By Adewale Adewale
It will be the most unfortunate for a contestant who lost election to hurriedly apply and get a report from an incomplete source and then build a case on it to topple a candidate who has been declared the winner. It is exactly the case here.
Not many are aware that a panel member at the Osun State Election Petition Tribunal which sacked Governor Ademola Adeleke from office on Friday, Justice B.A. Ogbuli, actually disagreed with the majority judgement as delivered by Justice Tertsea Aorga Kume.
Justice Ogbuli, giving a lifeline to the Governor, apart from the right of appeal, dismissed the petition filed by the All Progressives Congress, APC and its candidate in the Osun gubernatorial election, Gboyega Oyetola.
Accordint to justice Ogbuli, instead of the petitioners to build their case on its strength, it was predicated on non-existence, incomplete and inchoate documents. He maitained that the case suffered paucity of evidence or no evidence at all to sustain it.
Below is the highlight of the minority judgement, followed by the wordings of the judgement.
Highlight
The Judgement
For avoidance of doubt, I agree in toto with the majority decision of the tribunal that the 2nd (Adeleke) was at the time of the election qualified to contest the said election.
On issues Nos 2 and 3 which relates to the second and third grounds of the petition, I, with utmost deference, disagree with the analysis of the evidence led at the tribunal and the ultimate decision arrived at in the majority decision. I will outline briefly the reason for my disagreement anon.
First, the relief sought by the Petitioners in paragraph 72(a) – (i) are all declaratory in nature. The law enjoins the Petitioners to rely on the strength of their case. The entire petition succeeds or fails on the strength of the Petitioners’ case as onus of proof of same squarely rests on them. The evidence of PW1, consists of conflict and inconsistencies and was thoroughly shaken in cross-examination.
Apart from errors and inconsistencies in paragraphs 33 and 67 of his written statement on oath, he admitted that BVAs machine is the primary source of the result which he claimed he analysed, but he never used the said BVAs machine to prove or verify exhibit BVR.
In paragraph 5 of his written statement on oath, he stated that forms EC8A, EC8B, EC8C, EC8D and EC8E and the INEC BVAs he used were released to him on 17th July 2022. The INEC BVAs report of 17th July, 2022 was not tendered in evidence. What the petitioners anchored their cases upon is a BVAs report of 27th July, 2022 which was tendered and admitted as exhibit BVR. Exhibit RC1 shows that the said BVAs reports (exhibit BVR) was paid for on 28th July, 2022.
PW1 listed several documents in his written statement on oath in paragraph 34 but denied, during his cross examination, using them in his analysis. PW1 also did not satisfactorily is an expert whose testimony would be relied upon by the tribunal on the analysis which purportedly made.
PW1, the 2nd Petitioner’s state collation officer, in paragraph 2 of his written statement on oath stated that facts of this case are as personally known to him or has relayed to him by others. The same is the content of paragraph 5 of PW2 written statement on oath. In the entire gamut of PW1’s written statement oath from paragraph 1 – 35 and those of PW2 at paragraphs 1 – 70, the two petitioners’ witnesses failed to differentiate which of their testimonies are based on personal knowledge and those that are not. This offends section 115 (3) of the Evidence Act 2011. The evidence of PW1 and PW2, therefore ought to be discountenanced. See Gundiri vs. Nyako (2014) NWLR (pt. 1391) 211 at pp. 243 – 244 paras. E – A. See also CAN vs. Nyako (2015) 18 NWLR (pt.1491) 352 at pp 384 – 385 paras H- D.
In line with the authorities above, I discountenanced the evidence of PW1 and PW2 the effect of this is that there is paucity of evidence or non at all to sustain the petitioners’ case.
The second point is that the petitioners predicated their case on an incomplete and inchoate document which is exhibit BVR. I have noted that the BVAs report the petitioners claimed they obtained on 17th July which forms the basis of their petition was not led in evidence. The BVAs report which the petitioners tendered (exhibit BVR) was issued on the 27th July, 2022. It was a report from the data uploaded to the backend sever of INEC.
The evidence of RW1 which unchallenged, confirm that as at the date exhibit BVR was issued, the 1st Respondent had not synchronized the data in the BVAs machine and the backend server and the physical extraction of date from the BVAs machines. The two points to be noted here are:
The Petitioners have descended heavily on exhibit R. BVR which is another BVAs report obtained from the same source as exhibit BVR. Exhibit R. BVR was issued on the 22nd August 2022 by INEC too. There is yet another report from BVAs. It is exhibit RWC. Exhibit RWC, unlike exhibit BVR and R. BVR is completely of a different specie and nature. Both exhibit BVR and R. BVR were issued by 1st Respondent in compliance with the duty imposed on it by section 74(1) of the Electoral Act 2022.
The Petitioners have made heavy weather of even exhibit RWC and have urged this tribunal to discountenance both exhibit R. BVR and RCW for containing inconsistent entries. In the Petitioners’ replies, they tried to show some tables that tends to impeach exhibit R. BVR and exhibit RWC.
A critical evaluation of the material evidence tendered in this petition will reveal that exhibit RWC is the data directly extracted by the virtue of order of this court, from exhibit R. BVM 1 – 119 – R. BVM 1 – 51 which are the actual machines used at the July 16th 2022 governorship election, the subject matter of this petition.
The contest in this petition is overvoting in 749 polling units which the petitioners later reduced to 744 poling units. No doubt, the extant Electoral Act in section 51 (2), defined overvoting as:
Where the number of votes cast at an election in any polling unit exceeds the number of accredited voters in that polling unit.
The new Electoral Act by section 42 (2) has made it mandatory for the use of a mart card reader or any other technological device that may be prescribed by the Commission (INEC) for the purposes of accreditation of voters in the manner prescribed by the Commission. In this instance, INEC introduced BVAS machine. The said INEC brought out a regulation and guidelines outlining how the conduct of the election should proceed. That regulation is exhibit 1 and 2 tendered by the Petitioners.
The prominence given to BVAS machine as a technological device to be used for the conduct of the election in contest can be seen in both the electoral Act, 2022 and Exhibit 1 and 2. In section 64(4) and (6) of the Act, the Electoral Act emphasised the used of it in collation of results and in resolving dispute arising from collation of results.
The point I am making is that the BVAS machine is the primary source of the data to be used in the determining exactly what transpired at the polling units on the day of an election with respect to accreditation of voters. exhibit RBVM 1 – 199 RBVM 1 – 51 are the machines themselves which were tendered and by the record of the tribunal, were admitted and taken as demonstrated.
Exhibit RWC which is a report of the physical inspection of the BVAS machines is, therefore, the most preferred document that will decide the contest, between the parties, as to overvoting. It is the actual data/information on the BVAS machines themselves (Exhibit RBVM 1 -119 – RBVM 1 – 51).
It is remarkable to note that the Petitioners did not controvert the exhibits R. BVM series and the report of the physical inspection of them, exhibit RWC. They stand unchallenged. It will be, to say that the least, most preposterous to jettison exhibit RWC or to regard, as suggested by the petitioners, exhibits R. BVM series as lame or dump exhibit. Exhibit RWC is a document made from the primary sources which are the machines used on the election date 16th July, 2022. The entries on the exhibit RWC are in existence and were there on the machine on the date of the election. Any wonder sections 64(4), (5) and (6) Electoral Act, 2022 have recognized BVAS machine itself as a key material to be used in collation of results and in resolution of any dispute arising there from.
The Petitioners are not saying the entries on exhibit R. BVM series (The machines themselves) are not same as the entries in exhibit RWC. Their grouse is that, since exhibit RWC came from the same 1st Respondent, it will not be allowed to stand in view of some discrepancies in figure in them vis a vis the entries in exhibit BVR and R. BVR. The justice of this petition lies on this issue. Evidence of RW1 which was corroborated by both PW1 and PW2 is clear that there may exist some inadequacies in the use of BVAS machines. The three witnesses all agreed that failure of network or failure of the operator of the machines in pressing the ‘send’ button will affect the data sought to be transmitted. It is in evidence 2 that why the BVAs machine itself does not require data or network to function, the backend server require that for proper uploading of information.
It follows therefore that the report got from the 1st Respondent backend server may not be complete owing to the inadequacies in the technology.
In view of the following, I hold that exhibit BVR is a product of inadequacies and can not be the best evidence for determination for the accurate number of accredited voters on 16th July, 2022 election. The same is true of exhibit R.BVR.
The best evidence for that purpose is exhibit RBVM 1 – 119 – RBVM 1 - 51 used in the polling unit under contest, and I so hold.
Finally, I will remark that it is not a fact that voters register has no place in the present dispensation with the enactment of Electoral Act, 2022. That is a misconceived fact. Exhibit 1 which is the regulation and guideline of election 2022 Clauses 14(a), 18(a), 19(b) (iv), 19(d)(i), e(ii) and 20(iii) referred to some importance of Voters’ Register in the scheme of things. Clause 19(e)(ii) and (iii) provides thus:
e. The verified voter shall proceed to the APOII who shall;
(i) ………………………………………………………………..
(ii) Check the register of Voters to confirm that the Voter’s name, details and Voter Identification Number (VIN) are as contained in the register of voters.
(iii) Tick the appropriate box of the horizontal boxes on the right margin beside the Voter’s details on the register, showing the category of the election and that of the persons name on the register of voters.
All these are part of the accreditation process. In Clause 20, where accreditation fails, the APOI shall thick the appropriate box against the Voter’s name label FA (denoting failed accreditation) at the let margin of the Voter’s details on the register.
All these go to show that the register of voters is still in use in the present electoral dispensation. The question may be asked “why would there be requirement for ticking the appropriate box at the right margin beside the voter’s details for a voter that is verified or at the left margin for a voter whose accreditation has failed? The simple answer is that the Voters’ Register may be called to use in determining issues of number of successful accredited voters for any particular election.
I hold that Register of voters is still relevant even though more prominence has been given to BVAS. The Petitioners ought to have brought in the Voters’ Register to prove their case. The failure to call the Voters’ Register in support of their case makes it very weak.
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.
I will need to point out that the inadequacies in out system such as power outage, network failure and paucity of relevant amenities should not be overlooked as we operate in a problem condition. It will be the most unfortunate for a contestant who lost election to hurriedly apply and get a report from an incomplete source and then build a case on it to topple a candidate who has been declared the winner. It is exactly the case here. That is not the intendment of the extant Electoral Act.
On the whole, I hold that the Petitioners’ case have not been satisfactorily proved. It ought to be and is hereby dismissed.
I make no order as to cost.
For Justice, B.A. Ogbuli, Governor Adeleke can still ‘go lo lo lo” to “Buga won”.
Newsletter
We are not gonna make spamming
BACK TO TOP
