WE HAVE ESTABLISHED OUR ALLEGATIONS IN OUR PETITION, HON. DABO, PDP TELL APC

By: Valentine Adese (JP),

Hon. Jonathan Dabo and the Peoples Democratic Party (PDP), have told the All Progressives Congress (APC), that they have established their allegation in petition EPT/PL/NA/HR/05/2019, before the National and States Houses of Assembly Election Petition Tribunal sitting in Jos, Plateau State.

The Petitioners stated this in their Final Written Address and Reply dated the 25th of August, 2019, to the APC’s (2nd Respondent) Final Written Address.

The Petitioners stated that the duplicate copies of Polling Unit results given to the Police, who had no personal interest to serve in the election, tendered and admitted in evidence, put paid to the contention of the Respondents that, elections were not held in the Polling Units constituting Tudun Wada/Kabong Ward or that there was no collation with the use of Polling Unit Results in INEC Form EC8A (II) series.

Hon. Joathan Dabo and the PDP (Petitioners) in their Reply to APC’s Final Written Address, also submitted through their lead Counsel, S. Oyawole (Esq) that, the Petitioners have by PW1 to PW58 and Exhibits P to P130, led credible and cogent oral and documentary evidence in support of their case.

“Each witness presented before this Honourable Tribunal played a role in the election. They were all eye witnesses, who gave eye witness account of the fact that, election was held in the polling unit in Tudun Wada/ Kabong Ward. The fact that election held in these polling units and the fact that collation of result was carried out was consistently maintained. The Petitioners have indeed established their allegations in this Petition”. They submitted.

The Petitioners, emphasised that, the votes scored by the Petitioners in the sum of 31,470 and the votes scored by the 2nd and 3rd (Hon. Maitala and the APC) Respondents in the sum of 3,816 in Tudun Wada/Kabong Ward during the 23rd February, 2019 election were unlawfully cancelled by the 1st Respondent (INEC).

Adding that, it was, “Thereafter that the 1st Respondent (INEC) scheduled a re-run election whereupon, the 2nd and 3rd Respondents were declared winner of the election. It is the cancellation of the result from Tudunwada/Kabong Ward, the re-run election and subsequent declaration, which the Petitioners herein pray the Tribunal to nullify, for being unlawful.

 

“To further seal the fate of the Respondents in this matter, RW1, INEC Head of Operations testified for the Respondents. However, the 2nd Respondent’s RW1 admitted during cross-examination by Counsel to the Petitioners that election was held on 23rd February, 2019, and that the election indeed produced a result.

 

In part, Hon. Dabo and the PDP submitted that:-

 

“As rightly held in Emerengwa’s case cited above, it is submitted that to jettison these forms given to the police in this Petition under any guise is like throwing discretion to the wind, as it were. We urge this Honourable Tribunal to so hold. The duplicate copies of Polling Unit results given to the Police who had no personal interest to serve in this election and tendered and admitted in evidence put paid to the contention of the Respondents that elections were not held in the Polling Units constituting Tudun Wada/Kabong Ward or that there was no collation with the use of Polling Unit Results in INEC Form EC8A (II) series.

 

“It is submitted that the Petitioners have by PW1 to PW58 and Exhibits P – P130 led credible and cogent oral and documentary evidence in support of their case. Each witness presented before this Honourable Tribunal played a role in the election. They were all eye witnesses who gave eye witness account of the fact that election was held in the polling unit in Tudun Wada/ Kabong Ward. The fact that election held in these polling units and the fact that collation of result was carried out was consistently maintained. The Petitioners have indeed established their allegations in this Petition.

 

“In proof of their case, the Petitioners called the 1st Respondent, INEC’s Ward Collation Officer for Tudun Wada Ward, who testified as, PW5. He gave vital evidence and uncontroverted evidence that election held on the 23rd February, 2019, in all the 65 polling units in Tudun Wada/Kabong Ward the results of which were presented to him for collation at the Ward Collation Centre an exercise which he carried out without any problems and subsequently announced the collated result in compliance with the provisions of Section 27(1)(b) of the Electoral Act, 2010(as amended) and Paragraph 3.1(b) of the Manual for Election Officials, 2019,(Exhibit P126 and R71) and Paragraph 28(b)(i)-(xv) of the Regulations and Guidelines for the Conduct of Elections which was admitted in evidence as Exhibit R72 by the Honourable Tribunal.

 

“The Petitioners further called PW56, the Police Officer in Charge of Tudun Wada/Kabong Outpost who testified in further affirmation that elections indeed held in all the 65 Polling Units of Tudun Wada/Kabong Ward and that he personally witnessed the collation exercise at the Tudun Wada/Kabong Ward Collation Centre and that the entire exercise was peaceful. PW56 identified the copies of the results handed over to security personnel at the respective polling units in Tudun Wada/Kabong Ward in compliance with the provisions of Section 63(3) of the Electoral Act, 2010 (as amended). Section 63(3) of the Electoral Act, 2010 (as amended); provides thus:

“The Presiding Officer shall give to the Polling Agents and the Police Officer where available a copy each of the completed forms after it has been duly signed as provided in subsection (2) of this section.”

See also, Paragraph 3.1(b) Step 14 of the Manual for Election Officials, 2019 and Paragraph 28(b)(xiii) of the Regulations and Guidelines for the Conduct of Elections. In the case of Emerengwa v. INEC (2017) LPELR-43226 (CA) at pages 8 – 11, pras. C – A; it was held thus:

In overruling the objection the trial tribunal did not mince words when it clearly stated:

“the opposition on the documents is predicated on the fact that the police has no authority to certify INEC documents for which the petitioners relied on the case of Goodwill & Trust Investments Ltd V. Witt and Bush Ltd (2011)-1333 and Bilikisu Gambari V. INEC (2011) LPELR 9080 CA. We have examined these two cases and are of the view that they do not apply to this petition… in the present case, the police institution is entitled to receive and keep duplicate copies of the result. The provision for giving such copies to the police was designed to create a window for comparison in situations of the nature in this case. The duplicate copy of the result received and kept by the police is for that purpose a public document in their domain for which they can certify for the purpose and use of persons who desire them. This approach appears to be best to avoid losing custody of the document as other persons or parties may want to access same at the same time. For the above reason, we hold that the certified copies of the form EC8A (II) produced from the police and tendered in evidence are admissible.”

 This finding of the tribunal cannot be faulted, and it is for this reason that it does not appear fair to accuse the tribunal of denial of fair hearing, when as a matter of fact the objection to the admissibility of the documents sought to be tendered during pre-hearing was by agreement deferred to the final address stage, see page 3406 of the record of appeal.

The submission of learned senior counsel to the 3rd respondent that the tribunal was perfectly right to have preferred the certified true copies of the results tendered by the police, makes a lot of sense, not least because, they were corroborated by the respondents’ copies to those tendered by the appellants in view of the peculiarity of this case, where INEC admitted not to be in possession of the originals; the authority of NNADI V. EZIKE (1999) 10 NWLR part 622 at 238 adds more impetus to this belief, where it was held per Fabiyi JCA, as he then was that:

“…forms given to police security men cum observers at the polling booths…constitute an internal solid inbuilt control mechanism or measure designed to unravel unlawful cancellations, alterations, mutilations and juggling of figures during elections…such results, as produced by the police, are the best and tenable available source to test the veracity of the parties, contentions on the issue of what in fact were actual scores made by the contending parties. To jettison the forms given to the police under any guise is like throwing discretion to the wind, as it were…”

The argument that exhibits 2RA (1) to 64 i.e. forms EC8A (1) are not admissible in evidence because they were not certified by the 1st respondent nor produced from proper custody of INEC is groundless, because once a document meets the requirements of Section 103 of the Evidence Act, and the document is relevant it is admissible, and the issue of proper custody only becomes relevant to the issue of weight to be attached to that document; besides the police were expected to be given counterpart copies, at each of the polling units; and since these are public documents nothing bars them from certifying them.

“The relevance of the provisions of Section 63(3) of the Electoral Act, 2010 (as amended), has come to bear in the instant case where the respective Respondents to this Petition seeks to have this Honourable Tribunal believe that there was no election at the Polling Units of Tudun Wada/Kabong Ward. Meanwhile, Exhibits P72 to P122C have proved otherwise. Exhibits P72 to P122C which were duplicate copies given to security agents during the election at the respective poling units of Tudun Wada/Kabong Ward and the Ward Summary Result has indeed unravelled the unlawful cancellation of the result of the election at Tudun Wada/Kabong Ward. It is submitted that Exhibits P72 to P122C, as produced by the police, are the best and tenable available source to test the veracity of the parties, contentions on the issue of what in fact were actual scores made by the contending parties. As rightly held in Emerengwa’s case cited above, it is submitted that to jettison the forms given to the police in this Petition under any guise is like throwing discretion to the wind, as it were. We urge this Honourable Tribunal to so hold. The duplicate copies of Polling Unit results given to the Police who had no personal interest to serve in this election and tendered and admitted in evidence put paid to the contention of the Respondents that elections were not held in the Polling Units constituting Tudun Wada/Kabong Ward or that there was no collation with the use of Polling Unit Results in INEC Form EC8A(II) series.

“PW58, John Pam Sheku also testified that election held in all the polling units in Tudun Wada/Kabong Ward after which the results were submitted to the INEC Ward Collation Officer, PW5 at the Ward Collation Centre for collation which he, PW58 personally witnessed. PW58 stated that collation was carried out and the result announced. Of note, is Exhibit P128, a Flash Drive which was tendered and admitted through PW58, containing a video recording of the announcement of the Tudun Wada/ Kabong Ward collated result. The video recording was played in open Court to the sighting and hearing of the Honourable Tribunal.

“In addition to the documentary evidence placed before the Tribunal, (i.e. Exhibits P13, P13A, P13B and P13C and P122, P122A, P122B and P122C, the Ward Summary Result Sheet for Tudun Wada/Kabong Ward); the Petitioners established by the video recording in Exhibit P128 that the votes scored by the Petitioners in Tudun Wada/Kabong Ward during the 23rd February, 2019 Election was 31,470 which was unlawfully cancelled by the 1st Respondent. Meanwhile, the votes scored by the 2nd and 3rd Respondents in Tudun Wada/Kabong Ward during the 23rd February, 2019 Election was 3,816 which was unlawfully cancelled. Noteworthy, is that all the Respondents in general and the 2nd Respondent in particular, did not comply with the mandatory provisions of Paragraph 12(1)and (2) of the First Schedule to Electoral Act, 2010 (as amended) which requires a respondent to plead and prove that the figures put forth by the Petitioners are incorrect. In the case of DR OLUSEGUN AGAGU & ORS V. RAHMAN OLUSEGUN MIMIKO & ORS (2009) LPELR-21149(CA) Per ABDULLAHI, JCA (Pp. 62-65, paras. E-B) or (2009) 7 NWLR (PT 1140) 342 at 413 – 415, paras. H – B; held on what a respondent should set out in his reply in an election petition:

Where the Petitioner/First Respondent herein claimed that he scored the highest number of lawful or valid votes cast at the election as in the instant appeal, the first Respondent that is, the Party declared the winner is required to comply with the mandatory provisions of Paragraph 12 of the First Schedule to the Electoral Act No. 2 of 2006. It requires the Respondent to set out clearly in his reply particulars of the votes which he intends to object to demonstrating how to prove at the hearing that the Petitioner is not entitled to be returned.

Sub-Paragraph (2) of Paragraph 12 of the First Schedule to the Electoral Act No. 2 of 2006, which is pertinent, reads as follows:- “(2) Where the Respondent in an election petition, complaining of an undue return and claiming the seat of office for a petitioner intends to prove that the claim is incorrect or false, the respondent in his reply shall set out the facts and figures clearly and distinctly disproving the claim of the Petitioner”. (Underlining mine).

The provision demands much more than the reply merely denying joining of issues with the Petitioner and even averring to additional facts. This is just a basic requirement in civil proceedings, which has been provided for in Paragraphs 12(2) of the First Schedule of the Act. Paragraph 15, which requires much more than is demanded under Paragraph 12(2) provides as follows:- “15. When a Petitioner claims the seat alleging that he had the highest number of valid votes cast at the election, the party defending the election or returned at the election shall set out clearly in his reply particulars of votes, if any, which he objects to and the reasons for is objection against such votes showing how he intends to prove at the hearing that the petitioner is not entitled to succeed.” “(underlining mine).

Thus, the Respondent is required to specifically put down- (i) The particulars of the votes he objects to; (ii) The reason or reasons for his objection against such votes; and (iii) Show how he intends to establish at the trial that the Petitioner was not entitled to succeed or to be returned.

The consequence of neglect or failure of the Respondent to comply with the provisions of Paragraph 15 of the First Schedule to the Electoral Act is that the result tendered by the Petitioner is deemed not challenged or controverted. See Hassan v. Tumu (1999) 10 NWLR (Pt. 624) 700, 710 and 712. I have carefully examined the Respondent’s reply, which is in Vol. VI at pages 2541 – 2620 of the printed record of proceeding and cannot locate any averment satisfying the conditions set out in paragraph 15 of the First Schedule to the Electoral Act No. 2 of 2006. The refusal, neglect or failure of the Appellant to satisfy the provisions of the said paragraph has the effect that the result tendered by the Petitioners/First Respondent herein, is unchallenged and uncontroverted.

“To further seal the fate of the Respondents in this matter, RW1, INEC Head of Operations testified for the Respondents. However, the 2nd Respondent’s RW1 admitted during cross-examination by Counsel to the Petitioners that election was held on 23rd February, 2019, and that the election indeed produced a result. He stated thus:

“I was once subpoenaed by the Petitioners to give evidence and produce and tender documents. I am the Head of Operations and Logistics of INEC in Jos. I am familiar with electoral materials particularly results sheets. It is correct that the House of Representatives election for Jos North/Bassa Federal Constituency held on 23rd February, 2019. Election took place in Tudun Wada/Kabong Ward on the said date. For the election of 23rd February, 2019, INEC deployed Form EC8A(II) series for the Polling Units and Voting Points. We also deployed Presiding Officers to man the Polling Units and Voting Points. The Presiding Officers are accountable to INEC. INEC also deployed Forms EC8B(II) series for the Wards/Registration Areas. Tudun Wada/Kabong Ward was one of the wards that received EC8B(II) series. A Ward Collation Officer was deployed to Tudun Wada/Kabong Ward. I would not know the name of the ward collation officer for Tudun Wada/Kabong Ward. The Ward Collation Officer deployed by INEC to the Ward Collation Centre was responsible to INEC. The results sheets must bear the following features:

  1. The Logo
  2. The name of INEC
  3. The state where the Forms/Result sheets are to be used.
  4. The serial number must be on the result.
  5. The type of election for which it is to be used.
  6. It has alphabetical and numerical numbers for instance Form EC8A(II) for House of Representatives.
  7. It must have columns for recording of votes.
  8. At the end, the name of the Officer filling the Form must be written.
  9. A provisions for signature, date and stamp.

The various result sheets at the Polling Units, Voting Points, Ward Collation Centres, Local Government Collation Centre, Constituency Collation Centre and Final Declaration are printed in original and duplicates. When the originals are being filled, the entries reflect on the duplicates. The duplicates are given to Polling Unit Agents and Security Agents even at the Ward level. The same thing applies likewise at the Local Government Collation level and the rest of collation and declaration. Exhibits P126 is INEC Manual for Election Officials, 2019, same as Exhibit R71. Exhibit R72 is the Regulations and Guidelines for the Conduct of Election. These exhibits P126, R71 and R72 are designed to regulate the conduct of elections and the entire electoral process. I said the Local Government Collation Officee cancelled the election of Tudun Wada/Kabong Ward. I would not know if the power to cancel election at the Local Government Level is given to the Local Government Collation Officer by virtue of Exhibit R71, R71 and P126. What I however know is that the Presiding Officer has the power to cancel election at the Polling Unit and other Collation Officers also have the power to cancel election. I do not know the actual place where it is written in Exhibit R71, R72 and P126, that a Local Government Collation Officer has the power to cancel an election. On 23rd February, 2019, INEC deployed election materials and men in all the Polling Units in Tudun Wada/Kabong Ward in Jos North/Bassa Constituency. Elections took place in that ward on 23rd February, 2019. It was not my schedule to collate results at various levels of collation. Polling Unit results were not submitted to me because it is not my duty to receive same.

“It is submitted that the answers elicited from RW1 constitutes an admission against interest and same supports the case of the Petitioners. See the cases of Dr. John Fayemi & 1 or vs Olusegun Oni & 7 ors (2010) 7 NWLR (Part 1222) page 326 at 395, paras B – D, University of Ilorin vs Rashieedat Adeshina (2010) 9 NWLR (Part 1199) page 331 at pages 405 and 406, paras F – B.

In view of the tacit admission of the 1st Respondent’s Official that election held at the polling units of Tudun Wada/Kabong Ward on 23rd February, 2019, it is submitted that having regards to the facts, circumstances and evidence adduced by the Petitioners, the Petitioners established that there was election at the respective polling units and collation of the result at the Ward Level at Tudun Wada/Kabong Ward. We urge this Honourable Tribunal to so hold.

“It is submitted that having regards to the evidence adduced, the Petitioners have indeed established that election was validly, peacefully and conclusively held in all the 65 polling units of Tudun Wada/Kabong Ward of Jos North/Bassa Federal Constituency on 23rd February, 2019. The Petitioners have also proved that the votes scored by the Petitioners was the sum of 31,470 while the votes scored by the 2nd and 3rd Respondents was in the sum of 3,816 in Tudun Wada/Kabong Ward during the 23rd February, 2019 Election. We urge this Honourable Tribunal to so hold”.

Earlier however, the APC’s Counsel, Leo Ebi (Esq) (3rd Respondent), while adopting its final written address, urged the Tribunal to dismiss the petition.

In his adumbration, he submitted in part that, “On behalf of the 3rd Respondent, we filed the final written address dated 21st August, 2019 and filed same day. After we were served with the Petitioners’ final written address and reply to the 3rd respondent on the 25th of August, 2019, we filed our Reply on points of Law, on 27th August, 2019, being today.

“We adopt the two addresses, as the 3rd Respondent’s oral submissions and arguments in support of our Reply and against the petition. With humility, we urge the Tribunal to dismiss the petition as totally lacking in merit.

“The major complaint of the petition is that, the Petitioners claimed they won and were to be returned based on the election of 23rd February, 2019. In an attempt to prove this, they tendered results of polling and voting points.

“Yet, their witnesses could not properly identify the results and the results don’t have INEC stamps. So, going by the nature of the duplicate copies, how can the Tribunal collate these results?

“The Petitioners in contention said since we did not contend that, the Tribunal should collate the result. We don’t need to do that because, they have not shown that they have the scores as pleaded.

“The petitioners, having admitted and taken part in the rerun, they are estopped from crying aloud. We don’t have to plead that.

“I urge the Tribunal to dismiss the petition because it lacks merit’.

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