ANALYSIS: Oyetola vs Adeleke: How Supreme Court decided Osun poll dispute

On July 16, 2022, the Independent National Electoral Commission (INEC) conducted a governorship election in Osun State.  It subsequently declared Ademola Adeleke of the Peoples Democratic Party (PDP) as the winner.

INEC said Adeleke scored 403,371 votes to defeat Adegboyega Oyetola of the All Progressives Congress (APC), who polled 375,027 votes.

Dissatisfied, Oyetola petitioned the Osun State Governorship Election Petition Tribunal to protest Adeleke’s victory alleging over-voting. The tribunal in a verdict delivered on January 27, 2023 set aside Adeleke’s victory in a two-to-one split judgment.

Adeleke in turn appealed the verdict of the election tribunal. The Court of Appeal on March 24 dismissed the allegation of over-voting against Adeleke and returned him as the winner of the election.

Oyetola filed an appeal at the Supreme Court. But in its decision delivered May 9, the apex court affirmed the appellate court’s decision and upheld Adeleke’s election.

Parties’ brief before the Supreme Court

On April 6, 2023,  Oyetola and the APC filed a notice of cross appeal against the judgment of the Court of Appeal dismissing their cross-appeal  against the judgment of the tribunal.

The respondents, INEC, Adeleke and PDP filed, exchanged and adopted their respective briefs. There were also appellants’ reply brief to the 3rd respondent’s brief, cross-appellant’s brief and cross-respondent’s brief.

The matter was decided by Justices of the Supreme Court including John Inyang Okoro, Mohammed Lawal Garba, Adamu Jauro, Tijjani Abubakar, Emmanuel Akomaye Agim who read the lead judgment.

Prince Lateef Fagbemi (SAN), Chief Akinlolu Olujinmi, (SAN), Prof. Kayode Olatoke, (SAN), Chief H.D. Afolabi, (SAN) and Ifeanyi Egwuasi, represented the appellants. While Prof. Paul Ananaba (SAN), Chief Henry Akunebu (SAN) and Olawale Fakunle: Oluwole Jimi-Bada and Stanislaus N. Mbaczue, for the 1st respondent,

Appellants’  seven-point issue for  determination                                        

“Whether on a proper consideration of the materials in the record and relevant applicable decisions of the Supreme Court, the lower court was right when it held that the tribunal did not determine on the merit, the preliminary objection raised by the 2nd respondent against the petition.

 “Whether in the light of the pleadings, the evidence led and the applicable law, the lower court was not wrong in the view it took of Exhibit 2R. RW4, and its resolution of the issue regarding the non-qualification of the 2 respondent to contest the Osun State Governorship election held on 16 July, 2022.

“Whether the lower court was not wrong in its consideration and determination of the appeal of the 2nd respondent when it raised the question whether the appellants led admissible evidence in support of their pleadings which question was not warranted by the grounds of appeal of the 2nd respondent to the lower court.

” Whether on a proper consideration of the pleadings and the evidence in the records, Section 137 and paragraph 46(4) of the Evidence Act, 2022 and the judgment of the trial tribunal, the lower court was not wrong in holding that the appellants did not prove their petition.

“Whether in the light of the grounds of appeal of the 2 respondent to the lower court, the court was not wrong when it held that the evidence of PW1 was inadmissible on the ground that he did not proffer proof of his qualifications before the lower tribunal and did not deny his membership of APC which made him a person interested in the petition.

“Whether delivery of two conflicting decisions by the same panel of the lower court on the same issue in the three appeals which are now on appeal before the Supreme Court should not render the judgments in the three appeals unreliable to merit their setting aside.

“Whether in the determination of an appeal, it is open to the lower court as it did in arriving at its decision on the appeal of the 2 respondent, to rely on its own private knowledge of facts concerning the BVAS machine, not borne out by the evidence in the record of appeal which bind the court and the parties.

Respondents’ brief

On the other hand, the 1st and 2nd  respondent’s brief raised the following issues for determination:

“Whether the  Court of Appeal was correct to hold that the Tribunal failed to determine the merit and to pronounce on the objections to the hearing of the Petition, raised by the 2nd Respondent.

“Whether the Court of Appeal was correct to hold that Exhibit 2R. RW4 (the Judgment of the Court of Appeal) was properly before the Tribunal for consideration, in determining the issue of the qualification of the 2nd Respondent.

“Whether the Court of Appeal was correct to consider the Appellants’ pleadings and the evidence led in support in determining the appeal, having regard to the Grounds of Appeal filed by the 2nd Respondent.

 “Whether having regard to Section 137 of the Electoral Act and paragraph 46(4) of  the First Schedule thereof, the pleadings and evidence led, the Court of Appeal was correct to hold that the Appellants failed to prove that the 2nd Respondent was not duly elected as the Governor of Osun State.

“Whether the decision in the Judgment which gave rise to this appeal to the effect that the Appellants failed to prove substantial non-compliance is vitiated by a pronouncement made in another Judgment, subsequently delivered by the Court of Appeal.”

 The 3rd respondent’s brief also raised the following issues for determination:

 “Whether the learned Justices of the Court of Appeal were right when they held that the ruling of the trial tribunal on the preliminary objection did not address the issues raised in the 2nd Respondent’s preliminary objection. (Distilled from Ground 1 of the Notice of Appeal).

“Whether the learned Justices of the Court of Appeal rightly found that the learned trial Tribunal wrongly rejected Exhibit 2R.RW4, the Certified True Copy of the Judgment of the Court of Appeal in CA/A/362/2019 ADEKELE V. RAHEEM & ORS and is bound to take judicial notice of the said Judgment and abide by same? (Distilled from Grounds 2, 3, 4, 5 and 6 of the Notice of Appeal).

“Whether the learned Justices of the Court were right when they held that the Appellants failed to prove the allegations in their petition and that the trial Tribunal was wrong to have granted the declaratory reliefs sought by the Appellants herein in the petition? (Distilled from Grounds 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21 and 22 of the Notice of Appeal.)”

The cross appellant’s brief raised several issues for determination: So did the cross-respondent’s brief.

How issues raised were determined

The Supreme Court considered the issues raised for determination in the respective briefs of the parties in the appeal and the cross appeal as they dealt with the evidential basis of the decision of the Court of Appeal setting aside the decision of the trial court that the petitioners proved grounds 2 and 3 of their petition.

After careful reading and consideration of the arguments in the respective briefs of the petitioners, the court came to the conclusion that Ground 2 of the petition is that the 2nd respondent was not duly elected by majority of lawful votes cast at the election. While Ground 3 of the petition is that the 2nd respondent’s election was invalid by reason of non-compliance with the Electoral Act 2022 and INEC Regulations, Guidelines and Manuals.

The Justices of the Supreme Court noted that in the petition, both grounds were based on the same allegation of facts of non-compliance with the Electoral Act and INEC Regulations, Guidelines and Manuals in election in 744 polling units across 10 Local Government Area of Osun State. The particulars of the two grounds stated in paragraphs 49 to 50.751 of the petition are the same. Paragraphs 34 to 46 and 52 to 67 of the petition clearly state the totality of the petitioners case in the said two grounds.

“Their case in their pleading is that the elections in 744 polling units in 10 local government areas were characterised by widespread non use of the Bimodal Voter Accreditation System (BVAS) for accreditation of voters, that the presiding officers in the polling units permitted voting in many of the polling units without accreditation and/or verification with the use of BVAS, that there was no proper accreditation of voters in the said 744 polling units, that about 173,655 of the votes cast were from voters not validly accredited, that accreditation with BVAS was not done for a large number of voters in the 744 polling units.”

The Justices also noted the pleadings of the petitioners included: “That the failure to use BVAS to accredit and verify voters in any polling unit rendered the election and results from the election in such unit void.

“That the total number of accredited and verified voters recorded in the BVAS are at variance with the total  number of votes cast in the forms ECBA for each of the 744 polling units.

“That the results in the Form ECSA for each unit show that the number of votes cast exceed the number of accredited voters recorded in the BVAS.

“That in the counting of the votes cast in each polling unit and the collation of the results of the election, it is the number of accredited voters recorded in the Bimodal Voter Accreditation System (BVAS) and transmitted directly from the polling units by the BVAS to the back end server or data base and the votes or results so recorded by the BVAS and transmitted directly from polling units by the BVAS to the back and server or data base that should be taken into account.”

The wise men of the apex court further noted: “That the BVAS transmits on the spot information of duly accredited voters to the data base of 1st respondent and the information from such data base form the valid basis for voters to partake in the voting process by casting their votes for candidates of their choice.

“That the votes credited to the 1st appellant and 2nd respondent in the 744 polling units are vitiated and void for non-compliance with the mandatory provisions of the Electoral Act on accreditation and verification of voters in the elections and that upon deduction of the unlawful votes in the 744 polling units, it is the 1st petitioner and not the 2nd respondent who scored majority of the votes cast in the election and satisfied the requirements for election as Governor of Osun State and ought to have been so declared.”

 The appellants in their petition desired the tribunal to give judgment to them granting them the reliefs they claimed on the basis that the facts they assert in their petition exist.

Therefore, they had the primary legal burden to prove the existence of those facts by virtue of 5.131(1) of the Evidence Act 2011 which provides that “whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exists.

“Because the evidential burden to disprove the petitioners case would shift and vest on the respondents only if the evidence produced by the petitioners establish the facts alleged in the petition by virtue of 5.133(1) and (2) of the Evidence Act, the tribunal was bound to first consider if the evidence produced by the petitioners established the existence of the facts alleged in the petition, before considering the evidence produced by the respondents to find out if the evidence disproved the case established by the petitioners on a balance of probabilities.”

But the court reasoned that the best starting point in determining if the evidence produced by the petitioners established the existence of the facts pleaded in the petition, was to find out the evidence required to prove non-accreditation, improper accreditation and over voting in 744 polling units across 10 local government areas.

 The evidence required to prove non-accreditation improper accreditation and over voting under the Electoral Act 2022 are the BVAS, the Register of Voters and the Polling Unit result in INEC Form ECBA by virtue of S.47(1)(2) and 51(2) of the Electoral Act 2022, Regulations 14, 16, 19(b)(iv), (e)(-) and 48(a) of the INEC Regulations and Guidelines for the Conduct of Elections 2022.

The apex court also took judicial notice of the provisions of Regulation 14(a) of the Regulations and Guidelines for the Conduct of Elections 2022.

The court said it was  glaring from the  provisions of the Electoral Act and the INEC Regulations and Guidelines that the evidence required to prove that voting was allowed without accreditation or that there was improper accreditation are the Register of Voters, BVAS and the Palling Unit result in Form ECBA and that the evidence required to prove that there was over voting are the record of accredited voters in the BVAS and the Polling Unit result in Form ECBA.

Having determined the evidence required to prove the assertions of non accreditation, improper accreditation and over voting, the court thereafter considered the evidence the appellants produced in the Tribunal to prove their above assertions.

The evidence relied on and tendered by the petitioners to prove grounds 2 and 3 of the petition include the testimonies of their two witnesses, PW1 and PW2, polling units results in INEC Form ECSA for each of the 744 polling units and the report of the examination of the content of the INEC database or back end server following an inspection ordered by the Trial Tribunal (exhibit BVR). The BVR issued on 27-7-2022 is said to contain Information on the number of accredited voters and results transmitted from BVAS used in the 16-7-2022 election in the 744 polling units.

Petitioner failed to provide BVAS to support case

The court noted that the BVAS deppellants solely relied on as the basis for grounds 2 and 3 of their petition were not produced and tendered by them as evidence in support of their case. Rather they sought to prove the record of accredited voters in the BVAS devices for each of the 744 polling units by means of a report of the examination of the INEC data base or back end server (exhibit BVR) said to contain the information on the number of accredited voters and number of votes cast in a polling unit transmitted by the BVAS to the said INEC data base during the election on election day.

 The court, among others, said Exhibit BVR, which the report of the examination of the content of the INEC database or back-end server containing the number of accredited voters and number of votes cast transmitted by the BIVAS for each polling unit to the data base or back end server, does not qualify as the BVAS provided for in Regulation 48(a) and the number recorded therein as extracted from the INEC data base is not the “the number recorded in the BVAS” as provided in Regulation 48(a) amongst other findings of the Supreme Court

No law requires Presiding Officers to transmit number of accredited voters to INEC data base

Justice Agim said there was no part of the Electoral Act or the INEC Regulations and Guidelines for the Conduct of Elections 2022 that requires that the Presiding Officer of the election in a polling unit to transmit the particulars or number of accredited voters recorded by the BVAS to the INEC data base or anywhere.

He added that there was no part of the Electoral Act and INEC Regulations and Guidelines that require that election result of a polling unit should, on the spot, during the poll be transmitted to the INEC National Election Register or data base. Rather, the Regulations provide for the BVAS to be used to scan the completed result in Form ECSA and transmit or upload the scanned copy of the polling unit result to the Collation System and INEC Result viewing Portal (ReV).

 “As I had held herein, there is no part of the Electoral Act requiring the Presiding Officer to transmit the accredited voters in a polling unit or the polling unit result during election to the INEC data base as part of the election process.

As stated in 5.62(1) of the Electoral Act, 2022 “After the recording and announcement of the result, the presiding officer shall deliver same along with election materials under security and accompanied by the candidates or their polling agents, where available, to such person as may be prescribed by the Commission. This is to enable the Commission compile, maintain and update, on a continuous basis, a register of election results. This intention is clear from Subsection(2) of 5.62 which provides that “the Commission shall compile, maintain and update, on a continuous basis, a register of election results to be known as the National Electronic Register of Election Results which shall be a distinct database or repository of polling unit by polling unit results, including collated election results, of each election conducted by the Commission in the Federation, and the Register of Election Results shall be kept in electronic format by the Commission at its national headquarters.                              

“In the light of the foregoing. I hold that the INEC data base or National Electronic Register of Election Results is not relevant evidence in the determination of whether there was non-accreditation or over voting or not in an election in a polling unit and cannot be relied on to prove over voting.”

BVAS not useful to proving improper accreditation

The court added  that “Therefore the case of the appellants that the Presiding Officer was bound to instantly or on the spot, during election, transmit the number of accredited voters and results of election in the BVAS to the INEC data base or back end server and that ‘in the counting of votes cast at the polling unit and the collation of the results of the election, it is the number of accredited voters, votes cast or results transmitted directly from polling units to the data base that should be taken into account’ has no support in any of the provisions of the Electoral Act or INEC Regulations (supra).

“There is no such duty on the Presiding Officer. In any case, the appellants’ two witnesses testified that on the spot electronic transmission of results from BVAS may in some instances be frustrated by lack of internet connectivity, BVAS battery failure and error in pressing the ‘send button’ of the BVAS. So even in the context of the case they presented, the appellants have shown in their pleadings and evidence, that the BVR cannot be a complete and accurate record of the number of voters accredited and of the number of votes cast on the day of poll, 16-7-2022 because it is not the direct record of these numbers and contains only the numbers transmitted to it from the BVAS.

“So that if the BVAS malfunctions and is unable to instantly transmit as it was recording because of lack of internet connecting, failure of INEC officials to press the submit button properly and loss of power in the battery, what is recorded in the BVAS will not be in the data base. The data base can only contain what is transmitted to it from the BVAS at a particular time and not what the BVAS recorded at that time. So by the appellant’s own showing it cannot be a complete and accurate record of those numbers and therefore cannot be relied on to dispute the number of accredited voters recorded in the Form ECSA on the day of poll.

In the light of the foregoing, I hold that exhibit BVAS is not useful or relevant to prove non and improper accreditation of voters and over voting.

No register produced for 774 polling units in contention

The appellants did not produce the register of voters for each of the 744 polling units under contention. The apex court said it did not agree with the argument that the register was no longer relevant for accreditation of voters and were therefore not relevant to their case.

It held: “It is clear from the provisions of 5.47(1) and (2) of the Electoral Act 2022 and Regulations 14(a) and (b), 18(a) and (b), 19(b) and (e) that the Register of voters for each polling unit is relevant evidence to prove the alleged non accreditations of voters in the 744 polling units on the election day. It is worth stating that in the event of a conflict between the record of accredited voters in the BVAS machine and ticked names in the Register of voters due to human errors in the ticking of the names in the Register of voters, the BVAS Record shall prevail.

Why ‘expert’ analysis evidence was rejected

 The other evidence adduced by the appellants to prove their case was the Expert Analysis Report prepared by PW1, a member of the 2nd appellant and who had been a Special Assistant to the 1st appellant and was engaged by the appellants to establish the invalidity of the disputed results in Form ECSA for the 744 polling units. 

The court noted that PW1 testified that “I made the report as directed by the petitioners” and that ” I am part of those who wrote the petition.”

The court said: “By his (PW1’s) own testimony, he established that he was not an independent expert as he had an interest in the subject of his analysis and carried out the analysis from the conclusion that the results were invalid, to justify that conclusion to support the contemplated election petition. It was an analysis from an answer and not from a question. Such a report is not the product of an independent, impartial, detached and professional analysis. He is clearly a person with the disposition or temptation to depart from the truth. The listing of the Expert Analysis Report in the petition among the documents to be relied on to prove the petition show it was made in anticipation or contemplation of the petition to be filled. The report having been made by PW1 as a person interested in the subject matter of the report when the petition was anticipated to establish that the election result was invalid is not admissible evidence by virtue of Section 83(3) of the Evidence Act, 2011 (as amended). 

“The witness admitted that his analysis was based on his examination of the content of the Form BCBA’s for the 744 polling units and the BVR. It is obvious that the same documents were in evidence before the Tribunal and that therefore it was bound to review, evaluate and analyze the same documents and make its own inferences from them and cannot adopt the opinion of PWI based on his inferences from the documents as its own. The court cannot adopt the opinion of a person concerning a documentary evidence before it without itself considering that evidence and drawing its own inferences from it. Such opinion on the content of a document (Form ECSA) not made by the person expressing it (PW1) is hearsay and not admissible.”

“The entire testimony of PW1 in examination-in-chief was, as admitted by him, based on his examination and analysis of the said Forms ECSA and BVR. He had no personal knowledge of the facts of the case. He was not present in the election in any of the polling units. He was not a polling agent of the second appellant. He was only engaged as the leader of the appellant’s team to coordinate the analysis of the Form ECBAs and BVR. He admitted that he did not examine the BVAS and the Register of voters for the 744 polling units before he wrote his Expert Analysis Report. Yet he analysed the content of the record of the BVAS he never saw and drew conclusions that there was non accreditation or improper accreditation of voters and over voting in the disputed 744 polling units without directly examining the record of tht EVAS or a report of the direct examination of the said record.

His entire testimony in examination in chief is hearsay evidence and is inadmissible evidence. See Ss. 37 and 38 of the Evidence Act 2011. The same applies to the testimony in examination in chief of PW2, who was the appellants’ state collation agent and was not present in any of the polling units and so did not witness the election process in any of them. His testimony in examination-in-chief concerning the record in the BVAS based on BVR was a 3rd hand statement of same, in that it is said to be the report of examination of entries in the INEC data base made by a person who did not examine the BVAS records, which entries are said be derived from information transmitted from BVAS is therefore hearsay and not admissible evidence. As it is, the appellants did not produce originals or certified true copies of INEC documents, to wit, BVAS machines or certificates of their record issued by INEC from the examination of the record of accredited voters in the BVAS machines, Register of Voters and Form ECSA for each of the 744 polling units that sufficiently disclose the non compliance they alleged in their petition.

Appellants fail to elicit admissible, credible evidence

The court said that appellants did not elicit any admissible and credible oral evidence of non accreditation, improper accreditation in any of the 744 polling units. In their pleading and evidence, the appellants did not state the polling unit where there was no accreditation of voters and did not allege or show how the improper accreditation occurred. So they did not prove the allegation of non accreditation and improper accreditation.

“It is glaring from the foregoing that the appellants did not adduce relevant and admissible evidence to prove non- accreditation of voters, improper accreditation of voters and over voting.”

Election of respondent not affected by over voting in six out of the disputed 744 

He noted that “Be that as it is, the respondents still went ahead, may be, out of abundance of caution, to produce the BVAS machines for the 744 polling units in evidence and the certified true copy of the record of accredited voters in the BVAS machines (exhibit RWC). A reading of the Form ECSA for each of the 744 polling units together with exhibit RWC show that the number of accredited voters and votes cast in the FORMS ECSA agree with the number of accredited voters in the BVAS except in six polling units, where over voting was shown to have occurred, and that the over voting in the six polling units out of the disputed 744 units did not affect the election of the 2nd respondent.”

The apex court  held that the Court of Appeal correctly found that the appellants failed to prove grounds 2 and 3 of the petition and correctly allowed the appeal to it on those grounds and set aside the decision of the Tribunal Issues 3,4,5 and 7 are resolved against the appellants.

On issue of qualification or disqualification of the respondent for election as Governor.

The court held: “The first of the three grounds of the appellants’ petition is that the 2nd respondent was, at the time of the election, not qualified for election as governor of a state because he was not educated up to at least the school certificate level or its equivalent, that he did not possess the educational qualifications showing that he was so educated and that the Diploma certificate from Penn Foster High School and the Bachelor of Science degree in Criminal Justice from Atlanta Metropolitan State College attached to his Form EC9 submitted to INEC are forged. The trial Tribunal found that the Ede Muslim High School Leaving Testimonial and Statement of Result presented by the 2nd respondent to show he was educated up to school certificate were forged, after refusing to countenance certified true copies of the judgment of the Court of Appeal in CA/A/362/2019-PDP V Wahab Adekunle Raheem & Ors(exhibits 2R.RW4) that had decided they were not forged on the ground that they are photocopies of certified true copies of the judgment. It also found that the 2nd respondent qualified for the said election on the basis of other educational qualifications. On appeal to the Court of Appeal against these findings of the Tribunal, the Court of Appeal held that ‘The documents tendered by the appellant, Exhibit 2R.RW4 Judgment CA/A/362/2019) were indeed certified and the same was reported as ADELEKE V. RAHEEM & ORS(2019) LPELR 48729 CA).’ In the circumstance, the appellant’s counsel having acquitted himself of his duty to the Tribunal, it behoves on the Tribunal to not only take judicial notice of the judgment but abide by the pronouncements contained therein. I repeat, that issue transcend beyond the admissibility of the judgment but its binding force on the Tribunal on the basis of stare decisis.”

The Supreme Court agreed with the argument of learned SAN for the 3rd respondent that there was no ground of this appeal against the specific finding of the Court of Appeal that Exhibit 2R.RW4( Judgment of Court of Appeal in Appeal No. CA/A/362/2019) tendered in the Tribunal is a certified true copy. The Justices said by not appealing against it, the appellants accepted it as correct, conclusive and binding upon them and therefore could not argue against the finding, citing relevant decided cases to support their decision.                  

The apex court decided that the status of the information from 2nd respondent that he completed secondary education at Ede Muslim High School, Ede and that he sat for the 1981 May/June West African School Certificate Examination in the said School, the status of the School leaving Testimonial and Statement of result of 1981 May/June West African School Certificate Examination issued by at Ede Muslim High School, Ede and decided the said information was true and that the testimonial and statement of result were not forged. The appeal against this decision to the court was dismissed.

“Although the 1st appellant was not a party in that case, he is bound by the judgment because as rightly submitted by learned SAN for the 2md respondent is a Judgment in rem and binds the whole world on the decided issues.

No evidence to establish forgery allegation

The court held further that no evidence was adduced to establish the allegations of forgery of Diploma Certificate of Penn Foster High School and the Bachelor of Science degree in Criminal Justice from Atlanta Metropolitan State College beyond the hearsay testimonies of PW1 and PW2.

It held that “There is no evidence that the institutions that awarded the 2nd respondents those educational qualifications denied awarding him those qualifications and issuing the certificates. As it is, without the awarding institutions disclaiming them, their authenticity and validity remain intact.”

Appeal fails

“On the whole this appeal fails as it lacks merit. It is accordingly dismissed. The judgment of the Court of Appeal delivered on 24-3-2023 in Appeal No.CA/AK/EPT/GOV/01/2023 is hereby affirmed.

“This judgment binds the sister Appeals Nos. SC/CV/509/2023, SC/CV/510/2023 and SC/CV/511/2023” the Supreme Court declared..

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