Godwin Tsa, Abuja
On Saturday, March 22, the Osun State Governorship Election Tribunal in Abuja completed its assignment after sitting on the petition filed by the Peoples Democratic Party (PDP) and its candidate, Senator Ademola Adeleke, challenging the victory of Governor Gboyega Oyetola of the All Progressives Congress (APC). The tribunal, by a split decision of two to one, nullified the election of Oyetola.
Road to tribunal
The Independent National Electoral Commission (INEC) had declared the Osun State governorship election conducted on September 22, 2018, inconclusive. Adeleke won majority votes of 254,698 while Oyetola came a close second with 254,345 votes. Both leading candidates had a difference of about 354 votes.
However, the INEC presiding officer, Joseph Fuwape, Vice Chancellor, Federal University of Technology, Akure (FUTA), claimed it was not possible to declare anybody as clear winner on the first ballot. He, therefore, declared the election inconclusive, saying it was impossible to name an outright winner without organising a supplementary poll.
He said the registered voters in the polling units where elections were cancelled were 3,498. Since that figure was higher than the difference between the votes of the leading candidates, a supplementary election had to be conducted, he insisted.
INEC conducted the election on September 27, 2018, in seven polling units. Oyetola, was declared winner in six of the seven polling units amidst widespread voter intimidation and other electoral irregularities. He scored 255,505 votes while Adeleke scored 255,023. While Adeleke emerged winner in the September 22 elections with a margin of 354 votes, Oyetola defeated the PDP candidate with 482 in the supplementary election.
Adeleke and the PDP had through their lawyers urged the tribunal to declare that Oyetola was not the valid winner of either the substantive election conducted on September 22, or the supplementary poll of September 27. The petitioners alleged that the re-run was marred by manifest irregularities, even as they urged the court to nullify Oyetola’s election and declare Adeleke as the rightful winner of the governorship election.
They submitted that the election was characterised by massive rigging, vote buying and other forms of malpractices, claiming that PDP scored majority of the lawful votes in the election. Adeleke specifically claimed that the he garnered on September 22 were 245,698 while Oyetala scored 245,345. His argument:
“That the first applicant was the winner of the election and ought to have been so declared by the third respondent (INEC). That the third respondent declared the election inconclusive hence a rerun was conducted on September 27, 2018.
“That the rerun election was marred by electoral violence, vote-buying, stuffing of ballot papers, multiple thumb-printing and voting and allocation of votes by the third respondent.
“That the third respondent wrongfully declared and returned the 1st respondent as being duly elected and winner of the governorship election, Osun State, held on September 22, 2018 and the rerun election of September 27, 2018, respectively. The first and second applicants are dissatisfied with the said result of the election as announced by the returning officer of the governorship election, Osun State.
“The first petitioner having satisfied the provisions of Section 179(2) of the Constitution ought to have been declared duly elected. Aside non complaince and irregularities that we have identitied, the first petitioner clearly won the election based on overall votes.”
They told the tribunal that Adeleke merely participated in the supplementary election in view of Section 285(13) of the Constitution, that stipulated that nobody should be declared elected except the person participated in all stages of the election. They tendered certified copies of mutilated and altered result sheets the INEC relied upon to declare Oyetola as winner of the election.
The petitioners insisted that having tendered the documents, the onus was on INEC to call witnesses to justify those errors and mutilations, by presenting any other result sheet it used. More so, they argued that INEC acted beyond its powers when it declared that the initial poll that took place on September 22, was inconclusive:
“A returning officer cannot act beyond section 69 and INEC cannot act outside the provision of section 179 of the Electoral Act. In this case, INEC on its own constituted an election petition tribunal and began to juxtapose and cancel election results.” The tribunal was therefore urged to allow the appeal and grant all the reliefs sought by the petitioners.
Oyetola, APC, INEC challenge petition
However, INEC, Oyetola and APC cited as respondents, urged the tribunal to dismiss the appeal on the premise that the petitioners failed to prove that the election was not free, fair and credible. They wanted the tribunal to dismiss the petition as lacking in merit. INEC advised the tribunal to hold that the petitioners failed to establish the petition as required by law, saying it should be dismissed with substantial cost.
Oyetola asked the tribunal to dismiss the petition for being unmeritorious and lacking in competence. His lawyers alleged that the petitioners had in their written address, not only admitted that they were complicit in the alleged electoral malpractices, but also presented a different case from what was contained in their pleadings and reliefs they sought before the tribunal:
“They admitted that they were involved in illegality and prayed the tribunal to quash even some of their own votes. It is a settled law that a self confessed petitioner who have in writing, admitted to infringing the law, cannot be asked to be returned as winner of election.
“They want your lordships to nullify the certificate of return issued to the second respondent, the question is, where is that certificate? Are my lords magicians to nullify what is not before them? Our answer is no! The certificate is with us. We have cited several authorities in support of our position. With respect to the petitioners, law is not about sentiment, it is about proof in accordance with the law and in accordance with precedents.”
The APC maintained that evidence of witnesses the petitioners called before the tribunal was irrelevant and not sufficient to sustain the petition. It argued that the petition lacked a cause of action since the first petitioner sought to be declared winner based on the election that held on September 22, 2018, but failed to prove that a return was made by INEC on that day. He noted that the petitioners had earlier denounced the supplementary election that held September 27.
The judgment
In its judgment, two members of the tribunal allowed the petition. Justice Peter Obiora who delivered the judgment, supported by Justice Adegboye Gbolagunte, ordered the INEC to immediately issue a fresh certificate of return to Adeleke as the lawful and validly elected governor of Osun State, after declaring the September 27, 2018 re-run election as illegal.
The tribunal held that Adeleke scored the lawful majority votes at the election contrary to the declaration by INEC. It was the judgment of the tribunal that the returning officer, ought not to have cancelled the election in the first place as he lacks the constitutional powers to do so.
The tribunal confirmed that results of September 22 were manipulated against the PDP candidate even though the PDP still won the election. It established mutilations of Certified True Copies of EC8AS by INEC and expressed surprise that INEC offered no defence for the alleged tampering with results. INEC had failed to call any witness to defend its alteration of results from many polling units.
The tribunal further affirmed that the State Returning Officer has no power to cancel results of election from seven polling units or any other one, which was the basis for the rerun election. It held that only the presiding officers from polling units have the power to cancel votes. The cancellation of votes from those seven polling units were therefore declared null and void and of no effect.
The tribunal held that the supplementary election was a product of an illegal cancellation of the results in the seven polling units during the main election. It agreed that PDP and Adeleke established beyond reasonable doubt that INEC did not comply substantially with the Electoral Act in 17 polling units.
Consequently, over 2,000 votes credited to the APC and Oyetola were deducted from the total votes credited to them by INEC, while over 1,000 votes said to have been scored by the PDP and its candidate were also removed from their total votes.
The majority judgment held that the returning officer who cancelled the result in the affected units after the announcement had no power to have done so. It posited that the declaration of Oyetola as governor based on the outcome of the rerun combined with the main election was illegal and therefore null and void. Having declared the re-run election illegal, any declaration made on its foundation is equally illegal and of no effect.
On the issue of qualification, the tribunal held that the respondents did not prove their allegations that Adeleke is not qualified to run for office. This validated two other previous court judgments, which affirmed that educationally, Adeleke is qualified to run for the office.
The participation of the petitioner in the re-run was affirmed as legal and in compliance with the provisions of the Electoral Act: “The law is that you cannot question the legality of an election in which you did not participate. Hence, participation of Adeleke in the rerun cannot stop him from questioning the legality of the entire exercise.
“An election is a continuous process, which ends with declaration of the winner. Adeleke was adjudged right and within the bound of law to have waited till Oyetola’s declaration to finally challenge the outcome in court.” The tribunal held that treating the two elections together in an election petition as the petitioner did was lawful.
Chairman of the tribunal, Justice Muhammad Surajo, gave a dissenting judgment. He said the evidence brought forward by the PDP was not sufficient to prove the allegation of non-compliance. He also ruled that the INEC was right in its decision to conduct a rerun.
The APC immediately indicated its resolve to challenge the ruling, stressing that the decision of the majority could not stand an appeal.
Oyetola is expected to remain in office till a final decision is reached on the matter at the Appeal Court and at the Supreme Court if it is further appealed. According to Section 143 (1) (2) of the Electoral Act; “where a candidate whose election has been nullified notifies parties of his appeal within 21 days, he shall continue to enjoy the benefits of that office and shall not be deterred from doing so till the appeal is determined.”