According to Justice Badamasi: “The petitioners wanted to be clever by half when they chose to confine themselves to non compliance and in a nutshell they have abandoned their pleadings in respect of corrupt practices and we so hold.
This means that the petitioners did not prove their allegation of corrupt practices beyond reasonable doubt.
What is begging for an answer is that what is the implication to the petitioner’s failure to specifically claim a relief for nullification of the election based on corrupt practices and what is the effect of abandoning their pleadings on the allegation of corrupt practices?
“While it is true that the petitioners have claimed in their alternative plea the nullification of the election for substantial non compliance with the provision of the Electoral Act where non compliance affected the result of the election, this does not take the place of allegation of corrupt practices which the petitioners made a ground in the petition as the two reliefs are materially different.
In the case of Ozoku VS Izoni it said because of the major role reliefs play in judicial process, Counsel must take all the time he has in the world to draft it very carefully, he must not be in a hurry, he has to go over available evidence and regulate the reliefs accordingly.
When the relief does not reflect the cause of action in the available evidence, the court of law will throw out the matter. The absence of a separate relief in the nullification of the election based on corrupt practices is in our view very fatal to the case of the petitioner and we so hold.
By abandoning the pleadings on corrupt practices we are left with no means of separating the pleadings of corrupt practices with the other averrments.
“In order words we cannot see the grounds of corrupt practices in the account. Accordingly, these two issues are hereby resolved against the petitioner”.
Asserting that the petitioners failed to prove the allegation of over voting, the tribunal said;
“ In the case of Nduke Loius VS INEC it was held that over voting can only occur when the total number of votes cast exceeds the total number of registered voters in the polling units. One could vividly see that the emphasis is on the registered voters and not accredited voters. For a petitioner to prove the allegation of over voting he must cross the following hurdles:
One, tender the registered voters in the units he is challenging, Two, ,tender the voters register but in this case none of such was done before the court.
“We had earlier in the course of this judgement held that the petitioners conceded that they have abandoned their pleadings on corrupt practices, that may not be the only pleadings the petitioners abandoned.
A careful assessment of the witnesses called by the petitioners to prove their case, will reveal that the petitioners abandoned their case in a lot of the polling units, wards and Local government having not called witnesses in those areas, notwithstanding tendering to the bar documents relating to such polling units.
“The petitioners did not call witnesses in the following units; In Akoko Edo, all polling units in ward 3& 6, Etsako East, all polling units in ward 3,7&9. Ikpoba Okhai all polling units in ward 2,3&14; Oredo all polling units in ward 2,9& 12; Egor, all polling units of ward 6&10; Orhiomwon all polling units in wards 2, 5,7 & 12; Igueben all polling units in ward 2,5& 10; Owan East all polling units of ward 1,2,3,7&11; Esan all polling units of ward 3,5&8;Etsako Central all polling units of ward 2,3,7,9&10; Esan Central no witness was called in the entire local government.
“It is clear that pleadings without evidence is nonsense.
The petitioners are challenging the elections on the basis of non compliance in 2,627 polling units in the state. they led evidence to prove their case from 92 witnesses, and out of that 92 witnesses, 27 are polling units agents, two witnesses subpoenaed witnesses, while the remaining 63 are all ward collation agents.
Earlier in the course of this judgment we alluded to the fact that by the provision of section 126 of the Evidence Act, oral evidence shall in all cases be direct.
“All the collation agents that testified in this case did not give direct evidence of what transpired in polling units, rather they relied on information from their ward collation agents and stated under cross examination that their polling agents are still alive and can be produced.
We wonder why those polling unit agents were not called by the petitioners? The ward collation agents are not super men to be at different polling units and their wards at the same time.
“A ward collation agent can only give evidence of what happened at collation centers and not at polling units where he did not visit. The polling agents are more competent to testify on what happened in their polling units. The 27 or 29 polling agents that testified before this court were discredited during cross examination.
“Most of these witnesses when confronted with the voters register stated figures that contradicted their depositions and because of that most of them were discredited. Their witnesses did not demonstrate the ability of their documents to their case. It is the duty of the petitioners tendering documents to link them to the relevance of their case.
“From the evidence adduced from this issue, the much talked about absence of accreditation or improper accreditation in relation to ticking either to the left or the right by voters have not been specifically pleaded in any of the polling units.
The petitioners merely dumped the electoral documents on us without taking steps to link them to specific areas thereby rendering the documents valueless as we do not ascribe any value to them”.
On the claim that INEC failed to call witnesses in the course of the trial, the tribunal ruled that they were right not to have called witnesses, explaining that the evidence provided by the witnesses during cross examination were that of INEC.
In the case between Omisore VS Aregbesola, the Supreme Court ruled that failure to call any witness by INEC did not affect the case adversely in any way.
“In other words, by the very act of cross examining the witnesses of the petitioners, it is not in dispute that all the evidence extracted during cross examination of the witnesses are evidence of INEC.
From the above Supreme Court authorities INEC cannot be deemed to have abandoned its pleadings merely because it did not call witnesses. The position of the law is that a party can establish his case through the witnesses of the other party by revisiting evidence under cross examination. Evidence got during cross examination is as good as evidence given during evidence-in-chief.
The argument that INEC did not call witnesses does not hold water at all.
“In the petitioners’ attempt to prove their case of B evidence. The petitioners have not in our view led credible evidence to justify the grounds of their relief.
“On the whole we hold that the petitioners have not by credible evidence proved their case and have failed to show that they are entitled to their reliefs.
Accordingly this petition is hereby dismissed. The return of Godwin Obaseki as governor is hereby upheld” he declared.
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