EBOJELE AKHERE PATRICK, Benin
The Independent National Electoral Commission (INEC), yesterday, defended its decision not to call any witnesses at the Edo Election Petition Tribunal, noting that the burden of proof never shifted from the petitioners to the respondents.This was as the Tribunal sat on Monday at the Edo State High Court along Sapele Road in Benin City to hear the final arguments of both the petitioners and the respondents.
Citing the case of CPC vs INEC at the Supreme Court, Counsel to INEC, Mr. Onyebuchi Ikpeazu said, “The Supreme Court was categorical that where, in an election petition, there are allegations of non-compliance and irregularities among others, the petitioners must, prima facie, establish their case. Where they fail to, the respondents will not even be called upon to give any evidence and that is exactly where we are now”.
It would be recalled that the electoral body had declared Mr Godwin Obaseki as the winner of the September 28, 2016 gubernatorial election in Edo. The People’s Democratic Party (PDP) and its candidate, Pastor Osagie Ize-Iyamu had however drawn up a petition to challenge the result, calling up INEC, Governor Obaseki, and the All Progressives Congress (APC) as the first, second and third respondents respectively.
On its decision not to call any witness, INEC’s Counsel, Mr. Onyebuchi Ikpeazu said, “My Lords, we must draw a distinction between not calling evidence and not calling a witness. My Lords, if a party cross-examines, he has elicited evidence, and we have cited the cases on that point.
Where a party, as in this case, whose documents are tendered in evidence, that constitutes evidence with respect to the content of such documents. In this case, the petitioners themselves had tendered polling unit results and those results are presumed valid and authentic until the contrary is established. That being the case, it means that the first respondent called evidence with respect to every polling unit whose results are now before my Lords and that is the position of the Supreme Court”.
Meanwhile, he also noted that PDP only dumped documents on the tribunal without producing competent evidence and so there was no basis for the burden to shift and that if the judges considered that position, it was immaterial whether first respondent called a witness.
On another note, he explained that the only way the petitioners could prove over-voting was to tender the voters’ register and the ballot papers, and the latter should be recounted with evidence of results of counting the ballot papers.
“In this case, there are no ballot papers before my Lords. All documents produced in Court were not admitted as exhibits and cannot be documents before the court.
Normally, it is only when a document is admitted in evidence that anything can be done with respect to that document. So, when a party elects to bring papers and starts counting papers, that entire exercise is extraneous to the business of this court. The petitioners have no evidence to substantiate and they did not tie them to their pleadings. They now invented tables, invented scores that were even contradictory to the figures and tables they set out to pursue in their petition”, he said.
He said that the petitioners were seeking to rely on figures that were not before the court, which contradicted both the evidence and their pleadings. Therefore, the table in their address, which could not constitute evidence, contradicted both the pleadings and the evidence they led.
Concluding this argument, he elucidated that, “The Supreme Court has described this as a compound conflict which can resolve in nothing other than the destruction of the case pleaded. They have, by their invention, destroyed the case they pleaded by abandoning both their pleadings and the evidence they led in favour of their computation, their conjecture not borne out of evidence. I urge your Lordships on that basis to dismiss the petitioners’ case”.
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