₦airaland Forum

Johnnyessence:
COPIED: You must read and share this piece of brilliant legal submission please.

OSUN STATE GOVERNORSHIP ELECTION AND THE INCONCLUSIVENESS DECLARED BY THE INEC.

SEE THE LEGAL STAND POINTS TO PROVE INEC WRONG AT THIS TIME.

My attention has just been drawn to the erudite submission of the learned silk, JS Okutepa, SAN. While I can't fault the decision of the apex court in Idris v Yahaya Bello, it's important to note that the ratio in the above case is not exactly the same with the instant case in Osun State. The arguments canvassed in the Kogi case as pointed out by the learned silk hinged on two grounds to say:
1. Whether having regards to the extant constitutionally prescribed thresholds for the declaration of a winner of the governorship and presidential election, INEC guidelines have any place in the conclusion and declaration of a governorship election results?
2. Whether the number of voters on the voters register in the face of the requirement for the collection and use of the PVC, can be used as basis to forecast the number of voters in a PU when a significant number of PVC's remain uncollected, hence incapacitated to vote?

The Supreme Court as stated in the said case resolved the two issues in favour of INEC to the extent that INEC guidelines being a derivative law from the Electoral Act 2010 form part and parcel of the our extant electoral management legal framework and must be accommodated alongside the express constitutional provisions.

Let me state from the onset that the Supreme Court is a policy court and election petition is Sui generis, I. e., it's in a class of its own and in the instant case, which facts we are all aware of the apex court was more inclined to delivering practical justice to the case rather than technical justice. And so inspire of the fine points canvassed the court was not persuaded to upturn the hard won victory of the APC, whose actual candidate had earlier died in rather strange or even pathetic circumstances.

Note that a lot was wrong with the Kogi case because of the novel circumstances it threw up. One of which was the substitution of the deceased APC candidate not with his running mate but an entirely new candidate and the fact that inspite of the mandatory constitutional provisions requiring gubernatorial and presidential candidates to run with a running mate, Yahaya Bello for the first time under the extant constitution was allowed to run without a running mate. Bizzare to me though!

In Osun with all due respect to the learned silk our grouse is not with the validity of the INEC guidelines, which I concede on the authority of the relevant Supreme Court authorities quoted in his submission are valid. Our grouse is with the application of the relevant guidelines. The questions to be resolved therefore are formulated thus:

1. Whether having regard to extant provisions of the INEC guidelines a Returning Officer or Collation Officer for a gubernatorial election other than a Presiding Officer can validly void, invalidate or cancel an election conducted at a PU?

2. Whether cancelled, void or invalidated votes can be resurrected by the instrumentality of a rerun?

1.To resolve the above queries, I start with issue 1. To which I make bold to say that the legality of the declaration by the State Returning Officer of the Osun State Governorship election as inconclusive, on the ground of the purported cancellation of results of some PUs, is not part of the powers vested in the Returning Officer under the extant INEC guidelines. Thus the cancellation of the results from 7 PUs as was done by the Returning Officer himself, or even the Resident Electoral Commissioner or National Commissioner , sitting in Osogbo, the State capital, was illegal, null and void, and of no effect. For neither the Returning Officer, nor the Resident Electoral Officer or National Commissioner, has the power to cancel the result of a PU.

The power of cancellation of results is governed exclusively by the Electoral Act, which donates it to the exclusion of every other person to the Presiding Officer of the PU. This contention has been without a doubt settled in our electoral jurisprudence. This as pointed out by Kenneth Ikone, SAN in an earlier intervention was in 2008. The LOCUS CLASSICUS on the point is SENATOR DAVID MARK V. ALHAJI ABUBAKAR USMAN (2008) 1 LRECN 435 at 530. In VICTOR NWOKOLO V. HON. DORIS UBOH (2012) LPELR 8019(CA), the Court of Appeal said as follows, relying on MARK V. ABUBAKAR:

"The election having been held in Ika North - East L.G.A. as borne out of the evidence led, it was for the Returning Officer to have declared the result of the election by deciding on the scores of the candidates under section 68(1) of the Electoral Act leaving an aggrieved party with his options under the Act AND NOT FOR HIM TO DECLARE THE ELECTION INCONCLUSIVE. HE HAD NO POWER TO DO SO. His action was therefore ultra vires and void."

In the recent case of IKPEAZU V. OTTI (2016) LPELR - 40055(SC), the Supreme Court upheld the principle in MARK V. ABUBAKAR and said as follows:

"...the law has been fairly settled on whose responsibility it is to cancel an election result....the collation officer purported to have cancelled the result of the election...as against...the Presiding Officer at the Polling Unit. This Court did not only hold that the State Returning Officer has no power in law to cancel election results but deprecated his guts to have done so...."

If therefore, as it currently stands, with the evidence from the live telecast of the collation of results, it was the State Returning Officer, acting in concert with the Osun State Resident Electoral Commissioner and National Commissioner who issued the press statement , that cancelled the results, the cancellation cannot stand, being ultra vires the powers of the mentioned officers is a nullity, illegal and thus void.

However, if the cancellation was done by the respective Presiding Officers of the affected polling units, that would ofcourse be an unimpeachable exercise of the administrative discretion duly donated to Presiding Officers by Law. They are the Chief Executive Officers of their respective polling units, and have been vested by Law with authority to uphold the result in their units, or to cancel them. The only caveat in this regard being that once the Presiding Officer has upheld a result by filling in the Form EC8A and signing same, he becomes FUNCTUS OFFICIO, and can no longer reverse himself through cancellation. In that event, only an Election Petitions Tribunal can order the cancellation of that result. That is the purport of the provisions of sections 63 - 68 of the Electoral Act.

Assuming it was the Presiding Officers of the affected units that cancelled the results, the practical effect of the cancellation would depend on the total number of registered voters in the affected units, and the margin of lead between the score of the leading candidate, and that of the candidate who came second. The law will in that situation assume that all the registered voters in the affected units would have cast their votes for the trailing candidate. It's a legal fiction to be executed by the Returning Officer. If after notionally adding the total number of registered voters to the score of the trailing candidate, the trailing candidate is still not able to offset the lead posted by the leading candidate, then the Returning Officer must immediately declare and return the winner, provided that, if it's a gubernatorial election, the leading candidate has also satisfied the requirements of spread, as is required by section 179 of the Constitution. In that situation, a supplementary or by - election will be a mere academic exercise, without any potentially practical effect on the final result, and will thus not be ordered.

If on the other hand, the total number of registered voters is capable of offsetting the lead when added to the scores of the trailing candidate, no return in that election can be made, and a by - election must be ordered to determine the winner. This is a basic principle of electoral jurisprudence upheld by the courts through the cases. It has now been codified and incorporated into the INEC MANUAL.

In the just concluded Osun State Governorship election, the PDP candidate, Senator Adeleke, led by about 365 votes, whereas the total number of registered voters in the purportedly cancelled units is said to be above 3000, and thus capable of offsetting Adeleke's lead. But, as I have earlier shown, it would all depend on which official it was that cancelled the results. If the results were cancelled by the Presiding Officers BEFORE declaring them at the Polling units, then the cancellation will stand, and the principle espoused above will apply, and a by - election will inevitably ensue. If however the results were cancelled by the Resident Electoral Commissioner or the Returning Officer, or even by the Presiding Officers after declaring them, then, the cancellation will be void and of no effect, being invalid.

It was held by the Court of Appeal, Enugu in Appeal No. CA/E/EPT/52/2015 between Hon. Helen Nwobasi vs Hon. Sylvester Ogbaga & 2 others (now reported):
"There is no provision of the Electoral Act enabling or requiring the returning officer to declare the election inconclusive because the margin of victory between the two leading candidates is less than the total number of registered voters in the polling units whose elections were not held or cancelled, or for any reason. By virtue of S.69 of the Electoral Act 2010 as amended, the only power a Returning Officer has in an election to any elective office is to count the votes and declare elected the candidate with the highest number of votes."

It has also been held by the Court of Appeal and Supreme Court in several decisions that INEC guidelines cannot be elevated above the clear provisions of the Constitution and the Electoral Act.

2. On issue two as to whether or not the void, invalid or cancelled votes can be resurrected in law, the position of the court is clear. These PUs where election had actually taken place, votes counted, voided, invalidated or cancelled ought not to form part of the PUs where a supplementary rather than the erroneous statement issued by INEC suggesting a rerun election have been rescheduled for Thursday. Void, invalid and cancelled votes are dead and extinct and can't be surreptitiously resurrected by INEC by default under the style of a rerun election. If the elections never held in the PUs it's a different matter, but where elections were held as in the instant case and votes were cast and counted and only voided, invalidated and cancelled, such votes must remain excluded from the final tally of votes of the candidates. In Oshimole v Osunbor All Nigeria Annual Law Reports 2008. The Court of Appeal in upholding the finding of the election petition tribunal nullying the return of Prof. Osunbor of the PDD held and I quote "We proceed to all the invalid votes which were not stamped and signed at the back which was PDP 51534 and AC, 13610 and we arrived at a grand total of PDP 273 invalid votes and AC 30895 invalid votes which are hereby cancelled. We deduct 200,722 invalid and cancelled votes from the 329740 votes to PDP on exhibit 71 and we have 129017 votes and we deduct 30895 invalid and cancelled votes from the 197472 votes awarded to AC on exhibit 71 and we have 166527 votes. We hold therefore that for the election for the office of governor of Edo State of Nigeria held on the 14th of April 2007 , the 3rd and 4th respondents scored 129017 valid votes while he 1st and 2nd petitioners scored 166527 valid votes."

This decision gave victory to Adams Oshimole in 2008 with respect to the2007 governorship election in Edo State. I therefore do not know where the INEC derived the power to declare the Osun election inconclusive based on some 3,000 votes that were considered invalid. This Judgement remains a legal precedent.

I therefore humbly wish to submit that inspite of the brilliant expose of the learned silk JS Okutepa, SAN. Kogi and Osun are not on all fours. While they were questioning the legality of the INEC guidelines, we concede it's legality, but are questioning it's application. The matter is as simple as ABC.

INEC must therefor retrace her steps immediately and do the needful without any further delay - there exists no basis either in the constitution or the Electoral Act as amended for any Returning Officer, Resident Electoral Commissioner and National Electoral Commissioner to order a supplementary or rerun election in Osun State.

Thankfully the PDP has activated its legal team to seek redress for this patently flawed interpretation of the powers of INEC and to challenge this fraud in the law court and enforce it's rightful return as winner of the election.

I just wanted you to know I didn't read this

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It's year 2033 and am still alive.
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TheUmbra:
Arrogance
Impulsive
Know it all
Presumption

These are some of the traits commonly found in many young Christian converts. Buoyed by the joy and confidence the good news brings, they rush into the world with great zeal and enthusiasm, branching off into different department of discipleship. Some into evangelism, some into intercession and others into healing. But oftentimes they leave the wisdom and SPIRIT of GOD behind as human impulses and instincts rule over their drive to minister the benefits of the Kingdom of GOD unto others.

Many young converts are rich in faith but it must be stressed that there is a thin line between faith and presumption. Even arrogance can be mistaken for faith by a young, inexperienced Christian. Faith outside the will of GOD is simply presumption. Faith outside the knowledge of GOD is arrogance.

The scripture says "MY sheep hear my voice and I know them, and they follow me" (John 10:27).

Simple illustration of the above scripture means Christians ought to hear GOD's instructions and be lead accordingly by HIS SPIRIT. It is of great importance that young Christian converts learn to wait and be lead by GOD's SPIRIT, rather than their own instincts no matter how good and noble their intensions may be.


Consider the following scripture:

"On one occasion, while HE was eating with them, HE gave them this command: Do not leave Jerusalem, but wait for the gift MY FATHER promised." (Act 1:4)

There was a great preaching and testifying ahead of the disciples, but they were told to wait for GOD's SPIRIT. They obeyed. And when the HOLY SPIRIT did come, they preached with so much power and confidence that three thousand converts were added to their fold in one day! (Act 2:41)

But on the contrary, when one is lead by his own instinct, even towards a good purpose, it can come to disappointment if the SPIRIT of GOD is not leading him.

Moses the great man of GOD tried to move ahead of himself, he found himself in the wrong timing with his GOD. By his own instinct he tried to rescue and lead his people, but his effort backfired because the LORD was not with him. Moses' time wasn't GOD's time. In the end he had to run for his own life. (Exodus 2:11-15)

The sons of Sceva is another classic example of instinctive Christians as opposed to HOLY SPIRIT lead Christian. After watching Paul performed great signs and and wonders in Ephesus, the sons of Sceva tried to follow in Paul's footsteps. It ended in disgrace. (Act 19: 11-16)

A mature believer is lead by the wisdom and SPIRIT of GOD.


Some scriptures that encourages us to wait on the LORD's leading.

Joshua 1: 1-3,7
John 11: 1-44
Gen 18:10
2Sam 7: 5, 12-13a
John 7:30

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