The judgment of the Enugu State Governorship Election Petitions Tribunal delivered on Thursday, September 11, 2023, has been trailed by many reactions, especially interpretions and misinterpretions by lawyers and those who are better categorised as social media lawyers. Since after the general elections wherefore the aggrieved parties had gone to the tribunal to challenge the declated results, many individuals have turned themselves into lawyers. Even the lawyers appear to have taken sides in the matter because of partisan or clannish interests that are never disclosed to their bamboozled audience.
This writer was fortunate to have monitored the Enugu governorship election petitions tribunal proceedings from its first day to the day the judgment was dilivered. As an individual who likes seeing justice done irrespective of whose ox is gored, I found out that the election petitions tribunal is guided by stringent rules, election petitions being sui generis or on a class of their own.
Recall that the Independent National Electoral Commission (INEC) had declared Barr. Peter Ndubuisi Mbah as the duly elected governor of Enugu State having scored the majority of the lawful votes cast in the March 18 governorship election. Barr. Chijioke Edeoga, the Labour Party governorship candidate whose issues I shall be treating conjunctively with that of Mbah in this piece, alleged being rigged out by over-voting in some polling units in Udenu, Enugu East and Nkanu East LGAs.
On filing his petition to the tribunal, a man who alleged being rigged out made Mbah’s National Youth Service Corps (NYSC) discharged certificate his first and major prayer to the tribunal, seeking to disqualify the winner on the ground that he was not qualified to contest the Enugu State governorship position. Edeoga, a lawyer concentrated virtually all his energy on pursuing the NYSC certificate submitted to INEC by Mbah, arguing that the said certificate was forged and that he (Mbah) should be disqualified, citing section 182 (i) (j) of the 1999 constitution of the Federal Republic of Nigeria (as amended).
This issue was argued back and forth with the Labour Party calling subpoenaed witnesses while the Respondents called subpoenaed witnesses too, presenting a copy of the judgment of the Federal High Court sitting in Abuja between The Registered Trustees of the Peoples Wellbeing Association v Peter Ndubuisi Mbah wherein the former had approached the court seeking the disqualification of Mbah on the ground of NYSC certificate forgery. On March 8, 2023, Hon. Justice Binta Mohammed in his judgment validated Mbah’s NYSC and further ruled that an NYSC certificate is not a qualification for contesting a governorship election.
It is worth noting that the evidence of the Labour Party subpoenaed witness from INEC, Dimas Emmanuel Friday during cross-examination threw the Labour Party off-balance when he said that though the 2nd Respondent Mbah submitted NYSC certificated to the INEC, the said NYSC certificated was not pleaded in Form EC9 which was the affidavit of the particulars he would be relying upon. He went further to inadvertently give more damaging evidence against the Labour Party when he said that the NYSC certificate in contention was forwarded by the commission to the NYSC headquarters and returned certified.
The tribunal in its judgment was thorough as it critically addressed the issues presented by both parties one after the other.
Regarding the testimonies of the subpoenaed witnesses called by the parties, the tribunal maintained that the testimonies of Abdul Muhammad (PW1) from NYSC, Nneoma Elijah (PW2) from Omas & Partners, Dimas Friday Emmanuel (PW3) from INEC, Victor Ezeokafor (PW30) from INEC, Yahaya Isa Muhammad (DW2) from Department of State Services (DSS) and Victor Udeh (DW3) would all be discountenanced with, as their written statements on oath were not frontloaded/pleaded in their petitions. The tribunal further cited the Supreme Court judgment on Oke v Mimiko (supra) followed by Ogba v Vincent where the court stated that by the combined provisions of section 285 (5) of the 1999 constitution, section 132 (7) of the Electoral Act,2022 and paragraph 4 (5) and (6) and 14 (2) of the first schedule to the Electoral Act, every written statement on oath of the witness which a party intends to call must be filed along with the petition within the time limited by section 285 (5) of the constitution of the Federal Republic of Nigeria 1999 (as amended).
The tribunal, while ruling on the alleged NYSC forged certificate held that going by section 182 (i) (j) with section 318 of the 1999 constitution (as amended) NYSC certificate is not a requirement/qualification to contest for the office of the governor of Enugu State.
The tribunal went further to raise posers, thus; (1) Was the certificate presented by the 2nd Respondent forged? (2) Did the 2nd Respondent present a forged NYSC Certificate in ‘aid of his qualification’? (3) Without the NYSC certificate, is the 2nd Respondent qualified to have contested the election?’’
The tribunal on page 105 of its judgment stated thus; ‘’The case of the petitioners here is that the said NYSC certificate was submitted ‘in aid of the qualification of the 2nd Respondent.’ Assuming there is no issue of forged certificate is the 2nd Respondent qualified to contest the election? The qualification to contest for the office of the Governor in section 318 of the 1999 constitution as highlighted above does not include the NYSC certificate. Section 182 (j) relied upon by the petitioners cannot stand alone but interpreted together with section 318 of the same constitution.’’
They cited the cases of Azubogu v Nwankwo (2023), and Shelim v Gobang (2009) where the Supreme Court held that when several constitutional provisions are being interpreted, there should be a liberal approach, and such an approach often leads to a harmonious interpretation that will tally with reason. In furtherance, Abraham Adesanya v The President of the Federal Republic & Anor (1981), the court ruled that a narrow interpretation of an earlier section of the constitution should not be made in isolation in such a manner that will make a later section moribund….
To further crack the nut, the tribunal made a reference to Exhibit 01/15, which is Form EC9 (Affidavit of particulars of Mbah) where all his educational qualification was filled without NYSC being included. A case was cited in Ogundehin v Olubowale (2016) where Tsammani JCA held that it is settled in law that any document attached to an affidavit but is not so marked as an exhibit should be regarded as an orphan and should never be countenanced.
The implication of this is that the said NYSC certificate having not been referred to in the affidavit is therefore held to be merely attached and therefore of no consequence to the qualification of Peter Mbah.
Forgery, as we all know, is a criminal offence that must be proven with no iota of doubt left. The views of the tribunal in this case were that to prove any case of forgery, the original and the allegedly fake forged certificate must be produced. It is incumbent on the Chijioke Edeoga and Labour Party to provide both the original and fake document as he who alleges must prove. On this ground, the tribunal ruled that the petitioners could not prove their case and thereby struck out the petition as its leg could not stand.
Edeoga, more so in his petition argued that Mbah was not elected by the majority of the votes cast at the election. He went further to allege that the election in some polling units in Igbo-Eze North, Udenu, Nkanu East, and Enugu East were characterized by irregularities.
The tribunal while ruling on this ground cited Mairiga & Anor v Alkali & Ors (2016) where the court ruled that to prove that the opposition did not score the majority of the lawful votes cast at the elections, he is obliged to plead and lead evidence showing the existence of two sets of results emanating from the same election in order to enable the court to compare and contrast the figures so presented in order to arrive at a decision thereon.
On the above issue, the Labour Party and its candidate could not prove the leg of their petition as no two sets of results were provided as evidence before the tribunal.
Despite being unable to tender the documents to prove their case, their petition was sent to the abyss when only four (4) testimonies out of his 30 witnesses presented met the requirements to serve as proper witnesses. The other twenty-six (26) witnesses testimonies of the PW5, PW6, PW7, PW9, PW10, PW12, PW13, PW14, PW15, PW16, PW17, PW18, PW19, PW20, PW21, PW22, PW23, PW24, PW25, PW26, PW28, PW29 and PW30 were discountenanced with respectively by the tribunal on the grounds that the witness state of oath of some of them were not frontloaded/pleaded in their petitions, while some majority of them were not accredited to serve as agents of their party in the elections and finally others testimonies were voided because their testimonies were based on information they gathered from secondary source ‘’hearsay’’ which is not admissible in the court of law.
Take for instance, PW 26, Casmir Agbo who is the Party Chairman was never a polling or ward or Local Government or State agent of the Labour Party and by law not in a position to testify on the result declared as his testimony is based on hearsay from the agents and what he saw in his party’s situation room. The tribunal did not waste time to throw such testimony into the trash can.
The tribunal having looked into all the issues above, resolved them against the petitioners. It further maintained that the petition was lacking in merit and therefore dismissed it, while affirming the declaration and return of Mbah Peter Ndubuisi by the Independent National Electoral Commission (INEC) as the duly elected Governor of Enugu State.
From the arguments and the judgment of the tribunal, one will know that the Labour Party and its candidate, Chijioke Edeoga in conjunction with the petition filed by the Peoples Redemption Party and its governorship candidate which I never bothered to include their case in this piece for a reason best known to me was clear and devoid of any judicial hara-kiri.
Indeed, the law is law and doesn’t pander to the interest of any party but relies on the preponderance of evidence before it while dispensing justice. It is trite that Peter Obi was able to become the governor of Anambra State because he presented a shred of substantial and valid evidence against Chris Ngige, the then incumbent governor of Anambra. The same is applicable to other election cases that were won through the judiciary.
Until we remove sentiment and emotions and look critically into the arguments of the parties and the basis upon which the judiciary decides its cases, we shall continue to excoriate and lampoon the judiciary when ordinarily we were supposed to be holding it in high esteem.
Mike Ebuka Okoro writes from Uzo-Uwani
