By Ehichioya Ezomon
As the three-man Election Petitions Tribunal (EPT) reserved judgment in the petitions against the declaration of Senator Monday Okpebholo of the All Progressives Congress (APC) as winner of the September 21, 2024, governorship election in Edo State, we’re reminded, as per Muhammad JSC, in Olonade vs Sowemimo (2014) LPELR-22914(SC), 27 – in explaining the meaning of the standard of proof in civil cases, (and) the balance of probabilities – that:
“The court decides which side’s evidence is heavier, not by the number of witnesses called by either party or on the basis of the one being oral and the other being documentary, but by the quality or probative value of the evidence be it oral and/or documentary.”
Were the parties to the electoral dispute, especially the Peoples Democratic Party (PDP), whose candidate, Dr Asue Ighodalo, came second at the poll, able to meet the Supreme Court benchmark referenced by Justice Muhammad? The people of Edo State and Nigerians in general wait anxiously and expectantly for the tribunal to answer that poser in its crucial judicial pronouncement.
While Dr Ighodalo and the PDP are the 1st and 2nd Petitioners, accordingly; the Independent National Electoral Commission (INEC), Governor Okpebholo and the APC are the 1st, 2nd and 3rd Respondents, respectively, with the disputants representated by many election petition-tested Senior Advocates of Nigeria (SANs) and junior legal practitioners.
On Monday, March 3, 2025, Justices Wilfred Kpochi (Chairman), A.B. Yusuf and A.A. Adewole, presided over the tribunal’s concluding proceeding for adoption of the final written addresses by parties to the dispute, which centres on the petition marked, EPT/ED/GOV/02/2024, filed by Ighodalo and the PDP.
The tribunal, which sits at the National Judicial Institute (NJI), Federal Capital Territory (FCT), Abuja, granted the Respondents 15 minutes each to defend their final written addresses, while the Petitioners were given 30 minutes to argue their case “in what became a heated legal battle.” Thereafter, the tribunal reserved judgment to a future date to be communicated to the Petitioners and Respondents.
The following quotes summarise the presentations of counsel for the Respondents and Petitioners, and how the tribunal arrived at the adoption of the final written addresses:
- Chief Kanu Agabi (SAN), INEC’s Counsel:
“The petitioners are asking to be declared winners despite simultaneously arguing that the election was invalid — two conflicting positions… Your Lordships cannot declare the petitioners as winners of the election on the grounds of their arguments that it is invalid… “Your Lordships cannot annul the election because that is not a relief that they (petitioners) sought.
“The case of the petitioners was founded on analyses undertaken by consultants… The petitioners have not pleaded alternative results on the basis of which they can be declared the winners… The petitioners have not tendered the results they challenged… The ground of non-compliance raised by petitioners is not accompanied by consequential reliefs.
“The number of polling unit agents (five) the petitioners called as witnesses represented a negligible number of the polling units (765) the petitioners challenged from the entire polling units (4,519) in Edo State… The polling unit agents all signed the result sheets, a clear sign that the election was organised in accordance with the law… The witnesses did not distinguish between what they heard and what they saw… They failed to prove over-voting.
“The petition is incompetent, as it does not seek the annulment of the entire election. The grounds (for the petition) are inconsistent with one another and inconsistent with themselves. It renders them defective. On the basis of these, I urge My Lordships to dismiss the petition.” - Dr Onyechi Ikpeazu (SAN), Governor Okpebholo’s Counsel:
“The Supreme Court has ruled that proving over-voting requires the Bimodal Verification Authentication System (BVAS) machines. Since the petitioners failed to present BVAS data, their claim of over-voting was unsubstantiated… The petitioners had not provided crucial evidence such as Form EC25D, which records ballot paper serial numbers… Instead, they relied on Form EC25B, which merely documents the quantity of election materials received and returned.
“The petitioners tendered sensitive material exhibits with missing parts, contrary to the serial numbers they carry for identification, and tendering BVAS machines without opening any of them to prove their allegation of over-voting… Even with the polling unit records presented by the petitioners, Okpebholo still has a clear lead… This petition is a mere academic exercise. It is frivolous, baseless, unwarranted, irritating, and lacking in merit. I urge My Lords to dismiss it.” - Chief Emmanuel Ukala (SAN), APC’s Counsel:
“As per Supreme Court rulings, proving non-compliance requires detailed evidence from polling unit to polling unit, ward to ward, and local government to local government… The petitioners simply dumped documents on the tribunal, instead of proving them, after calling only five polling unit agents out of over 4,000 polling units in Edo State, and calling no single presiding officer for their hearsay evidence… (Citing Ucha vs Elechi and Baba vs INEC, as the position of the law in spite of Section 137 of the Electoral Act, Ukala said)… It is clear that the case of the petitioners was not proven. I urge My Lordships to dismiss the petition.” - Mr Ken Mozia (SAN), PDP/Ighodalo’s Counsel:
“Of the 4,519 polling units in Edo State, irregularities were identified in 765 — enough to invalidate the election results… The PDP, in its petition, only challenged 765 polling units with complaints of multiple incidents of over-voting, non-serialisation of ballots, and incorrect computation of results, which altered the victory of Dr. Asue Ighodalo.
“The 2nd respondent (INEC) failed to tender any alternative result sheet nor plead any alternative forms EC25B to challenge or contradict PDP’s CTC documentary evidence of rigging across the disputed 765 polling units in the State… All the documents we tendered were duly certified by INEC, and they were admitted without objection by the maker (INEC).
“The Supreme Court decisions in Uzodinma vs Ihedioha; Kennedy vs INEC; Johnson vs INEC; and Lawal vs Matawalle, etc., established that there must be prior recording of sensitive election materials in forms EC25B, which INEC failed to comply with in some polling units.
“The law does not require petitioners to challenge results in every polling unit or submit alternative results… All tendered documents were certified by INEC and admitted without objection… Polling unit agents need not testify, as the disputed collation occurred at ward and local government collation centres, where polling unit agents were not present.
“The petitioners disagreed with collation at ward and local government levels… I plead with the tribunal to holistically consider the petition on several grounds for cumulative effects… Isolating grounds and submitting that such grounds, when taken alone, will not have the cumulative effects that were prayed, and adopting that it is academic, is not true.
“The iRev results that the petitioners have tendered, no party had impugned the results… The Supreme Court in Austin vs INEC, Kennedy vs INEC and Isah & Another vs INEC & Others, has affirmed that results uploaded to INEC’s IReV portal are credible… We urge My Lordships to grant this petition.”
PDP/Ighodalo and five other political parties (six initially but one withdrew midway) have queried the declaration by the Independent National Electoral Commission (INEC) that Okpebholo (APC, Edo Central) won the election, with 291,667 votes (about 51.1%) to defeat Ighodalo, a Lagos-based Lawyer and business tycoon, who polled 247,274 votes (about 43.3%).
Specifically, PDP/Ighodalo filed petitions at the tribunal, alleging, among others, multiple incidents of over-voting, non-serialisation of electoral materials and INEC’s suppression, falsification and alteration of results across 765 polling units in Edo State, which reportedly deprived Ighodalo victory and the governorship.
The tribunal, which began its pre-hearing on January 13, and the hearing proper on January 24, 2025, in Benin City, Edo State capital city, relocated sitting to the FCT, Abuja, on January 28 over alleged security threats posed by armed political thugs.
During the proceedings, PDP/Ighodalo presented 19 of 99 witnesses to testify for them, and they spoke to their statements on oath, and the evidence presented as a true reflection of the poll in favour of the Petitioners, and called for justice to be done. The Petitioners closed their case on February 3.
While the 1st Respondent (INEC) didn’t present any of the five witnesses it’d pledged, and closed its case on February 6; and the 2nd Respondent (Okpebholo) called one of his six witnesses and closed his case on February 10; the 3rd Respondent (APC) called four of 28 witnesses to testify for it before closing its defence on February 13.
Prior to ending the hearing, a mild drama ensued, as a counsel for the Respondents (INEC, Okpebholo and APC), Chief Ferdinard Orbih (SAN), explained APC’s closure of its defence without calling the pledged 24 additional witnesses, even as he expressed confidence in the strong legal defence mounted for the poll victory of Governor Okpebholo.
Orbih said: “Yesterday (Wednesday, February 13), we promised that we will exchange our schedule of documents today in order to make for a seamless presentation of our witness testimony. My Lord, I am sorry to say the documents we were expecting did not arrive.
“However, we have done a further comprehensive review of the evidence led by the petitioners, the evidence received from the petitioners under cross-examination, the evidence led so far by the respondents in this tribunal, the documentary evidence before this tribunal…
“My Lord, we have also considered that time is of (the) essence. The judicial time of this honourable tribunal is precious. My Lord, taking all the enumerated factors into serious consideration, we are happy at this stage to close the 3rd respondent’s case as it pleases Your Lordship.”
Responding to Respondents’ application to close their case, Adetunji Oyeyipo (SAN) for the Petitioners, noted, with a jab, the surprising “abandonment” of the 3rd Respondent’s scheduled 28 witnesses after calling just four of them.
“My learned counsel has just addressed the court. I’m actually not quite sure about the state of those documents. I can only say ‘he who fights and runs away, lives to fight another day.’ So, we have no objection,” Oyeyipo said.
But Orbih replied Oyeyipo’s poking: “My Lord, I’m still on the point of fact. When they (Petitioners) scheduled 99 witnesses and presented only 19, we didn’t accuse them of running away. They have no business with how we conduct our case. We remain here. We are not running away.”
With no objections from the other Respondents (INEC and Okpebholo), Justice Kpochi – despite pleadings by the Respondents and Plaintiffs for more days to prepare their written addresses – stood his ground and closed the defence of the 3rd Respondent (APC).
The judge, however, acceded to seven days for the Respondents, five days for the Petitioners and extra three days each to file their written addresses, which began counting on Friday, February 14, and adjourned the tribunal to Monday, March 3, for the adoption of the final written addresses. That ritual was concluded, as scheduled, and the tribunal adjourned for judgment on a date to be communicated to the Respondents and Petitioners.
To witness the final legal fireworks were chieftains of the Edo State chapters of the PDP and APC. Among the PDP topshots were the party candidate, Dr Ighodalo, the Edo Chairman, Dr Anthony Aziegbemin, former Senator Clifford Odia (Edo Central), and Rt Hon. Friday Itulah, former Speaker of the Edo Assembly and ex-Member of the House of Representatives.
On the APC side were former Edo State Governor and Senator for Edo North, Comrade Adams Oshiomhole, former Deputy Governor Philip Shaibu, and twice Governorship Candidate, Pastor Osagie Ize-Iyamu.
Adetunji Oyeyipo (SAN); Ken Mozia (SAN); Abiodun Owonikoko (SAN); Rotimi Oguneso (SAN); Larry Selekowei (SAN); A. T. Kehinde (SAN); A. K. Ajibade (SAN); Oluwole Iyamu (SAN); Oluseyi Jolaawo (SAN) and others pleaded the Petitioners’ case.
Kanu Agabi (SAN); A. M. Aliu (SAN); E. M. Inuwa (SAN); Alhassan Umar (SAN); M. T. Abubakar (SAN); and others appeared for the 1st Respondent, INEC.
Dr. Onyechi Ikpeazu (SAN); Chief Offiong E. Offiong (SAN); Festus Kayode (SAN); Tobechukwu Nweke; Dr. Ike Chude; Edward Ireluwe; Lydia Oluwakemi; Linda Chuba-Ikpeazu and others appeared for the 2nd Respondent, Okpebholo.
Emmanuel Ukala (SAN); E. C. Denwigwe (SAN); Chief Ferdinand Orbih (SAN); J. O. Asoluka (SAN); Echezona Etiaba (SAN); Henry Bello (SAN) and others represented the 3rd Respondent, the APC.
As the political fate of Governor Monday Okpebholo and Dr Asue Ighodalo rests in the hands of the tribunal, may the judges dispense justice with the wisdom of Solomon and the firmness of Daniel, according to the dictates of the electoral laws and the probative value of the evidence adduced by the parties to the dispute!
(Credit: Sebastine Ebhuomhan, award-winning journalist from Edo State, reporting for Popular News (March 3); Theconclaveng (March 3, 2025); The National Update (March 3, 2025); and The Standard Gazette (March 4, 2025).
*Mr Ezomon, Journalist and Media Consultant, writes from Lagos, Nigeria. Can be reached on X, Threads, Facebook, Instagram and WhatsApp @EhichioyaEzomon. Tel: 08033078357.
