UPDATED: Appeal Court affirms Adeleke’s election as Osun governor

The Court of Appeal in Abuja on Friday affirmed the election of Ademola Adeleke of the Peoples Democratic Party (PDP) as the governor of Osun State.

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, who came second in the 16 July 2022 election, had filed a petition challenging Mr Adeleke’s victory.

The Osun State Governorship Election Petition Tribunal in Osogbo, which upheld the allegation of over-voting in the areas won by Mr Adeleke, had declared Mr Oyetola of the All Progressives Congress (APC) the winner of the poll after deducting “unlawful votes” from the PDP’s scores.

But Mr Adeleke appealed against the lower court’s decision, urging the appellate court to set it aside and re-affirm his victory.

Upholding Mr Adeleke’s victory on Friday, 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.”

Mr 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).”

“It is inconceivable to assume that the testimonies of the respondents’ witnesses had any probative value,” the appellate court held.

The Court of Appeal noted that Mr 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 Mr Adeleke to support the authenticity of his academic credentials.

The APC and Mr Oyetola had accused Mr 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 Mr Adeleke’s academic credentials.

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

Mr Shuaibu also faulted the tribunal’s decision on the grounds of its failure to determine, on the merit, the preliminary objection raised by Mr 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

Mr Shuaibu also dismissed Mr 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 Mr Shuaibu noted that the judge’s comment was uncalled for. He added that Mr 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, Mr Shuaibu cited an earlier decision of the Court of Appeal which Mr 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 Mr Oyetola and the APC failed to do at the tribunal.

Subsequently, the justice nullified the judgment of the tribunal and affirmed Mr Adeleke’s victory at the poll.

The appellate court awarded N500,000 fine against Mr Oyetola and the APC.

Background

The Independent National Electoral Commission (INEC) declared Mr Adeleke of the Peoples Democratic Party (PDP) as the winner of the governorship election held in Osun State on 16 July 2022.

The INEC Chief Returning Officer for Osun, Oluwatoyin Ogundipe, who announced the result on the day after the election, said the PDP candidate scored 403,371 votes to emerge victorious.

Mr Adeleke defeated his closest challenger, Gboyega Oyetola of the All Progressives Congress (APC), who polled 375,027 votes.

But a three-member panel of the Osun State Governorship Election Petition Tribunal headed by Terste Kume set aside Mr Adeleke’s victory in its verdict delivered on 27 January.

In a two-to-one split judgement, the majority decision of the tribunal declared Mr Oyetola the winner of the election.

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It also ordered INEC to issue the certificate of return to Mr Oyetola.

Mr Kume, in the lead majority judgement, held that INEC failed to conduct the Osun governorship election in compliance with the Electoral Act, 2022 (as amended).

The tribunal noted that the poll was marred by over-voting. It said after deducting the excessive votes that were cast, the figure Mr Adeleke scored came down to 290,666, which was lower than the 314,921 garnered by Mr Oyetola.

Consequently, the tribunal ordered that Mr Oyetola be returned as governor of Osun State.

However, in the minority decision, the second member of the tribunal, P A Ogbuli, said the petitioners – Mr Oyetola and the APC – failed to prove that there were cases of over-voting in the governorship election.

Mr Ogbuli noted that the petitioners’ witnesses in their testimony before the panel did not convince him that there was over-voting.

He said the petitioners should have brought the voters’ register to court to claim that over-voting occurred.

Petition

PREMIUM TIMES reported that Mr Adeleke was declared the winner with a total of 403,371 votes. He won in 17 of the 30 Local Government Areas (LGAs) in the state.

In his petition at the tribunal, Mr Oyetola claimed that the election was characterised by over-voting in 749 polling stations.

Also, the former governor contended that Mr Adeleke forged the academic credentials he submitted to the electoral umpire to contest the election.