Supreme Court: Osun and The 2022 Electoral Act

By James Bamgbose

Electoral Act is a law that provides legal framework and regulations for the conduct of elections in Nigeria. It can be better described as an important framework for ensuring free and fair elections in Nigeria, although there have been criticisms of its implementation and enforcement in practice. The current version of the Electoral Act is the 2022 Electoral Act.

Among the states where this act was first applied to conduct election is Osun, where its application for the July 16 governorship poll has attracted more attention to the interpretation of the act. This is because of the introduction of electronic transmission of electoral results in the act. Now, two judgments have been passed concerning the outcome of the poll.

In accordance with Section 285(6) and (7) of the Constitution, as amended by Section 29 of the Constitution of the Federal Republic of Nigeria (First Alteration Act, No 1) of 2010 and Section 9 of the Constitution of the Federal Republic of Nigeria (Second Alteration Act. No 2 of 2010), which limit the period of election cases at tribunals to 180 days and at the Appeal Court to 60 days.

About 60 days ago, precisely on January 27 of this year, the Justice T. A. Kume-led panel gave a judgment in favour of the petitioners, Gboyega Oyetola and APC, stating there was overvoting, thereby cancelling results in the 749 polling units affected across the 10 LGs in the state. The panel did not stop at that but went further to concur with the argument of the petitioners that Governor Adeleke forged his certificate, nevertheless, held that he is qualified to contest since he has an additional certificate aside from the forged one.

What is however confounding in the decision of Justice Kume is the fact that he went against an existing judgement of the Court of Appeal in 2019 that cleared Governor Adeleke of forgery. As a keen observer of the tenet of law and constitution, I cannot be wrong to state that the lower Tribunal acted outside its power. A lower court lacks the power to go against an appellate court ruling, “Stare Decisis” which means let the decision stand.

This error from the panel must have brought about more attention to the judgment, especially the overvoting verdict of the majority judgment. How did the majority judgment arrive at the overvoting conclusion?

There were three different reports tendered before the Tribunal panel. The interesting thing here is that, all the reports were obtained from the same source (server). The question that will now come to the mind of any objective observer is, “How did the Tribunal determine the authentic report among the three reports?” From my limited understanding of the documents, they are all sourced from a secondary source. So to get the authentic data of accreditation, the ideal thing to do is to look at the primary source, which in this case is the BVAS Machine.

So, was the primary source examined before writing the majority judgment? Can any of the server reports be reliable when Section 62(2) of the 2022 Electoral Act gives room for continuous updating of the National Electronic Register of Election Result?

Exactly 56 days after the January 27 judgment, the Justice M. L. Shuaibu-led panel of three judges in the Court of Appeal answered my questions and those of Osun people and lovers of democracy across the country. In his judgement, Justice Shuaibu knocked out all the technicalities in the case brought before the court.

Addressing the issue of forgery, he said, “It was clear that the tribunal was not right to have rejected the judgment of the Court of Appeal that cleared Adeleke of forgery.” This validates my concern about the tribunal’s verdict on the certificate forgery.

On the issue of overvoting, Justice Shuaibu stated, “The BVAS machine is the primary source. This means that the machine should have been examined to determine overvoting.” Further resolving the issue of overvoting, he stated, “The tribunal only relied on the table provided by Oyetola and APC to give judgment in their favor.”

“The tribunal was wrong because there was no evidence to support such a claim of overvoting. The server report is not a physical evidence of accreditation. The voters’ register is intrinsically part of accreditation. Section 137 of the electoral act only lightens the burden of the petitioner, not totally removes the burden. To prove overvoting, the voters’ register must be tendered,” he concluded.

The other judges on the panel agreed with the chairman’s judgment. In their unanimous decision, Ademola Adeleke won the election and Oyetola was fined a sum of up to N900,000 to be paid to Adeleke for wasting the court’s time.

Since litigation of cases like this does not stop at the Court of Appeal, the case can be pursued to the Supreme Court. The Supreme Court of Nigeria has a lot of eyes on them following the judgments of Hope Uzodima of Imo and Ahmed Lawan of Yobe.

The judiciary system is on its way to resolving the love of the people as the hope of the common man. Will the Osun case be the beginning of reassurance of justice, fairness, and the will of the people? Will the judiciary be the main player in restoring our democracy? The answers to these questions will be answered within 30 days after the Supreme court gives its judgment.

James Bamgbose is a curious lover of law and writes from Osogbo, Osun State.

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