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Tuesday, 2 April 2019

Judgment done in error –Kolapo Alimi




Kolapo Alimi is a lawyer and a former Commissioner for Local Government and Chieftaincy Matters in Osun State. He served in the All Progressives Congress (APC) administration. He recently gave his opinion on the recent Osun election tribunal ruling that nullified the election of Governor Gboyega Oyetola, while featuring on a television programme, monitored in Lagos. He said he believes that the election was credible, and such should never have been nullified by the tribunal.

 The Osun State Electoral Tribunal recently nullified the election of Governor Gboyega Oyetola, what is your thinking?

The beauty of the law is that there is hierarchy of courts. The tribunal is the Court of first instance where in this instance; the case will still go as far as the Court of Appeal and the Supreme Court. Without giving my opinion, I want us to dissect the judgment. When you are talking about non-compliance, it must be specific. In this case, the election that was cancelled in the seven polling units were because of the fact that the petitioners alleged that the column in those pink copies, which is the form EC8A, were not filled. There are about eight columns and one of them is meant for the number of accredited voters. They brought witnesses who are their party agents to come and give evidence.

 Are you taking us through the process of what transpired at the tribunal?

All the witnesses that came forward said the process was free and fair. That accreditation, voting and collation were done. There were two judgments from the tribunal, one minority and the other majority. Even though the majority judgment carried the day, we cannot close our eyes to the fact that there was a minority judgment that was delivered by the chairman of the tribunal. The majority judgment ruled that INEC has the power to declare an election inconclusive, whereby the margin of lead between the winner and the runner up is less than the number of accredited voters in the area where elections were cancelled. But in this instance, the judgment now said that the power to cancel that election resides with the presiding officers and not with the returning officers.

 What is your point? Are you saying that the judgment was an error?

My opinion is that the only reason why the returning officer would not have the power to cancel an election is when there is evidence that election was actually held. That law is made to prevent arbitrariness in situations where elections will be concluded in polling units and someone somewhere will just sit and cancel it. But in this instance, both the petitioner and the respondent agreed that election did not take place in those seven polling units so there was nothing to be cancelled. That was why the chairman of the tribunal said based on the evidence and facts before the courts, that there was no election in those areas, so the issue of who has the power to cancel or not to cancel does not arise. He now said that the onus of proof that the elections were held in those polling units lies on the petitioners. A petitioner who wants to claim that election was held in a particular polling unit will come with the results. In all the authorities cited in those cases, the results were tendered before the tribunal that these were the results of the election in our unit. That is why the court said that when an election has been cancelled in a polling unit, the presiding officer cannot stay somewhere and cancel it.

What the majority judgment said was that INEC should have come before the tribunal to tender those forms to indicate that those elections were actually cancelled at the polling unit. But the minority judgment says that the onus lies on the petitioners and that those elections were never held.

 What do you say to those who believe that justice has been served?

That was based on a wrong impression which I want to correct. In a situation where results were not declared in seven polling units, are there any results to be cancelled?

 How can you say that there were no results cancelled when the electoral officer said that the election was inconclusive?

The questions which the appellate court will ask is if there were results from those seven units and if elections actually held there, so the issue of who cancelled it or who has the power to cancel it does not arise. The petitioners presented the case as if elections were held in those polling units and were now cancelled by the returning officer instead of the presiding officer.

(Culled from The Sun Online News)

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