Respondents in the petition filed by former Governor Gboyega Oyetola against the election of Governor Ademola Adeleke have canvassed 30 grounds why the election Tribunal should dismiss the petition with cost awarded against the petitioners.
In a separate final addresses, counsels to the respondents took turn to demolish the petition, positing that the petitioners have failed to substantiate its allegations of over-voting and certificate forgery.
Counsel to the 1st respondent, the electoral commission, Prof Paul Ananaba SAN who filed reply on point of law raised objection to the documents tendered by the petitioners on 30th of December 2022 and filed on the same day.
He said the petitioner failed grossly in proving the allegations raised against the return of Governor Ademola Adeleke in the July 16 governorship election, urging the court to dismiss the petition in its entirety.
He submitted that the law empowers the INEC to accept the nomination of a candidate once it is satisfied that it met requirements, citing the case of Atiku vs INEC where court pronounced that President Buhari is eminently qualified to contest elections.
“By section 318 of the Constitution, our duty is very clear. All INEC is expected to do is to be satisfy that the applicant is qualify. And Section 318 talked about what is allowed and from the form submitted by the 2nd respondent, INEC was satisfied and that was what the Constitution requires. We took notice that the Second respondent was a former Senator of the Federal Republic of Nigeria,” he noted.
On the issue of synchronization of result as being challenged by APC and Mr Oyetola, he submitted to the Tribunal that the petitioner based its petition on an inaccurate data, and so, can not establish the case of over-voting.
He quoted Section 62 (1-3) of the Electoral Act that empowers the Commission to continuously update the result of elections housed in its database, explaining this as the basis for the synchronization of the data in its custody.
“Much more my Lord, the petitioner made a heavy weather on Exhibit BVR. My Exhibit BVR date January 27 was a report of accreditation for the entire units in Osun state, which is 3763 units. And in the Tribunal, the BVR has been presented by the petitioner by what it is not,” he explained
Anababa, SAN, said the APC hurriedly went to the INEC to demand for the result of the election while synchronization was still ongoing, adding that the APC filled their case prematurely.
He submitted to the Tribunal that the law is clear that over-voting can only be established when the number of votes in a unit is compared with the complete accreditation data, urging the court to accept Exhibit RVBR as the complete accreditation data.
“By Section 62 (3) and 74(1) gave birth to Exhibit RBVR. The petitioners came to the Tribunal prematurely,” he submitted.
“Since the law as at 2022 was that this record of election is updated on a continuous basis, a petitioner will file petition when he is sure of the basis.
“I submit that the petitioners were not diligent because the petition was in disregard of Section 62 (3) therefore, I submit that there is no basis for this petition.
“RWC was a certified true copy of a physical examination of the BVAS machines used for the election, which is more reliable. And we brought the BVAS machines. BVAS machines are the raw primary evidence.
“Even when there is a conflict at the polling unit on whether accreditation, Section 64 (6a&b) specifies what needs to be done. We have presented the original data, the petitioner supposed to bring form EC8A, which are the basis for the declaration of results, not a report. Results were not declared based on BVAS report but based on collated results.”
Anababa however urged the court to dismiss the case for lack of merit, maintaining that the election was conducted in full compliance of the law.
In his own submission, the counsel to Governor Ademola Adeleke, Dr. Onyebuchi Ikpeazu, SAN, prayed the court to dismiss the petition for lacking merit, noting that the 2nd respondents election as Osun State Governor was in order.
He argued that the petitioners failed to call any evidence to support its weighty allegation as required by the law, maintaining that the respondents did not forge any document as alleged.
“The petitioners did not call any documentary evidence that he didn’t satisfy the requirements of Section 177(d) of the Constitution. The document and requisite evidence that they are obligated to call witnesses from the institutions to disown documents that were allegedly forged by the 2nd respondent.
“That burden and standard of proof must be beyond reasonable doubt has not been discharged by the petitioner. EW2 owned up that he didn’t know anything about the institution or worked with the makers of the document presented by the 2nd respondent.”
He cited a judgement of the Appeal Court on similar issue which affirmed the eligibility of the 2nd respondent, stressing that by law the judgement is still in effect as no appeal was filed to challenge it.
“Also, there is a court judgement of the Appeal Court, which means judgement in rem.”
On the issue of over-voting, he said the petitioners based it claims on erroneous grounds and so should not be entertained by the Tribunal.
“My Lord, the petitioner star witness, he did not tender any BVAS report as the basis of his witness statement. In paragraph 5 of his witness statement, he wrote categorically that he obtained the BVAS report on July 17 2022. The strength of it is that not having tendered his BVAS report, which founded the purported evaluation he adduced, there is no basis whatsoever for his report. If there is no BVAS report of July 17 in his witness statement, there is no case.”
“The petitioner tendered Exhibit BVR, which was purportedly certified true copy, not on the 17 but on the July 27. This mean BVR was dumped on the Tribunal. The receipt of the purportedly tendered in support has a date of July 28. The document tendered did not correspond with the date on the receipt of the documents tendered. Section 104 of Evidence Act.”
He urged the Tribunal to base its judgement on the BVAS machines, which according to him is the primary source of entries for accreditation in the election.
“The question now is, what is the certified true copy of that original. The certified of the original is Exhibit RWC tendered through RW1 and forming the basis for the report of RW2. BVR is flawed by the evidence of PW1 and PW2. Extraction from the INEC database is not the same as extraction from the BVAS machines.
“None of the agents of the petitioners in the contested 749 polling units contested the results in those units. They signed the results. Those results they signed as authentic with no over-voting can only mean Section 165 of the Electoral Act. The entries in form EC8A tally with figures in RWC. Section 47(2) of the Electoral Act, mandated that accreditation should produce with a technological device and a voters register.”
Counsel of the PDP, Dr. Alex Iziyon, SAN, also submitted that the Tribunal dismiss the petition of the petitioners for lacking merit, asking the panel to uphold the election of the 2nd respondent.
“The language of the law is simple on the issue of qualification for the office of the governor which is the case at hand and that is a prove that a person attended UP TO school certificate level.
“Case of allegation of qualifications according to the constitution, section 134(3) must relate to the current election in dispute on which the petitioners failed in the written addresses.
“The issue of testimonial forgery has been previously raised and decided by the court of appeal. It is a judgement that can no longer be tampered with.
“Again, on the university and Diploma certificates as raised by the petitioners, the petitioners failed to 11 call any witness to lead evidence neither from the institution where the Diploma was issued nor the university. Such failure on the part of the petitioners was fatal and irreparable. Petitioners urging the court now to go back to the 2018 is lazy and fatally lackadaisical on the part of the petitioners.
“The report of BIVAS of July 27, 2022, while the date on the receipt for issuance of the report as required by law was dated 28 July, 2022. Such discrepancy is also too fatal to be pardoned.
“The documents dumped on the court are speaking different language in dates of certification and dates of issuance. The law does not permit such error of speaking in tongues before the law court.
“Such error has rendered those documents legally inadmissible and in a situation where a document is legally inadmissible in court ab nitio, then the court is forbidden to even look at it at all.
“If the petitioners had wanted to dump their petition before the court and ask the court to give them judgement, it would have been a different case. But having elected to call witnesses, submissions of such witnesses must convincingly relate or bolster the documents before the court. In this case, the Petitioners had called a star witness who instead of acting as a star witness, instead deemed whatever star that was in the petition and slaughtered the petition without mercy.
“The PW1 called by the petitioners was to put it mildly, a display of voyage of Christopher Columbus. On one hand, the PW1 claimed to be an expert while on the other, he claimed not to be an expert, a statistician the petitioners relied upon to buttress their figures as claimed in their petition, that to us, is a professional summersault, especially when considered under section 128 of evidence act.”
On the BVAS report, Dr Alex Iziyon urged the court to rely on the examination, results and reports extracted from the primary source of evidence, which is the BVAS machines, used for the conduct of the election. He also reminded the court that the report of the BVAS have not been challenged by all parties.
