As Adeleke Approaches Appeal Court to Reclaim Mandate

Emameh Gabriel looks at the fate of Governor Ademola Adeleke of Osun state as he approaches the Appeal Court to challenge last week’s ruling of the State Election Petition Tribunal which nullified his election

After five months of intense legal tussle between the candidate of the All Progressive Congress (APC), Adegboyega Oyetola and that of Peoples Democratic Party, Ademola Adeleke over the July 2022 governorship election of Osun State, the Election Petition Tribunal in the state  last Friday annulled the result of the poll and declared the APC candidate and former Governor of the state as winner of the election.

Recall that the Independent National Electoral Commission (INEC) had on July 16 last year declared Senator Ademola Adeleke of the PDP the winner of the election having scored the highest number of valid voted cast at the poll through the use of BVAS technology deployed by the Commission.

The Returning Officer for the election and Vice Chancellor of the University of Lagos, Prof. Oluwatoyin Ogundipe, announced that Adeleke scored a total of 403,371 votes to beat incumbent Governor Oyetola who came second with 375,027 votes in the keenly contested race.

However, not satisfied with the outcome of the election, Oyetola and his party; the APC challenged Adeleke’s victory, and asked that he be declared winner of the election after evidences brought before the court on perceived manipulation of results, over voting and others.

Oyetola who won in 13 of the 30 Local Government Areas of the state, had alleged that the election was fraught with certain “irregularities”. He alleged that Adeleke ought not to have been declared winner as he was not qualified to have contested the election in the first place, having submitted a forged certificate to the electoral body.

Adeleke who was sworn in on November 27, 2022 was in office for just two months when the Tribunal wielded its gavel, a situation that has compelled him and his legal team to commence a fresh litigation that may terminate at the nation’s apex court, the Supreme Court.

Adeleke had assembled about 52 lawyers, including seven Senior Advocates of Nigeria, to defend his case at the Election Petition Tribunal, with Dr Alex Izinyon, Dr Paul Ananaba, and Dr Onyeachi Ikpeazu among the seven SANs leading his team of lawyers and other respondents.

While Izinyon led another SANs and 16 other lawyers for the PDP, Ananaba represented INEC with two other SANs and 14 other lawyers at the Tribunal.

Oyetola on his part, had assembled 50 lawyers including 10 SANs, brought before the Tribunal 13 grounds on which premises Adeleke should be disqualified and why he should be declared winner of the election.

Key members of his legal team included Prince Lateef Fagbemi (SAN), Chief Akin Olujumi (SAN), Prince Biodun Layonu (SAN/, Muritala Abdulrasheed (SAN).

While lawyers of both parties, the APC and the APC and those of their candidates presented their arguments and counter arguments, before the Justice Tetsea Kume-led Tribunal, counsel for INEC, Prof. Paul Ananaba, SAN, that of Adeleke, Onyeachi Ikpeazu, SAN, and Dr. Alex Izinyon, SAN, representing the PDP, said Adeleke was validly elected, as the election that produced him was held in compliance with the provisions of the Electoral Act and the Constitution.

This argument was however, not enough to restrain his Lordship’s gavel in delivering the judgement according to evidence brought before the sitting Tribunal.

Justice Tetsea Kume, while delivering the majority judgement, declared that INEC did not comply substantially with the constitution and the provisions of the Electoral Act, and subsequently deducted the over-voting observed from the votes scored by the candidates and declared Oyetola winner of the election, having polled 314, 921 votes while Adeleke’s votes came down to 290, 266.

Reacting to the judgement, a furious Adeleke  described the rulling of the tribunal as “a miscarriage of justice”, vowing to challenge it at the Court of Appeal.

According to a statement by his spokesperson, Olawale Rasheed, Adeleke faulted the tribunal’s resolution of the over-voting question in favour of Oyetola, calling it “an unfair interpretation against the will of majority of voters.”

Any hope for Adeleke at the appeal court?

The Independent National Electoral Commission (INEC) has said it would continue to maintain its neutrality adding that it would be prejudicial to speak on the outcome of the  State Governorship Election Petition Tribunal which recently annulled the victory of Governor Ademola Adeleke at the July 16, 2022 governorship poll.

INEC was a major witness to the Suit challenging the results of the Osun election, stating that it adhered to the provisions of the 2022 Electoral Act in the conduct of the election.

Some lawyers have expressed different opinion on the rulling by the tribunal with renowned Rights lawyer, Femi Falana (SAN) faulting INEC over what he described as unprofessionalism in handling sensitive part of the election.

According to Falana who spoke during an interview on Arise TV, voters in Osun State should sue the Independent National Electoral Commission (INEC) for wasting their votes.

He said, “What the voters in those areas have to do is to sue INEC for damages that you have wasted my votes”.

Falana also said it is impossible for Adeleke’s lawyers to overturn the verdict of the tribunal.

“Looking at the judgement, I believe very strongly that it is going to be a daunting task to impeach the judgement. INEC has to be held completely responsible for what happened.

“INEC will have to go back to the drawing table so that we will not have this experience. INEC will have to put its house in order. If we have this in a presidential election, where you issue one or two reports, it will have a crisis of monumental proportion,” he said.

Another lawyer, Ibrahim Lawal, in his analysis of the judgement  described

Adeleke’s claim about the Tribunal judgment as one borne out of ignorance, expressing utter disappointment in Adeleke’s legal team who he said could mislead him to challenge the judgement.

He said: “For the education of those that wishes to get educated, if an Election Tribunal delivered a unanimous judgment, only the chairman will read the judgment. It is only where there is a split decision that a judge will read the majority judgment while the other judge reads the dissenting judgment.

“The only issue that may arise is only if a judge did not append his signature on the judgment, then one can conclude that the judge was not part of the judgment. 

“One can only advise the legal team to get busy and look for reasonable grounds for their appeal rather than frivolities that will lead them nowhere”.

Corroborating the above arguments, a Professor of Law, Misbau Alamu Lateef said Adeleke cannot survive the next phase of the judgement even if he goes to court of  competent jurisdiction.

Lateef in his analysis described the BVAS as a game changer and should ordinarily be above manipulation. To him, the one man, one vote idea was fully reinforced by the use of the BVAS technology.

He said: “The BVAS ascertains or validates voters’ identity, and it is mandatory prior to voting. Every voter must be BVASed before they are issued with a ballot to vote. In short, BVAS accredits voters.

“After elections, the results are then collated and entered manually on INEC form EC8As. However, the number of voters on INEC Form EC8A must never exceed the number of accredited voters on BVAS. That’s over-voting and automatic cancellation under the EA 2022.

“When a winner was declared by INEC in Osun elections, it was assumed by all that the BVAS and Form EC8As tallied. It was thought that Adeleke won and Oyetola lost.

“APC applied for the BVAS report and Form EC8AS to file their petition days after the winner was declared.

“APC in preparing their Petition found discrepancies between BVAS report and Form EC8As in over 700 polling units. The votes recorded on Form EC8As literally exceeded what the BVAS accredited. There was over-voting by people who must have literally bypassed the BVAS either for not having PVCs or other dubious reasons.

“Once INEC, PDP, and the Governor were served with the APC Petition, they all filed their responses and INEC added/pleaded another entirely different BVAS report, which INEC now called a “Synchronised BVAS Report.”

He submitted that INEC has by this reason, showed that there were two BVAS reports before the Tribunal; the one issued to APC before they filled their petition and the one issued by INEC to self during the pendency of the petition.

This left both party striving hard to prove which BVAS was credible and which was not, leaving the Tribunal to decide on the first one that was used to declare a winner on the elections day.

He said a Synchronised BVAS was an after thought by the INEC to make up for its self-inflicted conduct almost 30 days after a winner was already declared and during the pendency of the petition of the APC.

He added that INEC should be grateful to APC/Oyetola/Osun for helping to expose the manipulation that dubious INEC officials and politicians can subject the BVAS to.

The Law Professor concluded by advising

voters to “know that bypassing the BVAS is not helpful. Everyone must be accredited by the BVAS to be eligible to vote”.

The case of Adeleke vs Oyetola is a synopsis of the legal tussle that transpired between former governor of Edo State, Comrade Adams Oshiomhole of the then Action Congress (AC) and Prof Osariemhe Osunbo of the Peoples Democratic Party (PDP) in 2007.

Oshiomhole had approached the Court challenging the outcome of the 2007 governorship election in the state, alleging that there was over-voting in 13 out of the 18 local government areas in the state.

The Tribunal had earlier ruled in favour of Oshiomhole but the judgement was however challenged by the PDP and its candidate, Osunbo at the appeal court.

In a judgement that lasted over two hours and a half, Justice Umaru Farouk Abdullahi, President of the Appeal Court held that the Action Congress (AC) candidate scored highest vote, in the April 14, 2007 governorship poll in Edo State.

The court thus dismissed the appeal filed by Professor Oserheimen Osunbor of the People’s Democratic Party.

Supported by other members of the Appeal Court, including Justices Isa Ayo Salami, John Fabiyi, Amina Audi and Uzo Anyanwu, the court ruled that Oshiomhole was the duly elected governor and directed that the certificate of return should therefore be given to him immediately.

The Appeal Court arrived at its decisions after a careful scrutiny of the lawful votes and invalid votes cast in 12 contentious local government areas and concluded that Oshiomhole won the highest number of votes as required in law.

The tribunal said Oshiomhole scored 166,577 votes as against 129,117 scored by Osunbor after the number of invalid votes were deducted from both parties.

The tribunal had through its findings and evidence brought before for it, established irregularities in 10 out of the 18 local governments which make up the state.

Although both elections were conducted at different times, conditions and circumstances, including new laws and the introduction of technology, the issue under contention and as established is over-voting.

Section 51of the Electoral Act, 2022 provides that the total number of accredited voters will become a factor in determining over-voting at election tribunals.

Thus, where the number of votes cast at an election in any polling unit exceeds the number of accredited voters in that polling unit, the presiding officer shall cancel the result of the election in that polling unit. This is what official of the INEC failed to do and was challenged by Oyetola at the tribunal.

This is an improvement on the repealed electoral law which provided that the number of registered voters, as opposed to accredited voters, shall be the factor in determining over-voting at election tribunals.

The question remains, will INEC appeal a judgement that validated the efficiency of its innovative BVAS? Only time will tell.