As the Court of Appeal reserves judgment on the Edo State governorship election, it is expected that the judges will carefully examine the issues dispassionately, Wale Igbintade writes

The Court of Appeal in Abuja recently reserved judgments in the appeal and a cross-appeal filed challenging the outcome of the September 21, 2024 governorship election held in Edo State in which the Independent National Electoral Commission (INEC) declared Governor Monday Okpebholo of the All Progressives Congress (APC) as winner.

A three-member panel of the court, presided over by Justice M. A. Danjuma, after listening to the final arguments by the lawyers of the parties, announced that the date of the judgments would be communicated to them.

The appeals are those filed by the Peoples Democratic Party (PDP) and its candidate for the election, Asue Ighodalo, marked: CA/ABJ/EPT/ED/GOV/01/2025, and another (a cross appeal) by the APC and Okpebholo marked CA/ABJ/EPT/ED/GOV/04/2025.

After the September 21, 2024 election, INEC had declared Okpebholo the winner of the 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.

However, in its judgment delivered on April 2, the tribunal held that their petitions were without merit, adding that the petitioners failed to establish why the outcome of the election should be set aside.

Consequent upon the judgment, Ighodalo and PDP approached the Court of Appeal to challenge the decision, while Okpebholo filed a cross-appeal.

The lawyers for the appellants, while arguing the appeals, prayed the court to reverse the judgment of the election tribunal.

Specifically, counsel to Ighodalo and the PDP, Robert Emukpoeruo (SAN), urged the court to allow the appeal and set aside the judgment of the tribunal.

He argued that in relation to the appellants’ allegations of non-compliance, the tribunal failed to appreciate the nature of the non- compliance complained of.

He noted that there was no record of serial number on Form EC25B as required by Section 73(2) of the Electoral Act, 2022, adding that “The tribunal said we required evidence of polling agents or witnesses to prove how the forms were filled or not filled.

“That was not our case. Our case was that the Form EC 25B did not contain the serial number,” he said.

The appellants’ lawyer argued that the tribunal was also wrong to claim that the documents his clients tendered at trial were dumped on the tribunal. He also noted that as against the tribunal’s finding, oral evidence was not needed in the nature of the case of the appellants, who were petitioners before the tribunal, stating that his clients did not challenge the conduct of the election, but the conflict in the results collated and announced.

In conclusion, he pointed out that part of his clients’ contention was that the results that were collated at the ward level were not the results declared at the polling units.

However, the lawyers for the respondents urged the court to affirm the judgment by the tribunal and dismiss the appeals. Their counsel, Onyechi Ikpeazu (SAN) argued that the petition, which they filed before the tribunal and the appeal are totally an academic exercise.

Emmanuel Ukala (SAN), for the APC, and Kanu Agabi, (SAN), for the INEC also argued in similar manner in praying the court to dismiss the appeal and affirm the judgment of the election tribunal.

Recall that after the tribunal’s judgment, the supporters of the PDP and its candidate, as well as many legal experts, had faulted the conclusion by the judges that the petitioners simply dumped documents on them and failed to prove their case beyond reasonable doubt.

They accused the three-man panel of working to produce a predetermined judgment, noting that the judges were not patient and meticulous enough to peruse the documents tendered before the court.

The PDP and their supporters stated that they were miffed beyond words at the pronouncements of the judge which were contrary to the Electoral Act.

Many legal experts also wondered if the panel was expecting the petitioners to produce witnesses from all the polling units where malpractices took place in a tribunal that had a very limited time to hear the petition.

“If the petitioners were complaining of over voting in 133 units and documentary evidence from the polling units showed that the number of votes cast exceeded the number of accredited voters, what else were the judges expecting to see and hear?” one of the lawyers, a SAN, queried.

Citing Section 51 (2) of the Electoral Act, he argued that the judges did not need a witness to prove over-voting, adding that what they needed to do was to go through the documents to see things for themselves.

He equally cited the Supreme Court’s judgment in Ihedioha vs Uzodinma, where the APC only presented two witnesses and got a favourable judgment.

Other lawyers further wondered what documents INEC submitted to counter the documents of the petitioners.

Many analysts have argued that the INEC, which conducted the election, did not dispute or fault the documents before the tribunal.

Analysing the verdict for instance, Ogbeide Ifaluyi-Isibor while citing Section 137 of the Electoral Act, explained that in cases of non-compliance, oral evidence is unnecessary when documentary evidence is available.

He lamented that the judiciary failed to demonstrate its commitment to justice.

“What did the judge want PDP to prove when they showed INEC’s documents and extracts from INEC’s BVAS, and also presented the Certified True Copy of INEC’s sheets? What else did the judges expect them to prove that there was over-voting?” Ifaluyi-Isibor queried.

“We had absolute confidence in the documents we tendered in court and in our legal team. The evidence from INEC materials clearly showed that Edo people overwhelmingly voted for Ighodalo. However, INEC declared someone else as the winner, prompting us to seek justice in court,” he said.

According to him, the tribunal’s pronouncements contradicted the Electoral Act: “If we are challenging over-voting in 133 polling units and have documentary evidence proving that the number of votes cast exceeded the number of accredited voters, why would the court demand witnesses? The Electoral Act, Section 51(2), clearly states that in cases of over-voting, witness testimony is not required.”

Ifaluyi-Isibor referenced the Supreme Court’s ruling in Ihedioha vs. Uzodimma, noting that in that case, the APC presented only two witnesses, and the court ruled that documentary evidence alone was sufficient to prove noncompliance with electoral guidelines.

“We presented three key complaints: non-compliance, over-voting, and incorrect collation of scores. For over-voting, we submitted certified INEC documents proving the discrepancy. It was shocking that the judge expected us to bring 133 individuals from different polling units to testify when the evidence was already before the court.”

He criticised the tribunal for dismissing documents that had already been accepted as exhibits, stating that even INEC did not dispute their authenticity. He added that Section 72(1) of the Electoral Act mandates INEC to record the serial numbers and quantities of sensitive election materials, including ballot papers and BVAS machines, before the election.

He said: “Section 72(1) of the Electoral Act mandates INEC to record the serial numbers and quantities of sensitive election materials, including ballot papers and BVAS machines, before the election.

“In over 300 polling units, this was not done, which should have invalidated the results. Yet, the judge insisted we needed witnesses to verify what was already documented.”

On the issue of incorrect collation, Ifaluyi-Isibor pointed out that INEC allocated thousands of votes to the APC in several polling units without justification. He maintained that the tribunal had the responsibility to examine the evidence and declare the rightful winner.

He said: “BVAS records show the number of accredited voters with corresponding photographs. If official results say 52 people voted in a polling unit, how do we end up with 1,000 votes, with 800 going to the APC? These anomalies were presented to the court, in line with previous rulings by the Court of Appeal and the Supreme Court.”

“PDP pleaded about three cases: One was about non-compliance, the second was over-voting, and the third was an incorrect collation of scores. In the case of over-voting, they tendered documents which are INEC Certified True Copy. These were INEC documents to prove over-voting. We were shocked that the judge wanted us to bring 133 individuals from each polling unit to prove over-voting. How was that to happen when there is documentary evidence, not PDP documents but INEC documents? The court had accepted these documents as exhibits and INEC did not cry foul to her own documents.” (THISDAY: Text, Excluding Headline)