Kogi Governorship: How Bello flushed Wada at the tribunal

Saturday May 23, 2020 will go down in history as the day Kogi State governor, Yahaya Bello won the first leg of the legal battle challenging his dream of retaining his seat for a second term as governor of Kogi state.

A three man panel of the Kogi State Election Petition Tribunal, sitting in Abuja had on that day in a split judgment of two-to-one upheld the return of Bello as Governor of Kogi state.

The lead judgment delivered by Justice Kashim Kaigama and supported by justice Baraka Wali upheld Bello’s election on the grounds that the petitioners failed to prove allegations of rigging and other malpractices in the November 16, 2019 governorship election.

However the dissenting judgment, delivered by Justice Ohimai Obviagele, disagreed with his colleagues on the grounds that there was evidence of massive fraud in seven Local Government Areas in the state where the election took place.

Justice Obviagele subsequently ordered the Independent National Electoral Commission (INEC) to conduct a rerun election within 90 days in the seven Local Government Areas.

Although the actual battle started with the governorship election conducted by the Independent National Electoral Commission (INEC) on November 16, 2019, wherein Bello emerged victorious amongst other contestants including candidate of the Peoples Democratic Party (PDP), Engineer Musa Wada.

The result of the election was announced on Monday November 18, 2019 with INEC declaring Bello and his party, the All
Progressives Congress (APC) winner of the said election and returned Bello as the duly elected Governor of Kogi State having obtained the highest number of valid votes cast at the election.

Dissatisfied with the said declaration and return of Bello as winner of the said election, Wada and the Peoples Democratic Party (PDP) respectively filed their petition praying the Kogi State Election Petition Tribunal sitting in Abuja to among others: determine and thus declare that Bello was not duly elected by a majority of lawful votes cast at the November 16, 2020 governorship election in Kogi State and therefore his election, declaration and return as governor is null, void and of no effect.

He also prayed the tribunal to hold that neither Bello nor his party scored the majority of lawful votes allotted them as a result of alleged over-voting.

Consequently, they prayed for an order nullifying the certificate of return issued Bello.

They further prayed for another other declaring that Wada scored the majority of the lawful votes cast at the election. “That it may be determined and thus declared that the 1st petitioner having fulfilled the requirement of section 179(2)(A)(B) of the 1999 constitution in respect of the governorship election in Kogi State be declared winner by majority votes.

“An order directing INEC to issue certificate of return to wada or in the alternative” make an order nullifying the entire election by reason of substantial non-compliance with the provision of the constitution and extant Electoral Act 2010 and order for a fresh election.

The petitioners also prayed for another alternative order directing for a supplementary election in polling units where elections were cancelled; the margin of lead between Bello and Wada being less than the registered votes in the cancelled polling units.

The petitioners had anchored their claim on grounds of alleged corrupt practices which according to them substantially affected the outcome of the governorship poll.

Respondents in the petition include, Bello, his party APC and INEC as 1st, 2nd and 3rd respondents respectively.

However in their individual responses, the respondents denied the allegations made by the petitioners and contended in the main that the petition is frivolous and vexatious and should be dismissed.

In their effort to establish their Petition against the Respondents, the Petitioners called a total number of thirty – two (32) witnesses and tendered a number of documents which were admitted as Exhibits P1 -P218.

While Bello called 7 witnesses and tendered a number of documents marked as Exhibits R7 — R15, INEC and the APC did not call.

Before the tribunal arrived at its final decision it ruled on several applications including but not limited to issues of whether the petition should not be struck out for the non-joinder of persons against whom criminal allegations were made or in the alternative whether the paragraphs of the petition relating to persons against who criminal allegations were made but not joined as parties to the petition, should not be struck out.

It is in the criminal jurisprudence of proof beyond doubt that the persons named on allegations of crime must be joined as parties to prove their crime just like proceedings in the criminal trial. See PDP & Anon Vs. INEC & 2 Ors. in Appeal No. SC/409/2019; Atiku & Anon Vs. INEC & 2 Ors. Appeal No. CA/PEPC/002/2019 delivered on 11/9/2019; Kalu Vs. Chukwu Merije (2012) 12 NWLR (Pt. 1315) 459. Since the Petitioners have heavily made this their point, the named persons cannot be tried in absentia or by proxy and every one must answer for his crime and defend himself in accordance with section 36(1) of the 1999 Constitution (as amended). Since these persons named and alleged connected with criminal activities have not been joined to prove the criminal allegations against them beyond reasonable doubt, the paragraphs of the petition relating to named persons i.e. John Aduga, Usman Ochide, Sunday Faleke, Tope Raji, Kola Johnson, Rt. Hon. Matthew Kolawole, Mr. Hassan M. Yahaya, Rabiu Ishiaku, Kabiru and Mr. Edward Onoja, The Deputy Governor elect, against whom criminal allegations were made but not joined as parties to the petition, are hereby struck out.

The tribunal at the end of the day said, “We have gone through the pleadings and the evidence presented by the petitioners and respondents. We have also perused through the written addresses of counsel as well as the objections raised by them to the documents tendered in evidence. We are unable to agree with the learned senior counsel to the petitioners that the 1st petitioner, engineer musa Wada of the pdp be declared winner of the November 16, 2019 kogi state governorship election that he (1st petitioner) was the one who scored the majority of all the lawful votes cast at the election. Instead we confirm that the second respondent yahaya bello of the apc was the winner of the November 16, 2019 polls having scored the highest votes cast and we have our reasons for arriving at that decision”.

In respect of the 7 local governments where the petitioners alleged malpractices, the tribunal held that all the evidence of the petitioners witnesses were shown to be unreliable, inconsistent, having no probative  value and therefore are discountenanced.

According to the tribunal one of the witnesses, pw19 in his expert report went beyond the order granted him by the tribunal to count and or recount ballot papers. The tribunal also found that the witness was paid by the petitioner to do the job. He also admitted being given a copy of the petition since December 2019 indicative of the fact that he knew all along what the petitioners want.

“Pw19 could not tell when and where the over voting and multiple thumb printing were carried out neither could he tell how and who did the thumb printing. This is not surprising as he was nowhere in kogi state on November 16, 2019.

“The petitioners did plead over voting but failed to produce any iota of evidence outside exhibit p185 in support of their contention. In view of the foregoing, we view exhibit p185 with circumspection and accordingly we hereby jettison exhibit p185 in its entirety. Having found that exhibit p185 as having no probative value, the same fate shall equally befall exhibitp196 the statistician report and is also discountenanced.

“Suffice it to state further that exhibit p196 is documentary hearsay and is hereby discountenanced. Pw32 joe agada who is the state collation agent of the 2nd petitioner merely replicated the averments as contained in the petition which is 500 plus paragraphs.

“In the final analysis, we find and hold that the petitioners have failed to prove beyond reasonable doubt the allegations of over voting and multi-thumb printing. The result is that the petition fails and is hereby dismissed. Cost assessed at N500, 000 in favour of each of the 2nd and 3rd respondents.

The chairman of the tribunal had said, “For the avoidance of doubt, we hereby make the following specific orders: we declare and affirm the declaration and return of Yahaya Bello by the 1st respondent INEC as the duly elected governor of kogi state having scored  of the valid votes cast at the November 16, 2019, elections.

“Each of the petitioners shall each pay the sum of N500, 000 to each of the 2nd and 3rd respondents.

The tribunal verdict indirectly vindicated the State governor Yahaya Bello  and other political leaders in Kogi State whose reputation were put to test during the campaign following various unsubstantiated allegations.

 It is now cleared that allegations of politicians sponsoring  or promoting violence in the state were gimmick for political gains.  

It is incredible that despites the bitter political campaign that proceeded the election no proof was provided at the tribunal in support of allegations of criminal violence which dominated the media during the election campaign.

Though, Wada and PDP have gone on appeal to test the tribunal judgment at the Court of Appeal , it is obvious that a protracted legal battle over Kogi State Governorship election will serve no useful purpose but detraction .

This is  because head or tale Governor Bello will win a rerun election in the seven local government areas where Wada complained of  over  voting, but had no proof to substantiate the claim.