By Sarafa Ibrahim
The Court of Appeal judgement upholding the election of Governor Ademola Adeleke is widely adjudged as one of the best in recent judicial history. Compared with the judgement of the Tribunal, the Appeal Court restored judicial normalcy based on laws and precedents. The Supreme Court is not likely to have problem with upholding the Court of Appeal ruling as the Tribunal judgement was adjudged locally and internationally as a misnomer and an aberration in the hall of justice.
That notwithstanding, beneficiaries of the miscarriage of Justice at the lower Court are not likely to relent until the last lap. A look at a recent article written by Mr Samson Owoyokun, an aide of Mr Oyetola , confirms that the plot to usurp the mandate of the people is still in play. In the article titled “THE NEGATIVE IMPLICATION OF THE OSUN STATE APPEAL COURT JUDGEMENT ON OUR ELECTORAL SYSTEM AND DEMOCRATIC PROCESS”, Mr Owoyokun struggled so hard to convince himself and his cohorts that the appellate court judgement on the governorship contest did not serve justice.
By way of foundation, Mr Owoyokun suggested that the judgement of the Appeal Court was premised on voters’ register, which he spared no effort in playing down as no longer necessary in establishing over-voting in an election. But that was not the true reflection of what transpired at the Court of Appeal. Because, the judgement of the Court of Appeal did not only uphold justice but also saved our democracy from imminent collapse.
This was even made obvious by Mr Owoyokun in his piece, especially in the excerpt of the judgement he quoted. For clarity, page 41 of the lead judgement by Justice M.L Shuaibu, which he referenced in his article, reads as follows: “In the instant case, Exhibit BVR clearly is report from backend server of the 3rd Respondent (INEC) and not PHYSICAL EVIDENCE OF ACCREDITATION AND TRANSMISSION OF RESULTS IN THE DISPUTED POLLING UNITS (Emphasis is mine). This is premised on the fact that BVAS transmissions are not done instantly from the polling units; furthermore, the Tribunal was wrong to have admitted and acted on the said evidence in isolation of the voters register for the disputed polling units.”
From the above, it was clear that the voters’ register was just one of the premises applied by the Justices of the Appeal Court in invalidating the Tribunal judgement. The judgement upheld the arguments advanced by the appellants that the BVAS machines used in the election hold more relevance in establishing over-voting as alleged by Oyetola and the APC. “Apart from failing to tender the register of voters, they also did not tender the BVAS devices from which the data was extracted,” Justice Shuaibu had held in his judgement.
This very fact was established by the INEC recently when in an affidavit filed at the Presidential Election Tribunal in the Court of Appeal in Abuja, asserted the primacy of the BVAS machines over every other source on datas realized from elections. Tanimu Inuwa, SAN, while arguing an application for the need to allow the reconfiguration of the BVAS machines used for the presidential and national assembly elections in order to use them for the governorship and state assemblies election before the panel, noted that “We have already stated in our affidavit that no information in the BVAS machine will be lost as we transfer all the data in the BVAS to our backend server.” His argument was strengthened by INEC’s Deputy Director, ICT Department, Lawrence Bayode, who pointedly noted that “before purging is approved by the BVAS devices, the data on the BVAS devices have to be uploaded to the accreditation backend server.”
The clear deduction from the above is that, contrary to Oyetola and his party’s insistence, any data on the backend server originated from the BVAS machines, hence, placing the device as the primary source of evidence for accreditation data or any other data for an election. If the INEC still needs to extract accreditation data and results on the BVAS machines to the backend server after 12 days of conducting the presidential and national assembly elections, then one can realize the inherent deficiency of the incomplete server report that Oyetola and the APC relied upon at the lower court.
It was on the strength of this simple truth that Justice C. Ifeoma Jombo-Ofo held that “It was therefore wrong of the trial Tribunal to determine the petition based on Exhibit BVR which exhibit is amenable to continuous update.” Like so many election deniers, Mr Owoyokun chooses not to interrogate this conclusion, but rather twist the reality of the judgement of the Appeal Court.
But that was not all. Justice Shuaibu held that while Oyetola and the APC tried so hard to hide under Section 137 of the Electoral Act, 2022, in prosecuting its case, they nonetheless made “PW1 gave oral evidence ostensibly to demonstrate over-voting from the report, Exhibit BVR.” However, the witness, who though, was presented as an expert by the Petitioners at the Tribunal, was an APC member and again, did not proffer his qualifications before the Tribunal to confirm his status. In essence, Justice Shuaibu held that “The provision of Section 83 (3) of the Evidence Act, 2011, is to the effect that evidence made by a person interested at the time when the proceedings were pending or anticipated, involving a dispute as to any fact which the statement must tend to establish is inadequate.”
Even more, is the question of fair hearing, which the Appeal Court held was not accorded to Governor Adeleke, the PDP and INEC, at the Tribunal. In their separate judgements, all the three justices were unanimous in holding that the majority judgement at the Tribunal violated the defendants’ right to be heard in law and so, render the processes and decision arrived, in the end, a nullity.
Touching on this in her judgement, Justice C. Ifeoma Jombo-Ofo wrote that “With the terse and scanty reference to the various preliminary objections properly laid before the learned Tribunal and the lumping together of same without giving them individual and dispassionate consideration and determination, the Tribunal has failed in the performance of its statutory duty. Because the issue of jurisdiction as raised in the preliminary objections constitute the livewire and access to the consideration and determination of the substantive issues before the Tribunal, the said Tribunal ought to have done better. The appellant as well as the 3rd and 4th respondents are in the circumstances robbed of their right to fair hearing and a miscarriage of Justice, which is capable of rendering the proceedings and Judgement of the Tribunal a nullity and of no effect.”
This finding was similar to that of Justice James Gambo Abundaga, who pointed out the refusal of the majority judgement of the Tribunal to consider the various applications by Governor Adeleke, the PDP and INEC at the Tribunal was denial of fair hearing, hence, occasioned miscarriage of justice. “It can not be gainsaid that this failure occasioned miscarriage of justice. It is settled law that where there is a denial of fair hearing, the proceedings in which it occurred is rendered null and void,” Justice Abundaga wrote in his judgement. The judge who quoted the Supreme Court decision in the case of Alexander & Ors v. Albert & Anor (2022) LPLER–56855 (SC) and several other authorities, went on to hold that “Therefore the breach of the Appellant’s right to fair hearing can lead me to no other option other than to declare the proceedings and judgement of the Tribunal null and void, and so declare. Accordingly, the entire proceedings and judgement is declared null and void for this reason.”
Clear enough, the decision of the Court of Appeal in upholding the election of Governor Adeleke is beyond the issue of voters’ register as Mr Owoyokun tried to portray. Even more, it is inconceivable to accept the argument of Mr Owoyokun that the voters register is no longer a critical part of our election with the advent of the Electoral Act, 2022. Perhaps, it will help to stress for Mr Owoyokun’s understanding that the voters register remains the very foundation that the BVAS machines rest on.
Aside from the fact that the register of voters in each polling unit is embedded in the BVAS machines, hence, its ability to identify and accredit registered voters, it is right to point out that voters must pass the physical verification on the voters register to be able to get a ballot paper to vote. Providing the voters register and other primary evidence, like the BVAS machines and form EC8A that were at the polling units on the day of the election, shouldn’t be a hard ask for anyone who is convinced that over-voting occurred and wants to prove it. Those are the primary pieces of evidence in the election along with party agents, which the APC and Oyetola, failed to present at the court.
Maybe because the primary pieces of evidence will not support their false claim and they want to seize on the confusion of a controversial secondary evidence to deliberately cancel the lawful votes of the eventual winner and subvert the will of the Osun people. This plot failed at the Appeal Court and it is the strong hope of the people of Osun that the Supreme Court reject the overreach of a mandate usurper and go ahead to affirm the election of Governor Adeleke. That will put a total end to the dangerous plot to damage our democracy, and in turn, the power of the people to choose who leads them will be asserted.
• Sarafa Ibrahim writes from Osogbo, Osun State.
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