Oyetola’s Road To Legal Victory: The Unnecessary Hiccup, By Niyi Akinnaso

…omission by the INEC led the two judges to allege non-compliance with the electoral law. Under this pretext, they cancelled the votes in the 23 polling units. The cancellation led to a loss of 2,029 votes for APC and 1,246 votes for PDP. It was the difference between the two that gave Adeleke of the PDP the false lead the judges awarded to him.

Following the tally of the cumulative results of the main and supplementary elections of September 22 and 27, 2018, the Independent National Electoral Commission (INEC) rightfully declared Gboyega Oyetola of the All Progressives Congress (APC) as the winner of the Osun governorship election.

Nevertheless, in pursuing the right of appeal, the Peoples Democratic Party (PDP) and its candidate, Ademola Adeleke, went to the Tribunal. They started out challenging the votes in 50 polling units but later dropped 27 of them and concentrated on the remaining 23. They also challenged the legality of the rerun election.

After all, as we know and expect, the duty of the judiciary is to dispense justice. The judiciary must be seen to be performing this duty all of the time. This high bar is the norm in civilised societies. Deviations from this norm often lead to suspicions of incompetence, bias, or underhand dealings.

Unfortunately, such a deviation occurred with the majority (2:1) decision of the Osun Governorship Election Tribunal delivered in Abuja on Friday, March 22, 2019, in which false victory was awarded to Adeleke. No wonder it aroused a variety of suspicions at that time as no careful reader of both majority and dissenting judgements would fail to see how two of the judges set aside the evidence, the laws, and sheer common sense, which should have guided them in reaching a just decision.

Fortunately, the chairman of the Tribunal hinged his dissenting judgement on the evidence provided as well as key points of law. He justly concluded that Oyetola legally won the governorship election. His decision was rightly affirmed later by the Appellate Court. The focus of the present piece, however, is on the Tribunal’s split decision.

Two of the Tribunal judges illegally awarded victory to the PDP candidate, by accepting the pleading (not the evidence!) that votes in 23 polling units be cancelled, where the Independent National Electoral Commission failed to record the columns for collation and ballot accounting on Form EC8A on which the results of the election were recorded for the different parties.

This omission by the INEC led the two judges to allege non-compliance with the electoral law. Under this pretext, they cancelled the votes in the 23 polling units. The cancellation led to a loss of 2,029 votes for APC and 1,246 votes for PDP. It was the difference between the two that gave Adeleke of the PDP the false lead the judges awarded to him.

Three things must be noted about this allegation of non-compliance. First, it must be emphasised that the offence of non-recording of accreditation and ballot accounting on Form EC8A was committed by INEC and not by Oyetola or the APC. There was no proof that the two respondents colluded with INEC or that the omission disadvantaged the PDP or any party for that matter. How could one party lose its voting edge for an error it did not commit?

Second, the electoral law is clear that an allegation of non-compliance must satisfy two key conditions in order to attract the sanction of the Tribunal: (a) the non-compliance must be “substantial” and (b) it must also “substantially” affect the results of the election.

As pointed out repeatedly by the defence lawyers and the dissenting judge at the Tribunal, neither of the two conditions was met in this case. On the contrary, even the PDP polling agents in the 23 polling units testified that voting, vote sorting, vote counting, vote recording, and open announcement of the results by the relevant presiding officer took place at the various polling units.

They also admitted that there were no complaints whatsoever about violence or other irregularities during the electoral process, and no such reports were tendered before the Tribunal. Moreover, they testified that they willfully signed the result sheets at the end of voting, as recorded on Form EC8A, because, in their judgement, INEC’s omission of two columns had no effect whatsoever on the results.

In other words, the electoral process was satisfactorily concluded up to the announcement and signing of the results by the party agents. This simply translates to substantial compliance. Therefore, the non-recording of two columns on Form EC8A, which had no effect whatsoever on the process and the results of the election in those polling units could not have been grounds for setting aside the results by the two Tribunal judges.

Third, were the cancellation of the results even warranted, what the law allows is a supplementary election in the affected polling units. Even then, as the dissenting judge at the Tribunal pointed out, the Tribunal could only order a supplementary election in such a case only if it was expressly requested by the petitioner as “the Tribunal is not a charity”.

The implication of the above analysis is that one of the two grounds on which the two judges awarded victory to Adeleke has no legal backing, and it also violates common sense.

The second ground on which they based their ruling is equally vacuous. What they did was to work to answer by hiding under the law which stipulates that the returning officer has no power to cancel elections in the seven polling units where rerun election took place. It is indeed true that the electoral law does not empower the Returning Officer to cancel elections.

However, in agreeing with the petitioner on this point, the two judges sidestepped two issues and the supporting evidence. One, there was no election in the seven polling units in question as no election results were tendered in court. Even the petitioner’s witnesses testified that there was no election in the seven polling units due to various factors, notably, malfunctioning card reader, over-voting, and disruption of voting.

Since there were no results to cancel, the issue of who cancelled them simply does not arise.Therefore, the onus of cancellation cannot be put on the returning officer. Put quite simply, the returning officer in this case did not cancel the results of the seven polling units.

However, the question arises as to why the Returning Officer ordered a rerun in the seven polling units. This leads to yet another issue: Does the returning officer have the power to order a rerun? The answer is “Yes”: The returning officer is empowered by the electoral law to declare an election inconclusive and order a rerun or supplementary election, where the margin of victory between the two leading candidates is less than the number of registered voters in the polling units, where election did not take place or were cancelled. Readers would recall that such supplementary elections were ordered in several states, following inconclusive results during the 2019 general elections.

What the two judges did was to agree with the petitioner by accusing the returning officer of cancelling results, where, in fact, there were no results to cancel for the reasons given above. They also agreed with the petitioner’s magic of deletion and crooked arithmetic of subtraction, by which voters in 23 polling units were suddenly disenfranchised through no fault of their own or their candidates. And this seems not to have bothered the two judges.

Governor Oyetola took the majority judgement to the Appellate Court for redress. On Thursday, May 9, 2019, the court invalidated the Tribunal’s obnoxious majority decision and affirmed Oyetola’s victory.

The analysis of the Appeal Court’s decision will follow in a subsequent essay.

Niyi Akinnaso, chairman of Professorial Associates, writes from Akure, Ondo State.