The Supreme Court upheld the decision of the Court of Appeal in Abuja which had earlier on 24 March affirmed Mr Adeleke’s victory.
The Supreme Court, on Tuesday, affirmed the election of Governor Ademola Adeleke of Osun State, sealing the governor’s victory over his most formidable rival, Adegboyega Oyetola, in the keenly contested 16 July 2022 poll.
A five-member panel of the court led by John Okoro unanimously upheld the decision of the Court of Appeal in Abuja which had earlier on 24 March affirmed Mr Adeleke’s victory.
The Supreme Court’s decision lays to rest the dispute over the outcome of the governorship election, and extinguishes Mr Oyetola’s hopes of coming back to office after his momentary victory at the Osun State Governorship Election Petition Tribunal in January.
The court agreed with the Court of Appeal that Mr Oyetola and his party, the All Progressives Congress (APC), failed “to adduce relevant evidence to prove their case.”Upholding the lower court’s decision, the Supreme Court held that the Court of Appeal “correctly found that the appellants failed to prove their case” against Mr Adeleke and his party, the Peoples Democratic Party (PDP).
Specifically, the Supreme Court held that “It was imperative that the appellants (Oyetola and APC) produced the BIVAS machines or certified true copies of the BIVAS in evidence to show non-accreditation and over-voting.”
Emmanuel Agim, a member of the Supreme Court panel who read the lead judgement, noted: “It is the record in the BIVAS machines that can prove the number of accredited voters in a polling unit and nothing else.”
“The appellant had a primary burden to prove the fact asserted by them in their petition. It is obvious that the appellants’ case collapsed.”
Decision on alleged forgery
Ruling on Mr Oyetola’s allegation of forgery levelled against Mr Adeleke, the Supreme Court held that Mr Oyetola and APC did not substantiate their claims.“No evidence was adduced to prove the case of forgery against Adeleke. In the absence of such evidence, the allegation is not proved beyond reasonable doubt,” Mr Agim said.
On the issue of the tribunal’s jurisdiction to hear the petition, the Supreme Court faulted the tribunal for refusing to determine Mr Adeleke’s preliminary objection challenging its power to entertain the suit.“This renders the entire hearing of the case by the tribunal a nullity. It ought to have determined the issue of jurisdiction before going into the substantive petition.
“The entire proceedings of the tribunal remain a nullity,” the Supreme Court held.“Since it was signed by two members of the panel it is valid. But she ought to have said something.“On the whole this appeal fails and it is hereby dismissed.”
The Independent National Electoral Commission (INEC) had declared Mr Adeleke of the Peoples Democratic Party (PDP) as the winner of the election in an upset that deprived Mr Oyetola, the then incumbent governor, a second term in office.
The INEC Chief Returning Officer for Osun, Oluwatoyin Ogundipe, who announced the result on the day after the election, said the PDP candidate scored 403,371 votes to emerge victorious.
Mr Adeleke defeated Mr Oyetola, who polled 375,027 votes to come second in the race.
Displeased with INEC’s result, Mr Oyetola had approached the election petition tribunal in Osogbo, the state capital, to challenge the outcome of the poll.
He anchored his petition on complaints in 744 polling units in 10 local government areas of Osun State.
He alleged that the election in the polling units was marred by overvoting, failing to comply with the provisions of the Electoral Act by not using the Bimodal Voters Accreditation System (BVAS) machines.
The three-member tribunal in a split decision on 27 January ruled in favour of Mr Oyetola, by declaring him the winner of the election, while he sacked Mr Adeleke from office.
The majority two-to-one decision ordered INEC to issue the certificate of return to Mr Oyetola.
In the lead majority judgement read by Terste Kume, the tribunal held that INEC failed to conduct the Osun governorship election in compliance with the Electoral Act.
It noted that the poll was marred by over-voting. It said after deducting the excessive votes that were cast, the figure Mr Adeleke scored came down to 290,666, which was lower than the 314,921 garnered by Mr Oyetola.
Consequently, the tribunal ordered that Mr Oyetola be returned as governor of Osun State.
However, in the minority decision, the second member of the tribunal, P. A Ogbuli said the petitioners – Mr Oyetola and the APC – failed to prove that there were cases of over-voting in the governorship election.
Mr Ogbuli noted that the petitioners’ witnesses in their testimony before the panel did not convince him that there was over-voting.
He said the petitioners should have brought the total registered voters to court to claim that over-voting occurred.
Mr Adeleke, who remained in office to exhaust his right of appeal, had appealed against the decision of the tribunal.
His appeal was successful.
Upholding Mr Adeleke’s victory in March, the Court of Appeal held that the tribunal’s wrong in its conclusion that that the election in some parts of the states was marred by over-voting, the pivotal legal issue thrown up in Mr Oyetola’s case.
The court held that “the burden of proving the allegations of over-voting lies squarely with the respondents (Mr Oyetola and the APC).”
“It is inconceivable to assume that the testimonies of the respondents’ witnesses had any probative value,” the appellate court held.
The Court of Appeal noted that Mr Oyetola and the APC “did not tender the voter registers and Bimodal Voters Accreditation System (BVAS machines,” which captured data of eligible voters at the Osun governorship election.
“Though the 1st and 2nd respondents (Oyetola and APC) relied on BVAS reports obtained from INEC to prove over-voting, they did not, nonetheless, call petitioner’s witness 1 to speak to the reports, that is, Exhibits BVR reports from INEC’s back-end server.
“In their pleadings,” Mr Oyetola and APC “alleged that the results recorded and transmitted directly from the polling units were not taken into account and therefore accredited voters recorded in Form EC8A from the disputed polling units do not tally with the number of BVAS for the same polling units.
“Strangely, the tribunal, in its judgment, only relied on the table set out in an address of counsel to hold that over voting occured in an election,” the Court of Appeal said.