By Innocent Anaba

The appeal filed by the Democratic People’s Party, DPP and its governorship candidate, Chief Great Ogboru to the judgment of the Delta State Governorship Election Tribunal’s judgment which upheld the election of Dr. Emmanuel Uduaghan of the Peoples Democratic Party, PDP in the January 6, 2011 gubernatorial re-run election may have further put the judiciary on the spotlight. It is also reflective of the determination of the DPP candidate to wrest favouable judgment.

It will be recalled that the Independent National Electoral Commission INEC, had declared Uduaghan winner of the January 6, 2011 re-run Delta State Governorship Election with 275,253 votes as against Ogboru’s   138,244 votes.

In his petition, Ogboru asked the tribunal to hold that he won the majority of lawful votes in the re-run elections which took place on January 6, 2011. Specifically, he claimed that he polled more votes than Uduaghan during the election and further argued that election did not take place in some local government areas and wards or that the voting exercise was marred with violence.
He called several witnesses to support his case. They all testified that elections did not take place or that the voting was not conclusive.

In reply, PDP and Uduaghan called witnesses to prove that elections actually took place in the same local government areas where Ogboru had contended that elections did not take place. INEC also called its electoral officers who served in the areas where Ogboru said there was no election.

Before going into the merit or otherwise of the substantive petition, the tribunal first dealt with the preliminary objection filed by the PDP and Uduaghan. The objection included but not limited to the issue of waiver. PDP argued that since Ogboru had participated in the April 2011 general elections, he had waived his right to challenge the January 6, 2011 re-run elections.

They also said that the petition had become spent due to the fact that the Electoral Act 2006 under which the petition was based, having been repealed by the Electoral Act 2010. They asked the tribunal to dismiss the petition on the ground that it was incompetent.

Responding, Ogboru and DPP said the petition was competent and that the tribunal had the jurisdiction to entertain it. They argued that the fact that the petitioners participated in the April general elections did not mean that they had waived their right to challenge the result of the re-run. They asked the court to hold that the petition was not an abuse of the process of the court.

In holding that the petition was competent, Justice U.D. Ogwurike who delivered the judgment of the tribunal said: “Taking into consideration the reliefs sought by the petitioners in this case, the petition cannot be said to be an academic exercise. Also the fact that the petitioners signified their intention to participate  in the 16th April, 2011, Delta State Governorship election does not derogate from the right to seek the remedy already pending in court in the instant petition and not withdrawn by the petitioners.”

After dismissing the petition, the tribunal then considered the main issue to wit: whether it is the petitioners or Uduaghan and PDP that scored the majority of lawful votes cast at the governorship re-run election of January 6, 2011 for Delta State and fulfilled the requirements of the Electoral Act 2010 and the 1999 constitution as amended, for the return at the election.

In proceeding to determine this issue, the tribunal identified three bases for seeking to set aside the declaration of Uduaghan as the winner of the re-run election. They are:  (1) that elements of due process were absent in Warrri North, parts of Warri South, parts of Warri South/West, parts of Bomadi, parts of Ethiope West, Ika North East, parts of Patani and parts of Isoko South Local Government Areas. (2) the petitioners further claimed some of the scores recorded in the aforementioned local government areas were not lawful or valid votes in that no election was conducted and therefore (3) the 1st Respondent (Uduaghan) was not duly elected by majority of lawful votes cast at the election.

The petitioners alleged that there were irregularities and noncompliance with the extant law and invited the tribunal to deduct the votes scored from the local government areas listed above. If that is done, he should be declared winner of the election.

The tribunal asked the question, on who does the burden of proof lie in civil cases including election petitions? It referred to Section 135(1) and (2) of the Evidence Act which provides thus: “135(1) whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exit.

(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.”

The tribunal noted that in elections petitions, the law placed the initial burden of proof on the petitioner and that the balance of proof is that of balance of probabilities. It further noted that in by where there was allegation that there were allegations that there were no voting materials, no INEC officials to supervise the voting and that no voting took place in some local government areas, the petitioner had the burden  and must prove that allegation by calling at least a registered voter from each of the polling units in each ward in the respective local government areas to show that he could not vote in the said polling unit as there were no voting materials or INEC officials to preside over the voting.

It held that in the instant petition, the burden was on the petitioners to substantiate their allegations. The petitioners alleged malpractice and non compliance in eight councils. In reply, the respondents denied the allegation. The Respondents called oral evidence and tendered relevant documents such as Form EC8 to rebut the petitioners’ allegations. The reports of the expert witnesses called by the petitioners were also discredited by the experts called by the Respondents. The tribunal consequently concluded that the experts’ reports from both parties could not be relied upon because they were unreliable.

It then considered the case of the petitioner local government by local government. Some of the witnesses, who had deposed to affidavit that elections did not take place in certain wards, admitted in cross-examination that they were not at the particular polling booths.

For instance, the tribunal held thus in respect of Ika North East Local Government: “In respect of Ika North East Local Government Area, which is one of the 8 local government areas being challenged by the petitioners did inform the tribunal that election was not conducted in the said local government area. It is trite law that any averment upon which no evidence is adduced is deemed abandoned.”

Even though the petitioners failed to adduce evidence to support their case, the respondents tendered Form EC8A and other exhibits including ballot papers to prove that election was conducted in Ika North East council.

Before dismissing the petition, the tribunal observed thus: “It is clear from the above that the respondents unlike the petitioners supported their case with both oral and documentary evidence. This makes their case more reliable than that of the petitioners.”

The tribunal has no difficulty in holding that the re-run election of January 6, 2011 was conducted by INEC in substantial compliance with the provisions of the Electoral Act 2010 and the 1999 Constitution as amended.

It further held that the petitioners were not entitled to any relief sought and that the petitioners did not score the highest number of lawful votes or a quarter of the lawful votes cast in two-third of local government areas of Delta State for their return at the election and accordingly dismissed the petition.

The appeal system is designed for anyone who is dissatisfied with the judgment of a lower court.