Kwara Election Petition Tribunal will give its verdict on the governorship tussle between Governor Abdulfattah Ahmed and Action Congress of Nigeria (ACN) candidate Dele Belgore (SAN) tomorrow. Deputy Political Editor EMMANUEL OLADESU captures the anxieties on both sides.

Tomorrow is judgment day. Before noon, the governorship election tribunal chaired by Justice Ngozi Emehelu will clear the air on the disputed governorship poll held in April in Kwara State. Peoples Democratic Party (PDP) Governor Abdulfattah Ahmed has claimed that he won the election based on the lawful votes cast by the people. But the Action Congress of Nigeria (ACN) candidate Dele Belgore (SAN) rejected the results in Kwara.

Legal luminary Ebun Sofunde (SAN) leads the legal team of ACN. Yusuf Ali (SAN) stands in for Ahmed. Adebayo Adelodun (SAN) represents the PDP and Olajide Ayodele (SAN) defends the Independent National Electoral Commission (INEC).

The ACN and PDP had got the tribunal's order to inspect, print, make copies and do forensic analysis of all the official documents used in the April 26 governorship election in their bid to prove their respective cases. At the trial, the petitioners tendered the certified true copies of all the documents, including ballot papers, except those that the party claims INEC refused to give out, such as Form EC40A, which is a statement of account of how ballot papers were distributed). The PDP tendered none.

At the trial, Belgore called a total of 65 witnesses, including three expert witnesses, and its counsel used scores of the INEC documents to cross examine the respondents' witnesses, particularly to counter claims that the election was not flawed.  

At least 33 witnesses of the respondents made claims, which ACN said clearly contradicted the INEC documents on non-accreditation, conflict between votes cast and voters on the queue, variation between voters entered as having been accredited on Form EC8A and the number of voters ticked as having been accredited on the voter's register. The six witnesses the INEC called said elections held in accordance with the law, but they were also confronted with the commission's documents which contradicted such claims. Mutuah Joshua, the INEC Supervisory Officer (SPO) for Lafiagi Ward 3 in Edu Local Government, was confronted with a voter's register from the ward and another from a particular ward in Asa Local Government where nobody was ticked as having been accredited and yet votes were recorded from the same ward. Joshua had confirmed that voting would be invalid where there was no accreditation of voters.

Ibrahim Abdullahi Dikko, a PDP witness, claimed both in his statement on oath and during cross examination that he was duly accredited and had therefore, voted at about 1.20p.m. on April 26 at the Central Office polling station of Patigi Ward 1.

But when confronted with the voter's register for the polling unit under consideration, Dikko's name was nonexistent. Among other such contradictions, Form EC8A for Somaso polling unit 001 of Lafiagi Ward 1 showed that the result sheet for the unit was signed and dated April 2nd, 2011, exactly 24 days before the election was held. Ishola Raheem, a PDP ward supervisor for Pakumo Ward 2 of Moro Local Government, claimed in his statement on oath and during cross examination by ACN counsel that he signed the result sheet for the ward, but entries on the CTC of Form EC8B exposed the claim to be false because neither Raheem nor any other party agent signed the result. Mahmoud Bolanle Sulayman, another witness who claimed to be PDP ward supervisor for Lanwa Ward in Ilorin East local council, said everything went smoothly and in accordance to the Electoral Act and told the tribunal that the PDP collation agent and others signed the result sheet in his presence at the ward collation centre.

ACN said there was no accreditation in 645 polling units out of the 895 polling units the party is challenging. Kwara has a total of 1,972 polling units. The party said the affected 645 units cut across all the five councils and 28 wards being challenged. Also, the party said there was misuse of ballot papers across 360 polling units, another electoral offence.

ACN therefore, wants the election results in five local councils and 28 wards nullified on account of alleged widespread irregularities such as inflation of votes, non-accreditation and other "substantial" non-compliance with the Electoral Act 2010 as amended, with the tribunal declaring Belgore winner of the highest number of lawful votes in the April 26. 

Ahmed, PDP and INEC would have none of that. Ahmed and his deputy called 52 witnesses. PDP called 18, while INEC presented six. All the witnesses told the tribunal the election complied with the law. None of the respondents tendered any INEC document. They said the electoral documents ACN tendered have helped to prove that election was held in substantial compliance with the law.

Citing several legal authorities, counsel to all the respondents pray the tribunal to dismiss the petition for lack of merit. Accusing the petitioners of dumping documents on the court without showing their purports, they contend that the petitioners have not proven their case beyond reasonable doubt as demanded by the law. The respondents also raised some preliminary objections saying, among other things, that the petition failed the test of proper filing, that it contains vague and general averments which are not allowed in law.  

Ali told the tribunal that ACN made several criminal allegations, including ballot snatching, violence and disenfranchisement of voters, which, he argued, were not proven beyond reasonable doubt. He was notably quiet on civil allegations of irregularities and non compliance with the Electoral Act, which ACN insists abound and require only proof of substantial non-compliance based on balance of probability.

Ali added that the experts called by ACN woefully failed the legal definition of experts, and that in any case they were incompetent in law to give evidence in respect of documents they did not author. Citing legal authorities, Ali said anybody who is not INEC staff cannot give evidence in respect of its documents. He said those documents ought to have been tendered by INEC itself. Finally, he urged the tribunal not to look at the documents "dumped" before it because judges are not investigators who retire to their chambers to sieve through documents. PDP's counsel Adelodun agrees with Ali.

Olajide, the INEC's counsel, said ACN has applied to the tribunal to nullify PDP's votes in the areas being challenged and to declare Belgore. He however wondered what becomes of the votes Belgore recorded in the same areas. He also said ACN did not establish any link between the crime allegedly committed and Ahmed to warrant nullification of the latter's votes.

In turn, Sofunde quoted authorities including Supreme Court judgments which he said render the respondents' challenge a non-issue. He produced rulings, including of Supreme Court, which settled the question of who is an expert and insisted that the experts called by ACN, having participated in similar exercise over the years, passed this test.

Sofunde said the charge of dumping documents was untrue as the petitioners made ample use of the documents during the trial to establish the irregularities in the poll. He also cited Supreme Court decisions which said the court has a duty to look at the documents tendered in a case. He said this is particularly truer of statutory documents like the EC8As. He went on to cite the Appeal Court decision in Terab v Lawan (1992) in which Aikawa JCA held as follows: "But one has to bear in mind the nature of Forms EC8A and EC8B as exposed in Decree. 50 of 1991. The two forms show the polling station, the code number, the ward and the local government area they relate to. They are statutory forms and when tendered give full and conclusive information needed for a polling unit. A petitioner who tendered them in proceedings has by so tendering them given all the necessary evidence, which is discoverable from the forms…."  Besides, Sofunde said it would have been impossible for the petitioners to go through the thousands of documents one after another in view of the time limit of just 180 days.

In his response to claims by the respondents that Form EC40E (election result sheet for governorship) enjoys legal presumption of correctness, Sofunde drew the court's attention to the physical count of the ballot papers used for the election. Sofunde reminded the tribunal that a discrepancy of 21,192 exists between the number of votes INEC claimed to have recorded in the disputed areas and the number of ballot papers actually used in the said area. The physical count of the ballot papers revealed that a total 213,011 ballot papers were used in the areas ACN is challenging, as against the 234,203 votes INEC said it recorded from there. Sofunde said this discrepancy rubbishes the so-called presumption of correctness of the entries on Form EC40E. The recount ordered by the tribunal, its secretary Mrs Uju Mesiobi-Emeto said in the open court, also confirmed that a discrepancy of 21,192 exists.

ACN's written address tackles the poser raised by the INEC's counsel. The party actually canvasses the cancelation of votes awarded to the two parties in the disputed areas. Sofunde also spoke on the issue of general averments which Adelodun said included the use of generic words such as ‘in many polling units and several wards'. Adelodun had cited the Appeal Court decision in Olawepo V Saraki which threw out the former's petition for such general pleadings.  Sofunde said, among other arguments, that the decision in Olawepo V Saraki cannot be a good law in view of the Supreme Court position in Abubakar V Yar'Adua.

Sofunde said the apex court had held that a party which complains of vague or general averment may request for better particulars, and where such party fails to do so he loses the right to stop the petitioners from leading evidence on the so-called vague averments. Besides, Sofunde said the timing of the objection was wrong – a position Adelodun said is not true.

Where will the pendulum swing? Only the tribunal can decide. This is why tommorrow is decisive for Kwara politics.