As Sule Moves to Reclaim Mandate as Nasarawa Gov at Appeal Court…

Igbawase Ukumba writes that Governor Abdullahi Sule  in his bid to reclaim his mandate, has filed a 27 ground of appeal exposing alleged fundamental contradictions in the majority decision of the lower Election Petition Tribunal that sacked him as elected governor of Nasarawa State.

Perhaps, Governor Abdullahi Sule of Nasarawa State is criticising the majority judgment of the Nasarawa State Governorship Election Petition Tribunal for allegedly disregarding the revered principle of judicial precedent in the determination of the petition that challenged his victory at the March 18, 2023 Governorship Election of the state.

On October 2, 2023, the Nasarawa State Governorship Election Petition Tribunal in its judgement ruled in a split decision, with two members of the three-man panel deciding in favour of the Peoples Democratic Party (PDP) candidate, David Ombugadu and consequently sacked Governor Sule.

Delivering the over four-hour judgment virtually, chairman of the tribunal, Justice Ezekiel Ajayi, declared David Ombugadu of the PDP as the lawfully elected governor of Nasarawa State.

The tribunal chairman maintained that the evidence presented by the petitioners indicated that David Ombugadu scored majority of the lawful votes cast during the March 18, 2023 Governorship Election in the state. Ajayi therefore directed the Independent National Electoral Commission (INEC) to issue a Certificate of Return to David Ombugadu of the PDP.

Member three of the Nasarawa State Governorship Election Petition Tribunal, Justice Chiemelie Onaga, on her part, aligned with the verdict of the chairman of the tribunal, adding that the petitioner scored the majority of the lawful votes cast.

In resolving the preliminary objections, the split decision of the tribunal held that the All Progressives Congress’ objections on BVAS Machine/Screenshots tendered by PDP was over-ruled because the BVAS reports were pleaded, relevant and admissible. The tribunal further dismissed the objections and delved into the merits of the petition.

The tribunal agreed with the second Petitioner on all contentions on over voting and votes of political parties in the affected Polling Units were discountenanced and accordingly deducted as prayed by the petitioners. The tribunal also upheld all the contentions of the first and second petitioners.

By a majority decision of two to one, the tribunal upheld the prayers of the petitioners that the votes were indeed inflated, and consequently sacked the incumbent governor, Abdullahi Sule, and consequently affirmed David Ombugadu, first petitioner, as duly elected having polled the majority of lawful votes cast.

There was, however, a dissenting judgement delivered by Justice Ibrahim Mashi, member two of the panel, who dismissed the petition filed by the PDP candidate for lacking in merit. Mashi affirmed that the petitioner had failed to prove his case and therefore upheld the declaration of Governor Abdullahi Sule of the APC as the original winner of the governorship election conducted in the state.

However, when addressing his supporters who turned up at the Government House, Lafia in solidarity with him shortly after the tribunal judgement, Governor Sule detailed his legal team to appeal the ruling of the lower tribunal which had upturned his election.

Governor Sule’s legal team hitherto swinged into action and filed a 27 piquant ground of appeal at the Makurdi Division of the Court of Appeal on October 15, 2023.

Joined in the appeal are David Ombugadu, Peoples Democratic Party (PDP), Independent National Electoral Commission (INEC) and the All Progressive Congress (APC) as 1st, 2nd, 3rd and 4th respondents respectively.

In the Notice of Appeal filed by the governor’s lead Counsel, Chief Wole Olanipekun (SAN), on  October 15, 2023, Governor Sule questioned deductions of his 1,868 votes by the lower tribunal on ground of over voting in some five Polling Units in the absence of any ground in the petition of his opponent in respect of non-compliance with the Electoral Act, 2022.

Sule contended that since the only ground in the petition was that he was not elected by majority of lawful votes, the trial tribunal erred in law, acted without jurisdiction and reached a perverse decision when it deducted 1,868 votes from his scores at the election on the ground of over-voting in Bohar Sarki Polling Unit, Kofar Magaji Gari Angwa Makama Polling Unit, Gadabuke Polling Unit and Ihamkpe (B) Polling Unit and proceeded on that basis to return the petitioners as winners of the election.

He insisted that over-voting was a subset/specie of non-compliance with the Electoral Act which did not form part of the ground of the petition and submitted that even at that, the consequences of over-voting under Section 51(3) of the Electoral Act 2022 was another poll or supplementary election in the affected Polling Units which the petitioners again did not seek any relief for another poll or a supplementary election.

The governor faulted the lower tribunal’s admission of making findings “on the face of the record” predicated albeit wrongly on Section 137 of the Electoral Act 2022 which the trial tribunal erroneously held to have obviated the need for oral testimonies of witnesses from the Polling Units where over-voting was alleged.

Sule contended that the said Section 137 of the Electoral Act does not dispense with the need to call oral evidence in proof of over-voting, moreso when there was no ground in the petition on non-compliance to ground reliance on Section 137 of the electoral Act 2022.

To contradict the majority decision of the trial tribunal, Governor Sule argued that the same majority decision of the trial tribunal which now hide albeit wrongly under Section 137 of the Electoral Act 2022 to deduct his votes on ground that the said provision obviated the need for oral testimonies of witnesses from the Polling Unit to establish over voting, had earlier held in pages 60-61 of its majority judgment while considering some documents tendered by the 1st and 3rd Respondents (INEC and APC) on the compulsion to call oral evidence thus: “The law is that court of law will not permit a party to merely dump documents in the court without calling evidence in support.

“The court is not permitted to go home and interrogate the documents properly in the inner recess of its chamber. This will amount to shopping for evidence thus descending into the arena of the conflict. See ABUBAKAR V. INEC 2020 12 NWLR (PT. 1737) 37 at 130,” Sule refered.

In further exposing the apparent contradictions in the majority decision relating to over-voting, the governor contended that the trial tribunal had also held at page 109 of its majority judgment while expunging the documents tendered by the 1st Respondent that: “The law is that an exhibit tendered from the bar without calling the maker as done in the instant case attracts no probative value because there is no opportunity given to the other party to cross examine the maker for the purpose of tendering (sic) its veracity.

“A court is not allowed to embark on an inquisitorial examination of document outside its court room”.

Governor Sule on these scores, lamented and criticised the lower tribunal of not holding itself bound by its above quoted findings and in consequence, reached a perverse decision in reducing his scores to give his opponent, a win given the fact that the petitioners did not call any eye witness/Polling Unit agents from the affected Polling Units where over-voting was alleged and neither also did the petitioners demonstrated before the trial tribunal the relevant documents, forms EC8As, voters registers and BVAS Machines to link them with the case before the lower tribunal.

The governor also argued that even the BVAS Machines, BVAS Screenshots/reports were produced on the basis of subpoena duces tecum, thereby arriving at its decision upon a voyage on inquisitorial examination of documents that were not demonstrated by their makers in open court.

Worst still, Governor Sule also contended that Exhibits BV1-BV207 held by the trial tribunal to have been tendered in evidence before it and on the basis of which it predicted its decision were not before the court, the petitioners counsel having immediately applied that the BVAS Machines be returned to INEC through the PW7 on the same day, which application was granted and therefore, according to him, “the BVAS Machines were not available to the tribunal for evaluation, ascription of probative value or any utility hence the said BVI-BV207 did not form part of the record of the lower tribunal.

By the same token, Sule argued that while the lower tribunal in its majority judgment wrongly stated that PW8 testified in support of the petitioners’ case in Gadabuke A, PW8 never gave any evidence about Gadabuke A Polling Unit.

The governor insisted that all the Forms EC8As of the Polling Units from where over-voting was alleged showed that there was no over-voting and therefore, the lower tribunal wrongly nullified elections in the affected polling units. He said the trial tribunal misconstrued the Supreme court decision in Oyetola vs INEC which it relied upon and accused the lower majority decision of refusing to be bound by it.

Governor Sule also questioned the trial tribunal’s jurisdictional competence to order the immediate swearing in of PDP’s Ombugadu as Governor of Nasarawa State, as the tribunal not being the final court, lacks the requisite jurisdictional competence to order that the 1st Petitioner before it be immediately sworn in as Governor of Nasarawa State.

According to him, the majority decision of the lower tribunal in declaring the return of PDP’s Ombugadu failed to be bound by the provisions of Section 179 (2)(b) of the 1999 Constitution (As Amended) and Section 66 of the Electoral Act 2022.

He argued that there was no evidence before the lower tribunal demonstrating the percentage of votes scored by Ombugadu before the lower tribunal vis a vis the total votes cast in two-third of the 13 Local Government Areas in Nasarawa State to satisfy the provisions of Section 179(2) of the 1999 Constitution as amended.