Osun: Understanding the issues before Appeal Court – By Ismail Omipidan

Last Monday, the litigants in the Osun governorship tussle appeared before the three-man Appeal panel, in Abuja, led by Justice M.L. Shuaibu. But for the magnanimity of the panel, the counsel for all the parties would have lost the opportunity to give the “Chemistry and Biology” of their briefs.

Once the justices took their seats, Justice M. L. Shuaibu expressed concern that counsel for all the parties had not complied with the practice direction of the Appeal Court in filing their briefs.

He said that if they were to wield the big stick, they would have declared all the briefs invalid. If that had happened, that would have been the end of the matter. Case closed!

But the Justices in this instance tempered justice with mercy and delved into the “Chemistry and Biology” of the briefs.

However, rather than acknowledging the benevolence of the Justices, some of the Peoples Democratic Party (PDP) members, including one of their lawyers, went to town twisting what transpired. Anyway, that is not the crux of this discourse. The discourse is mainly to examine the issues before the Appeal Court with a view to making Nigerians have a better understanding of what is at stake.

The Osun Election Petition Tribunal on January 27 nullified the election of Senator Ademola Adeleke as Governor of Osun State on the basis of over-voting, saying, among other things, “In other words, the defenses of the respondents are tainted with fundamental flaws, irreconcilable and unreliable, incapable of defeating the credible evidence tendered by the petitioners in respect of the 744 polling units where over voting has been established.”

In arriving at the decision, the Tribunal examined certain materials, including two BVAS reports and a report that emanated from the candidate of the PDP, following what their counsel called a forensic examination of the BVAS machines used in the conduct of the election.

Let me state from the outset that contrary to the position being canvassed by the INEC’s counsel, Prof. Paul Ananaba, to justify his synchronisation position, there is a difference between what happened on July 16 Governorship election in Osun and that of the February 25 presidential election. In Osun, results were transmitted immediately on the day of election alongside the number of accredited voters through IReV (INEC Result Viewing) Portal. But that was not the case on February 25. So, there was no basis of comparison. That is one.

Two, the first BVAS report, which the APC and its candidate, Adegboyega Oyetola, obtained from INEC, which formed the basis of their petition, was released to them 10 days after a declaration and a return had been made. The report was generated by INEC from its back-end server. But some people said due to network challenge, the figures had not been synchronised before it was given to Oyetola and the APC by INEC. The question is, is it possible for there not to be network for the whole of 10 days to enable the transmitted figure drop on the INEC’s server as being canvassed by both counsel for INEC and Senator Adeleke?

Three, for me, the position of INEC in its affidavit to the Court of Appeal recently as it relates to the fact that the accreditation data contained in the BVAS could not be tampered with or lost, as they would be stored and easily retrieved from its accredited back-end server, is a vindication of the Tribunal’s position which relied on the BVAS report obtained from the back -end server by Oyetola and the APC.

Four, the second BVAS report, which was obtained by the PDP during the pendency of the petition, which they said was the synchronised BVAS report, unfortunately had issues. Counsel for APC and Oyetola were able to point out over-voting in over 100 polling units in that same report.

Five, the report that emanated from Senator Ademola Adeleke, which his counsel prayed the Tribunal to consider while disowning the INEC’s synchronised BVAS report, also admitted that there was over-voting. The only difference being that, according to them, the over-voting occured in only six polling units. However, it was not Senator Ademola Adeleke that conducted the election; therefore, he could not have submitted a report of an exercise he never conducted.

Besides, in my years of reporting election petition proceedings, this is the first time INEC and the beneficiary of the return made by it will not be on the same page. For Senator Ademola Adeleke’s counsel to have disowned the INEC’s synchronised BVAS report, it means something was fundamentally wrong.

Regardless, at the Appeal Court, while
Oyetola and APC urged the appellate court to dismiss the Adeleke, the PDP and INEC appeals, they prayed the court to hold that Governor Ademola Adeleke was unfit to run for the office of the governor, having established a forgery case against him by the Tribunal.

The appeal panel, led by Justice M. L. Shuaibu reserved the judgement for a later date after taking arguments from counsel for Oyetola and the APC, Prince Lateef Fagbemi, SAN,
counsel to Adeleke, PDP and INEC, Onyechi Ikpeazu, SAN, Alex Izinyon, SAN and Prof. Paul Ananaba, SAN, respectively.

In all, the court heard four different appeals, including the cross appeal filed by Oyetola and the APC.

Arguing the cross appeal, counsel for Oyetola, Chief Akin Olujinmi, (SAN), noted that the tribunal erred in law when it held that Adeleke was qualified to contest for the election, even after being found to have submitted a forged certificate. To this end, it prayed the Appeal Court to hold that Governor Adeleke was not qualified to stand for the election in the first instance.

On his part, Ikpeazu had argued that the failure of the tribunal member 2, Chief Magistrate Basiru Rabi, to make pronouncement as regards the lead judgement other than signing it renders the decision a nullity.

Justice Shuaibu at this point challenged Adeleke’s counsel to explain the interpretation of the Chief Magistrate Rabi’s signature on the judgement and the use of “we” in the majority judgement. But Ikpeazu insisted that signing of the judgement was not enough.

On the issue of BVAS report upon which Oyetola used to challenge the result of the election, they argued that assuming the tribunal had found that there was over-voting as shown on the report, it should have applied the principle of the Margin of Lead and order a rerun election in the affected polling units.

The INEC’s counsel also in his arguments admitted that the INEC witness indeed admitted over-voting on the polling units upon which she was cross-examined, but it was not enough to nullify the election.

But counsel for Oyetola, Fagbemi, SAN, said there was confusion among the appellants’ submissions, as they had produced three different BVAS reports, which justified the position of the tribunal that there was indeed over-voting in that election.

“INEC claimed there was over-voting in over 1, 000 polling units. The implication is that the 744 polling units we challenged fall within the said over 1,000 polling units. We are only concerned about 744 polling units and we built our case around those areas. They can keep the rest, we concentrated on what we need,” Fagbemi added.

He argued further that the issuance of another BVAS report and production of BVAS machines in court after a petition had been filed based on the earlier BVAS report issued to Oyetola and APC was nothing but an afterthought.

According to him, though INEC produced the BVAS machines and the boxes containing the machines were opened, the machines were never operated to authenticate the claims made by the so called expert, who was hired by the first appellant (Adeleke).

Fagbemi, SAN, further submitted that since the said report from the inspection of the BVAS machines did not emanate from INEC, which conducted the election, the first appellant who was the beneficiary of the return made by INEC, cannot come up with a report other than that of INEC.

He said the respondents (Oyetola and APC) who were the petitioners at the tribunal had proven over-voting and the tribunal was right to have so held.

On the issue of application of Margin of Lead being canvassed by the appellants, Fagbemi averred that they did not make any pleading to that effect, and no evidence was led on specific polling units.

He also described the INEC counsel submission as a non-issue because the Commission did not call any electoral officer or ad-hoc staff to prove that BVAS failed to transmit record on election day.

In the cross-appeal filed by Oyetola and the APC on the forged certificate by Adeleke, Olujinmi argued that since the tribunal had found that he forged the certificate, he ought to have been disqualified from contesting the election.

He said that the documents tendered which the tribunal relied on to find him qualified for the election were documentary hearsay that could not be relied upon.

Olujinmi further argued that the judgement of the Court of Appeal relied on by the cross-respondent could not exonerate Adeleke as the arguments canvased and evidence tendered in the previous case were not the same with the ones before the tribunal. He, therefore, prayed the court to allow the cross- appeal.

After listening to all the arguments of counsel, the panel reserved judgement in all the four appeals, which it said would be communicated to parties at a later date.

Recall that once the election was over on July 16, INEC announced the results on July 17. Before the trial, some PDP lawyers told us that there were polling units where more than one BVAS machine was used in the July 16 election, and therefore there was merging of results.

But throughout the trial, INEC never stated where and when two BVAS machines were used. Again, assuming they were used and it forgot to lead the evidence in that regard, the merging of results would still have to take place before announcing the final results.

For instance, INEC witness, a Deputy Director in the ICT Department, Mrs. Abimbola Oladunjoye, who admitted that there was over-voting in the July 16 governorship election never said anything about merging of results.

She was cross-examined by the Petitioners’ counsel, Chief Akin Olujinmi, SAN. She admitted under cross-examination that in Ward 4 unit 7, Ede South Local Government, there is an over-voting of 75, as the figure of accreditation on the BVAS report presented by INEC is 313, while the result on form EC8A is 383.

Oladunjoye’s attention was also drawn to paragraph 21.36 of her witness statement where she stated that the accreditation figure was 830, but in the BVAS report presented by INEC, the figure of accreditation was 793, admitting that there was an over-voting of 37.

The witness also admitted that in paragraph 26.7 of her witness statement, there is an accreditation figure of 402, while the accreditation figure on the INEC BVAS report was 263, admitting that there is an over voting of 139.

Also in paragraph 23.24 of her witness statement, Oladunjoye agreed that the accreditation figure she mentioned was 448, while the accreditation figure on BVAS was 224, admitting that there is an over voting of 224.

The INEC witness who admitted that she signed and certified a BVAS report for the Petitioners further said that the copy of the report was different from the one issued to the respondents, adding that she never indicated that the report issued to the Petitioners was an interim document which would be subjected to synchronisation.

She testified that the synchronisation was done after election results had been declared on July 17, 2022 and BVAS report had been issued to the Petitioners on July 27, 2022.

Since INEC admitted at the trial that synchronisation occurred after July 27, the Petitioners, through their lead Counsel, Prince Lateef Fagbemi, SAN, submitted that synchronisation was “a strange coinage surreptitiously designed to cure the over-voting presented to the Tribunal.”

From my own reading of the judgement and Electoral Act, it appears the Tribunal relied on Sections 47 (2) and 51 (2), to draw its conclusion.

For instance, Section 47 (2) of the Electoral Act 2022 stipulates that “To vote, the presiding officer shall use a smart card reader or any other technological device that may be prescribed by the Commission, for the accreditation of voters, to verify, confirm or authenticate the particulars of the intending voter in the manner prescribed by the Commission.” In the case of Osun Governorship Election, BVAS was deployed.

Now, Section 51 (2) of the Act further stipulates that “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.”

But those canvassing for a rerun, are relying on Section 52 (3) of the Electoral Act, which states that “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”.

However, this latest provision only envisages a situation where those charged with the responsibility of conducting the election apply the provision of Section 64 of the Electoral Act, in which case, they would have cured the over-voting and ordered a rerun. But since a return had been made, I doubt if Section 52 (3) can avail Senator Adeleke in this very instance. I, therefore, agree with the position of the Tribunal.

On the issue of over-voting, if the Appeal Court agrees with Oyetola and APC, then, it is likely to uphold the decision of the Tribunal nullifying the election and return of Senator Ademola Adeleke as Osun Governor.

And on the issue of certificate forgery, if the Appeal Court also agrees with Oyetola and APC, it is likely to set aside the decision of the Tribunal which specifically said Senator Ademola Adeleke was qualified to run for the July 16 Governorship election even after establishing a forgery case against him.

All said and done, Nigerians wait on the Court of Appeal as it decides the Appeals and Cross Appeal before it this week.

One thing is however clear, the Osun case is a major litmus test for the 2022 Electoral Act and one that has generated a lot of interests across the country and beyond.

Ismail Omipidan, a journalist and a political analyst, writes from Ile Olorisa Compound, Eyindi, Ila Orangun, Osun.