Tomorrow is the D-Day as the Court of Appeal will decide the appeal filed by Osun State Governor, Senator Ademola Adeleke over his sack the Osun State Election Petitions Tribunal.

The tribunal had voided the July 16, 2022 election that produced Adeleke as the elected governor and ordered the Independent National Electoral Commission (INEC) to issue a Certificate of Return to the immediate past Governor Gboyega Oyetola of the All Progressives Congress (APC) as the validly elected governor. The verdict sparked widespread protests especially in Osogbo, the Osun State capital. A member of the three-man panel also disagreed, delivering a dissenting judgment.

The court had on March 13, 2023 reserved judgment in the appeal brought by Adeleke contesting the nullification of his election by the tribunal. The Independent National Electoral Commission (INEC) also filed an unprecedented 44-grounds appeal against the split 2:1 decision by the tribunal.

According to the poll results announced by INEC, Adeleke had polled 403,371 votes against Oyetola’s 375,027 votes. The Peoples Democratic Party (PDP) candidate was victorious in 17 of the 30 local government areas of the state while the remaining 13 local government areas went to Oyetola.

But Adeleke headed to the Court of Appeal to challenge the tribunal’s verdict. His legal team led by the go-to election petition trial lawyer, Dr. Onyechi Ikpeazu SAN had on February 9, 2023 filed 31 grounds of appeal against the January 27, 2023 split decision of the tribunal.

INEC also sharply disagreed with the tribunal and filed 44 grounds of appeal against the judgment. In a Notice of Appeal signed by its Lead Counsel, Prof. Paul Ananaba SAN, the commission stated that the judgment of the tribunal was riddled with “error in law” and “want of competence and jurisdiction.”

INEC urged the Appeal Court to set aside the whole judgment of the tribunal, arguing that “The judgement of the lower Tribunal is against the weight of evidence.”

It urged the appeal court to “Allow the Appeal” and sought “An Order dismissing and/or striking out the Petition for want of competence and jurisdiction” as well as “An Order dismissing the Petition of the 1 and 2nd Respondents in this Appeal as lacking in merit with substantial cost.” Oyetola and APC were the 1st and 2nd respondents while Adeleke and the PDP were joined by INEC as 3rd and 4th respondents.

On his part, Adeleke described the tribunal’s judgment as a “miscarriage of justice” and prayed for “an order setting aside the whole decision of the tribunal”. The governor also sought “an order striking out the petition for want of competence and jurisdiction or in the alternative, an order dismissing the petition on the merit”.

While the tribunal had in a statement which attracted heated public debate held that Adeleke “cannot ‘go lo lo lo lo’ and ‘buga won’ as the duly elected governor of Osun state,” the appellant stated in his Notice of Appeal that “The tribunal, in its judgment, erred in law and displayed bias against the appellant when it made reference to the appellant’s dance at his inauguration as governor of Osun State which was never an issue before the lower tribunal.

“By referring to the appellant’s personal eccentricity for dancing, the lower tribunal derided and mocked him in a manner suggesting that it was biased against him.

“The appearance of bias, manifested in the reference to the Appellant’s proclivity for dancing and particularly the Buga song, has rendered the decision of the lower Tribunal a nullity.

“The tribunal in its judgment erred in law in returning the 1st respondent as the duly elected candidate without due regard to the enormity of the voters in the units where the results were cancelled for overvoting.”

At the hearing of the appeal, Ikpeazu argued that the tribunal did not base its judgment on the data on INEC’s Bimodal Voter Accreditation System (BVAS) machines and the certified extracts which gave a clear lead to Adeleke, even if some polling unit results were cancelled. He also argued that a member of the tribunal did not read her judgment as required by Nigeria’s Constitution and the rules of court.

But Oyetola’s Lead Counsel, Prince Lateef Fagbemi SAN countered Ikpeazu, saying that the typed judgement stated the decision of the tribunal. He added that “Our position has always been that not all registered voters were accredited by BVAS.”

The Tertsea Aorga Kume-led tribunal had admitted and marked 976 BVAS machines as exhibits. Oyetola’s counsel at the tribunal, Chief Akin Olujinmi (SAN) alleged that BVAS was not used in some polling units, saying this led to irregularities in the voting process.

The tribunal agreed with Olujinmi that there was over-voting during the election. Taking this factor into consideration, the tribunal declared that Oyetola won the election, having polled 314, 921, while Adeleke’s score was pruned down to 290, 266 votes. The tribunal held that all parties agreed that the “BVAS machine is the primary source of the results which were analysed,” adding that the advent of the BVAS machine has relegated the Voters’ Register to the background.

It is instructive that the case turned on the two BVAS reports issued to the petitioner by INEC. While the tribunal held that INEC did not withdraw the incomplete BVAS report earlier issued to the petitioners, INEC insisted that the initial report was “unsynchronised and inchoate,” since it did not present a full picture of the results on Election Day.

Instructively, Justice P. Agbuli agreed with INEC and Adeleke, saying that the petitioners relied on the Biometric Voter Registration (BVR) report obtained on July 27, 2022 and paid for on July 28, 2022. He held that relying on the incomplete report (Exhibit BVR) to reach a verdict was not reasonable in the circumstances.

According to him, “It is remarkable to note that the petitioners did not controvert the exhibit RBVR series and the report of physical inspection, that is exhibit RWC; they stand unchallenged and I so hold.

“Exhibit RWC is a document made from the time resources which are the machines used on Election Day. The exhibit on RWC is in existence and was there on the machine date of the election. Section 64 sub 4,5 and 6 of the electoral act recognized BVAS machines as a key material to be used in the collation of results and in the resolution of any dispute arising therefrom.

“The petitioners are not saying that the entries on exhibit RBVM series which is the machine itself are not the same as the entries in exhibit RWC, their grouse is that since exhibit RWC came from the same first respondent, it will not be allowed to stand in view of the discrepancies of figures in them via-a-vis the entries.

“In view of the following I hold that exhibit BVR is a product of inadequacies and cannot be the best evidence for the determination of the accurate number of accredited voters on the 16th July 2022 election. The same is true of exhibit RBVR; the best evidence to that regard is RBVL, 1-119 down to RBVL 1-59 used in the polling units under contest and I so hold.” He struck out the petition and upheld the election of Adeleke as the governor.

Some analysts have argued that the tribunal’s majority decision has put BVAS, originally touted as a “game changer” in Nigeria’s troubled electoral experience, on trial.

But INEC’s former Director of Voter Education and Publicity, Mr. Oluwole Osaze-Uzzi, disagrees. He argued that the tribunal’s majority judgment was based on an incomplete report. Speaking on a live CHANNELS TV programme, Osaze-Uzzi quoted the dissenting jurist as saying: “I would rather use the primary source of this information, and the primary source of this data is actually the machine itself.

“It is basically a computer. So, rather than go to the server where it transmitted data, I would use the printout from the machine itself.”

He said: “The machines were tendered, so were the reports from the server, and there ought not to have been a discrepancy, but somewhere along the line, not all the data had been transmitted at the time the APC obtained the certified copy of the initial server report.

“It was BVAS that exposed that as it were, and the fact that the BVAS report was relied on. But we have to be careful; which of the BVAS reports was relied on? Was it what was transmitted to the server – to the backend – or was it the BVAS itself?”

He said there was a need to break the verdict of the tribunal, adding that the majority of the tribunal members relied on the initial report of the backend server.

Osaze-Uzzi observed that “It (initial report) was downloaded from the server (after it was) transmitted. But a couple of days later, INEC used the word ‘synchronised.’ I’m not too sure I like that word, but you synchronise it and say, ‘Have all the results been transmitted? Has all data been transmitted from the machine, BVAS itself, to the server?’

“The machine is a physical one and then it transmits to a physical one. It now went, checked and said, ‘There’s a problem here.’ The BVAS report now downloaded itself, (we) now brought it out and examined each BVAS machine and found that, no, some data was not transmitted to the server.” He expressed optimism on the future of BVAS.

The Peoples Democratic Party (PDP) won 25 of the 26 House of Assembly seats in the just concluded elections held on March 18, 2023. The party also won all the three senatorial seats and nine House of Representatives seats during the February 25, 2023 National Assembly elections while the state also delivered the largest number of votes to the PDP presidential flag-bearer Atiku Abubakar in the recent presidential election.

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