It was a major victory Thursday morning for the Peoples Democratic Party, PDP, and its candidate in September 28, 2016, governorship election in Edo State as the State Election Petition Tribunal sitting in Benin granted the petitioners’ prayer for the recounting of ballot papers used for the election in four local government areas of the state. The local government areas are Egor, Etsako West, Etsako East and Akoko-Edo.
Ballot Recount
Counsel for the respondents namely, the Independent National Electoral Commission, INEC, Governor Godwin Nogheghase Obaseki, and the All Progressives Congress, APC, had opposed the application for a recount by Yusuff Alli, lead counsel for the petitioners on the ground that it should have come by way of motion on notice rather than oral.
The tribunal had granted the application of the petitioners for INEC to be subpoenaed to produce the ballot papers. The ballot papers were brought into the court by Ahmed Salman, an administrative officer with INEC on Wednesday, February 7.
In their various submissions, Onyinyen Anumonyen, counsel to INEC, said the petitioners’ counsel should have come by way of motion on notice and that the tribunal’s leave should have been sought and obtained before the application could be made. Ken Mozia, senior advocate of Nigeria, SAN, counsel to Obaseki, argued that the documents in issue were not before the tribunal as exhibits. Counsel to the APC, Rotimi Oguneso had argued that the Electoral Act 2010 as amended, did not provide for the counting of ballot papers in the open court but at polling units.
The tribunal, after an exhaustive argument for and against the application, Wednesday, February 8, reserved ruling till Thursday on the matter. Giving its ruling this morning, the Ahmed Badamasi-led three-man tribunal overruled the objections by the respondents.
The tribunal said the application to recount the ballot papers started by the petitioners’ application for a subpoena to INEC for them to produce the ballot papers, stressing that “that application was already made. It was not orally made. It was only the application for counting that was made orally”. The tribunal held that paragraph 47 (2) of the Electoral Act 2010 as amended, is not of general application.
Badamasi said it is trite law that applications for adjournment is not one you file a motion on notice, so also an application for stand-down. He said even application for subpoena which was admitted in evidence by the counsel to the petitioners without objection, was not made by motion on notice.
According to the tribunal, “the fact that the application for the recount of the ballot papers was made orally does not in our view make the application incompetent and we so hold”. Badamasi said it was important to note that the petitioners had in their paragraph 753 made it abundantly clear that it would, before or at the trial of this petition, apply and pray this tribunal to order the production of the ballot papers and the consequent recount with a view to show this tribunal that the second respondent was not duly elected. The first respondent did not in his reply oppose the paragraph. They are therefore deemed to have consented to the recounting of the ballot papers”.
The tribunal similarly noted that the second respondents in their paragraph 811, had stated that counting of ballot papers was acceptable to them provided that the ballot papers remained intact. But the tribunal held that the issue of tampering with ballot papers was another issue that required proof.
“What is important is that the second respondent had accepted the recounting of ballot papers. The third respondent in their paragraph 499 opposed the recount on the ground that counting of the votes only takes place at the polling units and not in court. The position of the third respondent is not tenable in law because, in the case of Ekeh Vs Enang and two others, the Court of Appeal allowed recounting of the ballot papers on the orders of the tribunal”. Badamasi said It was on record that the tribunal had earlier permitted the petitioners to examine and scan ballot papers which they did.
In the opinion of the tribunal, stopping the petitioners from making an application when they gave adequate notice in their petition which was not adequately opposed by the respondents “is tantamount to shutting them out and we so hold. The objection of the respondents is hereby overruled and the application for recounting of the ballot papers is hereby granted”
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