Osun: What the courts have said about INEC in split judgments

As divergent as judicial pronouncements on the September 2018 governorship election in Osun State have been, there has been a consensus judicial opinion on a point — the Independent National Electoral Commission “went to work” on the result sheets of some polling units after the conduct of the poll.

On March 22, 2019, the tribunal, by a split decision of two-to-one of the three-man panel, nullified the election of Governor Adegboyega Oyetola of the All Progressives Congress and declared the Peoples Democratic Party as the true winner of the election.

However, by another split decision of four-to-one of its five-man panel, the Court of Appeal in Abuja on May 9, 2019, nullified the judgment of the tribunal and affirmed Oyetola’s victory at the poll.

But the minority and majority judgments at both the tribunal and the Court of Appeal agreed that INEC “doctored” the result sheets but disagreed on the effect of the alterations on the result sheets from the affected 17 polling units on the outcome of the election.

It will be recalled that the majority judgment of the tribunal had invalidated the results of the Osun State governorship election in 17 polling units where it held that the failure of INEC’s electoral officers to fill in eight columns on the Forms EC8As (the result sheets) of the said polling units amounted to a “substantial non-compliance” with the Electoral Act and INEC’s Guidelines and Manuals for Electoral Officers.

In arriving at its decision to declare Ademola Adeleke the winner of the election, the tribunal in its majority judgment subtracted the number of votes polled by both the PDP and the APC in the 17 polling units from the total number of votes polled by the two parties in the election and also nullified the September 27, 2018 supplementary poll which it held was baseless.

The affected polling units which the tribunal declared were conducted without “substantial compliance” were eight in Osogbo, the state capital, and one in each of Ife North, Iwo, Ayedaade, Ejigbo, Ilesa East, Boripe, Olorunda, Ife South, Egbedore.

The certified true copies of the Forms EC8A from the polling units which were tendered in court had all the eight columns completed, in contrast to the duplicate copies without the entries which were presented in court by the petitioners.

But the petitioners – PDP and Adeleke – successfully proved to the tribunal that the certified true copies of the documents were doctored by providing the “pink copies”, which were the duplicate copies issued to party agents in the polling units after election ended at the various polling units.

The effect was that the certified true copies of the documents produced by INEC lost the statutory privilege of being presumed regular.

Justice Peter Obiorah, who read the lead majority judgment of the tribunal consented to by another member of the panel, Justice Adegboye Gbolagunte, said, “The witnesses of the petitioners said that the CTCs were ‘doctored’.

“Of a truth, that is what they are because the CTCs contained what were obviously inserted on the forms after the election was concluded and the genuinely filled forms issued out to the polling agents.

“Who made those strange entries? When were the strange entries made?

“The respondents, particularly, the 1st respondent (INEC), did not provide any answer.

“The fact that the CTCs were tampered with and suddenly emerged with figures in the columns and the large spread of the polling unit results where it occurred lends credence to our opinion that the act of non-recording of the columns at the time of the election was deliberate.”

In the closing remark in the majority judgment, Justice Obiorah frowned on the conduct of INEC, which he said, “holds an office of public trust” and should always strive “to maintain the sanctity of the electoral process”.

He stated, “We cannot close the judgment without making a comment on what we observed to be the conduct of the 1st respondent.

“We note that a substantial number of the certified true copies of the Forms EC8A either had figures on them altered or had figures entered on them in columns were not on the pink copies of the Forms EC8A distributed to the parties’ polling agents on the day of the election which were tendered before this honourable tribunal.

“The obvious implication of this unfortunate development is that the 1st respondent went to work on the documents after the election behind the parties.

“The 1st respondent should realise that it holds an office of public trust and should at all times strive to maintain the sanctity of the electoral process.”

Justice Muhammad Sirajo, the chairman of the tribunal, disagreed with the majority judgment by affirming the APC’s victory in the election, but agreed that the result sheets produced by INEC could not enjoy the presumption of regularity as they ought to.

This he said informed his decision to base his analysis of the evidence on the ‘pink copies’ produced by the petitioners instead of the CTCs in INEC’s custody.

He said, “What is more in view of the fact that the presumption of regularity with respect to the certified true copies of the result sheets for these 23 polling units has been successfully rebutted by the petitioners for the various reasons stated in the majority judgment of this tribunal, which I subscribed to, there is no reason, for me to base my decision on them.”

At the Court of Appeal, four members of the panel affirmed the minority judgment of the tribunal and affirmed Oyetola’s victory at the poll, while a member of the appellate court’s panel affirmed the tribunal’s majority judgment.

Those who adopted the majority judgments in the three appeals decided on by the Court of Appeal were Justices Jummai Sankey, Abubakar Yahaya, Isaiah Akeju and Bitrus Sanga.

Justice George Mbaba disagreed

But all the five panel members agreed that the result sheets were doctored.

Justice Sankey, the head of the panel who read the lead judgment, held that it would be pretentious to quibble about the doctoring.

She said, “Upfront, from the evidence and the pleadings before the tribunal, it is quite apparent that non-compliance with the Guidelines and Manual for the Election in this regard was established by the respondents, in that by the presentation of evidence of the certified true copies (otherwise referred to as ‘CTC’) of the Forms EC8A and their pink counterparts, it was evident that there were entries in the eight columns of the CTCs of the Forms EC8As of these polling units which were not contained in the counterpart copies given to polling agents of the respondents, otherwise known as ‘pink copies’.

“Therefore, the tribunal drew the conclusion that the columns were filled after the pink copies had been given to the party agents.

“I think the tribunal came to a right conclusion on this based on the cold hard evidence in the documents before it. To quibble about this would only be pretentious.”

Justice Sankey, in however affirming the minority judgment of the tribunal, was quick to add that the absence of entries in the eight columns in the pink copies of the result sheets which were relied on by the tribunal, was not a substantial compliance and did not substantially affect the outcome of the election.

She added, “Thus from the above pieces of evidence from the 1st and 2nd respondents’ witnesses, they were consistent in saying that all these provisions were duly complied with by the election officials in the 17 polling units.

“The only problem the witnesses had was in relation to the fact that the 1st respondent did not fill out the eight columns for accreditation and ballot accounting in the Forms EC8A given to them at the close of voting and announcement of results.

“The evidence of these witnesses, who were the polling agents, was therefore in disagreement with the averments of the petitioners in paragraphs 45 to 77 of the petition, wherein they pleaded that the failure to fill in the columns in the Forms EC8A was deliberate in order to hide wrongful entries as to votes and accreditation.

“No such evidence was given by them or elicited from them under re-examination.

“More significant is the fact that the witnesses all agreed that they signed the white copies of the results and they were given the pink carbonised copies.

“In addition, they all agreed that they did not have any problem with the scores recorded on both the CTCS and the pink copies of the Forms EC8A and that the scores in the result sheets were correct.”

On his part, Justice Mbaba, dissented from the Court of Appeal’s majority judgment, upheld the majority judgment of the tribunal and nullified Oyetola’s election.

On the issue of doctoring of the result sheets, Justice Mbaba said, “It was clear that the Form EC8As (pink copies) given to the parties by the appellant and the CTC of the same Form EC8A produced from the custody of the appellant (meant to be original of the same process) spoke differently, and conflicted, providing the basis for rebuttal of the presumption of regularity.

“See section 63 of the Electoral Act, as to the study of appellant.

“It was also found by the tribunal that the widespread nature of the obvious defect suggested it was a deliberate act of the appellant to compromise the credibility of the elections and so it affected the outcome of the elections, to qualify as substantial non-compliance.”

The PDP and its governorship candidate, Adeleke, had dragged the APC, the Osun State governor and INEC to the Supreme Court to challenge the majority judgment of the Court of Appeal.

The appellants had in their four separate appeals urged the apex court to uphold their case, set aside the majority judgement of the Court of Appeal delivered in favour of Oyetola, the APC and the INEC, and dismiss Oyetola’s appeal against the majority decision of the tribunal.

Certainly, the Supreme Court’s assessment of the impact of the non-filling of the entries on the result sheets in the 17 polling units would be central to the decision of the apex court on the validity of the election.

Culled from Punch