PDP heads to Appeal Court as tribunal affirms Bello’s victory

The Kogi State Governorship Election Petition Tribunal by a split judgment of two-to-one, on Saturday, affirmed Governor Yahaya Bello of the All Progressives Congress as the winner of the November 16, 2019 governorship election in the state.

Two of the three members of the panel which sat in Abuja, the Federal Capital Territory, dismissed the petition filed by the Peoples Democratic Party and its governorship candidate in the election, Musa Wada, to challenge Bello’s victory at the poll.

Justice Kashim Kaigama, who headed the three-man bench, and another member, Justice Baraka Wali, held that the petitioners failed to prove any of the grounds of the petition.

The majority judgment also ordered each of Wada and his party to pay the sum of N500,000 to each of Bello and the APC.

The total cost to be paid by Wada and the PDP amounted to N2m.

But dissenting, Justice Ohimai Ovbiagele, in his minority judgment, upheld the petitioners’ case by nullifying the results of the election in seven out of the 21 local government areas of the state.

The judge sacked Bello as the winner of the disputed poll and ordered the Independent National Electoral Commission to immediately withdraw the certificate of return issued to him.

He ordered the electoral body to, within three months, conduct a rerun in seven local government areas, namely, Lokoja, Adavi, Olamabaro, Okehi, Okene, Ajaokuta and Kaba/Bunu, where he ruled that the election was marred by violence, over-voting, multiple thumpriting, and non-accreditation of voters.

INEC had declared Bello of the APC as the winner of the November 16, 2019 election, defeating Wada by 216,518 votes.

The commission declared that Bello polled a total of 406,222 votes, while Wada polled 189,704.

Aggrieved by the results declared by INEC, Wada and the PDP filed their petition before the tribunal, alleging that Bello was not returned by the majority of lawful votes cast.

They added that the election was marred by corrupt practices and non-compliance with the provisions of the Electoral Act in seven of the 21 local government areas in the state.

The petitioners who called 32 witnesses to prove their case, also alleged that the election was invalidated by reasons of over-voting, non-accreditation of voters, violence and multiple voting in the seven local government areas namely, Lokoja, Adavi, Olamabaro, Okehi, Okene, Ajaokuta and Kaba/Bunu.

Delivering the lead majority judgment on Saturday, Justice Kaigama held that the petitioners’ allegations of over-voting and non-accreditation of voters were not proved because they were not linked to the voter registers used at the various polling units where the election was challenged.

He added that the expert evidence of a statistician and that of Petitioner Witness 19, Prof. Tanko Ishaya, a mathematician and computer scientist, relied on by the petitioners to prove alleged over-voting and multiple thumb-printing of ballot papers, was lacking in probative value.

He added that Ishaya went beyond the dictates of the order issued by the tribunal on January 16, 2020 permitting the petitioners to conduct a forensic inspection of the electoral materials used for the poll by going ahead to count and recount the ballot papers used.

He noted that the expert report by Ishaya was marred by his admission that he was paid part of the expenses he personally incurred in carrying out the forensic analysis.

Justice Kaigama also dismissed the witnesses’ reports as documentary hearsay.

The petitioners’ lawyer, Jibrin Okutepa (SAN), told journalists at the end of the proceedings that his clients would appeal against the majority judgment of the tribunal.

“We are unable to agree with the submission of the counsel for the petitioners that the second respondent, Yahaya Bello ought not be declared the winner of the November 16, 2019 Kogi State governorship because of not polling the majority of lawful votes cast in the election,” Justice Kaigama ruled.

But in his dissenting judgment, Justice Ovbiagele described the election as flawed in the seven local government areas.

He said given the uncontradicted evidence of killings that took place during the election, “this election must not be allowed to stand and it shall not stand.”

He held that he believed the expert evidence of malpractices given by the Petitioners’ Witness 19, Prof. Ishaya, because it was not challenged, controverted or contradicted by the respondents.

He noted that the tribunal was bound to believe the witness’ evidence to the effect that 159,957 votes recorded in the election were products of multiple thumb printing, over 67 votes were marred by discrepancies and that a substantial number of the ballot papers used were unsigned.

He noted as an example that the expert’s evidence showed that “only five persons thumb printed the papers used in Adavi.”

“Amazingly and tragically, the respondents all failed to contradict or deny the evidence of Prof. Tanko Ishaya,” the judge noted.

Noting that “the demeanour of the witness was convincingly compelling”, the judge added that “the evidence of PW19 was unbroken and consistent with the fact that the election was flawed in the seven local government areas.”

“This unchallenged piece of evidence had called into question to sanctity of the aforesaid election especially as it relates to the seven local government areas,” the judge ruled.

He noted that the respondents merely glossed over the specific facts given as evidence by Ishaya, adding that “where the evidence of an expert is not challenged and his experience and qualification have not been called to question, the court of law is duty-bound to accept same.”

“The court of law has to accept the veracity of the evidence of the expert.

“The court must accept the unchallenged evidence of such expert witness,” Justice Obviagele said.

According to the judge, Ishaya had clarified during his testimony that he undertook the task of the forensic inspection of the electoral materials on the strength of the order issued by the tribunal on January 16, 2020.

He disagreed with the majority judgment which had earlier indicated that Ishaya went beyond the dictates of the order by going into counting of ballot papers.

He also accepted the witness’ denial that he did not earn a living from carrying out the task.

The petitioners’ lawyer, Jibrin Okutepa (SAN), told reporters at the end of the proceedings on Saturday that his clients would appeal against the majority judgment of the tribunal.