In the final analysis, our judgment is that, from the totality of the evidence led before us in this petition, and from the findings we have made in the foregoing, the Petitioners have clearly failed to discharge the burden placed on them by law, to establish that the result declared by the 3rd Respondent with respect to the polling units being questioned in all the 17 Local Government Areas of Osun State, with respect to the Governorship election held on August9, 2014, were invalid or void by reason of corrupt practices and or substantial non compliance with the provisions of the Electoral Act 2010 (as amended); or that it was the 1st Petitioner who scored the majority of lawful votes cast at the said elections, to be entitled to be returned as winner thereof.
In other words, the Petitioners have failed to lead relevant, credible and or cogent evidence to sustain all the grounds upon which they questioned the declaration and return of the 1st Respondent as the duly elected Governor of Osun State with respect to the Governorship Election conducted in the State.
Quite clearly, the 1st Respondent won the majority of lawful votes cast in scoring 394,684 votes as against the 1st Petitioner’s 292,747 votes, and having satisfied all Constitutional requirements, we hereby affirm the declaration and return of 1st Respondent by the 3rd Respondent as the duly elected Governor of Osun State. Consequently, we hereby refuse all the reliefs sought in the petition and the petition therefore fails and it will be and is hereby dismissed. In the interest of peaceful co-existence and reconciliation amongst all contending parties, we shall make no order as to costs.
This is our judgment.
HON. JUSTICE ELIZABETH NGUVEREN KPOJIME
The above was the climax of the long awaited judgment of the Osun State Election Petition Tribunal as delivered by Tribunal Chairman.
Exerpts from the ruling:
It is the assertion of the Petitioners that the 1st and 2nd Respondents did not poll majority of the lawful votes cast at the said election. It is trite law that the burden rests on them to prove their assertion. See sections 32 and 133 of the Evidence Act,2010, and the case of CPC v.INEC (2011) 18 NWLR (Pt.1279) 493 at 544-545 SC. The Petitoners are calling on the Tribunal to cancel all the unlawful votes credited to the 1st and 2nd Respondents by the 3rd Respondent.
PW1 testified in paragraph 39 of his deposition that:
“39- if the results credited to the 1st and 2nd Respondents in polling units of the wards and Local Governments challenged by the Petitioners in this petition are cancelled, the Petitioners will have majority of the lawful votes cast at the election and will also have not less than 25 percent votes in 2/3rd of Osun State.”
Case of the petitioners
Since it is not the case of the Petitioners that the 1st and 2nd Respondents did not score lawful votes in any of the areas being challenged, they have by implication conceded that these Respondents scored some lawful votes in these areas. The burden is therefore on the Petitioners to determine which are unlawful votes amongst the votes credited to the 1st and 2nd Respondents. It is only when they have done this that the tribunal will be in a position to deduct those unlawful votes from the total votes credited to the 1st and 2nd Respondents and determine the winner. This was the decision in the the case of Nadabo v.Dubai (2011) 7NWLR (Pt.1245) 155 at 177, where the court held thus:
“I think when a Petitioner is alleging that the Respondent is not elected by majority of lawful votes, he ought to plead and prove the votes cast at the various polling stations, the votes illegally credited to the winner, the votes which ought to have been credited to him and also the votes which should be deducted from that of the supposed winner in order to see if it will affect the results of the election. When this is not done, it will be difficult for the Court to effectively address the issue.”
Aregbesola and Omisore
Aregbesola and Omisore
At paragraph 5.1 of Exihibit 243, which is the report of the physical inspection and physical analysis of electoral documents used at the election issued by PW 15, there is a table of summary of the alleged irregularities. From this summary, the Petitioners are contending that 265,180 votes out of the 394,684 votes credited to the 1st and 2nd Respondents are unlawful votes.
Interestingly they have also found 147, 072 unlawful votes credited to them. That if these unlawful votes are deducted fom the total votes credited to the 1st and 2nd Respondents, these Respondents will have 129,504 valid votes. If their unlawful votes are deducted from 292,747 as credited to them at the end of the election, they would have 145,675 valid votes, thus putting them in the lead with 16,171 votes.
It however became clear during the cross- examination of PW15 by the Respondents that he in his report dealt with areas where there were no complaints from the Petitioners. In other words, Exhibit 243 covers a wider scope than that envisaged by the petition. On pages 2-4 of Table 1 is the list of all the polling units in Ayedaade Local Government. Under cross-examination by counsel to the 1st Respondent, his attention was drawn to pages 20-26 of the petition as regards Ayedaade Local Government. Only 3 wards namely Otun Balogun ward 02, Olufi ward 03 and Otun Olufi ward 04 are covered by the petition. Meanwhile table 1 pages 2-4 relates to all the wards within the Local Government. Similarly, his attention was drawn to pages 26-29 of the petition regarding Atakunmosa East Local Government Area. He concedes that:-
“On pages 26-29 of the petition, only 6 wards are being challenged while table 1 lists all the wards. Pages 29-34 of the petition relates to Boripe Local Government. In my report I listed all the polling units in all the wards, but 5 wards are being challenged in the petition. In Ede North contained on pages 34-38 of the petition, my report covers all the units in this Local Government. “
Table 2 in Exhibit 243 lists polling units with registered voters above 300 which do not have voting points. According to PW 15, he relied on Exhibit 186, the Manual in reaching his conclusion that if there are more than 300 voters in a polling unit and no voting points are created, the votes will be invalidated. He referred to page 5 of the Manual which contains an introductory statement by Professor Abubakar Momoh. This statement is to the effect that-
“This Manual draws on the various modifications introduced by the commission particularly on accreditation and voting procedure at polling units with more than three hundred registered voters.”
We however do not see this as a legal requirement that a voting point must be created where the number of registered voters exceeds 300. There is no law stipulating that where registered voters exceed 300 and no voting points are created, the votes cast in such a polling unit should be cancelled. Even the said manual itself does not state so. Based on this erroneous assumption, PW15 in table 2 says 252,030 votes accredited to the 1st and 2nd Respondents are affected, while 139,789 of the votes credited to the Petitioners are affected. Under cross-examination by counsel to 2nd Respondent, PW15 denies any errors in his table 2. His attention was then drawn to page 32 of table 2; unit 006 in Osogbo local government area (ward 4 Ataoja D-Union Bapt. School) where there are 766 registered voters.
As stated earlier, these certified copies were made from the original of forms EC 8A which the Respondents’ witnesses said were duly stamped. This report is a confirmation of this assertion by the Respondents. While table 3 indicates that duplicate copies of forms EC 8A were not stamped, it also indicates that there were discrepancies in the duplicate copies, that there were alterations in some duplicate copies, while some duplicate copies were not signed.
In the case of Irewole, Ikire’ C’ ward 3 unit 009 it is stated that there are different entries on CTC of form EC8A and the duplicate copy. Polling unit 009 is Ijadubi Open space. The complaint in this unit as per the complaint in the petition is that the result of the election was not recorded as required by law and form EC8A for the unit was also not stamped.
Original and duplicate
While PW15 has noted some discrepancies in the CTC of form EC8A and their duplicate counterparts, he conceded under cross-examination by Prof. Osinbajo SAN for 2nd Respondent that-
I have seen table 3 of my report. I did not point out any discrepancy in the result stated on the original and duplicate of form EC8A.”
Table 5 in Exhibit 243 seeks to show areas where the total votes cast are more than the voters on the queue. For instance, in ward 3 unit 016 of Oriade Local Government the table shows that whereas there were 44 voters on the queue, the total votes cast was 54. The Petitioners are implying that extra votes were” imported.” While APC had 306 of such “imported “votes, PDP had 163. The evidence of all the witnesses for the Petitioners and the Respondents is that all accredited voters were a:lowed to vote. It is also their evidence that the accredited voters were told to go and come back at 12noon when voting would commence.
It is however not their evidence that accredited voters who were not on the queue at the time of counting were not allowed to vote. All that is required of an accredited voter is to ensure that he casts his vote before voting closes. What is clear from the totality of the testimony of PW 15 is that the alleged unlawful votes include votes from wards and units not in contention in the petition. With the inclusion of votes from areas not in dispute, his over-all summary cannot be relied upon as representing the true situation.
Upon a calm consideration of the totality of Exhibit 243, we entirely agree with the Respondents that it has been so discredited that no reasonable Tribunal can rely on it to hold that the votes credited to the 1st and 2nd Respondents are unlawful.
Page 131-136 of the judgment delivered by Hon. Justice Elizabeth Nguveren Kpojime; Hon. Justice Vincent Igometi Ofesi and Hon. Justice Abubakar Idris Kutigi on Friday the 6th Day of February, 2015.