The Osun State Governorship Election Petition Tribunal sitting in the state capital Osogbo last Friday declared Gboyega Oyetola as the winner of the July 16, 2022 governorship election in the state.
The tribunal sacked Oyetola’s main challenger, Ademola Adeleke of the People’s Democratic Party (PDP), who had been announced as winner by the Independent National Electoral Commission (INEC) which conducted the poll.
But reversing that decision by a majority decision of 2 to 1, the tribunal annulled the election of Adeleke.
The tribunal directed INEC to withdraw the certificate of return issued to Adeleke and his deputy, Kola Adewusi, both of whom had been sworn in.
The three-man panel chaired by Justice Terste Kume directed that the certificate of return should instead be issued to Oyetola, so he can begin his second term in office.
INEC had on Sunday, July 17 declared Adeleke as the winner saying he won 17 of the 30 Local Government Areas (LGAs) in the poll.
It said Oyetola won in the remaining 13 LGAs, polling 375,027 votes while Adeleke claimed 403,371 votes.
The electoral umpire said Adeleke, a former senator and younger brother to the state’s first governor, Isiaka Adeleke, defeated Oyetola, by a margin of about 44,426 votes.
But the tribunal noted that the governorship election was not held in full compliance with the Electoral Act 2022, observing that it was characterised by, among others, over-voting.
It cancelled election in 744 polling units due to over-voting.
The tribunal said after deducting the excessive votes, the figure Adeleke polled came down to 290,666: lower than the 314,921 polled by Oyetola.
Dissatisfied by INEC’s declaration and return of Adeleke as the Governor of Osun State, Oyetola and the APC – as 1st and 2nd petitioners – filed a petition on August 5, 2022 challenging the result.
He alleged over-voting in 749 polling units and certificate forgery by Adeleke.
The 1st to 3rd respondents were INEC, Adeleke and the PDP.
The petitioners, through their counsel, Lateef Fagbemi, SAN, listed three grounds.
They contended that the 2nd Respondent (Adeleke) was, at the time of the election, not qualified to contest the election;
The 2nd Respondent “was not duly elected by majority of lawful votes cast at the election and that the election of the 2nd Respondent was invalid by reason of non-compliance with the provisions of the Electoral Act 2022.”
The grounds for the petition included that Adeleke did not possess the educational qualification to contest the election.
The 2nd Respondent had also in 2018 submitted forged certificate to the 1st Respondent and also presented false documents for the contest of the 2022 governorship election.
Oyetola prayed the panel to hold that at the time of the election of Adeleke was not qualified to contest.
That all the votes recorded for Adeleke in the said election were wasted votes as a result of his non-qualification.
That on the basis of the remaining votes after discounting the votes recorded for Adeleke, in the said election, Oyetola has a majority of lawful votes.
That the votes recorded and/returned in 749 polling units in several Local Government Areas (LGAs), did not represent lawful votes cost in the said polling units in the said LGAs in the election.
That Adeleke was not duly elected by a majority of lawful votes cast and his return by INEC as the governor was null, void and of no effect.
That Oyetola was duly and validly elected and ought to be returned as governor, having polled the highest number of lawful votes cast at the election, among others.
In the majority judgment read by Justice Kume, the tribunal agreed with the petitioners that Oyetola won the election and not Adeleke, who was returned by INEC.
It, however, questioned INEC’s impartiality in the poll, accusing it of bias and manipulation.
INEC’s questionable role
Justice Kume accused INEC officials of tampering with the Bimodal Voter Accreditation System (BVAS) machines to compromise the election in Adeleke’s favour.
The judge referenced a proverb by the late writer Prof. Chinua Achebe on how people were adapting to changes in Igbo society in colonial times.
He said: “The said conduct of the officials of the 1st Respondent, as shown in this judgement, makes the proactive decision of Eneke, the bird in the Novel, Things Fall Apart, 1958 by Chinua Achebe very instructive. In the said novel appears these words; “Men have learnt to shoot without missing, she has learnt to fly without perching.”
The tribunal chairman said electoral officials manipulated the BVAS machines but did not cover their tracks.
Why INEC’s synchronisation claim failed
The INEC counsel, Paul Ananaba, had during cross-examination argued that the election results in possession of the petitioners were incomplete because it was issued to them before the BVAS machines were synchronised.
Ananaba said the petitioners had therefore challenged the outcome of the election with incomplete data.
But the judge faulted the synchronisation of the BVAS machines after the election, noting that the results of the election were still not accurate after the said synchronisation of the BVAS machines.
“We have looked, and evaluated the evidence of the parties as shown in the exhibits before this Tribunal. The contents of the exhibits are clear as day. The said evidence is not from the fertile and creative imagination of learned counsel for the Petitioners, as erroneously submitted by learned counsel for the Respondents in their respective reply addresses on points of law to the issues under consideration,” he said.
He added: “The said ‘synchronisation’, rather than rhyme with each other are inconsistent and contradictory. The said exhibits tendered by the Respondents have not rebutted the presumption of regularity in favour of exhibit BVR and the other documents tendered by the Petitioners in this petition,
“In other words, the defences of the Respondents are plagued with fundamental mortal flaws highly irreconcilable and unreliable, incapable of defeating the credible evidence tendered by the Petitioners in respect of the 744 Polling Units were over-voting has been established.”
Umpire tampered with official records, violated Electoral Act
The Tribunal chairman maintained that evidence before the panel showed that the governorship election was conducted only in partial compliance with the Electoral Act.
“The inference, we hereby draw from the facts established by the evidence on record is that, the election conducted on the 16th day of July, 2022 was done in substantial non-compliance with the provisions of the Electoral Act (Supra), and the extant regulations made thereunder,” he noted.
“Moreover, exhibit BVR has not been withdrawn by the 1st Respondent who made and issued it. The Petitioners relied on exhibit BVR in maintaining this petition. The Respondents are hereby stopped from acting inconsistent with the import and tenor of exhibit BVR.
“Similarly, the exhibits tendered by the Respondents after exhibit BVR, as rightly submitted by learned counsel for the Petitioners were thought of after the declaration of result on the 17th day of July, 2022.
“The said conduct of the Respondents, especially, the 1st Respondent amounts to tampering with official records.
“The conduct of the 1st Respondent in the said election under consideration has produced multiple accreditation reports contrary to its avowed declaration to conduct free, fair and credible elections on the basis of one man or woman with one vote.”
The Tribunal also held that the petitioners were able to prove a case of forgery against Governor Ademola Adeleke.
Justice Ogbuli, who gave a dissenting ruling on the judgement, aligned with the position of the majority judgment on the issue of disqualification.
The tribunal held: “Respondent through Mrs. Joan Arabs produced FILE D which was tendered in evidence. The said exhibit FILE D is in respect of the election conducted by the 1st respondent in 2018.
“Exhibit EC9, as earlier indicated, is the affidavit in support of the personal particulars of the 2nd respondent which he presented to the 1st respondent for the election of the 16th of July, 2022.
“On page two of exhibit EC9, the 2nd respondent (Adeleke), in his handwriting, wrote under (1) School Attended (Educational qualification with dates: Thus: (2.) Secondary Ede Muslim Grammar School, Eede – attended 1976 – 1981, Penn Foster High School Diploma -2021 (3). Higher Atlanta Metropolitan State College – BSC Criminal Justice 2021.
“On page 4, of exhibit EC9, there is a letter of attestation from Ede Muslim High School dated 22nd of May, 2016.
“Learned counsel for the petitioners, as earlier stated, referred to the different names in the schools reproduced above and the evidence admitted by RW2 under cross-examination, that Osun State was created in 1991, and as such, any evidence that a qualifying certificate or document stating that it was from Osun State in 1981 is a forgery”.
It added that by comparing Section 264 of the Criminal Code and exhibit EC9 “reveals that EC9 tells a lie about itself. In that regard, forgery of the said documents presented by the 2nd Respondent to 1st Respondent has been proved. The same consequence applies to FILE D in so far as the contents therein relates to ‘Osun State’ that was not in existence before 1991.”
Consequence of forgery
Nevertheless, it held that the forgery case was not enough to disqualify him from contesting the election, adding that the PDP candidate had acquired additional qualifications.
“The question, however, is whether having found forgery in parts of exhibit EC9 and FILE D, the 2nd Respondent (Ademola Adeleke) is exonerated by exhibits 2R.RW6 and 2R.RW9. We think he is. It would have been otherwise if no other qualifying certificate of attendance at an institution had been presented to 1st Respondent for the election,” the tribunal held.
Journalist and public affairs analyst, Ismail Omipidan reasoned that this could be an albatross against Adeleke on appeal, should the justices make it a focal point.
Omipidan said: “As a layman, the mere fact that the Tribunal only says they “think,” shows that this is another potent pendulum that could swing against the interim Governor at the appellate court. Reason being that, the additional qualifications which were the basis of what I want to refer to as his temporary respite in the issue of qualification, was acquired using the O’Level that has been proven to be forged.
“Therefore, if we go by the popular axiom, you cannot build something on nothing and expect it to stand, it goes without any further probing that the interim Governor is yet to be let off the hook as far as his qualification to stand for the election is concerned. He can be disqualified for submitting a forged document as contained in his file with INEC.”
Coming battle at Appeal Court
The PDP and INEC faulted the judgment, vowing to upturn the verdict at the appeal court.
INEC’s Counsel Prof. Paul Ananaba, SAN, also faulted the judgment.
Ananaba said: “The tribunal chairman delivered what is called majority judgment; the second member of the panel gave a dissenting judgment while the third thanked everybody at the tribunal.
“These are the issues we will have to look into and get back to the commission. Anybody who listened to the judgment will know that only two people delivered the judgment and not three.”
Further faulting the judgment, he added that the BVAS was the primary source of what transpired on the day of the election.
According to him, a report issued after the election cannot be used as the primary source of what transpired on the election upon which the results would be declared.
On the contrary, Counsel to APC, Dr Abiodun Layonu, thanked the tribunal for restoring the victory of Oyetola as the winner of the governorship election.
Layonu also thanked Mr Akin Olujimi (SAN) and Mr Lateef Fagbemi (SAN) for leading Oyetola to victory at the tribunal.
He said that the judges at the tribunal considered the option of declaring Oyetola as winner in a majority judgment.
Falana: INEC wasted Osun State votes
Activist-lawyer Femi Falana, SAN, applauded the judgment, reasoning that it would take a near miracle for Adeleke to reverse the Tribunal’s verdict on appeal.
He blamed INEC for, in his view, wasting the votes of the Osun State electorate.
Speaking on Sunday during an interview on Arise TV, Falana said: “What the voters in those areas have to do is to sue INEC for damages that you have wasted my votes.”
Falana also said it will be a daunting task by Adeleke’s lawyers to overturn the verdict of the tribunal.
“Looking at the judgment, I believe very strongly that it is going to be a daunting task to impeach the judgment. INEC has to be held completely responsible for what happened.
“INEC will have to go back to the drawing table so that we will not have this experience. INEC will have to put its house in order, If we have this in a presidential election, where you issue one or two reports, it will have a crisis of monumental proportion,” he said.
Judgment sound – GSYF Director
Dep. Executive Director/Program Coordinator at Global Sustainable Youth Forum, Raymond Nkannebe, also agreed that the judgment was sound, saying Adeleke’s prospects of an upset is slim, and that his time at the government house is numbered.
The lawyer shared his review of the judgment on Saturday via his Twitter handle @RaymondNkannebe
He said: “One has read the two-part judgment of the Osun State Election Petition Tribunal, and I’m afraid this doesn’t leave @AAdeleke_01 in a good place from the little I know of our electoral jurisprudence and the attitude of the appellate courts.
“Barring any technical case which @AAdeleke_01 and his team might be able to set up at the appellate courts (and I don’t see any yet), it appears, most unfortunately that Adeleke’s time at the government house is already numbered as the prospects of an upset above is rather slim.”
Why Adeleke’s defence failed
Nkannebe also shed light on why the respondents failed.
He said: “Reading the judgement, there’s a sense in which the Respondents took comfort in the traditional position that to establish over voting, a petitioner has to call witnesses from all the polling units where over voting is alleged, failing which the claim cannot be proved.
“Until the recently passed Electoral Act, that was a big hurdle that faced most petitioners who would have to call as much as 800 witnesses within the short time allotted to a petitioner to prove his/her case especially where the geographical area of the challenge is large.
“At the time, the primacy of documents (whether certified or not) to establish claims in over voting was absent. The practice instead evolved the principle of “dumping” on the back of which most otherwise valid petitions, bit the dust.
“One would also observe that the Respondents erected their defence on the failure of the Petitioners to prove their case by making reference to the voters register – an error which with respect, the minority opinion of Hon. Justice Ogbuli fell into.
“With the coming into effect of the 2022 Electoral Act, and specifically by dint of Section 51(2), the litmus test of proving over voting has shifted from the voters register to the number of voters accredited by what is now the #BIVAS machine developed by @inecnigeria
He explained that Section 51(2) of the Electoral Act is unambiguous.
It reads: 51.-(1) No voter shall vote for more than one candidate or record Over voting. more than one vote in favour of any candidate at any one election.
(2) Where the number of votes cast at an election in any polling unit exceeds the number of accredited voters in that polling unit, the Presiding officer shall cancel the result of the election in that polling unit.
(3) Where the result of an election is cancelled in accordance with subsection (2), there shall be no return for the election until another poll has taken place in the affected polling unit.
The lawyer said with this innovation, the Draftsman of the legislation “had wittingly put the era of ‘Dumping of Exhibits’ or calling a long list of witnesses to prove a petition behind us. Thus why the case of the petitioners succeeded on the oral evidence of the two witnesses they invited.
“For the most part, this state of affairs left the case of the Petitioners largely unanswered.
“@AAdeleke_01’s case is not helped by the fact that the documents he relied upon: Exhibits RBVR 1-29 and RWC (his own version of the BVAS report) obtained one month after the election did not impeach the case of the Petitioners. As one finds out, it corroborates it on many counts.
“A juxtaposition of Exhibits RBVR (1-29) on the one hand, and Exhibits RWC with the polling unit results (EC8As) in the affected 744 polling units revealed egregious cases of over voting with #Oyetola and #Adeleke as beneficiaries.
“As the tribunal rightly held: ‘As shown in the table reproduced in this judgment, both the Petitioners and 2nd with 3rd Respondents benefitted from the over voting which, by credible evidence on record, happened in the election conducted on 16th July, 2022.’”
Oyetola’s ‘silver bullet ‘
Nkannebe reasoned that the petitioners had an ace up their sleeves.
He said: “Back to the Petitioners case, their own BVAS Report (Exhibit BVR) was said to have been issued on 17th July 2022 – whereas the document itself bears the date of 27th July 2023(some 10 days apart), but was however accorded probative value by the Court being a certified document.
“One could say it was the silver bullet of the Petitioners. A juxtaposition of the contents of the document through its 134 pages against the Polling Unit Results in the 744 Units clearly established incidences of over voting, yet @inecnigeria accredited the results. #pathetic
“In a bid to demure the credibility of Exhibit BVR, @AAdeleke_01 and his lawyers, contended that it was an “unsynchronised” version – a new addition to our electoral lexicon and which will certainly reverberate through the two courts above until the matter is laid to rest.
“Unfortunately, there was no basis to reach this assertion as their own version of the BVAS reports (RBVR 1-29 & RWC) was not labeled “synchronized” nor was it clothed any garb of superiority as the tribunal found.
“On the contrary, to the extent that Respondents’ version of BIVAS reports was allegedly issued in August – a month after the election, left the tribunal with no option but to conclude that it was a hatchet creation by @inecnigeria but which unfortunately did not do the trick.
“The implication of all the above is that the tribunal was left with three sets of BVAS reports: Exhibit BVR (relied upon by Petitioners); Exhibits RBVR 1-129 & RWC (relied upon by the Respondents) all of which revealed egregious cases of over voting when juxtaposed with the EC8As.
“Most importantly and quite unfortunately, @inecnigeria which was a party in the case and from whom the contradictory BVAS reports ensued had no answer to this mind-boggling revelations leading to the Tribunal’s censorship.
“In the end, the Tribunal by its majority decision one could say was on a firm ground to invoke the provisions of Section 136 of the Electoral Act to reset the state of play on the 16th of July 2022 in Osun State, which put #Gboyega ahead of #Adeleke in a largely flawed election.”
But Justice Ogbuli disagreed with the majority decision, saying Oyetola failed to prove overvoting, among others.
The judge held: “I hold that the Petitioners have failed to prove issue of over voting by reason of non-compliance with the provisions of the Electoral Act. They also have not proved that the 2nd Respondent was not duly elected by majority of lawful voters cast at the election.
“I will need to point out that the inadequacies in our system such as power outage, network failure and paucity of relevant amenities should not be overlooked as we operate in a problem condition. It will be most unfortunate for a contestant who lost election to hurriedly apply and get a report from an incomplete source and then build a case on it to topple a candidate who has been declared the winner. It is exactly the case here. That is not the intendment of the extant Electoral Act.
“On the whole, I hold that the Petitioners’ case have not been satisfactorily proved. It ought to be and is hereby dismissed.”
Argument against minority decision
But Nkannebe faulted the decision.
He said: “The Minority Decision, with respect to Hon. Justice Ogbuli and as confirmed by my brother, did not inspire any hope. As far as dissenting opinions go, I’ve not seen any, with such scant regard for erudition. It is not the sort one could rely upon while ‘going upstairs’.