“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' 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 majority of lawful votes in the said eletion and he is hereby returned as such."

Those are the words of the Chairman of the Osun State election Petition Tribunal, Justice Terste Kume, while dismissing the declaration of Governor Ademola Adeleke, in a lead judgement of February 27, as validly elected Governor of the State.

The judgement was predicated majorly on alleged overvoting is some polling units. But it was  the opinion of Justice B.A. Ogbuli, in his minority judgement, that the allegation of overvoting was not proven.

“I hold that Petitioners have failed to prove issues of overvoting by reason of noncompliance with the provision of Electoral Act. They also have not proved that the 2nd Respondent was not duly elected by majority of lawful votes cast at the election,” Justice Ogbuli said.

On Friday, the court of appeal sitting in Abuja dismissed the ‘Buga’ judgement, stating that the allegation of over-voting, the basis upon which the Tribunal anchored its decision nullifying Mr Adeleke’s victory, was faulty.

A three-member panel of the appellate court led by Mohammed Shuaibu unanimously overturned the earlier decision of the election petition tribunal which nullified the governor’s victory in January.

The immediate-past governor of the state, Adegboyega Oyetola, the first runner up in the election of 16th July 2022, had filed a petition challenging Adeleke’s victory.

Upholding Adeleke’s victory, the Court of Appeal held that the tribunal was “wrong to reach the conclusion that there was over-voting during the state governorship election held on 16 July 2022.”

Justice Shuaibu who prepared and read the lead decision said “the burden of proving the allegations of over-voting lies squarely with the respondents (Mr Oyetola and the APC).” Saying, “It is inconceivable to assume that the testimonies of the respondents’ witnesses had any probative value.”

The Court also noted that Oyetola and the APC “did not tender the voter registers and Bimodal Voters Accreditation System (BVAS machines,” which captured data of eligible voters at the Osun governorship election.

“Though the 1st and 2nd respondents (Oyetola and APC) relied on BVAS reports obtained from INEC to prove over-voting, they did not, nonetheless, call petitioner’s witness 1 to speak to the reports, that is, Exhibits BVR reports from INEC’s back-end server.

“In their pleadings, Mr Oyetola and APC “alleged that the results recorded and transmitted directly from the polling units were not taken into account and therefore accredited voters recorded in Form EC8A from the disputed polling units do not tally with the number of BVAS for the same polling units.

“Strangely, the tribunal, in its judgment, only relied on the table set out in an address of counsel to hold that overvoting occurred in an election,” the Court of Appeal said.

It further held that “the fact that PW1’s testimony was based on a report must necessarily be linked to the relevant aspect of the complaints in the petition, which was not done.”

“Furthermore, the tribunal was wrong to have acted in the evidence in isolation of the voters register from the disputed polling units,” the court said.

The court held that the foundation of what transpired at the polling units would only be established by the evidence that is contained in the voter register and BVAS machines.

The judge was also of the view that PW1 (the statistician) called by the petitioners could not be regarded as an expert witness because he did not provide evidence of his expertise before the tribunal.

He also noted that the PW1 also failed to disclose that he was a member of the APC.

 

Adeleke’s Academic Credentials Validated

The judge also held that the tribunal was wrong to have rejected the judgment of the Court of Appeal tendered by Adeleke to support the authenticity of his academic credentials.

The APC and Oyetola had accused Adeleke of parading forged academic credentials.

But the judge said the tribunal was wrong to have refused to be bound by the earlier judgment of the Court of Appeal in the appeal marked: CA/A/362/2019 delivered on 30 January 2022, which affirmed the authenticity of Adeleke’s academic credentials.

He said the judgment was binding on the tribunal by virtue of the doctrine of “stare decisis”.

The judgement also faulted the tribunal’s decision on the grounds of its failure to determine, on the merit, the preliminary objection raised by Adeleke and others against the competence of the petition.

He upheld the appellants’ contention that the failure of the tribunal to consider his notice of preliminary objection breached his fundamental right to a fair hearing.

The judge noted that in its ruling, the tribunal failed to determine the objection on merit, adding that “the purported ruling on the preliminary objections… did not, in my view, address the issues raised in the appellant’s preliminary objection.”

“Such is not a ruling on the merit as it neither determines the issues of law or facts raised by the parties.”

The judge, however, faulted the appellant’s contention that the majority decision of the tribunal was not validly rendered because one of the members did not express her opinion in writing nor read it.

He held that the signature of the second member of the tribunal was on the majority judgment, indicating that she agreed with the lead judgment. Also, she is, by law, not required to express her opinion.

 

Appeal Court dismisses ‘Buga’ dance comment

Shuaibu also dismissed Adeleke’s contention that the tribunal judge, Terse Kume, who read the majority judgment was biased against him when he spoke about him dancing to Buga – a popular Nigerian afro-pop song by Kiss Daniel.

But Shuaibu noted that the judge’s comment was uncalled for, adding that Adeleke could not prove by credible evidence that the judge was biased by his “Buga” comment.

 

Allegation of forgery against Adeleke

Examining the issue of forgery allegation levelled against the Osun State governor, Shuaibu cited an earlier decision of the Court of Appeal which Adeleke tendered, acquitting him of any forgery of academic credentials.

The justice said the tribunal was wrong to have held that the governor forged his certificates.

The judge said forgery being a criminal offence required proof beyond a reasonable doubt, which Oyetola and the APC failed to do at the tribunal.