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:
•In Ife Central is the 9 out of 11 Form EC8B (Exhibit 97(1 – 11)) was signed by one Alhaji S.O.A. Nofiu a PDP chieftain.
•In Odo Otin Oyinlolaâ€
•In Isokan It was also established by the Appellants through the Respondentsâ€
•In Boripe the situation was grim as there was no votersâ€
•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€
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:
“…Having expunged those exhibits and the photocopies of the temporary votersâ€
The Court of Appeal in the Uduaghanâ€
“…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