever about the conduct of the election in the remaining 737 polling units.

“In the petitioners’ endeavour to prove the alleged infarctions and irregularities in the 1,458 polling units, they called only 41 polling unit agents, leaving a total of 1417 polling units with no eye witness to attest to or confirm or give credence to all the irregularities alleged to have occurred in them during the election.

“Even at the pre-hearing session, the petitioners’ counsel had indicated 926 witnesses. It is very surprising that the petitioners called only 71 witnesses. The obvious implication, of calling this scanty and insufficient number of polling unit agents as witnesses (41) for 1,459 polling units,  is that a big puncture or damage was done to the case of the petitioners.”

Justice Belgore also noted that the tribunal could not rely on the written statements of petitioners’ witnesses because they contained similar information, which gives the impression that they were mass-produced.

For emphasis, the judge noted that “paragraphs of their (petitioners’ witnesses) statements on oath are so common and repeated for each witness in the various Local Government that testified in respect of the allegations, with only variations in deponents’ names, names of wards, units and statistics given.

“The above creates the impression, in our minds, that the written depositions were haphazardly produced and names or acronyms of witnesses, their respective units, wards and Local Governments inserted.

“These deposition therefore, lacked the well-known individuality and distinction required of a legal deposition, which invariably affects the weight and probative value to be attached to them. In our opinion, the weight is very low and we mince no words in saying so.”

‘No evidence Olusola got more votes’

Justice Belgore also noted that though the petitioners claimed Fayemi was unduly returned by INEC and that they scored more votes than the electoral body recorded for them, they failed to lead evidence to prove such claims.

He added: “The petitioners failed to prove that the 3rd respondent was not duly elected by a majority of lawful votes at the election.”

The judge added that it is the law that the result announced by INEC enjoys a presumption of regularity, which a petitioner, or anyone challenging such result can only upturn by providing “cogent and convincing evidence.”

He noted that the majority of evidence led by the petitioners in this case, particularly the documentary evidence, “have, in no way, rebutted that presumption.”

Justice Belgore added: “As we stated earlier in this judgment, the law is that, until the petitioners have proved sufficient facts to ground their various averments of non-compliance, corrupt practices, electoral malpractices, irregularities, substantial enough to warrant this tribunal to jettison the election and return of 3rd respondent, no duty lies on the respondents to put up their defence.

“Having found that the petitioners failed to do so in this petition, the burden does not shift to the respondent. This petition stand unproved.

“Finally, and in the light of everything said above, and upon a calm perusal cum consideration of the entire circumstances of this case, it is incorrect to contend that the 3rd respondent did not win the election by a majority of lawful votes.

“The contrary is crystal clear. He scored a total of 197,459 votes as against 178,121 votes scored by the 2nd petitioner (Olusola). We find the declaration and return, as shown in Exhibit RA20, in order and duly made.

“It satisfies the provisions of Section 27 and Section 69 of the Electoral Act (as amended). We have no reason to disturb or upturn that declaration. This petition is lacking in all merit, it fails and it is hereby dismissed,” Justice Belgore said, a position Justices Omukoro and Usman agreed with.