An appeal to stop the successive suits trailing the Ekiti governorship elections since 2007.
“Courts act on credible and cogent evidence as against evidence that is wobbly and incapable of being believed”. With these words the Governorship and Legislative Houses Election Tribunal holden at Ado Ekiti, Capital of Ekiti State recently dismissed the petition of Dr. John Olukayode Fayemi, the governorship candidate of Action Congress (A.C) in the supplemental elections held on the 25th of April 2009 against Governor Segun Oni of Peoples Democratic Party (P.D.P).

It may be recalled that the Independent National Electoral Commission (I.N.E.C) had in the original polls conducted on the 14th of April 2007 declared Engineer Segun Oni the winner. Dr. Fayemi challenged the victory in the state election petition tribunal and lost.

Thereupon he appealed to the Court of Appeal which in a judgment delivered on the 17th of February 2009 ordered a re-run of the elections in the various units and wards in 10 Local Government areas contested by the petitioner/appellant Dr. Fayemi within 90 days. After the supplementary/re-run elections held on the 25th of April 2009, and 5th of May INEC declared Governor Segun Oni winner and Dr. Fayemi returned to the tribunal, yet again in the present suit.

The first issue for determination was whether the supplementary elections purportedly held on the 25th of April 2009 at Ifako ward 1 and 2, Usi ward, Orin/Ora ward of Ido/Osi Local Government Area, and Ipoti ward A and B of Ijero Local Government Area should not be nullified for corrupt practices and non-compliance with the provisions of the Electoral Act 2006, and the manual or election made thereunder.

After reviewing the evidence led by the parties the Tribunal held that the respondents produced form EC8A for the various units, the collected results in form EC8B and EC8C. Further it found that since the petitioner alleged that there was no accreditation and consequently the votes scored in the result sheets produced are concocted, manipulated and or manufactured, the onus was on the petitioner to produce the voters register, failing which it will be safely presumed as argued that the results were a product of lawful elections.

Indeed, the learned writers of the authoritative and leading work, Laws Governing Elections and Election Petitions (2007) Bon Nwakanma (SAN) and Ngozi Olehi (Esq) at page 409 citing section 135 (1) of the Evidence Act adumbrated the importance of burden of proof in election petition matters thus, “If a party on whom the burden lies is unable to discharge same, he may lose the case on this ground”.

In Osawara v. Eziruka (1978) 6-7 S.C. 135 at 145, the Supreme Court held that the burden of proof lies on one who alleges and not on him who denies as provided in sections 135 – 137 of the Evidence Act.

The third issue which the tribunal proceeded to resolve before coming to the second issue was whether the petitioner proved any act of dereliction of duty against the 7th and 8th respondents (i.e.) the Nigerian Police Force and the Inspector General of Police. The tribunal in the absence of any convincing evidence found no difficulty in resolving the matter in favour of the 7th and 8th respondents.

Finally on the second issue the tribunal was called upon to determine whether Dr. Fayemi ought to be returned as duly elected Governor of Ekiti State having regards to the lawful votes cast at the supplementary election held on 25th April and 5th May 2009 and the lawful votes already validated and certified by the court of Appeal judgment in case no CA/IL/EP/GOV/25/2008 between Dr. Fayemi v. Engineer Oni and was delivered on the 17th of February 2008.

The tribunal now went ahead to carefully compute the lawful result scored by the two parties in the three conducted elections. And came to the conclusion that Dr. Fayemi scored 106, 868 votes while Governor Oni scored 109, 335 votes.

It now concluded thus, “From all the deductions made so far, it can be seen that though the petitioners have proved incidences of non-compliance as pin-pointed under issue one, the non-compliance were not substantial enough to alter the declaration of the 1st respondent as winner of the election. The consequence is that this petition fails and is hereby dismissed.”

In Buhari v. Obasanjo (2005) All F.W.L.R (part 273)1, the petitioners/appellants raised among other things the issue of non-compliance with section 67(3) of the Electoral Act. In disagreeing with the contention, the Supreme Court, per Belgore J.S.C. (as he there was) further held; “Election and its victory, is like soccer and goals scored. The petitioner must not only show substantial non-compliance but also the figures (i.e.) votes, that the non-compliance attracted or omitted.

The elementary evidential burden of “The person asserting must prove” has not derogated from section 135 (1): the petitioners must not only assert but must satisfy the court that the non-compliance has now affected the elections result to justify nullification. See also Awolowo v. Shagari (1979) All N.L.R. 120 at 161, Akinfosile v. Ijose (1960) F.S.C. 192 at 199.

Against this background it becomes pertinent to observe that these multiplicity of law suits does no good either to both parties or even the people of Ekiti State. Given that the elections were closely contested, yet only one person can emerge the winner at a time. The loser must show maturity and wait for another day at the polls. In Ghana president Attah Mills and his party were defeated by former president Kuffour’s party at the elections. He waited patiently and worked hard to win the polls several years later.

In Ekiti, these persistent battles in court are a distraction to the governor of the state who ought to focus all his attention at delivering the dividends of democracy to the people of the state. His giant strides in health, education, rural development provision of infrastructure would gain the needed acceleration if he is allowed the conducive environment to operate.

On the converse, Dr. Fayemi and the Action Congress could do well to focus their attention on the 2011 House of Assembly, House of Representatives and Senatorial Elections. By their own action the governorship elections which would have held next year 2010 would now have to wait till 2013! This would give Governor Segun Oni more time to carry out more programmes that would endear him to the people of the state and make his unseating in a future election more difficult. In the final analysis these unending law suits would serve no useful purpose other than become perhaps the sword of Damocles!

*Njoku, a learned author is a Lagos-based lawyer.