Osun: Nigerians wait on Appeal Court

…As INEC vindicates Tribunal judgement on back end server

The battle to further determine the authentic winner of the July 16 Governorship election in Osun, has shifted to the Court of Appeal, sitting in Abuja.

Barring any die-minute change, the Court of Appeal, will on Monday, March 13, hear all the parties in the matter and then proceed to communicate to them at a later time, the date for hearing the results of their critical examination of the decision of the Tribunal.

The Osun Governor and his media handlers have tried hard to disparage the judiciary, using unprintable words to describe members of the Tribunal. The latest being the release to the public of a telephone number, they claim to belong to the Tribunal chairman, apparently to blackmail and intimidate the judiciary.

They have forgotten that at the court of Appeal, no new pleas are made. Besides, law is not about emotions and sentiments. It is what it is. It is about facts and logic. At the appeal, the parties are bound by their pleadings at the Tribunal, while the learned Justices do a holistic review of the judgement vis-a-vis the position of the law and make their own pronouncement. They will either upheld or set aside the decision of the Tribunal.

Ironically, at the Tribunal, there were two contentious issues over the issue of over-voting. Incidentally, both issues became the fulcrum upon which the minority judgement rests. The first issue has to do with whether it was right for the Tribunal to rely on the Certified True Copy (CTC) of the BVAS report generated from the back end server of the Independent National Electoral Commissioner (INEC). The second issue has to do with the erroneous claim that to prove over-voting, the petitioners (Adegboyega Oyetola and the APC) must produce the Voter Register.

However, in deciding the first issue, the majority judgement at the Tribunal held that since the issuing authority, which is INEC, did not at any time say the BVAS report which was generated from the back end server was an “interim one, inchoate or unsynchronised” at the time it was issued to the petitioners, the one that was issued during the pendency of the case after the petition had been filed was an afterthought, and as such it was set aside.

Hear the Tribunal: “Moreover, exhibit BVR (given to Oyetola and APC) has not been withdrawn by the first respondent (INEC), who made and issued it. The petitioners relied on exhibit BVR in maintaining this petition.

“Similarly, the exhibit tendered by the respondents after the exhibit BVR submitted by learned counsel to the petitioners were thought of after the declaration of results on the 17th day of July, 2022.

“The said conduct of the respondents, especially, the first (INEC) respondent amounts to tampering with official records. The conduct of the first respondent in the said election under consideration has produced multiple accusation reports, contrary to votes declaration, to conduct of free, fair and credible elections on the basis of one man or woman with one vote.”

The Tribunal further said: “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.”

And for me, the position of INEC in its latest affidavit to the Court of Appeal 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 judgement which relied on the BVAS report obtained from the back end server.

For the purposes of reminder and education, here was what happened: Senator Ademola Adeleke was declared winner of the July 16 election by INEC on July 17 based on the accreditation and the result figures the BVAS transmitted, which were in the back end server. It was these figures that the APC and Oyetola applied for and got from INEC about 10 days after the result was announced.

After filing their petitions, the PDP rushed to INEC and obtained what was later referred to as a “synchronised” BVAS report. Assuming without conceding that there should be a synchronised BVAS report, the next question to ask, which I had raised in September last year, is: on what basis then was Adeleke declared winner on July 17?

If we go by the claim of synchronisation, it means Adeleke was declared winner before “synchronisation.”

At the Tribunal, Adeleke’s counsel also argued that the Tribunal should disregard the BVAS report generated from the back end server and in its place accept the one prepared by their expert, which was generated after opening the BVAS machine. But since Adeleke was never declared winner by opening the BVAS machine, how on earth will the Tribunal be swayed to accept that? At any rate, even in that one too, the expert hired by Adeleke, Samuel Oduntan, to analyse the BVAS machine also admitted before the Tribunal that there was over-voting. The only difference is that he said it was discovered in only six polling units.

But during cross-examination, APC and Oyetola’s counsel were able to prove to him that, apart from the six he claimed over voting occurred, there were others.

“Under the supervision of the Independent National Electoral Commission, INEC, I conducted the forensic analysis of BVAS machines. I then analysed the results with form EC8A series. My report didn’t determine who won or lost. I only gave the figures. I observed over-voting in 6 polling units. I was paid for the job. But it does not affect the figures and facts in my report”, Odutan said.

Under cross-examination by petitioner’s counsel, Akin Olujinmi, SAN, Odutan, while confronted with his witness statement and the BVAS report (Exhibit RBVR) on accreditation figure in Ward 4, unit 7, said, “In my witness statement, page 7, serial number 138, the accreditation figure as extracted on BVAS machine is 388, but on exhibit RBVR, it is 313.”

But because it is difficult to cover up lies, even in the synchronised BVAS report presented before the Tribunal by INEC, the APC and Oyetola’s legal team were able to prove over-voting in over 100 polling units across the 10 Local Government Areas, LGAs, which they were challenging. By implication, the two BVAS reports exposed over-voting.

What is more, INEC, the beneficiary (Adeleke) and the PDP, which sponsored Adeleke, could not even agree on the BVAS reports they presented before the Tribunal. This was what led Adeleke’s counsel to disown even the synchronised BVAS report INEC presented to the Tribunal.

Again, INEC witness, who testified before the Tribunal did not disown the BVAS report given to Oyetola and APC and she admitted under cross-examination that there was indeed over-voting in that election. Take note that apart from the BVAS report obtained by APC and Oyetola, all other BVAS reports were generated after the petition had been filed and served. Therefore, it was easy for the Tribunal to conclude that they were products of afterthought.

On the second issue, which has to do with voter register as part of the instrument to prove over-voting or otherwise at a Polling Unit, the Tribunal held that the facts and the law applicable in the petition under review were different from the one being cited by the counsel to the respondents. I had argued in one of my interventions that the 2022 Electoral Act, which was the law that guided the conduct of the July 16 Osun Governorship election, does not envisage the provision of Voter Register to prove over-voting or otherwise since accreditation is strictly by BVAS. And this was the position of the Tribunal. So, we wait to see how the Court of Appeal would handle the matter.

As I conclude, let me reiterate here that Oyetola and APC had approached the Tribunal on two fundamental grounds: One, that as at the time Senator Adeleke was contesting, he was not qualified. Two, that he did not score the lawful valid votes. Since I had dealt with the second ground above, it is important to say a thing or two about the first ground.

According to the Tribunal led by Justice Tertsea Kume, APC and Oyetola were able to prove forgery case against Governor Adeleke as Form EC9, which is the affidavit in support of personal particulars about the governor, told “a lie about itself.”

The three justices of the Tribunal went further to hold that “clear reading of the above reproduced section of the Criminal Code and exhibit EC9 reproduced above reveals that EC9 tells a lie about itself. See ACN vs. Lamido (2011) LPELR-91741 (CA) 1 at 79 80 paras C- A, and 80 81 paras F- A.

“In that regard, forgery of the said documents presented by the 2nd Respondent (Ademola Adeleke) to 1st Respondent (INEC) has been proved.

“The same consequence applies to FILE D in so far as the contents therein relate to ‘Osun State’ that was not in existence before 1991. See PDP v. Degi-Eremenyo (2021) 9 NWLR (Pt. 1781) 274 at 292 paras A-C cited by learned counsel for the Petitioners.”

The Tribunal Justices went further to hold as follows: “The question, however, is whether having found forgery in parts of exhibit EC9 and FILE D, the 2nd Respondent (Ademola Adeleke) is exonerated by exhibits 2R.RW6 and 2R.RW9. We think he is. It would have been otherwise if no other qualifying certificate of attendance at an institution had been presented to 1st Respondent for the election.”

To test the position of the Tribunal, Oyetola and APC also filed a cross Appeal, insisting that having found that forgery was proved against Governor Ademola Adeleke, the tribunal ought to have held pursuant to Section 182(1)(j) that he was disqualified from contesting the Osun State Governorship election of July 16, 2022.

“Once forgery of a document is established against a candidate in an election, it voids his candidature and the forgery cannot be redeemed or cancelled out by any other document the candidate may have presented alongside the forged document,” Oyetola’s counsel in their notice of cross appeal submitted.

If the Appeal Court agrees with Oyetola, then, it is likely to set aside the decision of the Tribunal which specifically said Senator Ademola Adeleke was qualified to run for the July 16 Governorship election even after establishing a forgery case against him.

Nigerians indeed wait on the Court of Appeal as it hears the Appeal and Cross Appeal, Monday, March 13, 2023.

Omipidan, a journalist and a political analyst, writes from Ile Olorisa Compound, Eyindi, Ila Orangun, Osun.