Alex Enumah writes that the affirmation of Senator Ademola Adeleke as Governor of Osun State by the Supreme court no doubt confirms that when elections are conducted within the ambit of the law, the people’s choice will always prevail.
fter nearly 10 months of fierce legal battle from the election tribunal in Osun State to the Akure division of the Court of Appeal which eventually sat in Abuja and finally to the Supreme Court of Nigeria, the issue of who is the authentic winner of the July 16 governorship election was on Tuesday finally put to rest.
The import of the unanimous judgment of the apex court is not just that the contest for the number one seat of power in Osun State has been finally rested for the winner to hit the ground running with his agenda for the people of Osun State, but that the verdict of the five wise men at the helm of the nation’s highest court was in tandem with the wishes and desires of the people of Osun State as expressed in the ballot on July 16, 2023.
Within 24 hours of the keen contest between the then sitting Governor Adegboyega Oyetola and the popular “Imole” or the “dancing Senator” and now “dancing Governor”, the Independent National Electoral Commission (INEC), had announced Adeleke as winner of the gubernatorial election.
Although, Adeleke won with a margin of 28,344 votes, it was not a surprise to many people, recalling that he had lost with a very narrow margin in 2018 to Oyetola after a keenly contested rerun.
Despite the loss in 2018, the People’s Democratic Party (PDP) candidate never despair because of the support of the people of Osun before, during and even after the election.
Infact, the victory of the PDP in the just concluded general elections in Osun is an attestation to the soaring popularity of Imole.
In the keenly contested poll last year, Adeleke had polled a total of 403,371 votes to defeat Oyetola, who garnered 375,027 votes.
Consequently, he was issued with Certificate of Return by INEC and subsequently sworn in as governor.
However, Oyetola believed Adeleke only won the election as a result of irregularities; specifically non-compliance with the Bi-modal Verification Accreditation System (BVAS) which he claimed occasioned over voting in favour of Adeleke.
Based on this conclusion he had approached the Osun State Governorship Election Petition Tribunal, not only to ventilate his anger but to also reclaim his alleged ‘stolen mandate’.
Besides allegations of irregularities, Oyetola also submitted that Adeleke was not supposed to contest the election because he lacked the basic educational qualification in addition to forging his academic certificates he submitted to INEC in aid of his qualification.
After nearly six months of legal fireworks, the tribunal in a two-to-one split judgment on January 27, 2023, agreed with Oyetola that there was indeed evidence of irregularities in favour of Adeleke and as such overturned Adeleke’s victory.
The majority judgment delivered by the chairman of the tribunal, Justice Tertsea Kume, stated that the incidence of over voting occurred in 744 polling units across 10 Local Government Areas, which when deducted revealed that Oyetola polled 314,921 votes as against the incumbent’s 290,266.
The tribunal accordingly ordered the withdrawal of Certificate of Return issued to Adeleke while a fresh one be issued Oyetola as the duly elected governor.
Dissatisfied, Adeleke claimed that the majority judgment of the tribunal was faulty and decided to approach a higher court to look into the matter with a view of upturning it and returning him as the duly elected governor of Osun State.
In his 31 grounds of appeal, Imole through his team of lawyers led by Onyechi Ikpeazu, SAN, argued that the majority judgment erred in law in holding that Oyetola was the lawful governor-elect at the July 16, 2022 Gubernatorial election and subsequently prayed the court for “an order setting aside the whole decision of the tribunal”.
While Adeleke is the appellant in the appeal: marked CA/AK/EPT/GOV/01/2023, Oyetola, APC, Independent National Electoral Commission (INEC) and the People’s Democratic Party (PDP) are 1st to 4th respondents respectively.
Delivering ruling in the appeal on March 24, 2023, the appellate court in a unanimous judgment held that the tribunal was wrong when it held that there was over voting in some polling units when such allegations were not proved.
According to the three-member panel led by Justice Mohammed Shuaibu, before a case of over voting can be established, the person making the allegation must present the Voter’s Register, the Bi-modal Verification Accreditation System (BVAS) – which contains the information of accredited voters, votes cast in each polling units, results as entered into the forms EC8A amongst others.
The panel further faulted Oyetola and the APC for hinging their allegation of over voting on only information they obtained from a secondary source (INEC back-end server report).
Faulting further the tribunal’s decision on over voting, the three justices in their separate judgments pointed out that the failure of Oyetola and APC to call witnesses especially polling agents who witnessed the voting was fatal to their case.
On the issue of jurisdiction raised by the appellant, Justice Shuaibu while observing that the law allows the tribunal to suspend decisions on Preliminary Objections until the end of the matter, faulted the tribunal for not showing in writing that it considered Adeleke’s preliminary objection in its merit.
Regarding Adeleke’s qualification to contest the July 16 2022 guber election, the panel held that the tribunal was right in holding that Adeleke was qualified to contest the election, adding that allegations of supplying false and forged documents must be proved beyond reasonable doubt, which the 1st and 2nd respondents failed to prove.
Similarly, the appellate court added that since the Court of Appeal had since ruled that Adeleke was qualified, until a higher court rules otherwise, that is the position of the law.
However, the panel disagreed with Adeleke that the majority judgment was a nullity because the second judge on the panel, Justice Rabi Bashir, failed to write her opinion as required by Section 294(2) of the Constitution.
According to Justice Shuaibu, there is no law that mandates the judge to write a separate opinion, adding that the signature of the second judge appended in the face of the tribunal’s judgment document was enough evidence that she agreed with the lead judgment.
Similarly, the panel held that Adeleke failed to prove his allegation of bias against the tribunal.
Justice Shuaibu stated that although Justice Kume’s comments on Adeleke’s proclivity for dancing and particularly the Buga song, is “unwarranted and condemnable”, it does not in any way, prove bias against the appellant.
Having decided five of the eight issues raised in favour of Adeleke, the panel held that the “appeal on the whole is meritorious and is accordingly allowed.
“Judgment of the Osun State Governorship Election Petition Tribunal is hereby set aside”.
Meanwhile, the panel slammed a N500,000 fine in favour of Adeleke.
Dissatisfied, Oyetola again approached the apex court to reverse the judgment of the appellate court and affirm the judgment of the tribunal which declared him winner of the July 16, 2022, governorship election.
Oyetola alongside his party, the APC through their lead counsel, Prince Lateef Fagbemi, SAN, accordingly filed two appeals marked: SC/ CV/510/2023 and SC/ CV/511/2023.
While the first appeal is in respect of the judgment in Adeleke’s appeal, the second was in respect of their own cross appeal which was dismissed by the appellate court for lacking in merit.
However, delivering judgment in Oyetola’s appeal, on Monday, the apex court held that there was no reason whatsoever to deviate from the judgment of the appellate court which voided the judgment of the tribunal for erring in law.
A five-member panel of justices of the Supreme Court led by Justice John Okoro affirmed Adeleke’s victory at the July 16, 2022 governorship poll, shortly after dismissing the appeal of immediate past Governor, Adegboyega Oyetola, seeking to reverse the judgment of the Abuja division of the Court of Appeal which declared Adeleke lawful winner of the poll.
Justice Emmanuel Agim, who delivered the judgment of the apex court held that the appeal was incompetent and lacking in merit.
He disclosed that the judgment was based on issues raised by Oyetola in his appeal which borders on non-compliance (partial or non use of BVAS for accreditation of voters in some polling units) and alleged forgery.
According to the justices, Oyetola failed to prove allegations of non-compliance in 744 polling units in 10 Local Governments Areas in Osun State.
Justice Agim pointed out that since the Bi-modal Verification Accreditation System (BVAS) was the sole foundation of Oyetola’s case “it was imperative they produce BVAS from the 744 polling units or Certified True Copies of the content of the BVAS to show non accreditation, improper accreditation and over voting”.
“It is glaring that the appellant did not provide in evidence, any BVAS, but sought to prove over-voting by means of a report of examination of INEC’s database or backend server”, the Justice Agim held.
To this end, the apex court faulted the reliance of the appellants on the BVR, pointed out that the BVR is a third hand record which is derived from the database which is a second hand evidence derived from transmissions from the BVAS.
Accordingly, the apex court held that, “it is the content of the BVAS that can prove the number of accredited voters”, just as it noted that the information at the backend saver might not be accurate because the BVAS may fail to transmit records, due to several reasons such as poor internet connection, loss of battery power, failure of INEC official to properly press the submit button etc.
“So the database or any extract of it contains only what is transmitted from the BVAS to it and therefore, cannot be a complete and accurate record of the information in the BVAS,” he added.
Besides, the apex court faulted the appellants for also ignoring INEC voters’ register or form EC8A which shows the number of votes cast at each polling unit to prove their case.
Justice Agim held that the Voter’s Register is still relevant in voter accreditation and is to be used alongside the BVAS machine in proving over voting, adding that the appellant did not provide the Voter’s Register in the affected 744 polling units to prove his case.
The unanimous judgment also faulted the evidence of the “Expert witness” on the grounds that he was not an independent witness but a staff of Oyetola, who “has no personal knowledge of the case, was not present in any of the polling units…”.
According to Agim, his testimony amounts to a “hearsay” and is inadmissible in law.
“It is glaring from the foregoing that the appellants did not adduce relevant admissible evidence to prove non accreditation of voters, improper accreditation of voters and over-voting.
“It is obvious that the appellant case collapses out of lack of evidence”, Agim further said.
He explained that by virtue of Section 131 and section 133(1)(2) of the Evidence Act, the appellants had the primary legal burden to prove the facts asserted by them in their petition.
“The court of appeal correctly found that the appellants failed to prove grounds two and three of their petition and correctly allowed the appeal on those grounds to set aside the decision of the tribunal.”
On the second issue of qualification, the court held that the Court of Appeal in two separate judgments had settled the educational status of Adeleke, adding that the appellant instead of relying on ordinary suspicion ought to have called on the institution that awarded the certificate to Adeleke to confirm or deny.
On the whole, the apex court stated that the entire judgment of the lower tribunal was a nullity because it failed to consider the issue of jurisdiction raised by Ademola, adding that jurisdiction is crucial to the hearing of any case.
Like judges usually say in court, “there must be an end to litigation” and indeed the end of the Osun State guber tussle finally came on May 9, 2023.
The good thing and joy of the people of Osun and indeed all justice loving Nigerians is that the verdict of the apex court truly aligned with the electorates’ own judgement delivered on July 16, 2022, through the ballot.
The ball is now in the court of the people’s governor, to give Osun people cause to dance daily, for the next four years, otherwise incur the wrath of the people come 2026.
Adeleke should not only hit the ground running but should like the theme of his campaign: Bring light or a new dawn in Osun, the PDP, Nigeria, Africa and the world in general.
