Aregbesola v. Oyinlola: Matters arising over governorship tussle

I am constrained to write this piece in response to a statement made by Mr. Tunde Odanye, a PDP governorship aspirant in Osun State for the 2011 election that it will be irresponsible for the judiciary to nullify the election in 10 local government councils in Osun State and declare Mr. Rauf Aregbesola winner of the election on the basis of the results of the remaining 20 local government councils. The statement which is not only self serving also smacks of total ignorance of law by Odanye, notwithstanding his putative standing as a lawyer. It appears that Odanye is not aware of the fact that whether or not election in any local government will be nullified is a function of evidence led on irregularities and non-compliance, so as to justify the nullification, irrespective of the number of local government councils where election is to be nullified. It is trite law that sentiments have no room in a court of law. It is elementary law for anybody that is conversant with electoral petition litigation that where a petitioner, like Aregbesola, predicated his petition on the grounds that the respondent is not elected by a lawful majority of the votes cast and that it is the petitioner that is elected, what the court will do is to, where there is evidence to the effect, nullify elections in the affected areas and then determine which of the candidates could be declared elected, having regards to the remaining lawful votes both in terms of having majority of the lawful votes and meeting the required constitutional spread. This was the approach taken by the Court of Appeal in several cases amongst which are: Omoboriowo v. Ajasin (of old); Ngige v. Obi; Agagu v. Mimiko; INEC v. Oshiomole and recently Fayemi v. Oni amongst others. Evidence on record led by Aregbesola shows several cases of irregularities across 10 local government areas to justify nullification of the election in the 10 local governments. Among the evidence are: In Ife Central, 9 out of 11 Form EC8B (Exhibit 97(1 - 11)) were signed by one Alhaji S.O.A. Nofiu, a PDP chieftain. In Odo Otin, Governor Olagunsoye Oyinlola’s local government, Exhibit 217 tendered by the Appellants and Exhibit R18 tendered by the Respondents which are the certified true copies of EC8A, the primary results of election were blank, some were not signed nor stamped by the presiding officers as required by the Election Manual. In Isokan, it was also established by the Appellants through the Respondents‘ witness in the person of Abioye Makinde (RW44), a commissioner in the cabinet of Oyinlola, that no credible election took place in the local government as was exposed by the witness who claimed to have signed the local government result for PDP only to be confronted with Exhibit 142, the EC8C, which is the same result he claimed to have signed but was discovered to have been signed by another person. In Boripe, the situation was grim as there was no voter register produced by the Independent National Electoral Commission for seven wards out of 11 in the local government, also there were no EC8A forms produced for most of the wards in the local government. Also it is in Boripe that PDP has a greater number of votes allocated to it on the EC8D (Exhibit 92(1)) with a figure of 14,497 above the total number of registered voters on the same Exhibit 92(1) which is 12,631 for the local government. In Ife East, Ife South, Ayedaade as well as in the remaining seven local government councils, a great deal of discrepancies was discovered as ballot papers tendered and counted in the open court show clear discrepancies cutting across wards in the 10 local government councils in contrast to the results recorded on available result sheets  The expert evidence were even grim as it was discovered that multiple thumb printing was done in favour of Oyinlola and even the expert called by Oyinlola gave contradictory evidence which clearly supports the nullification of result in the 10 local government areas.  With the nullification of the unlawful votes in the 10 area, it is clear that Aregbesola has majority of lawful votes cast in the remaining 20 area as well as fulfilled the constitutional spread required having scored a quarter of votes cast in two-thirds of the LGAs in Osun State.  The Court of Appeal in Benin in declaring Adams Oshiomole the lawfully elected governor of Edo State, nullified elections in some local governments and resorted to the remaining lawful votes to declare him the winner and in calculating the constitutional requirement, the appellate court dispensed with the nullified votes and calculated the constitutional requirement on the basis of the remaining lawful votes. However, in Aregbesola’s case, his chances are brighter, having satisfied the constitutional spread required in the remaining 20 local government areas.  It appears that Odanye, a legal practitioner cum politician is not aware of recent developments in electoral litigation as for instance, the recent decision in the case of Great Ogboru v. Uduaghan where the Court of Appeal and the tribunal nullified election in 14 out of the 25 Local Governments in Delta State. The Court of Appeal, in nullifying the election, held at page 54 of the unreported judgment as follows: “...Having expunged those exhibits and the photocopies of the temporary voters’ cards in respect of the 11 local government areas above, the implication is that the third respondent did not prove the conduct of elections in the said 11 local government areas. The tribunal had cancelled the results in three local government areas where elections were inconclusive. That means that the non-compliance affected 14 out of 25 local government areas in Delta State. In plain terms, the voters in these 14 local government areas were disenfranchised because of the non-compliance with the Act. This, in our view, amounted to substantial non-compliance that vitiated the entire exercise.” The Court of Appeal in Uduaghan’s case further held admirably in furtherance of the democratic aspiration of Nigeria in the judgment at page 54 as follows: “...It is unfortunate that the law would permit this sort of anomalous situation: an unfortunate situation where a man who usurped the sacred mandate of the people would be allowed to fritter away their common patrimony without their due authorisation that should come through free and fair elections where the said electorate, in whom sovereignty resides in a democracy, are afforded the opportunity of exercising their franchise. It is arguable whether this state of affairs would be permitted to endure in other civilised jurisdiction!” Rather than following the puerile mischief of Odanye and his group, one prays that the judiciary will summon the courage to declare the lawful winner of the most litigated election of April 14, 2007.  Olaoye is a Lagos-based lawyer. Source: punchng.com