The Supreme Court, on Monday, reserved judgment in an appeal filed by Mr. Adegboyega Oyetola of the All Progressives Congress, APC, against a judgment of the Appeal court, which upheld the election of Senator Ademola Adeleke as governor of Osun.
The five-member panel led by Justice John Iyang Okoro, after listening to counsel to Oyetola, Lateef Fagbemi, SAN, Adeleke, Oyeachi Ikpeazu, SAN and Alex Iziyon, SAN, who appeared for the PDP, said judgment would be delivered on Tuesday, by 2pm.
Other members of the panel are: Justices M. Lawal Garba, Tijjani Abubakar, Adamu Ojauro and Akomaye Agim.
However, the Independent National Electoral Commission, INEC, represented by Prof. Paul Ananaba, SAN, did not file any process in the appeal being decided following the decision of the court and that of the counsel to consolidate all the appeal into one.
Attempt by Prof. Ananaba to offer explanation equally met a brick wall as the learned Justices requested him to take his seat to allow Ikpeazu make his submissions.
Ikpeazu contend that a voters register was a requirement to prove over-voting in the present circumstance.
In his adumbration, Fagbemi, SAN submitted that the Appeal court relied heavily on the old Electoral Act, specifically that of 2010 to draw its conclusion that a voter register was needed to prove over-voting.
Making reference to section 51 of the 2022 electoral Act, which was used to conduct the Osun July 16 governorship election, Fagbemi, SAN noted that one does need a voter register to establish over-voting.
Section 51 (2) of the Act stipulates that “Where the number of votes cast at an election in any polling unit exceeds the number of accredited voters in that polling unit, the presiding officer shall cancel the result of the election in that polling unit.”
He equally made reference to Section 47 (2) of the Electoral Act 2022, which stipulates that “To vote, the presiding officer shall use a smart card reader or any other technological device that may be prescribed by the Commission, for the accreditation of voters, to verify, confirm or authenticate the particulars of the intending voter in the manner prescribed by the Commission.”
He concluded that the voter register had no role to play in establishing over-voting and urged the court to so hold, adding that “we are now in a new electoral dispensation that is expected to be upheld not only by INEC but also by the court as far as issue of over-voting is concerned. It is also important to state that in any election you must not only win an election but you must win in a manner prescribed by the law. I therefore, urge your Lordships to allow the appeal.”
On the issue of forged document submitted to INEC by Senator Ademola Adeleke, which counsel to Adeleke noted that a judgement had been previously decided in another matter in their favour to that effect, Fagbemi, SAN contended that it is not a judgment that could be taken judicial notice of because it did not certify the condition for it.
It would be recalled after the July 16 governorship election, Senator Ademola Adeleke was declared winner of the election on Sunday, July 17, 2022. By July 27, Oyetola obtained a Certified True Copy of the BVAS Report from INEC and filed his petition.
During the pendency of the case, the PDP also applied for a CTC of BVAS Report from INEC. However, that report contradicted the one earlier issued to Oyetola. It called it a ‘synchronised version’. But no attempt was made to withdraw the one earlier issued, just as it never at any time told Oyetola that the report was an interim one.
In the course of the proceedings at the Tribunal, the witness from INEC admitted that there was over voting, just as the expert hired by Senator Ademola Adeleke who claimed to have carried out a physical inspection of the BVAS machines also admitted that there was voting.
The only difference between his testimony and that of the INEC witness was that he submitted that over-voting occured in only six polling units as against the over 700 polling units being challenged by Oyetola and the APC. And of the three reports, only the one rendered by Oyetola had an identifier that makes it easier for anyone to immediately ascertain which polling unit any particular BVAS machine was deployed.
At the end of the Tribunal proceedings, Oyetola was declared winner after the deduction of the invalid votes. But the Appeal court set aside the decision of the Tribunal on the ground that a voters register was necessary to prove over-voting.
