The Independent National Electoral Commission (INEC), on Monday, prayed the Kogi Governorship Election Petitions Tribunal sitting in Abuja to dismiss a petition filed by the Social Democratic Party (SDP) and its candidate, Murtala Ajaka, against the victory of Governor Usman Ododo.
Ododo and his party, the All Progressives Congress (APC), also told the three-member panel of Justices, headed by Justice Ado Birnin-Kudu, to dismiss the petition in its entirety for being incompetent and lacking in merit.
The trio, through their lawyers – Chief Kanu Agabi, Joseph Daudu and Emmanuel Ukala – stated this position while adopting their final written addresses and presenting their arguments against SDP and Ajaka’s petition.
However, Ajaka’s lawyer, Pius Akubo, urged the tribunal to discountenance the respondents’ submissions and uphold their petition.
The tribunal, after listening to all the parties in the petition, reserved the matter for judgement.
Ajaka had challenged Ododo’s victory in the November 11, 2023 Kogi governorship poll.
In the petition, INEC, Ododo and APC are listed as 1st, 2nd and 3rd respondents respectively.
The tribunal had, on April 25, fixed Monday for adoption of final written addresses after parties closed their case in the matter.
Upon resumed hearing, INEC’s counsel, Agabi told the court that their final written address was dated and filed on May 2.
He said the commission’s reply on point of law was dated May 8 and filed May 9.
While adopting the processes, the lawyer submitted that the petition lacked merit and was incompetent, urging the court to strike it out or dismiss it.
“It is our humble submission that your work in the determination of this petition is simplified in recent judgements by the Court of Appeal and Supreme Court,” he said.
He argued that the Appeal Court had decided that if the grounds of a petition are inconsistent with one another, and are not consistent with the reliefs, it should be struck out.
He also argued that the evidence of the petitioners were grossly insufficient, citing a Supreme Court decision in a case by Tonye Cole against INEC.
“It is to the effect that once the evidence called is grossly insufficient, there is no evidence.
“In that case, the petitioner filed 305 witness depositions but only adopted 40 of them.
“The petitioner, according to the decision, only adopted about 13.1 per cent of the witness depositions.
“In this case, the depositions adopted represent just about 3.6 per cent of their witness depositions,” he said.
He said the petitioners only called 25 witnesses out of the scores listed.
Agabi said that in a mathematical calculation of evidence, 3.6 per cent of Ajaka’s witness deposition adopted in the petition amounted to a failure and, therefore, ought to be dismissed.
The lawyer also described the case as “frivolous”.
He said the petitioners equally failed to file the witness deposition before hand in contravention of the Supreme Court’s decision in Obungado’s case.
He argued that the petitioners’ witness, who testified about the Bimodal Voter Accreditation System (BVAS) machines, clearly stated that he could not guarantee whether those were the BVAS used.
Besides, he said the witness was not the maker of the inputs in the BVAS machines.
“Also, the evidence contained in the BVAS machines fell short of what is required of the law,” he added.
Agabi further argued that the BVAS machine was tendered against Section 84 of the Evidence Act, as there was no certificate of trustworthiness attached alongside it as required by the law.
He argued that out of the 25 witnesses called by the petitioners, there was no single polling unit agent among them.
“In other words, not a single person who observed the election was called.
“Besides, the star witness could not distinguish between what he heard and what he saw when questions were put to him,” he said.
The senior lawyer prayed the tribunal to strike out or dismiss the petition for being incompetent.
While adopting his final written address dated and filed on May 1, Daudu, who appeared for Ododo, urged the tribunal to dismiss the petition in its entirety.
Adumbrating, he argued that the petition was statute barred (filed out of time).
The senior lawyer said that though the petitioners responded to their submission that “when it comes to filing, it is what the secretary of the tribunal says that determines the date of filing,” he, however, argued that the action of the petitioners was against Section 122(1) and (2)(a) of the Evidence Act, which empowers the tribunal to take judicial notice of this.
But Akubo objected to Daudu’s citing of the section, describing it as fresh argument.
Daudu, in response, disagreed with Akubo that he was raising fresh issues after a final written address had been filed.
“You cannot shut me out from making my comment. You cannot because you don’t have the power to do so,” he said.
He said if the court found merit in his argument, Akubo had the right to respond because it bordered on issues of remittal procedure.
He also urged the tribunal to dismiss the allegations of forgery against his client, saying it bordered on pre-election matter, which the apex court had decided in Gbagi’s case against INEC.
Daudu also argued that Section 137 of the Electoral Act cited by the petitioners on allegations of over-voting did not apply in the instant petition.
Also backing Daudu’s submission, Ukala, who represented APC, urged the court to dismiss the petition for lacking in merit.
The lawyer, who said their final written address, dated April 30 was filed same date, adopted all the processes.
The petitioners’ lawyer, Akubo, told the tribunal that their final written address was dated and filed May 6.
He disagreed with Daudu that their petition was filed out of time.
He argued that the respondents themselves confirmed that the petition was filed on December 2, 2023, even by their own witness.
“I urge your lordship to hold that we filed this petition within time under our law,” he said.
After taking the arguments, Justice Birnin-Kudu reserved judgement in the petition.
“The date will be communicated to both parties,” he said.
