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Prior to the coming into effect of the Electoral Act, 2022, proof of Election Petition cases which hinged on allegations of substantial non-compliance with electoral laws and procedures during election, over-voting, irregularities, illegality during election, rigging, mutilation of results, among other similar allegations, was an upheaval task, if not impossible.
This was more so as election cases are, in the interest of the public, sui generis – in a class of its own – with statutory limitation periods for commencement, and a constitutional timeline of 180 days within which election Petition trials must be heard and concluded. Aside from the presumption of regularity of the election results as declared by INEC which naturally worked against the Petitioner, the Petitioner was also duty-bound to call eye-witnesses (especially Polling Unit Agents) from each of the Polling Units challenged to discharge the burden of proof on him where the petition is hinged on incidents that transpired during the elections. See Buhari v Obasanjo (2002) 3 NWLR (part 941) 1 at 253, Abubakar v. Yar’ Adua (2008) 19 NWLR (Pt. 1120) 1. Again, it was also strictly required that all documents used at the election, including the Voters’ Register, Polling Unit results, and all other relevant documents, must be tendered, demonstrated, and specifically related to each of the pleadings/claims in the Petition by Polling Unit Agents or witnesses whose positions at the election rightfully granted them access to such documents. However, times have changed given the coming into effect of the 2022 Electoral Act which commenced on the 25th day of February, 2022.
The Osun State Gubernatorial Election held in July, 2022, being the first major election after the commencement of the new Act became a litmus test for the Act. At the conclusion of the Election, Sen. Ademola Jackson Nurudeen Adeleke of the People’s Democratic Party (PDP) scored 403,371 votes, while Governor Adegboyega Isiaka Oyetola of the All Progressives Congress (APC) scored 375,027 votes. Consequently, Sen. Adeleke was declared winner of the election and returned as duly elected by INEC. Aggrieved by the declaration and return, Governor Oyetola approached the Osun State Governorship Election Tribunal vide an Election Petition filed on the 5th of August, 2022, challenging the election and return of Sen. Adeleke, and urging the Tribunal to declare him, the 1st Petitioner, as validly elected, and consequently order that he be returned. Of the three grounds upon which the Petition was based, grounds 2 and 3 are pertinent given that they are the grounds upon which the decision of the Osun State Governorship Election Petition Tribunal, removing Gov. Adeleke from office, was based.
The grounds are that: “2. The 2nd Respondent (Adeleke) was not duly elected by the majority of lawful votes cast at the election.” and that “3. The election of the 2nd Respondent (Adeleke) was invalid by reason of non-compliance with the provisions of the Electoral Act, 2022.”
As expected, the facts presented by the Petitioners in proof of the grounds were mainly allegations of over-voting in about 744 Polling Units across 10 LGAs of the State. In sum, it was alleged by the Petitioners that the total number of votes cast in the Polling Units (PUs) in issue were over and above the total number of the accredited voters in each of those Polling Units (PUs), and so, the Petitioners prayed the Tribunal to declare that the 1st Petitioner, and not the 1st Respondent (Sen. Adeleke), was duly elected by the majority of lawful votes cast at the election.
The Petitioners called only 2 witnesses who were neither Polling Unit Agents at the challenged Polling Units during the election, nor were they the officers of INEC that operated and handled the BVAs accreditation machines, the report of which they relied on in their oral testimony. It was through these Petitioners’ witnesses that election results and the Petitioners’ version of the BVAs Reports were tendered on behalf of the Petitioners at trial. On her part, however, INEC tendered and relied on a different BVAs accreditation Report (Exhibit R.BVR) showing and contending that no over-voting occurred in the challenged Polling Units, while also contending that INEC’s version of the Accreditation Report superseded the version tendered and relied on by the Petitioners, as the latter was, according to INEC, obtained at a time the information in the Accreditation machines were yet to be synchronized with the INEC database.
The summary and gamut of the Respondents’ (including INEC) contention against the Petition is that the Petitioners failed to prove their case, in that: i. The Petitioners failed to call sufficient oral evidence/witnesses (Polling unit agents) from each of the Polling Units where over-voting was alleged; ii. The Petitioners failed to tender all necessary documents used in the election, at the alleged Polling Units, including the Voters’ Register; iii. The Petitioners failed in their evidence to tabulate and demonstrate the number of Registered voters, the total number of votes cast, and the votes scored by each candidate in each of the Polling Units contended; iv. The Petitioners’ witnesses, after stating that their testimonies were partly from their personal knowledge and partly from information obtained from other sources, failed to delineate or particularize which part of their testimonies was from within their knowledge and what part was from other sources. See Gundiri v. Nyako (2014) 2 NWLR PT 1391; v. That Exhibit BVR, which is the version of the BVAs accreditation Report tendered by the Petitioners, is inchoate, in that it was obtained from INEC at a time when the data in the BVAs accreditation machines had not been synchronized with the INEC database, and it was, therefore, unsafe for the Tribunal to rely on same, more so, as there was a different version of Accreditation Report tendered before the Tribunal by INEC. At this point, it is important to note certain changes which have been made to the legal regime of elections and election petitions in Nigeria by virtue of the recent Electoral Act, 2022.
These enormous changes are instructive for the understanding of the case in issue, future elections and election petitions, particularly as they relate to the conduct of elections, the complexities that have, for long, attended the proof of, and defense to election petitions. Section 137 of the new Electoral Act, 2022 provides that: “It shall not be necessary for a party who alleges non-compliance with the provisions of this Act for the conduct of elections to call oral evidence if originals or certified true copies manifestly disclose the non-compliance alleged.” What is more, Paragraph 46 (4) of the First Schedule to the Act (said First Schedule provides for Rules of Procedure for Election Petitions) mandates that: “Documentary evidence shall be put in and may be read or taken as read by consent, such documentary evidence shall be deemed demonstrated in open court and the parties in the petition shall be entitled to address and urge argument on the content of the document, and the Tribunal or Court shall scrutinize or investigate the content of the documents as part of the process of ascribing probative value to the documents or otherwise.” The implication of the above provisions introduced by the new Electoral Act is that minimal oral evidence, if not none at all, is required to prove non-compliance with the procedure for an election.
For the avoidance of doubt, non-compliance includes over-voting, irregularities, illegality during election, rigging, mutilation of results, etcetera. Again, by Paragraph 46 (4) of the First Schedule to the Act, the Petitioner is at liberty to call minimal witnesses or even tender through the Bar, certified true copies of election results and accreditation reports, without going through the hurdle of calling oral evidence/witnesses, Polling Unit by Polling Unit, or strictly demonstrating or relating the documents with the pleadings – as same shall be deemed to have been demonstrated in open Court, for the Tribunal’s overall duty of proper scrutinization in arriving at a just decision.
As alluded to above, the Petitioners, in the instant case, relying on the foregoing provisions of the Electoral Act, called only two witnesses, tendered election results and BVAs accreditation Reports and insisted that over-voting occurred in 744 Polling Units in the election going by the documents they tendered, which were statutorily deemed as demonstrated, and to which the Tribunal was bound to scrutinize. By Section 47 of the Electoral Act, 2022 which makes provisions for procedure for accreditation and voting in an election, a voter is required to present his Voter’s card to the Polling Unit Presiding Officer who shall use a smart card reader or any other technological device that may be prescribed by INEC, for the accreditation of voters, to verify, confirm or authenticate the particulars of the intending voter in the manner prescribed by INEC; and where a smart card reader or any other technological device deployed for accreditation of voters fails to function in any unit and a fresh card reader or technological device is not deployed, the election in that unit shall be cancelled and another election shall be scheduled within 24 hours if INEC is satisfied that the result of the election in that polling unit will substantially affect the final result of the entire election and declaration of a winner in the constituency concerned.
On the other hand, Section 51 (1) of the Act forbids double or multiple voting by a Voter; Section 51 (2) strictly directs 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 outrightly cancel the result of the election in that polling unit; while Section 51 (3) & (4) of the Act prescribes that where election is cancelled in various Polling Units on the ground of over-voting, no candidate shall be returned as elected until another poll has taken place in the affected Polling Units, where the result of the fresh election in the affected Polling Units (combined) will substantially affect the result of the entire election. The implication of the foregoing provisions is that the era of ‘Incident forms’, as alternative voter accreditation to failed Smart Card machines – which warranted multiple voting, rigging, and other loopholes – is over; and only Smart Card machine accreditation as prescribed by INEC, and no other, shall be allowed for accreditation of Voters; and where such machine fails and a replacement is unavailable, election in such Polling Unit must be cancelled by the Presiding Officer.
Again, by the foregoing provisions, where there is over-voting in a Polling Unit, the Presiding Officer of the Polling Unit is legally bound to outrightly cancel the election in the Unit concerned, and the volume of voters in the cancelled Polling Units will determine whether or not INEC will conduct fresh elections in the Polling Units concerned. For the avoidance of doubt, over-voting is a situation where the total number of votes cast in a polling unit (i.e., valid and invalid votes cast for all parties) exceeds the total number of accredited voters in that polling unit. Another important point to note, especially from the provisions of Section 137 of the new Act, and Paragraph 46 (4) of the First Schedule to the Act, is that the complexities and technicalities that have in the past held sway and worked enormous hardship on Election Petitioners in proof of their election petitions have now been whittled down, if not entirely diminished. Calling of oral testimonies, especially from all Polling Units challenged is no longer necessary, especially where there is sufficient documentary evidence which shows that the allegations in the Petition are correct.
Also, the arguments about dumping of documents without proper demonstration are now less likely to be used to dismiss Petitions, as documents tendered, even without being tied to pleadings/claims, are by the Act, deemed as demonstrated in open Court, even as the Tribunals and Courts are mandated to “scrutinize or investigate the content of the documents as part of the process of ascribing probative value to the documents or otherwise.”
In the instant case, the Tribunal, in arriving at its decision, evaluated the evidence of the Parties, including the election results recording the total number of votes cast vis-à-vis the total number of accredited voters (as captured in the BVA Reports tendered by each of the parties) in each of the Polling Units in issue, and made a finding that there was over-voting in the alleged 744 Polling Units across 10 LGAs of the State and that the total number of votes cast in the affected Polling Units was 181,540. The Tribunal, after making these findings did not stop at cancelling the elections in the affected Polling Units, but proceeded to return the 1st Petitioner, despite the volume of Registered Voters from the affected 744 Polling Units and the margin of win after the cancellations. For clarity, the Tribunal, in its decision, found and held as follows: (i) that there was over-voting in 744 Polling Units; (ii) that the total number of votes cast in the affected 744 Polling Units was 181,540; (iii) that the 1st Petitioner (Oyetola) scored 60,096 votes, while the 2nd Respondent (Adeleke) scored 112,705 votes in the affected 744 PUs; (iv) that when the votes in the affected PUs are deducted from both parties, the 1st Petitioner (Oyetola) who had earlier scored 375,027 votes now scored 314,931 votes, while the 2nd Respondent (Adeleke) who had earlier scored 403,371 votes now scored 290,666 votes. (v) the Tribunal removed the 2nd Respondent (Adeleke) and returned the 1st Petitioner (Oyetola) as the winner of the election. Undoubtedly, the findings of fact of the Tribunal as to whether or not over-voting occurred in the 744 Polling Units centers on which of the BVAs Accreditation Report amounted to best evidence, credible enough to be relied on by the Tribunal.
Strangely, the Tribunal did not only refuse to rely on, and use INEC’s version of the BVAs accreditation Report, but also refused to rely on the version report (Exhibit RWC) which was the direct outcome of the physical inspection of the BVAs machines carried out pursuant to the order of the Tribunal itself that the machines be openly demonstrated and inspected to ascertain the true position of things. In order words, Exhibit RWC which remained unchallenged and which showed that no over-voting occurred was the direct report obtained after the physical examination of the machines at instance and order of the Tribunal. One would have expected that given the position of INEC as the official body that conducted the election and in whose custody all the materials used at the election are kept, the Tribunal would have opted to use and rely on the official reports proceeding from her, or at least, the unchallenged outcome of the physical inspection carried out on the Smart machines (real evidence) at the instance and order of the Court. Instead, the Tribunal chose to rely on the version of the BVAs accreditation report tendered by the Petitioners, which was not only faulted by the Respondents on the basis of the numerous contradictions that existed with respect to the actual date and manner it was obtained, but was also heavily discredited and flawed by INEC as inchoate, risky and obtained at a time when the information in the BVAs machines had yet to be entirely transmitted and synchronized with the INEC database. It is our humble submission that the decision of the Tribunal is against the weight of the evidence adduced by Respondents when balanced against that adduced by the Petitioners, and so the judgment given in favour of the Petitioners is against the weight which should have been given to the totality of the evidence presented before the Tribunal.
We further submit that had the Tribunal done a proper evaluation of the evidence adduced before it, it most likely would have arrived at different findings and decisions.
Even more strange, is the decision of the Tribunal ordering a return of the 1st Petitioner as duly elected, despite its findings that over-voting occurred in 744 Polling Units.
It is our submission, with due respect, that that decision of the Tribunal runs contrary to the spirit and intendment of S.51 of the Electoral Act, 2022. Now, assuming, without conceding, that the findings of fact made by the Tribunal, that over-voting occurred in 744 Polling Units, was correct (we contend that it was not), it is difficult to understand how the Learned members of the Tribunal, who presented the Leading Judgment of the Tribunal, were satisfied that a whopping 181,540 votes would not substantially affect the entire results of the election should fresh elections be conducted in the affected 744 Polling Units in accordance with the law.
Put differently, if the Petitioners’ case is allegation of over-voting in 744 Polling Units (as it indeed is), and by Section 51(2) of the Act, the consequences of over-voting is cancellation of election in affected Units and subsequent fresh elections in the affected Units where the result of the elections in the affected Units will substantially affect the entire results of the election, we submit that the proper thing the Tribunal ought to have done after establishing over-voting was to order fresh elections in the affected Polling Units rather than make a return after the cancellations and deductions – having regard to the volume of Registered Voters in the affected Units. The essence of election petitions, we further submit, is for the litigant to pursue and insist on compliance with the electoral laws and procedure where the Petitioner believes or has reasons to believe that laws and procedures have not been complied with or followed.
In that case, it would therefore be the duty of the Election Tribunal to ensure that the provisions of the law are followed where the Petitioner proves the alleged non-compliance. There is an important reason the draftsman inserted Section 51 (3) & (4) of the Electoral Act, 2022, which insists that where election is cancelled in various Polling Units on grounds of over-voting, no candidate shall be returned as elected until another poll has taken place in the affected Polling Units, where INEC is satisfied that the result of the fresh election in the affected Polling Units (combined) will substantially affect the result of the entire election. In determining whether the results of fresh elections in the cancelled Polling Units will substantially affect/disturb/displace the entire result of the election, the Tribunal, we submit, must ascertain, not just the total number of votes cast in the affected Polling Units, but rather the total number of Registered Voters in the affected Units; and should the total number of Registered Voters in the affected units surpass the margin of win after the cancellation and deductions from the affected units, then, the Tribunal ought to, as a matter of course, hold that fresh elections in the cancelled Units would most likely substantially affect the result of the entire election and consequently order fresh elections in the affected Units. We also contend that even going alone by the 181,540 total number of votes cast in the affected Units, in the instant case, it is only reasonable that if fresh elections are conducted in the affected areas, the result of the election would still have been substantially affected.
The overall implication of the decision of the Tribunal, in returning the 1st Petitioner as duly elected even after the cancellation and deductions were made, is the ultimate disenfranchisement of the entire Registered voters in the 744 Polling Units across the 10 LGAs of Osun State, and we do not believe that such action was the intendment of the law. In the final analysis, it is our opinion that the Tribunal’s finding of over-voting in 744 Polling Units despite overwhelming, credible best evidence to the contrary, and the Tribunal’s decision outrightly removing the 2nd Respondent (Adeleke) as Governor, and in turn, returning the 1st Petitioner as duly elected winner of the election, are erroneous. We however commend Hon. Justice B.A. Ogbuli (the Member 1 of the Panel) who boldly rendered a dissenting Judgment in the matter, while we await the Appellate Courts’ review of the decision of the Tribunal in the coming days.
Chikodi Okeorji, lawyer and political commentator, writes from Abuja.
