How Tribunal dismissed Omisore’s petition
IT is the assertion of the Petitioners that the 1st and 2nd Respondents did not poll majority of the lawful votes cast at the said election. But it is trite law that the burden rests on them to prove their assertion. See sections 32 and 133 of the Evidence Act,2010, and the case of CPC v.INEC (2011) 18 NWLR (Pt.1279) 493 at 544-545 SC. The Petitoners are calling on the Tribunal to cancel all the unlawful votes credited to the 1st and 2nd Respondents by the 3rd Respondent.
PW1 testified in paragraph 39 of his deposition that: “39- if the results credited to the 1st and 2nd Respondents in polling units of the wards and Local Governments challenged by the Petitioners in this petition are cancelled, the Petitioners will have majority of the lawful votes cast at the election and will also have not less than 25 percent votes in 2/3rd of Osun State.”
Since it is not the case of the Petitioners that the 1st and 2nd Respondents did not score lawful votes in any of the areas being challenged, they have by implication conceded that these Respondents scored some lawful votes in these areas. The burden is therefore on the Petitioners to determine which are unlawful votes amongst the votes credited to the 1st and 2nd Respondents. It is only when they have done this that the tribunal will be in a position to deduct those unlawful votes from the total votes credited to the 1st and 2nd Respondents and determine the winner. This was the decision in the case of Nadabo v.Dubai (2011) 7NWLR (Pt.1245) 155 at 177, where the court held thus:
“I think when a Petitioner is alleging that the Respondent is not elected by majority of lawful votes, he ought to plead and prove the votes cast at the various polling stations, the votes illegally credited to the winner, the votes which ought to have been credited to him and also the votes which should be deducted from that of the supposed winner in order to see if it will affect the results of the election. When this is not done, it will be difficult for the Court to effectively address the issue.”
In Paragraph 22 of the Petition, the Petitioners have stated the votes credited to the 1st Respondent in each of the Local Government Areas in contention. They have also through their “expert” witnesses scanned and analyzed all the ballot papers used in the affected areas during the election. They are therefore in a position to lead evidence as to the lawful votes credited to the 1st and 2nd Respondents. At paragraph 5.1 of Exihibit 243, which is the report of the physical inspection and physical analysis of electoral documents used at the election issued by PW 15, there is a table of summary of the alleged irregularities. From this summary, the Petitioners are contending that 265,180 votes out of the 394,684 votes credited to the 1st and 2nd Respondents are unlawful votes.
Interestingly they have also found 147, 072 unlawful votes credited to them. That if these unlawful votes are deducted fom the total votes credited to the 1st and 2nd Respondents, these Respondents will have 129,504 valid votes. If their unlawful votes are deducted from 292,747 as credited to them at the end of the election, they would have 145,675 valid votes, thus putting them in the lead with 16,171 votes.
It however became clear during the cross- examination of PW15 by the Respondents that he in his report dealt with areas where there were no complaints from the Petitioners. In other words, Exhibit 243 covers a wider scope than that envisaged by the petition. On pages 2-4 of Table 1 is the list of all the polling units in Ayedaade Local Government. Under cross-examination by counsel to the 1st Respondent, his attention was drawn to pages 20-26 of the petition as regards Ayedaade Local Government. Only 3 wards namely Otun Balogun ward 02, Olufi ward 03 and Otun Olufi ward 04 are covered by the petition. Meanwhile table 1 pages 2-4 relates to all the wards within the Local Government. Similarly, his attention was drawn to pages 26-29 of the petition regarding Atakunmosa East Local Government Area. He concedes that:-
“On pages 26-29 of the petition, only 6 wards are being challenged while table 1 lists all the wards. Pages 29-34 of the petition relates to Boripe Local Government. In my report I listed all the polling units in all the wards, but 5 wards are being challenged in the petition. In Ede North contained on pages 34-38 of the petition, my report covers all the units in this Local Government. “
Table 2 in Exhibit 243 lists polling units with registered voters above 300 which do not have voting points. According to PW 15, he relied on Exhibit 186, the Manual in reaching his conclusion that if there are more than 300 voters in a polling unit and no voting points are created, the votes will be invalidated. He referred to page 5 of the Manual which contains an introductory statement by Professor Abubakar Momoh. This statement is to the effect that-
“This Manual draws on the various modifications introduced by the commission particularly on accreditation and voting procedure at polling units with more than three hundred registered voters.”
We however do not see this as a legal requirement that a voting point must be created where the number of registered voters exceeds 300. There is no law stipulating that where registered voters exceed 300 and no voting points are created, the votes cast in such a polling unit should be cancelled. Even the said manual itself does not state so. Based on this erroneous assumption, PW15 in table 2 says 252,030 votes accredited to the 1st and 2nd Respondents are affected, while 139,789 of the votes credited to the Petitioners are affected. Under cross-examination by counsel to 2nd Respondent, PW15 denies any errors in his table 2. His attention was then drawn to page 32 of table 2; unit 006 in Osogbo local government area (ward 4 Ataoja D-Union Bapt. School) where there are 766 registered voters. He then conceded-
“I have seen Exhibit 151G where 2 voting points were created where the voters were 766 for Osogbo unit 006. I have seen Exhibit 151m (xvii-xix) they are voting point created.”
Lawal is an Osun based legal practitioner.
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