Case Law: Adeleke vs Oyetola

Attempt at Understanding Adeleke's Victory - Oyetola vs Adeleke




Background

After the conduct of the Osun State Governorship Election on 16th July 2022, INEC declared Mr Adeleke of PDP the winner of the election in an upset that deprived Mr Oyetola, the then incumbent governor, a second term in office.




According to INEC, Mr Adeleke won with 403,371 votes while Mr Oyetola came 2nd with 375,027 votes.




1. Election Petition Tribunal




Displeased with INEC’s result, Mr Oyetola had approached the election petition tribunal to challenge the outcome of the poll. He anchored his petition on complaints in 744 polling units in 10 local government areas of Osun State. He alleged that the election in the polling units was marred by overvoting, failing to comply with the provisions of the Electoral Act by not using the Bimodal Voters Accreditation System (BVAS) machines.




The 3 member tribunal in a split decision of 2-1 on 27 January 2023, ruled in favour of Mr Oyetola, by declaring him the winner of the election, and sacked Mr Adeleke from office.




In the lead majority judgement read by Hon. Justice Terste Kume, the tribunal held that INEC failed to conduct the Osun governorship election in compliance with the Electoral Act. It noted that the poll was marred by over-voting. It said after deducting the excessive votes that were cast, the figure Mr Adeleke scored came down to 290,666, which was lower than the 314,921 garnered by Mr Oyetola. Consequently, the tribunal ordered that Mr Oyetola be returned as governor of Osun State.




However, in the minority decision, Hon. Justice P. A Ogbuli said the petitioners – Mr Oyetola and the APC – failed to prove that there were cases of over-voting in the governorship election.




2. Adeleke’s appeal to the Court of Appeal




Mr Adeleke, who remained in office to exhaust his right of appeal, had appealed against the decision of the tribunal.




His appeal was successful.




Upholding Mr Adeleke’s victory in March 2023, the Court of Appeal held that the tribunal’s wrong in its conclusion that that the election in some parts of the states was marred by over-voting, the pivotal legal issue thrown up in Mr Oyetola’s case. In other words, the minority decision of the tribunal was upheld.




The Court of Appeal noted that Mr Oyetola and the APC “did not tender the voter registers and Bimodal Voters Accreditation System (BVAS machines,” which captured data of eligible voters at the Osun governorship election.




It held -

“Though the 1st and 2nd respondents (Oyetola and APC) relied on BVAS reports obtained from INEC to prove over-voting, they did not, nonetheless, call petitioner’s witness 1 to speak to the reports, that is, Exhibits BVR reports from INEC’s back-end server.




"In their pleadings,” Mr Oyetola and APC “alleged that the results recorded and transmitted directly from the polling units were not taken into account and therefore accredited voters recorded in Form EC8A from the disputed polling units do not tally with the number of BVAS for the same polling units.




“Strangely, the tribunal, in its judgment, only relied on the table set out in an address of counsel to hold that over voting occurred in an election,” the Court of Appeal said.




3. Appeal to the Supreme Court




The Supreme Court was invited to resolve 3 primary issues, namely: noncompliance with the Electoral Act/over-voting, forgery and jurisdiction.




The Supreme Court, on Tuesday, 9th May 2023, agreed with the Court of Appeal that Mr Oyetola and his party, the All Progressives Congress (APC), failed “to adduce relevant evidence to prove their case.”




Upholding the lower court’s decision, the Supreme Court held that the Court of Appeal “correctly found that the appellants failed to prove their case” against Mr Adeleke and his party, the Peoples Democratic Party (PDP).




On the issue of non-compliance/over-voting, the Supreme Court held that -




"It was imperative that the appellants (Oyetola and APC) produced the BIVAS machines or certified true copies of the BIVAS in evidence to show non-accreditation and over-voting.”




Emmanuel Agim, JSC, a member of the Supreme Court panel who read the lead judgement, noted: “It is the record in the BIVAS machines that can prove the number of accredited voters in a polling unit and nothing else.”




“The appellant had a primary burden to prove the fact asserted by them in their petition. It is obvious that the appellants’ case collapsed.”




Decision on alleged forgery




Ruling on Mr Oyetola’s allegation of forgery levelled against Mr Adeleke, the Supreme Court held that Mr Oyetola and APC did not substantiate their claims.




“No evidence was adduced to prove the case of forgery against Adeleke. In the absence of such evidence, the allegation is not proved beyond reasonable doubt,” Mr Agim said.




On the issue of the tribunal’s jurisdiction to hear the petition.




The Supreme Court faulted the tribunal for refusing to determine Mr Adeleke’s preliminary objection challenging its power to entertain the suit.




“This renders the entire hearing of the case by the tribunal a nullity. It ought to have determined the issue of jurisdiction before going into the substantive petition.




“The entire proceedings of the tribunal remain a nullity,” the Supreme Court held.




“On the whole this appeal fails and it is hereby dismissed.”




Imagine if we had insisted on "no swearing in" for the then governor-elect until all disputes concerning his election were judicially resolved.



May I join the good people of Osun State and all lovers of constitutional democracy to congratulate HE, Gov. Ademola Adeleke on his resounding victories both at the poll and from the judiciary.