In other climes, people learn from history. But in Nigeria, it’s history that learns from the people. No matter how unfavourable the precedent is – which should serve to guard against a recurrence – Nigerians will keep doing the same thing, and expecting a different result, as starkly revealed on Wednesday, April 2, 2025, at the Edo Governorship Election Petitions Tribunal (GEPT) in Abuja, Nigeria’s capital city!
Delivering judgment, the three-man tribunal dismissed, in its entirety, the petition by the Peoples Democratic Party (PDP) and its candidate, Dr Asue Ighodalo, challenging the return of Senator Monday Okpebholo of the All Progressives Congress (APC) as winner of the September 21, 2024, governorship election in Edo State.
The Judges noted that the petitioners “dumped” their evidentiary materials on the tribunal, without interrogating them through relevant and credible witnesses, and thus, the tribunal was constrained, as it’s not its duty to open the documents for the petitioners.
Referencing Tanko vs INEC, the tribunal held that section 137 of Evidence Act can’t relieve the petitioners of their duty under the act to interrogate their documents at the tribunal, adding that in view of its nature, the petitioners had an onerous duty to strictly prove their case.
Recall the judgment in the petitions by the presidential candidates of the PDP and Labour Party (LP), former Vice President Atiku Abubakar and ex-Governor Peter Obi of Anambra State, respectively, against the declaration of Senator Bola Tinubu of the APC as the winner of the February 25, 2023, presidential election.
The Appeal Court, which served as the Presidential Election Petitions Tribunal (PEPT), held that the petitioners had dumped exhibits on the court, without demonstrating, via eyewitnesses, their claims to winning the poll, with Atiku, who came second, praying to be declared as the authentic winner, and Obi, despite coming third, claiming he’s the rightful winner of the election.
Stressing that “litigation is fought on pleadings, and parties swim or sink on their pleadings,” the five-member PEPT, led by Justice Haruna Tsammani, unanimously held that Atiku and Obi, as well as other petitioners, failed to substantiate their allegations against the conduct of the election by the Independent National Electoral Commission (INEC).
The justices stated that the documentary and oral evidence presented before them by Atiku and Obi couldn’t prove the claims of irregularities, corrupt practices, non-compliance with the electoral guidelines, and other allegations for which the petitioners had asked the court to void Tinubu’s election.
In their challenge of Okpebholo’s victory, the landmark ruling on the Atiku and Obi petitions – and such other judgments since the return of democracy in Nigeria in 1999 – should’ve served as a guide for Ighodalo/PDP to present eyewitnesses to authenticate their alleged electoral malpractice. But they failed in that regard!
Hence, pointing to the Supreme Court guidelines, which roadmap it says bounds its handling of the electoral dispute, the tribunal emphasised that “oral evidence is required to prove over-voting,” and that the petitioners should’ve called eyewitnesses, who were present at the polling units during the election.
In the petition marked, EPT/ED/GOV/02/2024, the tribunal, comprising of Justices Wilfred Kpochi (Chairman), A.B. Yusuf and A.A. Adewole, held that pw2, pw3, pw4, pw5 and pw7, not being polling unit agents, weren’t competent witnesses, as they were nowhere near the polling units to observe whether there were prior recordings or not.
Besides, the tribunal noted that the result booklets tendered through the bar had nobody, such as the presiding officers, to speak on them, and held that being not the makers, the witnesses that identified the booklets weren’t competent to do so, even as the tribunal said it couldn’t make anything out of some missing pages of the booklets.
Saying the petitioners failed, by way of credible evidence, to establish why the outcome of the election should be set-aside, the tribunal held that the onus rested squarely on the petitioners to prove that the INEC unduly returned Governor Okpebholo, adding that it’s trite law that, “a petitioner must succeed on the strength of their own case and not on the weakness of the defence.”
But that – and misrepresentation of facts – was majorly what Ighodalo/PDP depended upon in their case, as gleaned from their final written address presented by Mr Ken Mozia (SAN), who, among others, claimed that:
• “All the documents we tendered were duly certified by INEC, and they were admitted without objection by the maker (INEC)… The Supreme Court decisions have established that there must be prior recording of sensitive election materials in forms EC25B, which INEC failed to comply with in some polling units.
• “The 2nd respondent (INEC) failed to tender any alternative result sheet nor plead any alternative forms EC25B to challenge or contradict PDP’s CTC documentary evidence of rigging across the disputed 765 polling units in the State.
• “No party (1st, 2nd or 3rd respondents) had impugned the IReV results that the petitioners have tendered… The Supreme Court, in Austin vs INEC, Kennedy vs INEC and Isah & Another vs INEC & Others, has affirmed that results uploaded to INEC’s IReV portal are credible.
• “The law does not require petitioners to challenge results in every polling unit (under dispute) or submit alternative results… Polling unit agents need not testify, as the disputed collation occurred at ward and local government collation centres, where polling unit agents were not present.
• “We plead with the tribunal to holistically consider the petition on several grounds for cumulative effects… Isolating grounds and submitting that such grounds, when taken alone, will not have the cumulative effects that were prayed, and adopting that it is academic, is not true… We urge My Lordships to grant this petition.”
However, in their separate submissions – which virtually aligned with the tribunal findings – counsel for the INEC, Okpebholo and the APC countered Ighodalo/PDP’s presentation, beginning with Chief Kanu Agabi (SAN), INEC’s Counsel:
• “The petitioners are asking to be declared winners despite simultaneously arguing that the election was invalid — two conflicting positions… Your Lordships cannot declare the petitioners as winners of the election on the grounds of their arguments that it is invalid… “Your Lordships cannot annul the election because that is not a relief that they (petitioners) sought.
• “The petitioners have not pleaded alternative results on the basis of which they can be declared the winners… The petitioners have not (even) tendered the results they challenged… The ground of non-compliance raised by petitioners is not accompanied by consequential reliefs.
• “The number of polling unit agents (five) the petitioners called as witnesses represented a negligible number of the polling units (765) the petitioners challenged from the entire polling units (4,519) in Edo State… The polling unit agents all signed the result sheets, a clear sign that the election was organised in accordance with the law…
• “The petition is incompetent, as it does not seek the annulment of the entire election. The grounds (for the petition) are inconsistent with one another and inconsistent with themselves. It renders them defective. On the basis of these, I urge My Lordships to dismiss the petition.”
• Dr Onyechi Ikpeazu (SAN), Okpebholo’s Counsel, said: “The Supreme Court has ruled that proving over-voting requires the Bimodal Verification Authentication System (BVAS) machines. Since the petitioners failed to open any of them and present the BVAS data, their claim of over-voting was unsubstantiated.
• “The petitioners had not provided crucial evidence such as Form EC25D, which records ballot paper serial numbers… Instead, they relied on Form EC25B, which merely documents the quantity of election materials received and returned… The petitioners tendered sensitive material exhibits with missing parts, contrary to the serial numbers they carry for identification.
• “Even with the polling unit records presented by the petitioners, Okpebholo still has a clear lead… This petition is a mere academic exercise. It is frivolous, baseless, unwarranted, irritating, and lacking in merit. I urge My Lords to dismiss it.”
• Chief Emmanuel Ukala (SAN), APC’s Counsel, said: “As per Supreme Court rulings, proving non-compliance requires detailed evidence from polling unit to polling unit, ward to ward, and local government to local government… The petitioners simply dumped documents on the tribunal, instead of proving them.
• The petitioners called only five polling unit agents out of over 4,000 polling units in Edo State, and did not call a single presiding officer for their hearsay evidence… It is clear that the case of the petitioners was not proven. I urge My Lordships to dismiss the petition.”
A day after the September 21, 2024, election, the INEC declared Okpebholo (APC, Edo Central) as the winner, having polled 291,667 votes (51.1%) to defeat Ighodalo, a Lagos-based Lawyer and business tycoon, who got 247,274 votes (43.3%).
Dissatisfied with the outcome, the petitioners approached the tribunal, alleging, among others, over-voting, non-serialisation of electoral materials and INEC’s suppression, falsification and alteration of results across 765 polling units in Edo State, which reportedly deprived Ighodalo victory and the governorship.
In the petition, Ighodalo and the PDP appeared as 1st and 2nd Petitioners, while the INEC, Okpebholo and the APC were the 1st, 2nd and 3rd Respondents, respectively, with the disputants representated by many election petition-tested Senior Advocates of Nigeria (SANs) and junior legal practitioners.
The tribunal, which sat at the National Judicial Institute (NJI), Federal Capital Territory (FCT), Abuja, began its pre-hearing on January 13, and the hearing proper on January 24, 2025, in Benin City, Edo State capital city, before relocating sitting to Abuja on January 28 over alleged security threats posed by armed political thugs.
During the proceedings, which lasted till February 13, the petitioners tendered copious exhibits, pre-loaded and/or presented through the bar; 153 BVAS machines used in 133 of the 765 disputed polling units; and called 19 of 99 witnesses, and closed their case on February 3.
While the 1st respondent (INEC) didn’t present any of the five witnesses it’d pledged, and closed its case on February 6; and the 2nd respondent (Okpebholo) called one of his six witnesses and closed his case on February 10; the 3rd respondent (APC) called four of 28 witnesses, and closed its defence on February 13.
At this juncture, it bears repeating the immortal words of Muhammad JSC, in Olonade vs Sowemimo (2014) LPELR-22914(SC), 27 – in explaining the meaning of the standard of proof in civil cases, (and) the balance of probabilities – that:
“The court decides which side’s evidence is heavier, not by the number of witnesses called by either party or on the basis of the one being oral and the other being documentary, but by the quality or probative value of the evidence be it oral and/or documentary.”
Were the parties to the electoral dispute, especially Ighodalo and the PDP, able to meet the Supreme Court benchmark, as per Justice Muhammad? Definitely, yes by the respondents; but absolutely no, on the part of the petitioners, prompting Justice Kpochi, who, delivered the lead judgment, to declare that the tribunal “found no reason to nullify the outcome of the election” (as prayed by the petitioners), and dismissed the petition as “lacking in merit.”
The tribunal had hardly delivered the judgment when Dr Ighodalo (and PDP) signalled his intention to head to the Appeal Court, to challenge the confirmation of Senator Okpebholo as Governor of Edo State.
It’s Ighodalo’s right to appeal the tribunal verdict, going by the Latin legal maxim, “ubi jus ibi remedium,” which translates into, “Where there is a right, there is a remedy.” Meaning that if a legal right is violated, the law should provide a means for redress or relief to the aggrieved party.
Yet, Ighodalo should take heed that it’s the same evidence adduced, the facts presented, and the arguments marshalled at the tribunal that’ll be laid before the Justices of the Appeal Court, and possibly the Justices of the Supreme Court for a final opinion on the matter.
There’ll be no room for amendments or presentation of fresh or better evidence – as the petitioners attempted but failed at the tribunal – unless in very rare instances, which, nonetheless, will not affect the overall trajectory of the case. So, it’s not looking good proceeding with the appeal. Let’s learn from history!
