APC defiant as tribunal voids Oyetola’s election

The Osun State Governorship Election Tribunal yesterday voided the election of Adegboyega Oyetola of the All Progressives Party (APC) as governor of Osun State.

In a two-to-one split decision by a three-man panel, the tribunal declared Senator Ademola Adeleke of the People’s Democratic Party (PDP) winner of the election and ordered the Independent National Electoral Commission (INEC) to issue him with a certificate of return.

Justice Peter Obiora, who read the majority judgment on the petition by Adeleke and the PDP, held that the petitioners were able to prove their allegations of irregularities and substantial non-compliance with the Electoral Act in the conduct of the governorship election in Osun State on September 22 and 27, 2018.

Justices Obiora and Anyinla Gbolagunte, in the majority judgment, held that the petitioners were able to prove irregularities in the results declared by INEC in relation to 17 polling units that cut across about five local government areas.

The tribunal Chairman, Justice Ibrahim Sirajo, however, disagreed with the two other judges and gave a minority judgment in which he dismissed the petition on the grounds that the petitioners failed to prove their case.

Justice Obiora held in the majority judgment that the tribunal was left with no option but to believe that INEC altered results sheets from the 17 polling units after elections had been counted and party agents signed.

He said the similarity in the alteration in the copies of the result sheets, which were not reflected in the pink copies issued to party agents, and the failure of INEC official to fill the first eight columns of the result sheets, betrayed a fraudulent intention on the party of INEC.

Justice Obiora proceeded to cancel the results in the 17 polling units affected on the grounds that the petitioners did not only to prove that the non-compliance was substantial, but also that the non-compliance substantially affected the outcome of the election.

The judge noted that in the 17 polling units, which was cancelled, the APC scored 2029 votes, while the PDP scored 1249 votes.

Justice Obiora, also in the majority decision, voided the rerun election held on September 27, 2018.

He held that the state returning officer, who announced the cancellation of election results in the seven polling units cutting across four local governments in which the rerun elections were held, acted outside his/her powers.

Justice Obiora said a state returning officer has no power under any law to cancel an election and order a rerun.

He then proceeded to deduct the results cancelled in the majority judgment from the total scores of both the APC and PDP both before and after the rerun election

Justice Obiora said: “By our earlier calculation, the votes affected by non-compliance are: APC-2,029; PDP-1,246, which we hereby nullify.

“If the above votes are deducted from the scores of the parties as at September 22, 2018 election, the stand of the parties will be as follows:

“APC: 254,345 votes, minus 2,029 votes equals 252,315 votes. PDP: 264,698 votes, minus 1,246 votes, equals 253,452 votes.

“If per chance, the rerun election is found to be valid, and the final scores of the parties declared after the rerun election of September 27, 2018 is allowed to stand, then deducting the votes that were found to be afflicted by non-compliance shall stand the parties in the following scores:

“APC: 255,505 votes, minus 202,029 votes, equals 253,476 votes. PDP: 255,023 votes, minus the afflicted votes of non-compliance which is 1,246, will give us 253,777 votes.

“In both situations, it is obvious that the petitioners won the election into the office of the Governor of Osun State.”

Justice Obiora awarded N200,000 cost against the APC and Oyetola, in favour of the petitioners.

Sirajo, in minority judgment, said the rerun election of 27th September 2018 was properly held.

He noted that the petitioners failed to prove that election results were actually conducted in the seven polling units in which the rerun elections were held and that it was the state returning officer that cancelled the result.

Sirajo also faulted the majority judgment position that the non-recording of accreditation and voting record in the result sheet substantially affected the outcome of the election.

He held that under Section 140(2) of the Electoral Act, the tribunal lacked the powers to have deducted the cancelled votes and declare the petitioners winners.

Justice Sirajo said: “It is the law that where there is no accreditation, the resultant votes are unlawful votes as the election itself is null and void.”

“The legal implication of non-accreditation cannot be applied to the 23 polling units under consideration, in view of the abundant evidence of accreditation in all the 23 poling units through the affirmative evidence of the petitioner witnesses.

“The non-filing of information in some portion of the result sheets were not sufficient to have prompted the tribunal to cancel the election in the 17 of the 23 polling units under review.

“In this petition, it is not in dispute that about 90 per cent of the process involved in the conduct of election in a polling unit have been fully complied with. Voters were duly accredited before they cast their votes.

“At the conclusion of voting, ballot papers were sorted out and counted. The presiding officers announced the votes scored by the parties, entered the figures in the result sheets and signed.

“The parties’ agents counter-signed the result sheets and collected copies. The only non-compliance is that the collation officer did not record the column for accreditation and ballot accounting. There is no complaint that the poling units were afflicted by any other irregularities

“I am satisfied that there is non-compliance by way of omission to record the columns accreditation and ballot accounting in the 23 polling units out of the total 3010 polling units. What then is the degree of non-compliance? Has it attained the degree of substantial non-compliance?

“I hold that the omission to record the column of accreditation and ballot accounting in the result sheet does not amount to substantial non-compliance

“Merely chorusing that the certified true copies of the result sheets were doctored, altered or mutilated, as did by the petitioners’ witnesses before the tribunal does not amount to demonstration of how the alleged non-compliance substantially affected the results of the election.

“The net result of my analysis above is that the petitioners have failed to show how the non-compliance, with respect to the recording of the columns for accreditation and ballot accounting in 23 polling units substantially affected the results of the election in those polling units as to lead to their cancellation.

“In the final analysis, I hold that this specie of non-compliance is not substantial, and even if it is substantial, it has not been proved that it substantially affected the result of the Osun State Governor’s election held on the 22nd September 2018 and 27th September 2018.

“Let me conclude by saying that even if this specie of non-compliance is found to be substantial, as to substantially affect the results of the election, the tribunal does not have the power to subtract the votes affected by the non-compliance from the scores of the candidates and proceed to declare the candidate with the highest number of votes as the winner of the election. The tribunal does not have that power.

“This my remark is informed by the provision of Section 140(2) of the Electoral Act 2010 (as amended), which gives the tribunal the power to only order a fresh or rerun election where non-compliance is established.

“By no stretch of imagination or ingenuity of reasoning can a tribunal import the provision of section 140(3) of the Electoral Act into Section 140(2) of the same Act, where the proved electoral malfeasance is substantial non-compliance.

“Where the allegation of non-compliance is proved, the tribunal is only permitted to nullify the election and order a supplementary election in order not to disenfranchise voters in the affected polling units in line with the principle of the Act.

“I only need to add that the order for a supplementary election can only be made where it is expressly asked for.”

He proceeded to dismiss the petition and awarded cost of N200,000 each in favour of the APC and Oyetola, against the petitioners.