…dismisses INEC’s opposition to inspection of Card Readers
By Ikechukwu Nnochiri
ABUJA- The Ekiti State Governorship Election Petition Tribunal sitting in Abuja, on Saturday, declined to allow the Peoples Democratic Party, PDP, and its candidate Prof. Kolapo Olusola, recount the ballot papers that were used for the July 14 gubernatorial election in the state.
The three-man panel Tribunal headed by Justice Suleiman Belgore, held that such request lacked merit, even as it accused PDP and Kolapo of “fishing for evidence under the guise of ballot recounting”.
According to Justice Belgore, the two petitioners (PDP and Kolapo), did not in their pleadings, list result from recounted ballot papers from 16 Local Government Areas in Ekiti State, as part of evidence they intended to rely on to prove that Dr. Kayode Fayemi of the All Progressives Congress, APC, was not the bonafide winner of the governorship contest.
“This tribunal can only grant a relief that is supported by pleadings. What the petitioners asked for was not in their pleadings”, the Tribunal held, noting that the petitioners are not challenging results from all the 177 Wards, 2,197 polling units in the 16 LGAs.
“The petitioners complained in 325 polling units, they are not complaining in all the polling units in the state”.
“To pray for recount in all the polling units is to make firm nonsense of the petitioners pleadings”.
“What the petitioners want to introduce cannot be situated in their pleadings. It will spring a surprise on the respondents to respond to it as pleading has closed.
“Pleadings are written statements of parties wherein they state the materials they will rely on in the proceeding”, Justice Belgore held.
He maintained that under section 64 of the Electoral Act, the request must be related to specific polling units in the 16 LGAs that the petitioners alleged malpractice.
Besides, Justice Belgore held that it was wrong for the petitioners to request that the Secretary of the Tribunal should partake in recounting the ballot papers.
“Will that not amount to the Secretary giving evidence for the petitioners?
“How will the Tribunal look if our Secretary is made to enter the witness box to be examined and cross-examined? We will certainly not be comfortable. Will it not amount to the Tribunal getting into the arena?”, Justice Belgore queried.
He held that the result from the ballot recounting would not qualify as a document that was listed ab-initio by the petitioner, in compliance with Paragraph 4(5) of the First Schedule of the Electoral Act, 2010.
The tribunal said the petitioners admitted in their affidavit that the fact and figures sought to be established through the recounting process, was not available at the time the petition was filed.
“Finally and without further rigmarole, we hereby hold that this application is devoid of merit.
“Paragraph 7(II) of the application is a clever ploy to introduce fresh facts. The Secretary of this Tribunal cannot be a party to do what we consider as inappropriate. This application is accordingly dismissed”, the Tribunal held.
Meantime, in a separate ruling, the Tribunal dismissed a motion INEC filed for variation of an order that was made on July 26, which directed it to surrender all the Card Readers that were used for the Ekiti State Governorship election, for inspection.
INEC had through its lawyer, Dr. Onyechi Ikpeazu, SAN, decried that the implication of the order was that the Card Readers would be kept in custody of the Tribunal till conclusion of hearing of the petition.
He argued that it would be impossible for INEC to surrender the Card Reader for that long in view of the fact that they would be used for other impending elections.
More so, the electoral body maintained that the petitioners should have asked for data that were extracted from the Card Readers instead of the machines themselves.
“From the petition, what they are really looking for is data from the Card Reader. That information can be obtained, but not from the Card Reader anymore.
“The machines were configured in a manner where if you press ‘Enter’, the data will be uploaded to the database of INEC. So what they are really seeking for are information in the INEX data base.
“Granting what they are seeking for will mean that the Card Readers cannot be recalibrated for other elections that will hold soon”, INEC’s lawyer contended.
Alternatively, he urged the Tribunal to give a time limit within which the petitioners would be granted access to the Card Readers for inspection.
However, in a 14-paragraghed counter-affidavit, counsel to the petitioners, Mr. Maurice Alabi, argued that INEC’s motion did not fall within any of the five conditions under which an order of the Tribunal could be varied.
“My lords, the only thing they have put up is that they want to use the Card Readers for the conduct of 2019 elections. It is our submission that by the time they will need the Card Readers, we must have finished the inspection.
“We urge this Tribunal to dismiss this application as a deliberate attempt to deprive the petitioners their right to justice”, Alabi submitted.
In its ruling, the Tribunal held that granting INEC’s request would amount to “a radical setting aside of the ruling of July 26”.
The Tribunal said it would in the interest of justice, issue a consequential order to the effect that inspection of polling materials as it relates to the Card Reader Machines by all the parties, must be completed by the end of presentation by each of the parties during the hearing of the petition.
Before it adjourned hearing of the petition till October 17, the Tribunal held that the Petitioners would be allowed to use 14 days to lead their 926 witnesses in evidence, while the Respondents would each take 10 days.
While INEC which is the 1st Respondent, indicated its readiness to call 960 witnesses, APC and its Candidate, Dr. Fayemi, who are the 2nd and 3rd Respondents, said they would call 926 witnesses, respectively.
PDP and its candidate, Prof. Kolapo, are in their petition marked EPT/BKS/GOV/01/18, challenging the declaration of Dr. Fayemi of the APC, as winner of the July 14 governorship election in Ekiti State.
Sequel to the petition, PDP and Kolapo applied for an order directing and permitting recounting of all the ballot papers used in the election.
They equally begged the Tribunal to order that the recounting be done in the presence of two representatives of each of the parties, the Secretary of the Tribunal, security agents and INEC representatives.
It was also their prayer that result of the recounted ballots should be authenticated by the Secretary and tendered before the Tribunal.
Aside Justice Belgore, other members of the election petition panel are Justices Aliyu Baba and Ebiyerin Omukoro.