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OPINION: My rejoinder to Dr. Alamu’s view on Osun gov’ship election petition tribunal judgment

By Faruq Abbas

I read the 223-page majority judgment of the Osun Governorship Election Petition Tribunal and I found it very difficult to fault the deep reasoning and thoroughness of the Tribunal.

I equally read the 26-page minority judgment of Muhammad Sirajo, J, the Chairman of the Tribunal, and I must say without mincing words that I do not agree with the reasoning and findings of the Chairman of the Tribunal for several reasons.

Upon completing the reading of the judgments, I was tempted to issue a post-mortem analysis, but I refrained from doing so in order not to be accused of criticizing the minority judgment whilst an appeal was pending against the majority judgment.

But in the early hours of Thursday, March 28, 2019, one of my contacts forwarded Dr. Misbau Alamu Lateef’s post-mortem opinion to a political what’s app platform, which I belong to, and upon reading the opinion, I knew I would be remiss if I failed to issue a rejoinder to his post-mortem especially since I do not agree with his postulations, comments and summary of the majority decision.

Although Dr. Lateef claimed to have issued a post-mortem opinion on the Osun Governorship Election Petition Tribunal Judgment, what he actually did was a post-mortem opinion on the minority judgment of the Tribunal, whilst he perfunctorily commented on the majority judgment without explaining the reasoning behind the majority judgment to his numerous readers.

The implication of this style of post-mortem is that members of the public would not understand the reasoning and basis behind the majority judgment, as they were not given a balanced analysis of the Tribunal’s judgment.

The critical aspects in the majority judgment of the Tribunal are:

  1. Cancellation of the votes in 17 Polling Units by the Tribunal due to: (a) the failure of INEC officials to properly complete the Form EC8As in 17 Polling Units; and (b) unauthorized alterations of the Certified True Copies of the Form EC8As in the 17 Units;
  2. Cancellation of the re-run election held on September 27, 2018 in 7 Polling Units;

I will briefly address these issues with a view to highlighting the Tribunal’s position on them so that members of the public can have the opportunity to understand the reasoning behind the majority judgment.

1. Cancellation of the votes in 17 Polling Units by the Tribunal due to: (a) the failure of INEC officials to properly complete the Form EC8As; and (b) unauthorized alterations of the Certified True Copies of the Form EC8As in the 17 Units;

Form EC8A is a statutory form that gives full and comprehensive information needed for a Polling Unit. The Form EC8A has various columns where some of the following information ought to be recorded after the conclusion of an election at a Polling Unit: (a) number of registered voters; (b) number of issued ballot papers; (c) number of unused ballot papers; (d) number of spoilt and rejected ballot papers and (e) the scores of the respective political parties which fielded candidates for the election. The Pink Copy of the Form EC8A is usually given to a Political Party’s Polling Agent at a Polling Unit since it’s a duplicate, whilst the original copy of the Form EC8A is usually withheld by the Presiding Officer (PO).

In order to successfully challenge the validity of an election before an Election Petition Tribunal, a Petitioner would need to tender the pink duplicate copies of the Form EC8As for the Polling Units being challenged and the Petitioner would also be required to apply for a Certified True Copy of the Form EC8As from INEC and tender them in Court. Therefore, the CTCs of the Form EC8A obtained from INEC must, at all times, be in conformity with the pink duplicate copy given to a Political Party’s Polling Agent on the day of the election.

The Tribunal found that the Certified True Copies (CTC) of the Form EC8As which were collected from INEC and tendered by the Petitioners contained several information and alterations, which did not reflect in the duplicate Pink Copies of the Form EC8As tendered in Court by the Petitioners’ Polling Agents, thereby suggesting that the alteration in the CTCs were fraudulently and unlawfully carried out by the INEC officials after the conclusion of the Governorship election on September 22, 2018. The Tribunal therefore held that elections in the 17 Polling Units where there were significant differences between the contents of the duplicate Pink Copies of the Form EC8As and the CTCs of the Form EC8As ought to be cancelled. Instructively, the Tribunal relied on the provisions of paragraph 2.6.4 of the Manual for Election Officials, which makes it mandatory for a Presiding Officer to fully complete the Form EC8A and the Tribunal held that the failure of the Presiding Officers to complete the Form EC8As amounted to a substantial non-compliance with the Electoral Act and that this non-compliance affected the results and validity of the election.

The reasoning behind the cancellation of the election results in the 17 Polling Units was aptly captured by the Tribunal at pages 192-193 of the judgment where Hon. Justice Peter Obiora, who read the majority judgment, held as follows:

“Judging from the spread of the areas where this non-recording occurred, we are of the opinion that the non-recording was deliberate and tailored towards achieving an unwholesome result. This is clear because whatever scores of the political parties may be, any discrepancy when compared to the number of accredited voters and ballot papers issued to the polling units, may later be corrected by the subsequent filling and manipulation of the figures in the columns which will then be consciously filled after the conclusion of the elections to remove the discrepancy. This fact became manifest when the CTCs emerged from the custody of the 1st respondent, now having figures in those 8 columns which were not in the pink copies. The witnesses of the petitioners said that the CTCs were “doctored” Of a truth, that is what they are, because the CTCs contained what were obviously inserted on the forms after the election was concluded and the genuinely filled forms issued out to the polling agents.”

The Tribunal also stated as follows at page 196 of its judgment:

“The effect of our finding on the non-recording of the necessary columns in the identified EC8A Forms means that the votes from the affected 17 polling units are invalid. The votes are APC 2,029 and PDP: 1,246. They shall be deducted from the final scores of the parties.”

It can therefore be seen from the above, that the Tribunal was correct in law when it decided to cancel results of the election in the affected 17 polling units because the Presiding Officers had a bounden duty to complete all the relevant columns in the Form EC8As at the time of the election, but they failed to perform this duty and this affected the validity of the election in those units. In addition, INEC is a custodian of the public documents, which were used in an election (including the Form EC8A) and it smacks of fraud of the highest order for a Certified True Copy (CTC) of a Form EC8A for a Polling Unit, which was issued by INEC to the Petitioner to be different from the pink duplicate of the same document, which was given to a Party Agent immediately after an election by the Presiding Officer who is an INEC official.

Indeed, there is no better action for the Tribunal to take to reprimand INEC for the doctoring of the Forms EC8A for the identified 17 Polling Units than to cancel the results of those units since the doctoring of the forms were clearly and brazenly carried out to favour a party in the election.

  1. Cancellation of the re-run election held on September 27, 2018 in 7 Polling Units.

The Petitioners alleged in their Petition that the State Returning Officer cancelled elections in 7 Polling Units on September 22, 2018 and this cancellation formed the basis upon which the rerun election was held on September 27, 2018. The Petitioners’ PW74 also testified that the elections in the 7 Polling Units were cancelled by the State Returning Officer and he was not cross-examined on this fact by any of the Respondents’ Counsel thereby suggesting that the Respondents had conceded to this allegation. See: Gaji v. Paye (2003) LPELR-1300 (SC) Page 20 Paragraphs B-D where the Supreme Court held as follows:

“It has been said that the effect of failure to cross-examine a witness upon a particular matter is a tacit acceptance of the truth of the evidence of the witness.”

Instructively, both the 1st Respondent (INEC) and the 2nd Respondent (Gboyega Oyetola) admitted in their Replies to the Petition that the elections in the identified 7 Polling Units were cancelled by the State Returning Officer.

Given that the Supreme Court in Doma v. INEC (2012) 13 NWLR (Pt. 1317) 297 at 328 paragraphs C-D held that a State Returning Officer has no power to cancel the results of an election in a Polling Unit and that the power to cancel an election resides with a Presiding Officer, the Tribunal had no difficulty in setting aside the results of the rerun election, which was held on September 27, 2019 since the basis of the rerun election was the unlawful cancellation of the elections in the 7 Polling Units by the State Returning Officer during the September 22, 2019 Governorship elections. If the Presiding Officers for the 7 Polling Units had completed the relevant Forms EC.40G showing that elections in their Polling Units were cancelled by them or could not hold, then the State Returning Officer would have relied on these Forms EC.40G in ordering a rerun election, but in this case, INEC did not present any Forms EC.40G for the affected 7 Polling Units because it was very clear that these Forms did not exist for the 7 Polling Units.

Surprisingly, the minority judgment disagreed with the cancellation of the rerun election by the majority judgment on the ground that the Petitioners did not adduce any evidence showing that it was indeed the State Returning Officer who cancelled the results of the 7 Polling Units during the September 22, 2018 Governorship election. It would however appear that the minority judgment missed out the testimony of PW74 where he stated categorically that the elections in the 7 Polling Units were cancelled by the State Returning Officer. The testimony of PW74 on the cancellation of the election in the 7 Polling Units by the State Returning Officer was upheld by the Tribunal when Hon. Justice Peter Obiora, who read the majority judgment held as follows at page 203 of the majority judgment:

“There is no doubt that the petitioners have through their admitted pleadings and unchallenged evidence of PW74 satisfied the burden of proof that it is the State Returning Officer who cancelled the election in the 7 Polling Units. The burden has successfully shifted on the respondents to justify the cancellation, particularly the 1st Respondent…Not only did the 1st Respondent fail to call any evidence to show the right of the returning officer to cancel “any election” but her counsel did not make any statement or argument on that point or refer the Tribunal to the law or guideline that gave the returning officer such right in his final address.”

It is therefore clear from the above that the Tribunal acted lawfully in cancelling the rerun election since there was no lawful basis for the State Returning Officer to have cancelled the election in the identified 7 Polling Units and called for the rerun elections in the first place.

Comments on the Dissenting Judgment

For me, the most critical issue, which the minority judgment dwelt on, was the Tribunal’s power to deduct votes from the parties’ score and declare the 1st Petitioner as the duly elected Governor of Osun State based on the ground of substantial non-compliance with the provisions of the Electoral Act. The minority judgment stated that the Tribunal could only order a supplementary election in Polling Units where there was substantial non-compliance with the Electoral Act and that in this case, the Tribunal could not even order a supplementary election in the affected 17 Polling Units because the Petitioners did not specifically ask for a supplementary election as one of the reliefs in their Petition. In other words, the Chairman of the Tribunal who read the minority judgment was simply saying that the Petitioners would not be entitled to any relief even if it was established that the election at the affected 17 Polling Units ought to be cancelled due to the improper filling of the Forms EC8A.

I disagree with the minority judgment’s position on the above-stated issue because the position of the law is clear that once a wrong is established there must be a remedy. See: Michael Ogbolosingha & Anor v. Bayelsa State Independent Electoral Commission & Ors (2015) LPELR-24353 (SC).

In addition, the law is well settled that where a person has not specifically asked for a relief from a Court, the Court has the power to grant such a relief as a consequential relief especially where the relief is meant to implement the finding of the Court. See: Okeke v. Nwigene & Anor (2016) LPELR-41047 (CA) where Massoud Abdulrahman Oredola, JCA at Page 30 Paragraph C-E held, thus:

“It is trite that Courts of law have the discretion and/or jurisdiction to make any consequential order in the interest of justice and it is inauspicious or immaterial that the particular order was not specifically asked for by either of the parties to the case.”

Conclusion

The Tribunal has laid a good foundation for the Appellate Courts to build upon and we can only wait for the Court of Appeal to render its decision on the pending appeal within the next few weeks.

Faruq Abbas, MCIArb (UK)

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