By Ismail Omipidan

LAST Monday, the litigants in the Osun governorship tussle appeared before the three-man appeal panel, in Abuja, led by Justice M.L. Shuaibu. But for the magnanimity of the panel, counsel for all the parties would have lost the opportunity to give the “chemistry and biology” of their briefs. Once the justices took their seats, Justice M. L. Shuaibu expressed concern that counsel for all the parties had not complied with the practice direction of the Appeal Court in filing their briefs.

He said that if they were to wield the big stick, they would have declared all the briefs invalid. If that had happened, that would have been the end of the matter. Case closed! But the Justices in this instance tempered justice with mercy and delved into the “chemistry and biology” of the briefs. 

However, rather than acknowledging the benevolence of the Justices, some Peoples Democratic Party, PDP, members, including one of their lawyers, went to town twisting what transpired. Anyway, that is not the crux of this discourse. The discourse is mainly to examine the issues before the Appeal Court with a view to making Nigerians have a better understanding of what is at stake.

The Osun Election Petition Tribunal on January 27 nullified the election of Senator Ademola Adeleke as Governor of Osun State on the basis of over-voting, saying, among other things: “In other words, the defenses of the respondents are tainted with fundamental flaws, irreconcilable and unreliable, incapable of defeating the credible evidence tendered by the petitioners in respect of the 744 polling units where over-voting has been established.” 

In arriving at the decision, the Tribunal examined certain materials, including two BVAS reports and a report that emanated from the candidate of the PDP, following what their counsel called a forensic examination of the BVAS machines used in the conduct of the election. Let me state from the outset that contrary to the position being canvassed by the INEC’s counsel, Professor Paul Ananaba, to justify his synchronisation position, there is a difference between what happened on July 16 governorship election in Osun and that of the February 25 presidential election.

In Osun, results were transmitted immediately on the day of election alongside the number of accredited voters through the INEC Result Viewing, IReV, portal. But that was not the case on February 25. So, there was no basis of comparison. That is one. Two, the first BVAS report, which the APC and its candidate, Adegboyega Oyetola, obtained from INEC, which formed the basis of their petition, was released to them 10 days after a declaration and a return had been made.

The report was generated by INEC from its back-end server. But some people said due to network challenge, the figures had not been synchronised before it was given to Oyetola and the APC by INEC. The question is: Is it possible for there not to be network for the whole of 10 days to enable the transmitted figure drop on INEC’s server as being canvassed by both counsel for INEC and Senator Adeleke?

Three, for me, the position of INEC in its affidavit to the Court of Appeal recently as it relates to the fact that the accreditation data contained in the BVAS could not be tampered with or lost, as they would be stored and easily retrieved from its accredited back-end server, is a vindication of the Tribunal’s position which relied on the BVAS report obtained from the back-end server by Oyetola and the APC. Four, the second BVAS report, which was obtained by the PDP during the pendency of the petition, which they said was the synchronised BVAS report, unfortunately had issues.

Counsel for APC and Oyetola were able to point out over-voting in over 100 polling units in that same report. Five, the report that emanated from Senator Ademola Adeleke, which his counsel prayed the Tribunal to consider while disowning the INEC’s synchronised BVAS report, also admitted that there was over-voting. The only difference being that, according to them, the over-voting occured in only six polling units.

However, it was not Senator Ademola Adeleke that conducted the election; therefore, he could not have submitted a report of an exercise he never conducted. Besides, in my years of reporting election petition proceedings, this is the first time INEC and the beneficiary of the return made by it will not be on the same page. For Senator Ademola Adeleke’s counsel to have disowned the INEC’s synchronised BVAS report, it means something was fundamentally wrong. Regardless, at the Appeal Court, while Oyetola and APC urged the appellate court to dismiss the Adeleke, the PDP and INEC appeals, they prayed the court to hold that Governor Ademola Adeleke was unfit to run for the office of the governor, having established a forgery case against him by the Tribunal.

The appeal panel, led by Justice M. L. Shuaibu reserved the judgement for a later date after taking arguments from counsel for Oyetola and the APC, Prince Lateef Fagbemi, SAN, counsel to Adeleke, PDP and INEC, Onyechi Ikpeazu, SAN, Alex Izinyon, SAN and Prof. Paul Ananaba, SAN, respectively. In all, the court heard four different appeals, including the cross appeal filed by Oyetola and the APC. Arguing the cross appeal, counsel for Oyetola, Chief Akin Olujinmi, SAN, noted that the tribunal erred in law when it held that Adeleke was qualified to contest for the election, even after being found to have submitted a forged certificate.

To this end, it prayed the Appeal Court to hold that Governor Adeleke was not qualified to stand for the election in the first instance. On his part, Ikpeazu had argued that the failure of the tribunal member 2, Chief Magistrate Basiru Rabi, to make pronouncement as regards the lead judgement other than signing it renders the decision a nullity. Justice Shuaibu at this point challenged Adeleke’s counsel to explain the interpretation of the Chief Magistrate Rabi’s signature on the judgement and the use of “we” in the majority judgement. But Ikpeazu insisted that signing of the judgement was not enough.

On the issue of BVAS report upon which Oyetola used to challenge the result of the election, they argued that assuming the tribunal had found that there was over-voting as shown on the report, it should have applied the principle of the Margin of Lead and order a rerun election in the affected polling units. The INEC’s counsel also in his arguments admitted that the INEC witness indeed admitted over-voting on the polling units upon which she was cross-examined, but it was not enough to nullify the election.

But counsel for Oyetola, Fagbemi, SAN, said there was confusion among the appellants’ submissions, as they had produced three different BVAS reports, which justified the position of the tribunal that there was indeed over-voting in that election. “INEC claimed there was over-voting in over 1,000 polling units. The implication is that the 744 polling units we challenged fall within the said over 1,000 polling units. We are only concerned about 744 polling units and we built our case around those areas. They can keep the rest, we concentrated on what we need,” Fagbemi added. He argued further that the issuance of another BVAS report and production of BVAS machines in court after a petition had been filed based on the earlier BVAS report issued to Oyetola and APC was nothing but an afterthought.