The Kogi State Governorship Election Petition Tribunal on 23/05/2020 delivered its judgment in respect of the petition filed by Engr Musa Itayi Wada and his party, the PDP against the return of Governor Yahaya Bello of the APC as the winner of the Kogi State Governorship election of 16/11/2019.

The judgment of the Tribunal was a split decision as 2 of the 3 Justices, who made up the panel delivered the majority judgment, which affirmed INEC’s return of Governor Yahaya Bello as winner of the said election and accordingly dismissed the Wada/PDP’s Petition.

Justice Ohimai Ovbiagele however differed with his brother Judges with respect only to the merit of the petition by delivering a 16-page dissenting judgment.

It is pertinent to point out at the outset that a dissenting judgment, however powerful, learned and articulate, is not the judgment of the court and therefore not binding. Indeed, the judgment of a Court/Tribunal is the majority judgment, which is the binding judgment. Despite the foregoing, the dissenting judgment has been feted by many as legally and factually correct while some have even taken it to be the majority decision of the tribunal.

This write-up seeks to dispel those insinuations. According to the dissenting Judgment, the crux of the petitioners’ case is that while 282,612 ballot papers were reportedly used for the election, the exhibits documents tendered show that 324,745 votes were cast. In addition, it was the evidence of PW19 that 159,957 ballot papers were products of multiple thumbprinting, while 67,297 other votes were plagued by other irregularities.

The Judge believed that these alleged irregularities were captured by the petition and the exhibits, which were tendered through PW1 an INEC staff including the testimony of an Exhibit P185A (Forensic Examiner’s Report) prepared by the ‘Expert’ Prof. Tanko Ishaya.

With regards to PW19’s evidence, the Judge specifically found and held: that PW19 is indeed a well-qualified expert with regards to forensic examination and that Exhibit P184(E) was a Certificate in Forensic Examination; his credibility and professional competence was not impugned under cross examination; he relied solely on the order of the tribunal made on 15/01/2020 to carry out the forensic examination of electoral material; the respondents failed to controvert PW19’s testimony hence its stands unchallenged; PW19 did not work with the petitioners and is thus an independent witness who is not interested and is thus detached from the outcome of the litigation; there is nothing to show that he has any relationship with the petitioners; and he was not paid for the job done.

The Judge further held that based on the evidence of other witnesses, there were tons of corrupt practices, which bedeviled the election and corroborated the evidence of PW19. He consequently found that Governor Yahaya Bello was not duly elected by the majority of the lawful votes cast at the election and therefore found and declared as invalid 257,254 votes cast during the conduct of the election, nullified the election, set aside the certificate of return issued to Yahaya Bello and ordered the conduct of ‘fresh election’ not later than three months from the date of the judgment in the aforesaid seven local government areas of Kogi State.

It has now been settled beyond peradventure that to succeed in a claim that the respondent was not elected by the majority of lawful votes cast, the petitioner must adduce credible evidence that prove that the respondent did not score the majority of lawful votes at the election. The petitioner must plead and prove the votes cast at the various polling units, the votes illegally credited to the declared winner, the votes, which ought to have been deducted from that of the supposed winner in order to find out if it will affect the result of the election.

The petitioner must not only tender the electoral forms used in the election, he must call witnesses, eyewitnesses who witnessed all the alleged irregularities and or crimes, indeed one is not a substitute for the other, they must both be present. The questions which arise is whether Wada did all the foregoing in proof of his allegations.

The petitioners did not discharge the burden of proof placed on them. While they tendered tons of documents majorly through two INEC Staff and PW32, those documents were dumped on the Tribunal without tying them to their case or allowing the few witnesses called to give life to the documents by speaking to them. This in law is indeed fatal.

Furthermore, the petitioners failed to call any credible eyewitnesses from the polling units of the said 7 LGAs. From PW19’s testimony and report, it is clear that he was nowhere near Kogi State on 16/11/2019 when elections were held, he is therefore not an eyewitness capable of discharging the burden of proving the allegations made in respect of the 7 local government areas. The foregoing notwithstanding, was PW19’s evidence indeed credible and unchallenged to warrant a reliance thereon by the Honourable Judge? The answer to this, it is submitted is NO! Some of the reasons are stated as follows: Prof. Tanko does not have and did not present a degree certificate in forensic examination or science. He admitted this under cross examination. Exhibit 184, which the Judge relied on in describing PW19 an expert is a professional membership certificate, not a certificate of proficiency in forensic examination. From the report and oral testimony, the job he did primarily is the examination of finger impressions or fingerprints pattern as it relates to multiple thumbprinting of ballot papers. It is submitted that this is the work of a dactylographer.

PW19 himself admitted under cross examination thus: “I do know who a dactylographer is. He is a person who carries a forensic examination of fingerprint impressions. My certificates do not show that I am a dactylographer.” PW19 thus have no expertise/capability/or proficiency to carry out forensic examination of fingerprint impressions. On the independence and credibility of Professor Tanko, the Judge ignored the evidence on record before the Tribunal.

While PW19 gave the impression and stated under cross examination that he ‘relied on the order of this Tribunal to do this job’, paragraph 2.1, page 9 of his Report contradicted his testimony before the Tribunal thus: The Forensic team arrived Lokoja on the 5th January 2020 to commence work on Monday 6th January 2020. The team reported to INEC Office Lokoja, Kogi State on Monday 6th January 2020, but could not commence the exercise until Friday 10th January 2020. It follows from all the above that Prof. Tanko’s Report ought not to have been admissible in evidence not alone relied upon by the learned Judge as his report was made in anticipation or during litigation by a person interested in the outcome of the Petition. 7.

While Justice Ovbiagele harped on the ‘failure’ of the respondents to refute PW19’s testimony or call their own rebuttal evidence, the myriad of contradictions and the worthlessness of PW19’s testimony and report highlighted above show that there was indeed no need for the Respondents to have called any further evidence. In an obvious mathematical error, Justice Ovbiagele wrongly arrived at 257, 254 votes which he invalidated at page 16 of his dissenting judgment. That figure with respect is not borne out by the pleadings of the petitioners or the evidence led at trial including the Expert’s Report, which he purportedly relied upon.

Finally, all the pieces of evidence upon which the Judge sought to corroborate or support the evidence of PW19 with in arriving at his decision were neither credible nor cogent evidence, e.g., the death certificate of the two alleged dead voters were not provided to confirm cause of death; the video of the helicopter tendered did not show the helicopter doing anything else than flying, what more, it was never said that the 2nd and 3rd Respondents flew the Helicopter.

It is respectfully submitted from all the above, the dissenting judgment of Justice Ovbiagele is indeed not rooted in factual or legal basis.

Felix Are Esq., wrote from Lokoja.

The views expressed in this post are those of the author and in no way reflect those of Nigerian Diary