Osun governorship election tribunal judgement, what actually went wrong with the majority judgement.

by Adabanija Kamorudeen

The germain questions that are begging for answers from the judgement of the Tribunal, both the majority and the minority judgement has been narrowed down to three as follows:
1. Whether election conducted in a polling unit ought to be cancelled because of failure of the presiding officer to fill information about ballot papers account and the number of accredited voters on the appropriate column of form EC8A, in the absence of any other corrupt practices or any other electoral malpractice?

2. Whether the burden of proof is on the petitioners who allege that the election in the seven polling units where re run were held were not cancelled at the affected polling units but by the state returning officer, or the burden of proof is on the INEC to prove that they were cancelled at the various polling units by tendering all the relevant forms which relate to the cancellation at the various polling units

Whether the provision of s 140(2) or s 140(3) ought to be invoked where substantial non compliance with the Electoral Act is established in a particular polling unit.

Before I give further analysis on the above questions let me first correct the following impressions:
S.140(2) has not been nullified by any court, the information being spread around that the provision of S.140(2) of EA has been nullified by a Federal High court is false. However, whoever beleives anything to the contrary should make available copy and details of the judgement

ii Both the majority and the minority judgement agreed that a State returning officer lacks the power to nullify an election that has been concluded at the polling unit and that it is the presiding officer that has the power to cancel the result and not the State returning officer. The point of disagreement is, on which party lies the onus to prove that it was the state returning officer that cancelled the result in the affected polling units and not the presiding officer at the various polling units.
While the majority judgement held that, it was the INEC that has the duty to prove that the election were cancelled at the various polling units by tendering the appropriate forms relating to the cancellation before the Tribunal, which INEC failed to do, the minority judgement held that, the relief being sought being a declaratory one, the onus to prove that the election took place in the affected polling units but were cancelled by the state returning officer was on the petitioners who supposed to tender the result sheets issued to them in the affected units.

Analysis of the the first question above.
It needs to be stated that both the majority and the minority judgement agreed that that the non filling of the topmost column of form EC8A, columns for ballot papers account and the number of accredited voters, on the forms EC8A in the affected affected 17 polling units amount to infraction, the major difference between the majority judgement and the minority judgement is that the majority judgement held that though the the infraction have no effect on the result of the candidates, they were substantial enough for the election in the affected polling units to be cancelled. Moreso, when the INEC failed to offer explanations as per the reasons why the column for ballot papers account and that of the number of accredited voters were not filled on the pink copies issued to the petitioners at the various polling units. The Tribunal consequently cancelled the election in the affected polling units for that sole reasons. However, the minority judgement held that. though, the non filling of of the column for ballot papers account and the number of accredited voters amount to an infraction, since it has no effect on the result of the candidates, it is not substantial enough for the election in the affected polling units to be cancelled for that sole reasons in the absence of any other electoral malpractice.

It is the court of Appeal that will now determine which judgement is correct.

Analysis of the second question.
The majority decision beleive that the election in the 7 units where the supplementary election were held were actually concluded at the various polling units but were actually cancelled by the state returning officer and that, were it not so, INEC would have tendered, the relevant forms which shows that, the election were cancelled at the various polling units before them. And since the State returning officer lacks the power to nullify an election conducted in the affected polling units. The majority decision held that the declaration of the election inconclusive necessitated by the cancellation of Election in 7 polling units, null and void and consequently nullified the supplementary election. However, the minority decision delivered by the Chairman of the Tribunal held that, he agreed that, the State returning officer lacks the power to nullify the election conducted in the affected polling units if there was evidence before the Tribunal that the election actually took place in the affected polling units, but that the onus to prove that the election were held in the affected polling units lie on the petitioners to prove same by tendering the result sheets issued to them in the affected polling units. Since the petitioners have failed to discharge the burden of proof the law placed on them, they have failed to prove that, the election actually took place in the affected 7 polling units , moreso, the relief being sought is declaratory in nature, he then upheld both the declaration of the election as inconclusive and the consequent supplementary election.

Which of the decisions is right is left for the Court of Appeal to determine.

Analysis of question 3
The majority decision held that having found that non filling of of the column for ballot papers account and the number of accredited voters amount to an infraction and substantial enough for the cancellation of Election in the affected polling units, the judges then consequently deducted the results of the affected polling units from the final result of both the petitioners and the 2nd and 3rd Respondents, leaving the petitioners with the majority votes.
However, the minority judgement held that in the worse case scenario, if the non filling of the column for ballot papers account and the number of accredited voters is substantial enough for the cancellation of Election in the affected polling units, because it is a non compliance with the Electoral Act, the appropriate order to be made is for the Tribunal to order re run of the election in the affected polling units in line with S 140(2) of Electoral Act. He held that S. 140(3) is inapplicable to a situation whereby the election is cancelled for non compliance. He consequently dismissed the petition.

The correctness or otherwise of any of the decisions above is left for the Court of Appeal to determine.

Analysis by
Kolapo Alimi

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