Osun: What the courts have said about INEC in split judgments

As divergent as judicial pronouncements on the September 2018
governorship election in Osun State have been, there has been a
consensus judicial opinion on a point — the Independent National
Electoral Commission “went to work” on the result sheets of some
polling units after the conduct of the poll.

On March 22, 2019, the tribunal, by a split decision of
two-to-one of the three-man panel, nullified the election of
Governor Adegboyega Oyetola of the All Progressives Congress and
declared the Peoples Democratic Party as the true winner of the
election.

However, by another split decision of four-to-one of its
five-man panel, the Court of Appeal in Abuja on May 9, 2019,
nullified the judgment of the tribunal and affirmed Oyetola’s
victory at the poll.

But the minority and majority judgments at both the tribunal and
the Court of Appeal agreed that INEC “doctored” the result sheets
but disagreed on the effect of the alterations on the result sheets
from the affected 17 polling units on the outcome of the
election.

It will be recalled that the majority judgment of the tribunal
had invalidated the results of the Osun State governorship election
in 17 polling units where it held that the failure of INEC’s
electoral officers to fill in eight columns on the Forms EC8As (the
result sheets) of the said polling units amounted to a “substantial
non-compliance” with the Electoral Act and INEC’s Guidelines and
Manuals for Electoral Officers.

In arriving at its decision to declare Ademola Adeleke the
winner of the election, the tribunal in its majority judgment
subtracted the number of votes polled by both the PDP and the APC
in the 17 polling units from the total number of votes polled by
the two parties in the election and also nullified the September
27, 2018 supplementary poll which it held was baseless.

The affected polling units which the tribunal declared were
conducted without “substantial compliance” were eight in Osogbo,
the state capital, and one in each of Ife North, Iwo, Ayedaade,
Ejigbo, Ilesa East, Boripe, Olorunda, Ife South, Egbedore.

The certified true copies of the Forms EC8A from the polling
units which were tendered in court had all the eight columns
completed, in contrast to the duplicate copies without the entries
which were presented in court by the petitioners.

But the petitioners – PDP and Adeleke – successfully proved to
the tribunal that the certified true copies of the documents were
doctored by providing the “pink copies”, which were the duplicate
copies issued to party agents in the polling units after election
ended at the various polling units.

The effect was that the certified true copies of the documents
produced by INEC lost the statutory privilege of being presumed
regular.

Justice Peter Obiorah, who read the lead majority judgment of
the tribunal consented to by another member of the panel, Justice
Adegboye Gbolagunte, said, “The witnesses of the petitioners said
that the CTCs were ‘doctored’.

“Of a truth, that is what they are because the CTCs contained
what were obviously inserted on the forms after the election was
concluded and the genuinely filled forms issued out to the polling
agents.

“Who made those strange entries? When were the strange entries
made?

“The respondents, particularly, the 1st respondent (INEC), did
not provide any answer.

“The fact that the CTCs were tampered with and suddenly emerged
with figures in the columns and the large spread of the polling
unit results where it occurred lends credence to our opinion that
the act of non-recording of the columns at the time of the election
was deliberate.”

In the closing remark in the majority judgment, Justice Obiorah
frowned on the conduct of INEC, which he said, “holds an office of
public trust” and should always strive “to maintain the sanctity of
the electoral process”.

He stated, “We cannot close the judgment without making a
comment on what we observed to be the conduct of the 1st
respondent.

“We note that a substantial number of the certified true copies
of the Forms EC8A either had figures on them altered or had figures
entered on them in columns were not on the pink copies of the Forms
EC8A distributed to the parties’ polling agents on the day of the
election which were tendered before this honourable tribunal.

“The obvious implication of this unfortunate development is that
the 1st respondent went to work on the documents after the election
behind the parties.

“The 1st respondent should realise that it holds an office of
public trust and should at all times strive to maintain the
sanctity of the electoral process.”

Justice Muhammad Sirajo, the chairman of the tribunal, disagreed
with the majority judgment by affirming the APC’s victory in the
election, but agreed that the result sheets produced by INEC could
not enjoy the presumption of regularity as they ought to.

This he said informed his decision to base his analysis of the
evidence on the ‘pink copies’ produced by the petitioners instead
of the CTCs in INEC’s custody.

He said, “What is more in view of the fact that the presumption
of regularity with respect to the certified true copies of the
result sheets for these 23 polling units has been successfully
rebutted by the petitioners for the various reasons stated in the
majority judgment of this tribunal, which I subscribed to, there is
no reason, for me to base my decision on them.”

At the Court of Appeal, four members of the panel affirmed the
minority judgment of the tribunal and affirmed Oyetola’s victory at
the poll, while a member of the appellate court’s panel affirmed
the tribunal’s majority judgment.

Those who adopted the majority judgments in the three appeals
decided on by the Court of Appeal were Justices Jummai Sankey,
Abubakar Yahaya, Isaiah Akeju and Bitrus Sanga.

Justice George Mbaba disagreed

But all the five panel members agreed that the result sheets
were doctored.

Justice Sankey, the head of the panel who read the lead
judgment, held that it would be pretentious to quibble about the
doctoring.

She said, “Upfront, from the evidence and the pleadings before
the tribunal, it is quite apparent that non-compliance with the
Guidelines and Manual for the Election in this regard was
established by the respondents, in that by the presentation of
evidence of the certified true copies (otherwise referred to as
‘CTC’) of the Forms EC8A and their pink counterparts, it was
evident that there were entries in the eight columns of the CTCs of
the Forms EC8As of these polling units which were not contained in
the counterpart copies given to polling agents of the respondents,
otherwise known as ‘pink copies’.

“Therefore, the tribunal drew the conclusion that the columns
were filled after the pink copies had been given to the party
agents.

“I think the tribunal came to a right conclusion on this based
on the cold hard evidence in the documents before it. To quibble
about this would only be pretentious.”

Justice Sankey, in however affirming the minority judgment of
the tribunal, was quick to add that the absence of entries in the
eight columns in the pink copies of the result sheets which were
relied on by the tribunal, was not a substantial compliance and did
not substantially affect the outcome of the election.

She added, “Thus from the above pieces of evidence from the 1st
and 2nd respondents’ witnesses, they were consistent in saying that
all these provisions were duly complied with by the election
officials in the 17 polling units.

“The only problem the witnesses had was in relation to the fact
that the 1st respondent did not fill out the eight columns for
accreditation and ballot accounting in the Forms EC8A given to them
at the close of voting and announcement of results.

“The evidence of these witnesses, who were the polling agents,
was therefore in disagreement with the averments of the petitioners
in paragraphs 45 to 77 of the petition, wherein they pleaded that
the failure to fill in the columns in the Forms EC8A was deliberate
in order to hide wrongful entries as to votes and
accreditation.

“No such evidence was given by them or elicited from them under
re-examination.

“More significant is the fact that the witnesses all agreed that
they signed the white copies of the results and they were given the
pink carbonised copies.

“In addition, they all agreed that they did not have any problem
with the scores recorded on both the CTCS and the pink copies of
the Forms EC8A and that the scores in the result sheets were
correct.”

On his part, Justice Mbaba, dissented from the Court of Appeal’s
majority judgment, upheld the majority judgment of the tribunal and
nullified Oyetola’s election.

On the issue of doctoring of the result sheets, Justice Mbaba
said, “It was clear that the Form EC8As (pink copies) given to the
parties by the appellant and the CTC of the same Form EC8A produced
from the custody of the appellant (meant to be original of the same
process) spoke differently, and conflicted, providing the basis for
rebuttal of the presumption of regularity.

“See section 63 of the Electoral Act, as to the study of
appellant.

“It was also found by the tribunal that the widespread nature of
the obvious defect suggested it was a deliberate act of the
appellant to compromise the credibility of the elections and so it
affected the outcome of the elections, to qualify as substantial
non-compliance.”

The PDP and its governorship candidate, Adeleke, had dragged the
APC, the Osun State governor and INEC to the Supreme Court to
challenge the majority judgment of the Court of Appeal.

The appellants had in their four separate appeals urged the apex
court to uphold their case, set aside the majority judgement of the
Court of Appeal delivered in favour of Oyetola, the APC and the
INEC, and dismiss Oyetola’s appeal against the majority decision of
the tribunal.

Certainly, the Supreme Court’s assessment of the impact of the
non-filling of the entries on the result sheets in the 17 polling
units would be central to the decision of the apex court on the
validity of the election.

Culled from Punch

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