25th November, 2010
I am constrained to write this piece in response to the mischievous statement made by one Tunde Odanye, a PDP gubernatorial aspirant in Osun State for the 2011 election that it will be irresponsible for the judiciary to nullify the elections in ten Local Governments in Osun State and the declare Engineer Rauf Aregbesola as the winner of the election on the basis of the results of the remaining Twenty Local Government. The statement which is not only self serving also smacks of total ignorance of law by the said Mr. Odanye, notwithstanding his putative standing as a lawyer.
It appears that Mr. Odanye is totally ignorant 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 governments which election is to be nullified. It is trite law that sentiments has 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 Engr. Rauf Aregbesola, predicated its petition on the ground 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 determined which of the candidates could be declared elected, having regards to the remaining lawful votes both in term 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.
The vituperation of Tunde Odanye is one borne out of ignorance and mischief combined together because evidence on record led by Aregbesola shows several cases of irregularities across the 10 Local Government to justify nullification of the election in the ten local governments. Among the evidence are:
â€¢In Ife Central is the 9 out of 11 Form EC8B (Exhibit 97(1 â€“ 11)) was signed by one Alhaji S.O.A. Nofiu a PDP chieftain.
â€¢In Odo Otin Oyinlolaâ€™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.
â€¢In Isokan It was also established by the Appellants through the Respondentsâ€™ 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.
â€¢In Boripe the situation was grim as there was no votersâ€™ registers produced by INEC for 7 wards out of 11 in the local government, also there were no EC8A produce 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.
â€¢In Ife East, Ife South, Ayedaade as well as in other of the remaining 7 Local Government a great deal of discrepancies were discovered as ballot papers tendered and counted in the open court shows clear discrepancies cutting across wards in the 10 Local Government in contrast with 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 Having votes in the 10 Local Governments it is clear that Engr. Rauf Aregbesola has majority of lawful votes cast in the remaining 20 Local Governments as well as fulfilled the Constitutional spread required having scored a quarter (1/4) of votes cast in 2/3 (two-third) of the LGA in Osun State.
The Court of Appeal in declaring Adams Oshiomole as lawfully elected governor of Edo State nullified elections in some Local Government and resorted to the remaining lawful votes to declare him the winner and in calculating the constitutional requirement the Court of Appeal dispensed with the nullified votes and calculated the constitutional requirement on the basis of the remaining lawful votes, however in Aregbesolaâ€™s case, his chances is brighter having satisfied the constitutional spread required in the remaining 20 Local Government.
It appears that Mr Odanye a supposed Legal Practitioner cum politician is even ignorant 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 in all 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:
â€œâ€¦Having expunged those exhibits and the photocopies of the temporary votersâ€™ cards in respect of the eleven Local Government Areas above, the implication is that the third respondent did not prove the conduct of elections in the said eleven 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 fourteen out of twenty five local Government Areas in Delta State. In plain terms, the voters in these fourteen 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.â€
The Court of Appeal in the Uduaghanâ€™s case deprecated a situation which is similar to that of Oyinlolaâ€™s occupation of the government house in Oke Fia when the Court of Appeal stated admirably in furtherance of the democratic aspiration of Nigeria in the judgment at page 54 as follows:
â€œâ€¦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 civilized jurisdiction!â€
Rather than following the puerile mischief of Tunde Odanye and his cohorts one prays that substantial justice will be done by declaring Engr. Rauf Aregbesola as the lawful winner of the most litigated election of April 14, 2007.
Barrister Mutiu Olaoye writes from Lagos