Alex Enumah in Abuja 

Any moment from now, the legal battle for the office of Edo State Governor would be laid to rest, following the reservation of a date for judgment in the appeal filed at the Supreme Court by Mr Asue Ighodalo of the Peoples Democratic Party (PDP).

A five-member panel of the apex court led by Justice Mohammed Lawal Garba, on Wednesday announced that their judgment has been reserved to a date that would be communicated to the counsel representing parties in the appeal seeking to remove Senator Monday Okpebholo as Governor of Edo State.

Justice Garba made the announcement shortly after the lawyers concluded their submissions for and against the appeal.

The Independent National Electoral Commission (INEC) had declared Okpebholo of the All Progressives Congress (APC) winner of the September 21 governorship election, having won majority of the votes cast at the last year governorship election in Edo State.

However, Ighodalo who came second at the polls had disagreed with the electoral umpire, claiming that the body did not comply with the rules guiding the conduct of the poll.

Besides, he alleged that there were cases of over-voting in several polling units, which when deducted would show that he and not Okpebholo won the September 21 governorship election.

His claims were however dismissed by the Edo State Governorship Election Petition Tribunal, as well as the Court of Appeal, which affirmed the election of Governor Okpebholo.

Not satisfied, Ighodalo had last month approached the apex court to set aside the judgment of the Court of Appeal, which affirmed the judgment of the Edo tribunal, recognizing Okpebholo as lawful winner of the governorship election.

He claimed that the appellate court perverse justice and misdirected itself when it unanimously held that the appellant did not prove the allegation of non-compliance and over-voting amongst others.

Arguing through his lawyer, Mr Ken Mozia (SAN), the appellant claimed that the lower court perverted justice when it held that the appellant ought to have made an order nullifying the election on grounds of non-compliance in line with Section 136(1), adding that the case of the appellant was centred on non-compliance in some polling units and not the entire election.

Mozia insisted that invalidation should be done at only the polling units complained about and not the entire election, citing the case of Uzodinma were the court’s decision was based on the affected polling units and not the entire election.

On the issue of non serialization of election materials, the senior lawyer argued that the court below erred in law when it insisted that the issue did not amount to non-compliance.

Mozia similarly accused the appellate court of misdirecting itself as it held that the appellant failed to present oral evidence to back their claims of over-voting and non-compliance.

According to the appellant, the position of the law is that where a document speaks for itself, there would be no need for oral evidence. Besides, Mozia stated that the appellant’s witnesses in their statement on oath demonstrated how the non-compliance occurred.

Meanwhile, the appellant told the apex court that whereas it presented Form EC25B polling units results sheet to prove alleged non-compliance, INEC did not produce any copy to contradict the ones they tendered before the court.

He accordingly urged the court to allow the appeal and set aside the concurrent judgments of the two lower courts.

Responding, Agabi urged the apex court to dismiss the appeal for being incompetent in every respect. 

According to him, the case of the appellant was incompetent because of its manifest inconsistency.

The senior lawyer explained that the appellant on one hand claimed that the election was invalid and yet want the court to declare them winner of an invalid election.

“Having brand an election invalid, they ought to ask that the election be nullified; since they did not, their claim of non-compliance is of no effect,” he said.

Also, Onyechi Ikpeazu (SAN), who represented Governor Okpebholo, pointed out that it was not enough for the appellants to allege that the judgment of the lower court was perverse but, must clearly spell it out from the records of the court, “appellant has not done so other than general expression of non-compliance”, he told the five panel of justices of the apex court.

Speaking on the claims of over-voting, Ikpeazu also faulted the reliance of the appellant on Section 51 of the constitution to seek additional grounds for the deduction of votes, adding that the section did not dwell on nullification of election on grounds of over-voting.

Similarly Ikpeazu submitted that contrary to the position of the appellant, Section 136 (1) should be read alone from subsections (2)&(3) which borders on the qualification of a candidate.

“If Section 136(1) stands alone, then they should ask for nullification of the election, but they have not done that,” Ikpeazu said, adding that the case of Governor Hope Uzodinma of Imo State did not apply in this instance because the apex court did not cancel votes but only added votes that were excluded from 366 polling units.

On the issue of prior recording of sensitive materials used for the conduct of the September 21 governorship election, Okpebholo’s lawyer told the apex court that the appellant did not plead Form EC 25D, which contains quantity of materials received, quantity of materials returned and remarks.

Ikpeazu said that it was the respondents which rather confronted the appellant during cross-examination with Form EC 40A, which showed that the forms were filled and duly signed, contrary to the claim of the appellant.

The senior lawyer further faulted the case of the appellant for failing to call witness to give oral evidence in support of the alleged non-compliance.

“They tendered BVAS from the bar, the machines were not opened, voter’s register was not tendered, they were not pleaded” to prove alleged over-voting,” Ikpeazu said.

He also pointed out that the appellant relied on BVAS screen shot which the apex court rejected in the case of Nasarawa State governorship election.

Ikpeazu subsequently urged the court to dismiss the appeal for being incompetent.

Chief Emmanuel Ukala (SAN), counsel to the All Progressives Congress (APC), while adopting the submissions of Agabi and Ikpeazu as his argument against the appeal, faulted the appellant for not calling enough and relevant witnesses to prove their case of non-compliance.

“The grounds of the petition are entirely issue of non-compliance… prove must be from polling units to polling units. They complained of 765 polling units but they called only five witnesses from polling units (agents), the remaining 14 were not polling units agents but spread across wards and local government agents.

“From the onset the case is incompetent, it arrived dead and it is only proper that it be dismissed,” Ukala said.

A three-member panel of the Court of Appeal had, in a unanimous judgment delivered on May 29, affirmed the judgment of the Edo tribunal which affirmed Okpebholo’s election as Edo State Governor.

The panel held that they did not find any tangible reason to deviate from the findings and conclusions of the tribunal.

Justice Mohammed Danjuma, who delivered the lead judgment, held that the appellants failed to prove their allegations of non-compliance, because they did not call the proper persons to speak about how the said non-compliance occurred, adding that the witnesses based their evidence on the testimonies of others.

Before delving into the merit of the appeal, Justice Danjuma had resolved a cross appeal filed by Okpebholo against part of the tribunal’s judgment, in favour of Okpebholo and the APC.

Okpebholo and APC had opposed the admissibility of the BVAS machines, which was admitted by the tribunal, although did not attach any value to it because the appellants failed to demonstrate how the machine operates.

However, the appellate court held that it was wrong for the tribunal to have admitted the document from the bar, after a contention by parties, adding that documents admitted from the bar are documents consented to by parties.

Having faulted the process via which the BVAS was admitted, the appellate court subsequently made an order expunging all the evidence attached to the BVAS as well as its admittance.

Justice Danjuma pointed out that since the bottom of the case of the appellants (BVAS) has fallen, the case of the appellants is lacking in merit and is hereby dismissed.

The appellate court agreed with the tribunal on the issue of over-voting and improper computation of results, stressing that the appellants should have called polling units agents to testify how the results were inflated or how the documents were not filled by officials of the electoral umpire.

Justice Danjuma also agreed with the tribunal that some of the testimonies provided by some of the witnesses were hearsay for not being presented by the original witnesses who were present at the polling units but by reporting officers.

The Independent National Electoral Commission (INEC) had declared Okpebholo winner of the September 21 governorship election, having polled 291,667 votes, while his closest challenger, Asue Ighodalo of the PDP, got 247,274 votes.

Olumide Akpata, the candidate of the Labour Party (LP), finished a distant third with 22,763 votes.

But Ighodalo and the PDP approached the state Election Petition Tribunal to challenge the outcome.

They told the court that the governorship election was invalid because of alleged non-compliance with the provisions of the Electoral Act 2022. 

They also prayed the court to nullify the declaration of Okpebholo as the winner on the ground that the election was allegedly marred by irregularities.

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