Interesting Development In The Electoral Petition Case Against Peter Mbah

By Emeka Ugwuonye, Esquire

The petition of Chijioke Jonathan Edeoga against Peter Ndubuisi Mbah over the Enugu State governorship election is making remarkable progress at the tribunal. Cases are not just about the beginning and the end moments. There are in-between events and tracking such events is necessary. Much of the outcome of cases depends on the in-between events. The party that will win a case is known even before the day of judgment. This is because a reasonable observer can see what events are occurring in-between the commencement and ending of the case. To track the in-between events, you need to closely monitor the presentation of evidence, the interim reliefs sought by the parties, their analysis of the law, oral arguments in court, the interlocutory orders of the court, the body languages of the judges as shown in the casual comments coming from the bench. The ultimate outcome of a case in court is a culmination of these in-between events. So, it is important for a case watcher to monitor the in-between events as the case progresses through its procedural course.

ALSO READ: Popular Televangelist, Pat Robertson, Dies At 93

On Wednesday, 7th of June, 2023, the Tribunal sat to review several preliminary issues pending. So, there were several events that occurred during that hearing which tend to shape the course of the case. I consider them significant in-between events that indicate the direction of the case and the minds of the judges. I am aware about the competing interests in discussing such in-between events. The party that is not favored by an in-between event will not want it discussed. He will like to impose silence on the unfavorable in-between events by hiding under the sub-judice rules. That is: the idea that a case pending in court cannot be discussed outside the court. But a strict application of the sub-judice rule runs contrary to human nature and the constitutional right to free speech. Any rule that tries to impose total silence on the course of human affair is oppressive and wrong. Hence, it is usually the party not favored by the in-between events occurring in a case in court that would want a total silence. Instead of a total silence, what is called for is a reasonable discretion and non-absolute views about the ultimate outcomes.

Having cleared the air on the sub-judice argument, we may now examine the significant events that occurred during the court’s sitting on the 7th of June, 2023. To understand this, you have to go back and take a look at the petition filed by Edeoga and the three grounds propounded in that petition. Then you also have to take a look at the Reply filed by Peter Mbah.

Edeoga raised three grounds: (1) That Mbah should be disqualified because he failed the basic eligibility test by filing a forged NYSC Certificate under oath. (2) That the election was not conducted in accordance with the law, and (3) That the election result was not counted in accordance with the law. I summarized and simplified the grounds in a way that everybody can understand them. After stating his grounds, Edeoga went further to list the documentary evidence which he would rely on to prove his case.

In a normal course of cases, you would expect Mbah to deny the grounds alleged and state evidence he will rely on to prove that those grounds did not exist. Court trials are often like a game of tennis: You play the ball into my corner and I play it back into your corner until one of us will play the ball outside the right box.

Grounds raised by Edeoga are clear enough. Each ground requires a direct denial or counter and the nature of evidence must be direct and opposites. For instance, to show that Mbah filed a forged NYSC Certificate, Edeoga showed the letter from NYSC denying the Certificate filed by Mbah. To counter Edeoga’s evidence Mbah simply needed to show that the NYSC Certificate he filed was from NYSC. It got to be one or the other. The two sides cannot be right on that at the same time. The Certificate must either come from NYSC or it did not come from NYSC. We cannot have a third theory whereby Edeoga would be right and Mbah also would be right. We expected direct counter. Mbah did not give us such counter.

Not being able to counter the evidence of Edeoga, Mbah had two options: (1) He could just admit that Edeoga was right and he, Mbah, was wrong, or (2) He could do everything possible to oppose without countering Edeoga. In other words, Mbah had to create confusion, raise dust, create distraction and hope that at some point, everybody would get tired and say: “This is too much trouble, let u sjust allow Peter Mbah to be the governor even though we know he did not win”. This is exactly the strategy of Mbah’s lawyers. Now, let me show you how they are doing it.

Instead of countering Edeoga with any contrary evidence from the NYSC, they simply claimed that the NYSC Certificate issue was a pre-election matter, that the Tribunal had no jurisdiction to entertain it. They tried to rely on an unrelated case decided by the FCT Abuja High Court. They suggested that the Tribunal should be bound by a decision of a court of coordinate jurisdiction on an unrelated case. When I read their defense, I knew they had nothing to counter Edeoga on that first ground. When it came to the other grounds, I also expected Mbah’s team of lawyers to assert that Edeoga was wrong and plead evidence they would rely on to show he was wrong. But they never pleaded any evidence. They had nothing to counter Edeoga with. Instead, they tried to rely on what is known as impeachment tactic. Impeachment tactics does not directly challenge the allegation or evidence from the other opponent. Rather, it tends to raise technical grounds to disqualify the source of evidence. For instance, if somebody does not challenge the content of a document, but merely objects to the fact that you tendered a photocopy rather than the original copy, the person is only impeaching the evidence rather than countering it. After reading Mbah’s Reply to Edeoga’s petition, I made a post and warned that their defense was hollow because it did not counter Edeoga on substance.

There was something else Mbah did in response to Edeoga’s Petition, and that was what occupied the court on the 7th of June. Instead of defending, Mbah objected. He raised preliminary objections seeking to get the court to decide on the grounds raised by Edeoga without going to the merits of the issues and without examining the evidence. That is: they tried to have the court decide the main issues as if they were merely interlocutory issues. They turned their substantive defense into interlocutory reliefs. So, they asked the Tribunal to dismiss the petition or most of the grounds in it without going into a merit hearing. Rather than defend on the merits, Mbah’s lawyers turned the entire case into a motion practice. (In the trial lawyers’ manual, motion practice is when the lawyers try to adjudicate a case through motions, rather than take the bull by the horns). Mbah’s lawyers tried to take the bull by its tail and its ears and its hair, rather than by its horns. It is only a person afraid of the horns that would start attacking a bull by its tail. Incidentally, this particular has no tails. That was what the court told Mbah and his team on the 7th of June.

The only reason for that kind of practice is to delay the trial, even though it may look as if it seeks to quicken it. And who do you think likes to delay trials? It is usually the person who fears that a full merit straightforward trial will not end in his favor that would like to delay a trial by filing frivolous motions. And true to their expectation, the Tribunal spent the 7th of June addressing the preliminary objections and interlocutory applications that Mbah brought.

However, based on the rulings of the Tribunal on the interlocutory applications, what Mbah set up as a delay and confusion tactics against Edeoga turned in Edeoga’s favor. First, the tribunal chose to decide the preliminary motion on the NYSC issues at the end of the trial. Instead of flatly denying the motion, the judges were diplomatic and tactical. In other words, the Tribunal refused to treat is as a preliminary issue or to address it at an interlocutory stage. Thereby the Tribunal effectively moved the issue from an interlocutory issue back to the substantive issue it is.

In summary, the outcome of the proceedings of June 7th was indicative of the direction the Tribunal is headed. It refused Mbah’s application to strike off the grounds raised by Edeoga. It signaled that it did not see them as interlocutory issues. It signaled that it found prima facie merits or probably cause for those grounds and that only a merit hearing could address them. The impact of the tribunal’s approach from the position of an experienced trial lawyer is that the Tribunal had made its initial decisions in favor of Edeoga. In other words, it refused to strike out Edeoga’s grounds and prayed for by Peter Mbah. The Court found Edeoga’s grounds worthy of a full trial. And at the same time, the Court sent a message to Mbah’s lawyers that they should be prepared to come up with a solid substantive challenge to the grounds raised, and not try to attack those grounds on technicality.

I cannot tell you where I believe the Tribunals will end up in its judgment. But I can say that Peter Mbah needs all the prophets and all the native doctors in Nigeria combined to win this case.

I shall keep you updated after the next hearing date.