Does Section 140 of the Electoral Act permit a tribunal to declare a winner by calculating figures after cancelling results? No, says Osun State Election Petition Tribunal’s Chairman Justice Muhammad Sirajo. JOSEPH JIBUEZE reviews his dissenting verdict.
ALL eyes are on the Court of Appeal as the All Progressives Congress (APC) in Osun State and Governor Gboyega Oyetola are set to challenge the majority judgment of the Election Petitions Tribunal which declared Peoples Democratic Party (PDP) governorship candidate Senator Ademola Adeleke winner of last September’s governorship election.
APC Publicity Secretary Kunle Oyatomi said the tribunal’s decision cannot stand “superior legal scrutiny”.
Oyetola reiterated his party’s position, saying there was no cause for alarm as he was still in charge.
A statement by the Secretary to the State Government, Mr Wole Oyebamiji, said: “The administration of His Excellency, Mr Adegboyega Oyetola, Governor, State of Osun, wishes to assure the people that the judgment of the Election Tribunal has been put on appeal.”
The majority verdict
The tribunal consisted of three members: Justice Muhammad Sirajo (chairman), Justice Peter Obiorah (member I) and Justice Adegboye Gbolagunte (member II).
The Independent National Electoral Commission (INEC), Adegboyega Isiaka Oyetola and All Progressives Congress (APC) were the respondents.
Justice Obiorah delivered the 223-page majority judgment. He returned Adeleke as Osun Governor-elect.
His decision was based on the ground that the rerun of last September 27 was unlawful or invalid as the Returning Officer (RO) had no power to cancel results in seven polling units across three Local Government Areas where the rerun took place.
The majority decision believed the petitioners’ pleadings that there was no ground for the rerun.
The majority verdict deducted votes for both the APC and PDP in other polling units across some LGAs on the ground that there were non-compliance with the Electoral Act and that the non-compliance affected the outcome.
The tribunal, in the majority judgment, also cancelled results from 17 polling units on grounds of substantial non-compliance with Electoral Act.
The non-compliance, according to Justice Obiorah, was INEC’s failure to fill Form EC8A and some alleged alterations or forgery on the form.
Form EC8A documents accreditation and ballot accounting. There is a column in the Form where INEC is required to enter those figures.
However, the majority judgment also concluded that even if the rerun was not discounted or invalidated or was allowed to stay, Adeleke would still have won after those deductions in the other 23-50 units in other parts of the state.
But, was the majority judgment right to have cancelled the rerun and deducted votes of both parties?
That’s the fulcrum of the minority judgment and the only two issues on which Justice Sirajo disagreed with the majority judgment.
The minority judgment
Justice Sirajo said he had the privilege of reading the majority judgment.
“I participated actively and contributed immensely by personally writing some portions of the judgment just delivered,” he said.
He, however, disagreed with the decisions and conclusions reached in the majority judgment.
Justice Sirajo differed on the aspects which border on allegations of non-compliance with the provisions of the Electoral Act, particularly the allegation of non-recording of columns of result sheets designed to document accreditation and ballot accounting.
He added: “I also disagree with the majority decision and conclusion on the lawfulness or validity of the re-run election of 27/09/2018. Other than these two substantive issues, I adopt the entire review of the pleadings and the evidence…”
Giving his reasons, Justice Sirajo noted that the petitions challenged the cancellation in seven polling units across four LGAs – Orolu, Ife North, Ife South and Osogbo.
The petitions had contended that that the RO lacked the legal right to cancel the result of the seven polling units.
Justice Sirajo said the question was whether the RO had the power to order a rerun .
He held: “By virtue of the INEC Guidelines, paragraph 44(n) thereof, the Manuals of Election Officials 2018 made pursuant to the powers donated to the first respondent (INEC) by the Electoral Act, the RO has the vires to order a rerun where the margin of win between the two leading candidates is less than the total number of registered voters where elections were cancelled or did not hold.”
The judge referred to the case of Faleke vs INEC (2016), in which the Supreme Court held: …The first respondent was correct when it declared the election of 21/11/2015 inconclusive on the ground that the margin of win between the two front-runners at the election was less than the total number of registered voters in 91 affected polling units where elections were cancelled.
According to Justice Sirajo, with regards to the polling units where election did not hold, the RO’s power to order a rerun “need no further scrutiny”.
Having held that the RO had the power to declare an election inconclusive and order a supplementary election, the judge added: “It is in the exercise of that power that the governorship election in Osun State was declared inconclusive and a rerun ordered.
“In the final analysis, I hold that the rerun election conducted on September 27, 2018 is valid. I also hold that the cases of Doma vs INEC and Ikpeazu vs Otti do not apply in the instant petition as the petitioners have failed to show that there was cancellation of election and who did the cancellation.
“Merely declaring an election inconclusive does not necessarily imply that an election was cancelled.”
Non-recording of columns in result sheets
The petitioners had argued that non-recording of items in the result sheets was to shield the wrongful entries made as to the votes of the parties and the result of accreditation.
Justice Sirajo found that none of the witnesses called by the petitioners bothered to explain in their evidence-in-chief the nature of the non-compliance and how it substantially affected the result of the election.
He noted that the only grouse the petitioners had with the results in the 23 polling units was that the data for accreditation and ballot papers were not entered in the Forms EC8A, and as a result of this omission they want the results of the affected units cancelled.
This, he said, is even as their witnesses said they had no problem with the votes credited to the parties in the result sheets.
According to the judge, there was “abundant evidence” that there was accreditation in all the 23 polling units as admitted by the petitioners’ witnesses.
Consequence of INEC’s failure to record accreditation columns
“What then is the consequence of INEC’s failure to record the columns for accreditation and ballot accounting in the result sheets for those 23 polling units?,” Justice Sirajo asked.
In answering the question, he referred to Section 139 (1) of the Electoral Act 2010 (as amended).
It says: An election shall not be liable to be invalidated by reason of non-compliance with the provisions of this Act if it appears to the Election Tribunal/or Court that the election was conducted substantially in according with the principle of this Act and that the non-compliance did not affect not affect substantially the result of the election.
Justice Sirajo emphasised that the process of an election in a polling unit begins with accreditation, casting of votes, sorting and counting of ballot papers, announcement of scores for political parties, recording of scores in the appropriate form together with the figures of accredited voters and account of ballot papers.
“It is clear from the above provision that it is not every non-compliance or deviation with the provisions of the Act that will lead to invalidation of an election.
“The framers of the Electoral Act are fully conscious of the human fallibility. That is why the statute did not expect and call for absolute compliance with its provisions.
“The degree of compliance required to validate an election is substantial compliance. For any non-compliance to have the effect of invalidating an election, such non-compliance must in itself be substantial and must have substantially affected the result of the election,” he said.
According to the judge, a petitioner who alleges non-compliance with the provisions of the Electoral Act must not only assert and establish it, he must prove to the Tribunal’s satisfaction how the non-compliance affected the result of the election in the polling unit or constituency concerned.
“In this petition, it is not in dispute that about 90 per cent of the processes 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 party agents counter-signed the result sheets and collected copies,” Justice Sirajo said.
According to the judge, the only non-compliance is that the presiding officers did not record the columns for accreditation and ballot accounting data.
“There is no complaint that the election in those 23 polling units was afflicted by any irregularity.
“I am satisfied that there is non-compliance by way of omission to record the columns for accreditation and ballot accounting in the 23 polling units out of the 3,010 polling units in Osun State,” he said.
Justice Sirajo added: “I hold that the omission to record the colums for accreditation and ballot paper accounting on the result sheets, though a non-compliance, did not amount to substantial non-compliance.”
He noted that the petitioners merely “chorusing” that the results sheets were “doctored”, “mutilated” or “altered” “does not amount to demonstration of how the non-compliance affected the result of the election.”
His verdict
Justice Sirajo held that the net result of his analysis is that the petitioners failed to show how the non-compliance with recording of the columns substantially affected the results of the election in the polling units as to lead to their cancellation.
“In the final analysis, I hold that this specie of non-compliance is not substantial, and that even if it is substantial, ihasnot been proved that it substantially affected the result of the Osun State Governorship election held on 22/09/2018 and 27/09/2018.
“Let me conclude by saying that even if this specie of non-compliance is found to be substantial as to affect substantially the result of the election, the tribunal does not have the vires 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.”
Justice Sirajo was of the view that Section 140 of the Electoral Act 2010 does not permit the court to declare a winner by calculating figures after cancelling results.
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He held that the court can only order a supplementary election where it is convinced there were irregularities, as only INEC can declare the winner of an election.
His words: “The last remark is informed by the provisions 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…
“It is the law that where an 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 areas in line with the principles of the Act.”
Section 140 (2) provides: Where an election or tribunal or court nullifies an election on the ground that the person who obtained the highest votes at the election was not qualified to contest the election, or that the election was marred by substantial irregularities or non-compliance with the provisions of this Act, the election tribunal or court should not declare the person with the second highest votes or any other person as elected, but shall order for a fresh election.
In the words of Justice Sirajo, “this is a mandatory provision that cannot be circumvented by the Tribunal or court.”
He added: “The allegation we are dealing with here is allegation of non-compliance and it falls squarely under this sub-section of Section 140 of the Electoral Act.
“There is no escaping from this sub-section and its effect, so long as the allegation is predicated on non-compliance.
“I only need to add that an order for fresh or supplementary election referred to in Section 140 (2) quoted above can only be made where it is expressly asked for by the petitioners as the Tribunal is not a charity.
“Having resolved these two important issues against the petitioners, I hold that the petition has no merit and same is hereby dismissed by me. I award the sum of N200,000 cost to each of the second and third respondents,” Justice Sirajo held.
An expert’s view
A law lecturer at the Obafemi Awolowo University, Ile-Ife, Dr Misbau Lateef, said he was looking forward to the Court of Appeal decision.
In an article published on loyalnigerianlawyer.com, he writes: “In my own personal analogy, this is how I treated that error of majority in deducting votes merely because INEC did not fill certain columns or even altered certain columns of Form EC8A, an act regarded by the Majority as non-compliance.
“Pleadings of the Petitioner which swayed the majority judgment to deduct votes for both APC and PDP in some 23-50 units is like someone contesting the legitimacy of the birth or birthday of a child simply because certain important columns in the birth register in the hospital were not filled by the hospital officials, although the official gave a duplicate copy of birth certificate to the parents which contained all details.
“Thus, if the doctor who took delivery, the matron who nursed the mother and baby, the mother of the child, the father and others present at birth are unanimous on the fact of birth and the date of birth, will failure of the hospital official to enter certain important columns – even if it’s date of birth – in the register of birth in the hospital amount to a substantial non-compliance with registration of birth, such that it can defeat the above unanimous evidence of everyone concerning the birth and date of birth of the child? No!!!!
“Finally, I seriously think the majority judgment was wrong on all fronts. They ought not to have deducted votes as the alleged non-compliance was not substantial and was not proved to be substantial by the Petitioner in line with s.139 (2) of the E.A noted above.
“They also ought not to have cancelled the rerun on the erroneous ground that the RO cancelled elections in those seven units across three LGs, when there was no such categorical proof before them…,” Lateef said.
Too early to celebrate
Legal observers have asked PDP supporters not to celebrate until they cross Court of Appeal and Supreme Court hurdles.
They point to the Taraba experience in which huge celebrations trailed the tribunal’s sacking of PDP’s Darius Ishaku and return of Senator Aisha Alhassan as governor, only for Alhassan to lose at the Court of Appeal and the Supreme Court, both of which held that the lower Tribunal grossly misdirected itself by nullifying Ishaku’s victory.