•Oyetola calls for calm, says grounds exist for approaching Supreme Court •Judgment rekindles confidence in judiciary, says Adeleke
The Court of Appeal in Abuja yesterday set aside the January 27, 2023 judgment of the Osun State Governorship Election Tribunal which voided the victory of Senator Ademola Adeleke in last year’s election.
Adeleke asked his jubilant supporters to be law abiding while savouring the court victory.
Ex-governor Gboyega Oyetola told his own supporters to remain calm while his lawyers prepare to approach the Supreme Court on appeal.
The three-member panel of the appellate court, presided over by Justice Mohammed Shuaibu, held that Oyetola and his party, the All Progressives Congress (APC) – listed as the first and second respondents – failed to prove their allegation of non-compliance with the Electoral Act and over-voting before the election tribunal.
The judgment was on the appeal filed by Adeleke, marked: CA/AK/EPT/GOV /01/2023.
The court resolved five out of the eight issues identified for determination against Oyetola and the APC.
In the lead judgment, Justice Shuaibu held that the petitioners at the tribunal (Oyetola and APC) did not lead admissible evidence in support of their pleadings and that the evidence presented was not cogent enough to support the reliefs sought at the tribunal.
Justice Shuaibu held that although the provision of Section 137 of the Electoral Act 2022 was intended to lighten the burden on the petitioner of proving allegation of non-compliance, it did not abolish the need for a petitioner to call polling unit agents as witnesses on what transpired at the polling units.
Section 137 of the Act states that a person alleging non-compliance with the Electoral Act need not call oral evidence to prove the allegation if the original or certified true copies of the documents manifestly disclose the non-compliance alleged.
He said the 1st and 2 respondents, who were petitioners at the tribunal failed to prove their claim of over voting according to the requirements of the law.
The judge said: “Though the 1sts and 2nd respondents relied on BVAS reports obtained from INEC to prove over voting, they did not call PW1 to speak to the reports, that is Exhibits BVR – reports from INEC’s back-end server.
“In their pleadings, the 1st and 2nd respondents alleged that the results recorded and transmitted directly from the polling units were not taken into account and therefore accredited voters recorded in Form EC8 from the disputed polling units do not tally with the number of BVAS for the same polling units.
“Strangely, the tribunal, in its judgment, only relied on the table set out in an address of counsel to hold that over voting occurred in an election.
“Clearly, Exhibit BVR is the report from INEC’s back-end server and not physical evidence of accreditation and transmission of results from the disputed polling units. This is premised on the fact that BVAS transmission of results is not done instantly from the polling units.
“The fact that PW1’s evidence was based on a report must necessarily be linked to the relevant aspect of the complaints in the petition, which was not done.
“Furthermore, the tribunal was wrong to have acted in the evidence in isolation of the voters register from the disputed polling units.”
Justice Shuaibu further held that Section 137 of the Electoral Act did not abolish the requirement for calling polling unit agents as witnesses on what transpired at the polling units in so far as the documents tendered did not manifestly show the non-compliance alleged.
He added that the tribunal was wrong to have reached a verdict of over voting based on the contents of the table presented by counsel to the petitioners and Exhibit BVR which required demonstration in open court.
The judge was also of the view that PW1 (the statistician) called by the petitioners could not be regarded as an expert witness because he did not provide evidence of his expertise before the tribunal.
He also noted that the PW1 also failed to disclose that he was a member of the APC.
The judge held that the tribunal was wrong to have rejected the judgment of the Court of Appeal tendered by Adeleke to support the authenticity of his credentials.
He added the tribunal was wrong to have refused to be bound by the earlier judgment of the Court of Appeal in the appeal marked: CA/A/362/2019 delivered on January 30, 2022, which affirmed the authenticity of Adeleke’s academic credentials.
He noted that said the judgment was binding on the tribunal by virtue of the doctrine of stare decisis.
Justice Shuaibu also faulted the tribunal for not determining on the merit, the preliminary objection raised by Adeleke and others against the competence of the petition.
He upheld the appellant’s contention that the failure of the tribunal to consider his notice of preliminary objection breached his fundamental right to fair hearing.
The judge noted that in its ruling, the tribunal failed to determine the objection on the merit, adding that “the purported ruling on the preliminary objections… did not, in my view, address the issues raised in the appellant’s preliminary objection.
“Such is not a ruling on the merit as it neither determined the issues of law or facts raised by the parties.”
The judge faulted the appellant’s contention that the majority decision to the tribunal was validly rendered because one of the members did not express her opinion in writing nor read it.
He held that the signature of the second member of the tribunal was on the lead majority judgment, indicated that she agreed with the lead judgment, more so that she is, by law, not required to express her opinion.
The judge also faulted the appellant’s claim that the tribunal judge, who read the majority judgment was biased against him when he spoke about him dancing Buga.
Justice Shuaibu held that, although the judge’s comment was unwarranted and uncharitable, the appellant did not prove by credible evidence that the judge was biased.
He allowed the appeal, set aside the judgment of the tribunal and affirmed Adeleke’s victory at the election.
Justice Shuaibu, who also read the lead judgment in the cross appeal by Oyetola and the APC, dismissed it for lacking in merit.
Oyetola and the APC had claimed that the tribunal was wrong not to have declared Adeleke unqualified to contest election after holding that he forged his certificates.
Justice Shuaibu held that in the face of the Court of Appeal judgment which Adeleke tendered, it was wrong for the tribunal to have held that the Adeleke forged his certificates.
The judge said forgery being a criminal offence required prove beyond reasonable doubt, which Oyetola and the APC failed to do at the tribunal.
He awarded N500,000 cost against Oyetola and his party.
Another member of the panel, Justice Ifeoma Jombo-Ofo, who delivered the lead judgment in the appeal by INEC, allowed the appeal, set aside the judgment of the tribunal and affirmed Adeleke’s return as the winner of the election.
The third member of the panel, Justice Jes Abundaga, in his lead judgment in the appeal by the PDP, allowed the appeal and set aside the tribunal’s judgment.
He affirmed Adeleke’s victory at the election and awarded a cost of N400,000 against Oyetola and the APC.
Be lawful,Adeleke tells jubilant supporters
Supporters of Adeleke trooped to the streets of Oshogbo,Ilesa and other towns in jubilation as soon as news of the judgement hit the state.
In Osogbo, supporters thronged the popular Ola-Iya junction chanting songs in praise of the governor.
But Adeleke enjoined them to celebrate his victory at Appeal Court within the ambits of the law.
Speaking from his Ede residence Adeleke commended the Judiciary for doing justice to his petition and applauded the people of the state for their support since he had been contesting.
He said: “I keep thanking God. I look at my people, the Osun people, and what they have been through since four years ago.They should keep hope alive.The voice of the people is the voice of God. The people of Osun have spoken as also the judiciary.
“There is no victor and there is no vanquished. We should all come together to move Osun State forward. The people should go and celebrate and they should not break the law because we are in a fasting period. Osun people should continue to pray for us that we should deliver our campaign promises. This case is a water tight case and I must commend the judiciary for doing justice to the case.
“This judgement confirmed my earlier position that the judgement of the Tribunal is a miscarriage of Justice. The judiciary has righted the wrong of the lower Court. This has rekindled the confidence of the nation in the integrity of the judiciary and last hope of the common man.
”I am particularly glad that the Court of Appeal has ruled that BVAS machine and voters register are the primary sources, not the report from the server. This has strengthened our democracy and removed a time bomb which the judgement of the Tribunal had planted for our democracy.
“Let me use this opportunity to extend sincere hands of fellowship to former Governor Oyetola and the APC. Let us build the state together. Let us unite for the good of our people. The State needs leaders across party lines to join hands for robust and accelerated development of the state.”
Oyetola appeals to party members; says ‘We’ve potential ground to approach Supreme Court
In his own reaction, Oyetola appealed to APC members and supporters to remain calm and not be discouraged over the outcome of the appeal, saying his abiding faith in God to reclaim his mandate remained intact.
Oyetola in a statement by his media aide, Ismail Omipidan, noted that his belief in the judiciary also remained unshaken.
He said: “We have heard the judgement of the Appeal Court, but we are yet to receive a copy of the judgement.
“However, from the snippets we are getting, we believe we have a potential ground to approach the Supreme Court. Our belief in the judiciary remains unshaken, just as my abiding faith in God’s promise regarding the reclaim of my mandate remains undoubted.
“I, therefore, appeal to our supporters and party members to remain calm as we take the next step.”