*Why Uduaghan triumphed

By Emma Amaize

THE apprehension that the judgment on the petition by Democratic Peoples Party, DPP, governorship candidate, Chief Great Ovedje Ogboru, which questioned the victory of Peoples Democratic Party, PDP’s Governor Emmanuel Uduaghan in the January 6 re-run poll in  Delta State, generated before the verdict of the  governorship re-run petition  tribunal, headed by Justice Uzoamaka Ogwurike, Monday, July 25, was eye-catching.

Besides the fact that  the venue of the sitting of the tribunal was cordoned off by a combined team of soldiers and policemen, who came  in  armoured tanks, the police also feared that members of the public already seated inside the court, particularly party members, might use their GSM phones to call people outside to start a disturbance, depending on the side that believed it would lose the case.

Out of panic, a female Divisional Police Officer, DPO, who led the team, ordered everybody in court, including lawyers, journalists, politicians and members of the public to surrender their handsets to the police. The instruction provoked a hullabaloo, which was resolved only when the police soft-pedaled and allowed the people to switch off their phones, gathered them together in groups and gave to persons outside the court to keep until after the judgment. Lawyers and journalists, however, switched off their phones and held them back on the agreement that anyone that rang would be impounded.

There was so much anxiety that even before the ruling , there was permutation that the judgment had been sealed and delivered for a particular candidate and there would gnashing of teeth after two or three hours.

Anticipated verdict
However, for somebody who closely followed proceedings at the tribunal, the outcome of the petition, which was dismissed for lack of merit, was not surprising. What has made the atmosphere charged after the judgment is the contention that the tribunal’s laying of the burden of proof on the petitioners, Ogboru and DPP, was off beam, as the Court of Appeal, Benin City, in the case between Udughan and Ogboru, stated clearly the burden of proof lies with INEC/respondents.

Competence of petition
The issue of burden of proof will be discussed in the concluding paragraphs of this report, but suffice it to say that the competence of the petition, which the first and second respondents, Uduaghan and PDP, thought  they had ample ammunition to give Ogboru a nominal knockout, following the July 24 judgment of a Federal High Court, FHC,  sitting in Asaba, which invalidated his nomination  for the 2007 governorship election, and which also gave vent to the January 6 re-run that was being disputed in the re-run tribunal, could avail the respondents when it mattered most.

Justice Ogwurike, in an audacious manner, disregarded the FHC judgment, holding that the tribunal was inaugurated specifically to adjudicate over complaints of improper conduct of the January 6 election, and  that, once the petition had been laid before it, the petitioner would lawfully be heard, as long as he complied with the processes. It ruled that the pronouncement of the FHC and the submission that the tribunal was not competent to adjudicate over the matter could not prevent it from entertaining the petition.

The tribunal went ahead to hold that having participated in the January 6 re-run poll, Ogboru had the right  to bring a petition before it as long as he reasonably suspected that the election was improper or that votes were improperly awarded to his fellow competitor. However, the substantiation of his claim is another thing altogether.

The facts
But looking at the prosecution of the case by the petitioners, there was no way the tribunal would have ruled otherwise. Specifically, the prosecution called witnesses to testify that elections were either not held or was partially and inconclusively held in most polling units and wards of the eight local governments, to wit, Warri North, Warri South West, Warri South, Bomadi, Patani, Ika North East, Isoko South, Ethiope-West, while the petitioners were contesting the results. Some of the highpoints was INEC collation officers being asked, under cross examination, whether any of them specifically conducted election in any polling unit in the areas  they claimed to have supervised. A no answer elicited spur-of-the-moment reaction from opposition members in the court.

A sampler  of  the cross-examination of the INEC collation officer, Mr Aghedo Sunday Okhionkpamwonyi:

You did not personally conduct any election in any of the polling units in your ward?

No, I did not, but I supervised.

You also did not personally accredit any voter?

No, it is the presiding officer

In unit 002, there were 895 accredited voters?

I cannot remember

Total number of votes cast is 897 voters, two votes more than accredited voters?

I have not seen the document

Fire for fire
The same way Ogboru and the  DPP called witnesses to say there was no proper election in the disputed areas was the same manner Uduaghan and the  PDP called witnesses ( party members by both sides), except for the forensic experts, to rebut the testimonies by the prosecution that there was no election in their polling units and wards. They election was said to be  free and fair in the polling units and wards, except in one or two places  where the results were cancelled to the knowledge of party agents due to irregularities.

INEC also brought its  registration area collation officers, RACOs, who further testified that  the election was  conducted by presiding officers in the disputed areas and the results collated by them. The result sheets, ballot papers, voter  register and other electoral materials for the poll were tendered and admitted as exhibits, even though  the categorization was objected to.

It was, nevertheless, accepted because that was the way INEC classified them, submitting that  all ballot papers had serial numbers for each of the polling units, wards and local governments in the state. It further submitted that ballot members meant for a particular polling unit in a ward would not be used in the next polling unit because they were all marked for specific units and wards.
Dangerous forensic reports

If truth be told, the totality of what happened during the proceedings was that while Ogboru and the DPP said the election in the disputed eight local government areas  was fraught with irregularities, Uduaghan and  the PDP said it was  largely  free and fair, while INEC said it conducted free and fair election  and produced the results to substantiate its claim.

The prosecution did go beyond the assertions of its witnesses, which were rebutted by the respondents. As for the forensic experts brought by the parties and their reports, the tribunal considered the various reports ‘unsafe”, as each of them battled to discredit one another in their reports, rendering their reports unreliable, according to the panel, in arriving  at any informed decision.

Duty  of prosecution
The tribunal  sifted the evidence of the prosecution and respondent witnesses in the eight local government areas and analyzed them one by one,  leading  to the conclusion that the respondents rebutted the claims of the petitioners.

The position of the tribunal was that it was not its duty to help the prosecution to prove its case, and that since the ballot papers and other election materials were before the court, it was the petitioners’ duty to lead evidence to prove their  case or  puncture the contention of the respondents.

Yoke on Ogboru’s neck
Accordingly,  the tribunal  held that the burden of proof  lay  on the petitioners, which, unfortunately, they were unable to discharge and, therefore, the petition was dismissed for lack of merit. Ogboru’s prayer that he should be declared  governor  on the  grounds that he scored the majority of valid votes cast in the election was refused because of his inability to prove that he actually won the election. And, consequently, Uduaghan’s return by INEC as the winner of the election was re-affirmed.

Burden of proof
The  main issue arising  from the re-run judgment for which the petitioners have signified their intention of going to the Court of Appeal is the issue of burden of proof, resting on INEC and not on Ogboru and the DPP, as the tribunal held.

The Free Dictionary by Farlex describes it thus: “Burden of proof can define the duty placed upon a party to prove or disprove a disputed fact, or it can define which party bears this burden. In criminal cases, the burden of proof is placed on the prosecution, who must demonstrate that the defendant is guilty before a jury may convict him or her. But in some jurisdiction, the defendant has the burden of establishing the existence of certain facts that give rise to a defense, such as the insanity plea. In civil cases, the plaintiff is normally charged with the burden of proof, but the defendant can be required to establish certain defenses.

“ Burden of proof can also define the burden of persuasion, or the quantum of proof by which the party with the burden of proof must establish or refute a disputed factual issue. In criminal cases, the prosecution must prove the defendant’s guilt beyond a reasonable doubt ”.

Burden of proof is the most important rule of evidence in the trial of civil (not criminal) cases. The burden of proof is on the plaintiff (the party bringing the lawsuit) to show by a “preponderance of evidence” or “weight of evidence” that all the facts necessary to win a judgment are probably true. In a criminal trial, the burden of proof is required of the prosecutor to prove the guilt of the accused is “beyond a reasonable doubt,” a much more difficult hurdle. Unless there is a complete failure to present substantial evidence of a vital fact (usually called an “element of the cause of action”), the ultimate decision as to whether the plaintiff has met his/her burden of proof rests with the jury or the judge if there is no jury.

However, the burden of proof is not always on the plaintiff. In some issues, it may shift to the defendant if he/she raises a factual issue in defense, such as a claim that he/she was not the registered owner of the car that hit the plaintiff; so the defendant must prove his/her claim. If at the close of the plaintiff’s presentation he/she has not presented any evidence on a necessary fact (e.g. any evidence of damage), then the case may be dismissed without the defendant having to put on any evidence.

Justices on burden of proof
In a Supreme Court decision on the case, Godwin Chukwuma vs Federal Republic of Nigeria, Perl. T Muhammed, JSC, noted in standard of proof required for criminal cases that the Supreme Court does not interfere with a concurrent finding of lower courts, stating, “The burden of proof in our adversarial system of criminal justice is for the prosecution to prove its case beyond reasonable doubt. In the process, the requirement of the law is that the prosecution has the duty to prove all the essential elements of an offence as contained in the charge”.

In the case, State vs Femi Oladotun, Per Mukhtar JSC, interpreting the construction of Section 3 of the Robbery and Firearms (special provisions) Act LFN 2004 in respect to the duty of trial court in evaluation of evidence, that is discharge of burden of proof, held, “Evidence adduced in court, that is relevant to the issue in controversy, and has neither been challenged nor successfully debunked becomes good and credible evidence, which ought to be relied upon by a learned trial judge”.

In the case, Omedele Ashabi Eya and Ors vs. Alhaja Risikatu Olopade and anor, a land law case pertaining to the effect of relief in writ of summons not claimed in statement of claim, Per Walter Samuel Nkanu Onnoghen- JSC held, “The law is long settled that a plaintiff must succeed on the strength of his case and not on the weakness of the defence except where the case of the defence supports that of the plaintiff.”

Conclusion
From these  three cases, it is obvious, from the facts placed before the Delta  re-run  tribunal, that the petitioners did not convincingly prove beyond doubt to the panelists, that INEC did not conduct election in the eight local government, it was disputing because the results and ballot papers were brought and the presumption of regularity was not plausibly impugned.  Also, the respondents successfully challenged the evidence of its witnesses that election was improperly conducted.