The legal battline is drawn, as Chijioke Edeoga’s legal position becomes increasingly unassailable — By Emeka Ugwuonye

Today, Peter Mbah, the PDP Governorship candidate for Enugu State in the last elections, files his reply to the petition of his rival, Chijioke Edeoga, of Labour Party. Mbah’s reply has been closely anticipated after Edeoga’s solidly grounded petition challenging the controversial electoral result as declared by INEC after the elections of March 18, 2023.

According to most observers of the elections, especially the Enugu Governorship elections, Chijioke Edeoga was coasting comfortably to a resounding victory until the magical last minutes manipulations at the Nkanu East polling units which ushered in the impossible figures. And those figures altered the flow of logic and the established voting patterns in the elections. From the moment INEC announced results, it was known that Edeoga actually won the elections but was robbed of victory. It was known from that moment that he would challenge the result rendered by INEC that declared his rival the winner.

True to this expectation, Edeoga went to the Electoral Tribunal with irrefutable facts and figures demonstrating that he won the elections. You will recall that Edeoga’s legal team advanced three grounds to back up their claim that Edeoga won and should be declared the winner, not Peter Mbah. Those grounds were:

i. The 2nd Respondent (Peter Mbah) was, at the time of the election, not qualified to contest the election. (Section 134(1)(a) of the Electoral Act 2022)

ii. The 2nd Respondent (Peter Mbah) was not duly elected by majority of lawful votes cast at the election. (Section 134(1)(c) of the Electoral Act 2022)

iii. The Election was not conducted in compliance with the Electoral Act (Section 134(1)(b) of the Electoral Act 2022).

These grounds were dramatic and encompassing. The first ground raised an issue that took many by surprise. It was based on the fact that Peter Mbah had presented a forged NYSC discharge certificate. This ground is three-pronged in effect. First, forgery is a serious crime that goes to the fundamental question of character and eligibility for public office. It also constitutes perjury where a candidate swore to have been honest and candid in submitting the forged document. Any dishonesty in the candidate’s application leads to disqualification of such candidate. And finally, if NYSC is a requirement to hold that office, then failure to possess a valid discharge certificate is evidence that the candidate is unqualified. Cumulatively, the first ground of Edeoga’s petition points overwhelmingly to the question of eligibility or qualification to run or to hold the office of Governor.

For Peter Mbah the only meaningful defense against this ground was for him to show that the NYSC discharge certificate he tendered, which has been called into doubt, was authentic and duly issued to him by the NYSC. Looking at his reply to be filed today, Peter Mbah did not quite do what he ought to do to counter the petition of Edeoga. By his process, he was not able to show that the NYSC discharge certificate he tendered was valid and duly issued by NYSC. Instead, Peter Mbah adopted a technical defensive posture, rather than a merit based argument. He argued that NYSC discharge certificate is not a requirement of law for him to run as governor of Enugu State. Also, he calls his failure to provide a valid and authentic discharge certificate during his application a pre-election issue. In other words, he suggests that it was a wrong done before the election itself and should not count toward the outcome indicator.

Without preempting the tribunal, one is inclined to argue that Peter Mbah’s pre to post-election delineation has a fundamental problem. Every eligibility-based argument is somewhat aimed a pre-election event. Naturally a person is qualified or not qualified before the election takes place. Qualification is not to be acquired after the elections. If the law allows an unqualified candidate to call the facts of his lack of qualification a pre-election matter, he will be suggesting that he should ascend to the office despite the fact that his lack of disqualification was discovered after the elections. It is just like a Medical Director who was discovered to have forged his medical certificate to insist in remaining the Medical Director because the forgery was not discovered before he was appointed the Medical Director. Eligibility factor is a condition precedent to contesting for the office. Therefore, contesting for the office or holding such office will be contrary to law if the condition precedent was not met. And if the lack of qualification was discovered after the fact, that does not excuse the requirement for qualification. The consequence is the same – the aspirant or holder of the office must stand disqualified.

Is NYSC discharge certificate necessary for the office of governorship under the Nigeria law? There are two ways to look at it – factual and legal. Factually, Peter Mbah presented a certificate. That means that Peter Mbah believed that the certificate was necessary. Similar certificate was tendered by other candidates for similar office now and in the past. It has been a routine practice to tender and accept NYSC discharge certificate for any candidate that is a graduate. There is no reason to change this established practice in the case of Peter Mbah.

Now, looking at the legal angle to it, there are twin arguments to make. First, whether a document is needed or not, tendering a forged document is providing false statement and making such false statement under oath amounts to perjury. It is clear that any material misrepresentation in the application process leads to disqualification. And it is so regardless of when such misrepresentation was discovered – before, during or after voting. So, Peter Mbah’s defense to the first ground of the petition seems to fall short of the legal and analytical standards. He failed to show that the document he tendered was valid, authentic and validly issued by the competent authority. If NYSC discharge certificate was not a requirement, why did he bother to tender one and to swear an oath of validity thereof?

Another interesting argument advance by Peter Mbah as his defense against the first ground was to try to rely on a recent decision of the FCT Abuja High Court in Suit No.: FCT/HC/2399 Between the Registered Trustees of People’s Wellbeing Association v. Mr. Peter Ndubuisi Mbah. This case was decided recently, in March of 2023. In that case, the issue of Mbah’s submission of fake NYSC certificate was considered by the court. This court decided in part that Mbah’s submissions to INEC were pre-election matter. Mbah’s and INEC’s argument now is that the issue raised in the first ground of the petition has been preempted by this decision and that it has become an issue estoppel, i.e., that it cannot be raised again.

There are many reasons why such argument on issue estoppel cannot stand. First, it was actually a different case and different parties. Issue estoppel does not lie against a party who was not a party in the prior action or who could not have been a party in the prior action. So, Edeoga is not estopped from raising the issue against Peter Mbah in his election petition. Also the doctrine of res judicata cannot be validly raised here because FCT High Court is actually a court of coordinate jurisdiction as the electoral tribunal. The tribunal is a special court applying special rules and addressing a special kind of controversy. Thus, the tribunal is not bound by the decision of the High Court. Further, the issues and circumstances of the two cases are not the same and the injuries for which recourse is sought are not the same. Finally, the FCT High Court is actually wrong in its legal analysis, making that judgement is highly fallible when subjected to judicial analysis under the present petition and any appeals flowing from it.

Aside from the NYSC issue, Edeoga’s strongest ground well-backed by evidence is his argument regarding the numerical abnormalities of elections in Nkanu East polling units. In his petition, Edeoga showed with facts and figures that the number of actual votes exceeded by a wide margin the number of accredited voters. This claim has to be either true or false and verifiable. To verify his claim, Edeoga attached figures used by INEC, evidence and reports, etc. The only way to controvert this claim is to produce a different figures and evidence as a counter.

However, the biggest shocker is that Mbah’s defense against the Nkanu East abnormalities turns out to be so weak and feeble. This is where one would expect Mbah to come out brandishing evidence and putting up his best analysis. But it turned out that Mbah and INEC had no evidence here. In Paragraphs 14 and 15 of their reply, they adopted impeachment of evidence as their approach, rather than positively countering the evidence of Edeoga. In other words, rather than showing their own evidence they seek to reject and disqualify the evidence of Edeoga. Rather than seek to outshine Edeoga’s evidence, they chose to impeach it. All Mbah and his team provided as defense is a blind statement that “the total number of votes as well as the total number of accredited voters recorded in the respective Forms EC8As for the polling units tallies (sic) with the total number of accredited and verified voters on the record of the Bimodel Voter Accreditation System (BVAS) for each polling unit”.

The above defense is too lame and ineffectual because there was no substantiation at all and no evidence to back it up. Merely asserting the opposite is not an effective defense where evidence is called for. Indeed, regardless of how the tribunal rules on the first ground bothering on Mbah’s qualification or lack thereof based on the NYSC certificate forgery, the failure of the Mbah and INEC to effectively counter the allegations of distortions and numerical abnormalities in Nkanu East is sufficient basis to rule in favor of Edeoga.

In conclusion, while it is necessary to allow the tribunal to make its decision and for the legal process to take its course, the fact is that we have seen the positions of the parties at the tribunal. We have seen the petition and argument and evidence upon which Edeoga claims to be the winner of the elections and the rightful man to occupy the office of the Governor of Enugu State. His grounds, argument and evidence are compelling. At the same time, we are now seeing the argument and points which Peter Mbah has advanced in opposition to the petition of Edeoga. Unless Mbah intends to supplement his current submission, it is highly likely that Edeoga will prevail. His first and second grounds were left without any effective counter. As predicted at the beginning, Edeoga is likely to be the next Governor of Enugu State when all this is over.

Kalu Idika

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