By Hashim Abioye Esq
I think I can take a moment now to give an insight into and share my personal thoughts about the election petition filed by Governor Oyetola and his APC to challenge the outcome of the Osun 2022 Governorship election successfully conducted by INEC, thereby challenging the victory of the PDP’s candidate, Senator Ademola Jackson Nurudeen ADELEKE at the said Osun 2022 governorship polls.
For reason of strategy, technical plan and most especially keeping faithfulness to the admonition of the highly revered Learned Silks leading the Team of counsel for INEC, ADELEKE and the PDP, I have held my peace ✌and kept silent all the while, despite pressure from some quarters calling on me to share my personal view on the petition filed by Oyetola and his APC.
I think the replies filed by the respective respondents are now in the public domain and I think I can make some comments (not judgement) on the said petition, in reaction particularly to the bogus media package being given to the petition by some Oyetola’s counsel who have been marketing the petition in the media, going from one media house to another, and filling the social media space with their hypes, lies and propaganda. This is a long piece though, but I think readers will find it interesting.
Well, to start with, the petition is based on 3 grounds. Ground 1 is challenging the qualification of ADELEKE to contest the election on account of non-possession of the requisite educational qualification (O’ level) and on account of forgery. They are saying, particularly that ADELEKE claimed to have attended Ede Muslim Grammar School but that the document he presented bears Ede Muslim High School. They are also saying that ADELEKE forged his O’ level educational qualification in the forms he submitted to INEC when he contested in 2018 and that the degree certificate from Atlanta Metropolitan College, USA, as well the Diploma Certificate from Penn Foster College, USA which he attached to his nomination form to contest the Osun 2022 governorship were forged for the reason, according to the APC/Oyetola, that the Degree certificate was coming less than a month after the said Diploma certificate (which is O’level equivalent), thereby querying how ADELEKE could have obtained a degree less than a month after his o’ level. This is the premise of the ground of non-qualification of Oyetola’s petition.
Well, I will answer that straight away without be-labouring the issue. First, any issue relating to ADELEKE’s o’ level qualification is res judicata that can never be re-opened by any court in the land again having been pronounced upon by the Court of Appeal (both Akure and Abuja Divisions) in separate appeals by different parties who questioned ADELEKE’s qualification in 2018. In fact, the Court of Appeal, Abuja Division declared that ADELEKE’s qualification having been earlier decided by the Court of Appeal, Akure, which judgment was not appealed against, it becomes a judgment in rem which binds the whole world, and that no court in the land can re-open same again. The judgment acknowledged that though there were administrative errors on the part of the author of ADELEKE’s o’ level results, since the document was not ADELEKE’s own making, and since it was established by evidence that ADELEKE actually sat for O’ level in 1981, the issue of his educational qualification to contest election is settled to finality. On this score, I doubt if the Osun Election Petition Tribunal can re-open and re-try the issue again. At any rate, ADELEKE’s qualification has a fortification in some judicial pronouncements in his favour. This alone without delving into other points has settled the issue of his qualification. In other words, whatever additional documents submitted by ADELEKE as his educational qualification to contest election can not be the basis of his qualification assessment since he is ordinarily qualified to contest the election. See AGI. V. PDP.
Another point is the 2 qualifications by ADELEKE from the United States of America. To say it point blank, the 2 qualifications do not relate to each other, they are strangers to each and independent of each other. Though, both belong to ADELEKE, the Penn Foster College Diploma was not the qualification ADELEKE used in gaining admission to Atlanta Metropolitan College. For public information, ADELEKE enrolled in JacksonVille University using his cumulative school grades from Form 1 to Form 5, plus ACT/SAT to gain admission into Jacksonville from where he transferred his admission to Atlanta to continue his studies which he completed in Atlanta and bagged a Degree in 2021. The flexibility of the US educational system allowed him to go and come back to study anytime he wished. It will interest us to know that in the course of his studies, he bagged an Associate Degree which is verifiable from his transcripts before finally bagging his Degree qualification. Sitting for an O’ level exam after one’s degree or in the course of a higher study does not make one a forger. Progressively, these certificates were not issued by ADELEKE to himself and the issuers (the competent and appropriate authorities) have not denied issuing same to ADELEKE. All these documents are now in the public domain and anybody can approach the Tribunal for a certified true copy of ADELEKE’s reply to get more details.
The long and short of this is that ADELEKE did not forge any document. His O’ level qualification is rooted in solid judicial pronouncements while his additional qualifications are genuine and valid documents. With this, it is up to the Petitioners to prove their allegation of forgery and non-qualification before the Tribunal as contained in Ground 1 of the petition.
Ground 2 of the petition is allegation of non-scoring majority of lawful votes cast at the election. To prove that a winner at an election did not score majority of lawful votes cast at the election, the petitioners have a heavy burden on their neck and shoulder to discharge. Sadly, for the petitioners, all the facts and particulars supplied in this regard bother on non-compliance. Anybody can get a copy of the petition and make a finding about this. There are no facts and particulars in support of non-scoring of majority of lawful votes, so technically ground 2 of the petition is out. However, looking at the facts and particulars supplied under this ground, the petitioners alleged over-voting in 750 polling units.
They are saying that the accreditation on the certified true copy of the BVAS report obtained from “INEC SERVER” (not the direct data/information on the BVAS machine itself) showed less accreditation than the number of votes cast in the polling units being challenged, thereby creating over-voting, on the basis of which they are seeking to invalidate the results in the named polling units. Well, it must be noted that accreditation by BVAS machine was not independent of the voter’s register. The procedure at the election was that the technological device was for verification, confirmation and authentication of the voter’s details while the voter whose details had been captured, verified, confirmed and authenticated by BVAS machine would be ticked on the physical voter’s register before he could vote. After voting had ended, the accreditation figure as contained in the BVAS machine would be captured and recorded on the Form EC8A while the figures of votes would be recorded on the appropriate column in the Form EC8A. See the Electoral Act, 2022, and the INEC Manual for the Osun 2022 governorship election.The copy of the Form EC8A would then be scanned using the BVAS machine and the figures on the Form would now be imputed on the BVAS machine after comparing accreditation figure with the total votes cast to guard against over-voting.
Thus, the critical materials at the polling unit are (i) the BVAS machine (ii) the voter’s register (iii) the ballot papers (iv) the ballot box and (v) the result sheet. To prove over-voting, you must not go outside these 5. Any other material aside these five would be a total stranger as it was not present at the polling unit. It is an antithesis to rely on a material (in this case a report from the cyber-space) to prove over-voting. Unless you can prove that the BVAS machine was independent of the voter’s register and the result sheet, unless you can show that there was no manual collation of result during the election, you can then rely only on the BVAS machine alone and not any other, not even the server. But the truth is that electronic and manual processes were deployed during the election and both went pari passu, so to prove over-voting, the result from each unit must be tested pari passu with both the technological device and the physical materials at that polling unit. How on earth can someone be talking about report from server when the BVAS machine from which the alleged report was allegedly gotten is saying something else. By all standards, a certified true copy is a secondary piece of evidence and it’s authenticity can be challenged seriously put in doubt. To challenge same, once the primary source is produced in court, the court has no business relying on the challenged CTC. The primary source of result for the Osun 2022 election was the result sheet and the BVAS machines used at the election, not BVAS report from the server or an unnamed computer which was a total stranger to the polling unit.
Worse still for the Oyetola/APC’s petition, INEC has come out to say of the report they are relying upon that it was inchoate, non-comprehensive and un-syncronized as not all the figures had been uploaded from the BVAS machine as at the time the report the petitioners are relying upon was issued. They then issued and pleaded the synchronized and the comprehensive BVAS report which was in tandem with the figures contained in the respective BVAS machines used for the election. Note the figures on the BVAS machines have date and time of the details of the election on each of them, and the exact time that the details were captured and input, so, If you are quoting a figure from a document about another document, and that other document itself is saying something else, I think the doctrine of estoppel under whatever guise cannot be brought to play but the doctrine of res ipsa loquitor (facts speak for themselves). A piece of secondary evidence (which in this case has even been dismissed as inchoate) can in no way and under whatever circumstances displace a piece of primary evidence on the same point. I leave the rest to the Tribunal to decide.
As for ground 3 of the petition which is based on non-compliance, the facts and particulars were pleaded by reference to the facts and particulars in ground 2. You don’t do that in an election petition. You cannot plead facts and particulars under a ground by referencing the facts and particulars under another ground. Each ground must be supported by the distinct facts and particulars, if the same with an already pleaded fact or particular, it must be repeated not referenced under that ground. The implication of this is that there are no facts and particulars in support of ground 3, while the facts and particulars supplied in support of ground 2 do not relate to that ground. I leave the rest to the Tribunal also.
The respondents to the petition have filed their replies, and their replies “don dey pepper” the petitioners as “e don enter their eyes”. No way again for them. That is the reason for the desperation to have the Tribunal sitting relocated outside may be there could be some abracadabra, but which efforts have now failed. They don’t want the respondents to bring the BVAS machines to the Tribunal.. “doole”..😁 “we go bring am”. Anything could happen from the APC’s desperados to the BVAS machines if they are to be moved outside Osun State. The phantom, false and outlandish security alarm being raised by Prince Famodun (the controversial/factional Osun APC’s Chairman) was part of the plot to achieve their aim. This can not work 💪.
Before concluding, Nigerians must be wary of server hackers and cyber thieves ahead of the 2023 general elections. It is part of the grand plan of the APC to rig the election and to compromise the BVAS machines to be used for the 2023 general elections. INEC needs to do more to rid itself of internal saboteurs and to recruit more trusted and faithful cyber experts who would mann the INEC portal and prevent activities of cyber miscreants before, during and after the elections.
As for us in Osun State, the victory of the PDP and Senator Ademola ADELEKE has come to stay, and by November 27th, 2022, it will be a new dawn in Osun as the Administration of IMOLE will effectively take off, and insha Allah we shall all reap the sweet fruits of the administration and it shall be for the betterment of Osun people.
As our replies “don enter their eyes and don dey pepper dem, na so e dey sweet us”. In Iragbiji dialect, I say no qualms “natall natall”.
Hashim Abioye Esq.
Secretary Legal Committee/Member Caretaker Committee,
Osun State PDP.