WILL ADELEKE RETURN AS GOVERNOR? (pt. 2)

I had stated in part one  of this write up (which you should read) that I would write my opinion on the judgment of the Tribunal. I wish to state for the record that my opinion is subject to whatever my Lords at the Apex Court (Supreme Court, should the case get there) would decide.

MY ANALYSIS

I will start with the judgment of the Chairman of the Tribunal which was co-signed by Rabi Bashir (CM), and then to the judgment of Hon. Justice B.A. Ogbuli who was in disagreement.

The chairman held that the Petitioners proved their case of over-voting in the election and thus deducted the excess votes which led to Oyetola being declared as winner. My Lord went further to show how INEC’s witness in her testimony admitted that there was over-voting in the election, this was clearly shown in page 100 of the judgment. He also stated in his Judgment that both parties benefitted from over voting.

Over-voting as defined by section 51(2) of the Electoral Act 2022 can be said to have happened when “the number of votes cast at an election in any polling unit exceeds the number of accredited voters in that polling unit”. Section 47(2) of the same Act provides that “the presiding officer shall use a smart card reader or any other technological device as prescribed by the commission for the accreditation of voters…”. This would mean that, the BVAs is used for accrediting the already registered voters as listed in the Register of Voters. If the number of votes cast in that polling units exceeds the number of accredited voters as stated by the BVAs, over-voting would be said to have happened. My Lord was of the view that all the Petitioners had to prove was that the votes cast in that polling unit exceeded the number of accredited voters in the polling units to prove his case. Having found that there was over-voting, my Lord went further to mathematically deduct the excess votes, and arrived at his conclusion.

With all due respect to my Lord, what is the consequence of over-voting in an Election as provided by the Electoral Act? My Lord in her judgment made reference to Section 51 (2) of the Electoral Act, 2022 in defining what over-voting is. It would however seem like my Lord did not pay attention to the latter part of that section, which provided for the consequence of over-voting in a polling unit. The section states:

“Where the number of votes cast at an election in any polling units exceeds the number of accredited voters in that polling units, the Presiding officer shall cancel the result of the elections in that polling unit”

The law is clear, if you find that there is over voting in any polling units, then, cancel the elections in that polling unit. The section did not provide for the deduction of excess votes.  After the Chairman held that there was over-voting in the election as proved by the Petitioner, then the said results in the affected units ought to have been cancelled. Then, if the number of polling units cancelled affects the total outcome of the elections, then a rerun would be ordered. I submit that the Chairman, after holding that there was over voting in over 700 units (which is a huge number), ought to have ordered a re-run, and not deduct excess votes.

Now we go to Hon. Justice B.A. Ogbuli’s judgment. Just before we go into this, please note that a “dissenting” judgment is not binding on the parties. It only shows you the other side of reasoning, and it is the majority judgment that is binding.

He held that the Petitioners (Adegboyega Isiaka Oyetola and the All Progressive Congress) did not prove their case. He gave his reasons, one of which was that a Petitioners did not present the Register of Voters. According to him, the Register of Voters is still relevant even though more prominence has been given to BVAS. He was of the belief that the failure of the Petitioners to present this document to the court in support of their case, made the case very weak. According to him, Clause 19 (e) (ii) and (iii) of the Regulation and Guidelines of Election 2022 states the use and importance of the Register of Voters in checking voters that were accredited and those that were not.

I kind of agree with my Lord here. The fact that BVAS has taken prominence in terms of accreditation of voters, does not make the Register of Voters irrelevant in an election. In fact, when a voter is accredited by BVAS, his name on the Register of voters is marked by the officer to that effect. If however, the accreditation fails, the Register is also marked in a different way to indicate the failure. This to me shows that it is still important in an election. Therefore, in proving over-voting, it is advised that the Petitioner presents both the Register and the BVAS report for a stronger case.

He actually dismissed the case of the Petitioner. You might ask “why?”

It is the position of the law that a Petitioner’s case succeeds on the strength of the evidence he presented to support his case, and not on the failure/error of the other party. This means, he who alleges must prove. If you say something happened, you must prove via evidence that it happened as you said. It is when you have succeeded in doing this, that the onus (burden of proof) shifts to the other person to defend his case. You cannot say that the failure of the other person to defend his case should lead to you winning the case that you did not prove.

I strongly believe that this is why my Lord did not bother to evaluate the evidence of the Respondents as his learned Judge brothers did.

This is my humble view, which is definitely subject to the decision of the learned Justices of the Court of Appeal. May the law prevail.