Supreme court affirms Adeleke as Osun governor

The supreme court has affirmed the election of Ademola Adeleke as the governor of Osun state.

Delivering judgment on Tuesday, a five-member panel of the apex court held that the court of appeal correctly reinstated Adeleke as governor.

In March, the court of appeal sitting in Abuja reinstated Adeleke as the governor of Osun.

A three-member panel of justices of the court held that the Osun election tribunal erred when it ruled that the 1st and 2nd respondents (Gboyega Oyetola and the All Progressives Congress) proved their allegation of over-voting.

According to the panel of judges, Adeleke is the duly elected governor of the state.

The Osun governorship election tribunal, in January, held that Oyetola was able to prove that there was over-voting in some of the polling units.

Consequently, the majority judgment of the tribunal ordered the Independent National Electoral Commission (INEC) to withdraw the certificate of return issued to Adeleke and issue a fresh one to Oyetola as the duly elected governor of Osun.

Dissatisfied with the ruling, Adeleke appealed the judgment at the court of appeal.

In August 2022, Gboyega Oyetola, former Osun governor, and the APC petitioned the tribunal to challenge the victory of Adeleke.

Among several issues, Oyetola contended that there was overvoting in 749 polling units across 10 LGAs of the state.

Delivering judgment on January 27, two out of the three-member panel of the tribunal held that the petitioner was able to prove that there was indeed over-voting in some of the polling units.

Consequently, the majority judgment of the tribunal ordered INEC to withdraw the certificate of return issued to Adeleke and issue a fresh one to Oyetola as the duly-elected governor of Osun.

“For the sake of emphasis, the total lawful votes for each of the candidates after the said deduction of the invalid votes is 314,931 for the first petitioner, and 290,666 for the second respondent,” Tetsea Kume, who read the majority decision, said.

“Consequently, the second respondent did not score a majority of lawful votes cast at the election. The declaration and return is hereby declared null and void.

“The second respondent cannot ‘go lo lo lo lo’ and ‘buga won’ as the duly elected governor of Osun state in the election conducted on the 16th day of July, 2022. See Kizz Daniel song, ‘Buga’.

“Rather, we hereby hold that the first petitioner scored a majority of lawful votes in the said election and is hereby returned as such.

“The first respondent is hereby directed to withdraw the certificate of return issued to the second respondent, and issue it to the first petitioner as the duly elected governor of Osun state.”

SUPREME COURT’s JUDGEMENT

Delivering judgment in Oyetola’s appeal, Emmanuel Agim, who read the lead judgment, said the former governor and his party failed to tender relevant materials such as the BVAS from the 744 polling units in the state, INEC voters’ register or form EC8A showing the number of votes cast at each unit.

“It is glaring that the appellant did not provide in evidence, any BVAS, but sought to prove over-voting by means of a report of examination of INEC’s database or backend server,” Agim said.

The court held that the information from the BVR relied on by petitioners was not a direct record of the number of accredited voters but third-hand evidence derived from the database which is second-hand evidence derived from transmissions from the BVAS.

The apex court also noted that the information at the backend saver might not be accurate because the BVAS might fail to transmit records for several reasons including poor internet connection, loss of battery power, and failure of INEC officials to properly press the submit button among others.

“So the database or any extract of it contains only what is transmitted from the BVAS to it and therefore, cannot be a complete and accurate record of the information in the BVAS,” Agim added.

The court further said that no law requires presiding officers to transmit the number of accredited voters or accreditation of the polls to the database or backend server of INEC by BVAS.

“Therefore, the case of the petitioners that the presiding officers were bound to instantly or on-the-spot transmit the number of accredited voters in the BVAS to the backend server of INEC, has no support,” he said.

“In the light of the foregoing, I hold that it is the record in the BVAS machine of the accredited voters or a certified true copy of an INEC certificate of that record for each polling unit that can prove the number of accredited voters in a polling unit on the day of the election and nothing else.”

The court discountenanced the argument of the petitioners that the voters register was not relevant.

Relying on the INEC regulations for the conduct of elections and the electoral act, the court pointed ot that the voters register was still relevant in voter accreditation and is to be used as well with the BVAS machine.

“It is glaring from the foregoing that the appellants did not adduce relevant admissible evidence to prove non-accreditation of voters, improper accreditation of voters and over-voting. By virtue of section 131 and section 133(1)(2) of the evidence act, the appellants had the primary legal burden to prove the facts asserted by them in their petition.”

“The court of appeal correctly found that the appellants failed to prove grounds two and three of their petition and correctly allowed the appeal on those grounds to set aside the decision of the tribunal.”