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IN THE GOVERNORSHIP AND LEGISLATIVE

HOUSES ELECTION TRIBUNALS

OSUN STATE

HOLDEN AT OSOGBO

PETITION NO. GOV/EPT/OS/01/07

THE ELECTION TO THE OFFICE OF GOVERNOR OF OSUN STATE

HELD ON THE 14TH DAY OF APRIL, 2007

BETWEEN

RAUF ADESOJI AREGBESOLA & 2 ORS - PETITIONERS

AND

OLAGUNSOYE OYINLOLA & ORS - RESPONDENTS

PETITIONERS‟ FINAL ADDRESS & REPLY TO THE

ADDRESS OF ALL THE RESPONDENTS

SETTLED BY :

______________________

Ebun Sofunde, SAN

Chief Akin Olujinmi, SAN,

Oluwarotimi Akeredolu, SAN

Kola Awodein, SAN

Charles Uwensuyi-Edosomwan, SAN

Professor „Yemi Osinbajo, SAN

Deji Sasegbon, SAN

Mutiu B. Ganiyu Esq

Ajibola Basiru Esq

Petitioners‟/Applicants‟ Counsel,

Address within Jurisdiction:

C/o Wale Afolabi & Co.

20C Ajegunle Street, Osogbo.

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1. INTRODUCTION

1.1 On 14 th April 2007, the 4 th Respondent conducted an election

for the office of the Governor of Osun State. Action Congress,

the 3 rd Petitioner sponsored the 1 s t and 2nd Petitioners,

Engineer Rauf Aregbesola and Grace Titilayo Laoye-Tomori as

its governorship and deputy governorship candidates,

respectively, in the said election while the 3 rd Respondent, the

Peoples Democratic party sponsored the 1 s t and 2nd

Respondents as its governorship and deputy governorship

candidates, respectively. At the end of the exercise, the 4 th

Respondent (INEC) announced that the 1 s t Respondent scored

a total of 426,666 votes as against the 1 s t Petitioner‟s 240,722

and consequently declared the 1 s t Respondent duly elected and

returned as the governor of Osun State.

1.2 Dissatisfied with the conduct and result of the elec tion, the

Petitioners, on 11/5/2007, presented this Petition at the

Governorship and Legislative Houses Election Petition

Tribunal holden at Oshogbo, Osun State. It is the prayer of the

Petitioners, inter alia:

1.2.1 that votes recorded and/or returned in the following Local

Government Areas, namely, Atakumosa West Local

Government, Ayadaade Local Government, Boluwaduro Local

Government, Boripe Local Government, Ede North Local

Government, Ife Central Local Government, Ife East Local

Government, Ife South Local Government, Ifedayo Local

Government, Isokan Local Government, Odo - Otin Local

Government and Ola Oluwa Local Government , do not

represent lawful votes cast in the said Local Governme nt

Areas in the Osun State Governorship election held on 14

April, 2007 and as having been obtained in vitiating

circumstances of substantial non-compliance with mandatory

provisions of Electoral Act, 2006, violence and malpractices

which substantially affected the validity of the said elections

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that none of the candidates in the said elections can be validly

returned as having validly won in the said affected Local

Government Areas;

1.2.2 That the said Prince Olagunsoye Oyinlola was not duly elected

by majority of lawful votes cast in the Osun State

Governorship election held on April 14, 2007 and that his

election is void;

1.2.3 That Rauf Adesoji Aregbesola was elected and ought to have

been returned having scored the highest number of votes cast

in the Osun State Governorship Election held on April 14,

2007, and satisfied the requirements of the Section 179

Constitution of the Federal Republic of Nigeria, 1999 and the

Electoral Act, 2006;

1.2.4 That the 1 s t petitioners be declared validly elected or returned.

1.3 In the Petitioners‟ alternative prayers, the Petitioners prays as

follows:

1.3.1 That the Osun State Governorship Election held on April 14,

2007 is void on the ground that the election was not conducted

substantially in accordance with the provisions of Part IV of

the Electoral Act, 2006;

1.3.2 That the said election was vitiated by substantial non

compliance with the mandatory statutory requirements which

substantially affected the validity of the said elections that

none of the candidates in the said election can be validly

returned as having validly won the said election;

1.3.3 That the Osun state Governorship Election held on the 14 th of

April 2007 is nullified or cancelled and the 4 th Respondent is

to conduct fresh elections for the office of the Governor of

Osun State.

1.4 The 1s t Respondent opposed the Petition by filing a Reply

praying the Honourable Tribunal to dismiss the said Petition.

The 4th– 1365 Respondents also filed a reply. In the same vein,

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the 1366 th and 1367 th Respondents also filed its reply wherein

they denied the allegations of the Petitioners.

1.5 At trial, the Petitioner called a total of 82 witnesses while the

1st, 2nd and 3rd Respondents called 62 witnesses. The 4th –

1365th Respondents as well as the 1366th and 1367th

Respondents called no witness .

1.6 In line with Paragraph 5(12) of the Election Tribunal and Court

Practice Directions, 2007 and the direction of this Honourable

Tribunal that counsel should file writ ten addresses upon close

of the 1366th – 1367th Respondents case the Petitioners hereby

present their final address in respect thereof.

2. Preliminary Response to The 1 s t to 3 r d Respondents

On the Reason and Substratum for Retrial

2.1 The 1 s t to 3 rd Respondent had argued that the only reason for

the order of retrial of this petition is refusal to admit Police

Security Report.

2.2 It is submitted that nothing can be father from truth,

adroitness and candour than the submissions in paragraphs

1.01, 1.02 and 1.03 of the 1 s t to 3 rd Respondents that the only

and sole reason for order of retrial of this Petition by the

Court of Appeal in Aregbesola v. Oyinlola [2009] 14 NWLR (pt

1162) 429 was only on the so-called Police Report.

2.3 For the avoidance of the confusion sought to be created by the

1s t to 3 rd Respondents, we find it pertinent to immediately

state that there are many grounds for which the Court of

Appeal decided to order a re-trial in the case. At page 480 of

the Report, Omage, J.C.A., who read the lead Judgment, held

thus:

“The rejection of documentary evidence to wit: Police

Security Report, Forms EC8D, EC8E and the Ruli ngs of the

Tribunal on 18/2/2008 and 28/4/2008 wherein the

petitioner/appellant was denied the use of vital documents

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to support the petitioner‟s case amounts to a miscarriage of

justice.”

2.4 Without more, from the judgment it was clear that the Court of

Appeal held that the trial before Justices T.D. Naron, S.

Mohammed, J.N. Akpughunum, A.T. Bademasi and J.E. Ekanem

amounted to a miscarriage of justice on the following grounds:the

rejection of Forms EC8D and EC8E which are the results of the

April 14, 2007 Gubernatorial Election in Osun State; the ruling of

18/2/2008 wherein the Tribunal refused the application to call

Adrian Forty, the forensic expert, to give evidence of his findings

upon forensically examining and analysing the thumb

impressions on the ballot papers used for the election as provided

by INEC; the ruling of 28/4/2008 wherein the Tribunal refused

the application to call Tunde Yadeka, the information technology

expert, to give evidence of his findings upon examining and

analysing the INEC documents used for the election; and the

rejection of Police security report;

2.5 As a matter of fact, in considering the propriety of the Naron‟s

Tribunal‟s decision to refuse the Petitioners‟ applications for

calling Adrian Forty and Tunde Yadeka (18/2/200 8 and

28/4/2008 respectively), the Court of Appeal, on page 478 of the

Report, noted that it would ordinarily not interfere with the way

a trial judge exercises his discretion “but will be quick to

interfere if the Court is satisfied that the discretion wa s wrongly

exercised or the exercise was tainted with some illegality or

substantive irregularity or that it is in the interest of justice to

do so.”

2.6 It was on this basis that the Court of Appeal found that the

Naron-led Tribunal‟s exercise of its discretion in the rulings of

18/2/2008 and 28/4/2008 wrong and tainted with illegality and

substantive irregularity. On this, Omage, J.C.A. held, on page 478

of the Report, that:

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“My Lords, in this Appeal, I find I am compelled to

interfere in the way the Tribunal exercised its discretion. It

is necessary to avoid a perverse judgment. All the

documents that the Petitioner/Appellant sought to bring to

the Tribunal were refused by the dismissal of applications,

which ought to have been allowed in to enable the

petitioner/appellant support the Petition.”

2.7 Therefore, it is false to state that the substratum of the order of

retrial has been removed. The order of retrial is general in nature

not in any way qualified. According to the Court of Appeal in

making the order of retrial at page 480 of the Report :

“In the light of all that has been said in this Judgment, the

President of the Court of Appeal is hereby directed to

constitute a fresh Osun State Governorship Election

Petition Tribunal for the purpose of hearing this petition

afresh”. (underlinig ours)

2.8 With the order of retrial granted, that puts the parties under a

duty to prove their case anew. In Fadiora v Gbadebo (1978) 3 S.C

219, the Supreme Court held:

“…. We think that in trials de novo the case must be

proved anew or rather re -proved de novo, and therefore,

the evidence and verdict given as well as the judge‟s

findings, at the first trial are completely inadmissible on

the basis that prima facie they have been discarded or got

rid of. The court of second trial, therefore, is entitled to

and, indeed, must look at the pleadings before it in order

to ascertain and decide the issues joined by the parties

before it on their pleadings. This is the reason why it is a

fundamental principle of the doctrine of r es judicata that

„no finding of the court or of a jury which has proved

abortive, a new trial having been directed, will give rise

to a valid plea of estoppel‟; and over the years this

principle has been hallowed by a number of important

decisions ……………”

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See also Ogbuehi v Governor, Imo State (No.2) [2001] 17 NWLR

(pt 743) 569 at 582.

2.9 It is also on record that the Petitioners applied for a subpoena for

the relevant police officers to come over to tender the police

report but that the bailiffs of this Tribunal was unable to effect

service of the subpoena not to talk of sanctioning the

disobedience of the subpoena.

3. General Comment on Introductory Paragraphs of the

Respondents Written Address

3.1 Contrary to paragraph 2.00 of the 1 s t to 3 rd Respondents‟

Written Address elections was held in all the states including

Anambra State but the election for Anambra State was only

subsequently nullified by the Supreme Court.

3.2 Contrary to paragraph 2.06 of the 1 s t to 3 rd Respondents‟

Written Address there are two grounds of the petition, the

main ground in paragraph 15 of the Petition and the further

and alternative ground in paragraph 156 of the Petition.

3.3 In reference to paragraph 2.08 of the 1 s t to 3 rd Respondents ‟

written address, it is submitted that although the Petitioners

pleading relates to twelve local governments but the

Petitioners concede that they have abandoned their case only

as it concerned Ola Oluwa Local Government and Ede North

Local Government.

3.4 The reliefs sought by the Petitioners are clear and lucid and

set out in paragraphs 158 and 159 of the Petition.

4. The Validity of the Ground of Petition

4.1 The 1s t to 3 rd Respondents had argued in paragraph 3.01 to

paragraph 3.08 of their address that the first issue formulated

by the Tribunal in the pre-trial report is unsustainable having

regard to the ground of the petition . They then proceeded to

argue that the ground of the petition in paragraph 15 of the

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petition make complaint on the provision of the constitution

and relying on Ojukwu v Yaradua [2009] 12 NWLR (pt 1154) 50

at 121 para C-D.

4.2 The petitioners‟ response to this contention will be predicated

on three grounds, viz:

4.2.1 That the ground of the petition is within Section 145(1)(c) of

the Electoral Act 2006

4.2.2 The case of Ojukwu v. Yar‟Adua did not decide what the

respondents cited it for.

4.2.3 The contention being a chal lenge to the competence of the

petition has been waived by the respondents

We shall now proceed to treat the three grounds.

4.3 Petition is within Section 145(1)(c) of Electoral Act 2006

4.3.1 Contrary to the submissions of the 1 s t to 3 rd Respondents, the

petitioners ground of the petition in paragraph 15 of the Petition

clearly is within the confines of Section 145(1)(c) of the Electoral

Act 2006 provides as follows:

An Election may be questioned on any of the following

grounds:

“(c) That the respondent was not duly elected by majority of

lawful votes cast at the election”

4.3.2 In fact these words “The 1 s t respondents was not duly elected by

majority of lawful votes cast at the election” in paragr aph 15 of

the Petition was lifted from section 145(1)(c) of the Electoral Act.

4.3.4 Furthermore, in an application filed by the 1 s t to 3 rd Respondents

on 8 June, 2009, the 1 s t to 3 rd Respondents unequivocally stated in

paragraph (2) of the ground of the ir application that: “The

ground for challenging the election is that the 1 s t respondent was

not elected by majority of lawful votes or in the alternative that

there was non-compliance with the provisions of the Electoral

Act, 2006” . Also, in paragraph 3 of the Affidavit in Support of the

said application of 8 June, 2009, the deponent, Muraina Adetunji,

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one of the Counsel to the 1 s t to 3 rd Respondents in the firm of

Kunle Kalejaiye & Co, deposed as follows: “That I have carefully

perused the Petition filed by the petitioners/Respondents

herein and I observed as follows: (a) that the petition is

premised on two grounds: (i) that the 1 s t respondent was not

elected by majority of lawful votes. (ii) that there was non -

compliance with the provisions of the Electo ral Act, 2006.

4.3.5 Ruling on that application on 30 th day of June, 2009, this

Honourable Tribunal held: “In the instant case as admitted by

the applicants, the petition is founded on two alternative

grounds recognized under section 145(1) of the Electora l Act,

2006”.

4.3.6 The 1s t to 3 rd Respondents were not only estopped on this issue

but there was thus no substance in the present contentions of the

1s t to 3 rd respondents.

4.4 Decision in Ojukwu v. Yar‟Adua

4.4.1 The case of Ojukwu v Yar ‟Adua [2009] 12 NWLR (pt 1154) 50

does not support the contention of the Respondents. Apart from

the fact that the grounds objected to in Ojukwu v. Yar‟Adua were

differently framed from the way the petitioners framed their own

ground at paragraph 15 of the petition, th e Supreme Court in the

leading judgment of the court in which four justices concurred

still upheld those grounds. It is helpful to quote here the three

grounds (without their particulars) objected to in the Ojukwu

case.

“(1) The election in which the 1 s t and 2nd respondents were

declared winners was not conducted in compliance with the

1999 Constitution and the Electoral Act, 2006.

Particulars…………………………………..

(2) The said election did not meet the minimal requirement of

Electoral democracy and the law and the Electoral Act,

2006

Particulars……………………………………….”

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(3) Rudimentary requirements of fairness and equal treatment

provided by the Constitution and the Electoral Act were

not extended to the petitioner and to potential voters in

Anambra, Imo, Abia, Enugu and Ebonyi States.

Particulars……………………………………..”

4.4.2 The Court of Appeal upheld ground (1) above as valid but still

struck out the ground because there was no averment that the

alleged non-compliance affected the results of the election. The

Court held that grounds (2) and (3 ) did not come within Section

145(1) of the Electoral Act and struck them out as well as the

petition. In the appeal to the Supreme Court by the petitioner,

the court in its leading judgment per Tabai J.S.C. held as follow s

at page 109 D-F in upholding grounds (2) and (3 ):

“The court below held that grounds 2 and 3 do not

conform with or relate to any of the four grounds set out

in section 145(1) of the Electoral Act and were struck o ut.

No reasons were given for this conclusion. The appellant

proffered sustained arguments to fault the finding of the

court below. There is force in the arguments of Mr. Ezike

of counsel for the appellant particularly having regard to

the particulars of the said grounds 2 and 3. Looking at

the two grounds in the abstract and without reference to

their particulars one is tempted to conclude that they do

not convey any complaint which falls within the grounds

in section 145(a)-b of the Electoral Act. They are vague.

But a careful reading of the two grounds together with

their particulars clearly shows that the petitioner alleges a

number of non-compliances and/or corrupt practices. No

doubt the two grounds contain some assertions of non-

compliances. That however is not the end of the matter.”

4.4.3 The court however still dismissed the appeal because there was

no allegation in the pleading that the non -compliances alleged

affected the results of the election contrary to the provision of

Section 146 of the Electoral Act. Now, four of their Lordships

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concurred in the judgment while three dissented. It is important

to add that the passages from the judgment relied upon by the 1 s t

to 3 rd respondents were lifted from the contribution of Hon.

Justice Tobi J.S.C. who also concurred in the leading ju dgment.

Even in his Lordship‟s contribution and notwithstanding the fact

that there was no appeal against the finding of the Court of

Appeal that ground one of the petition quoted above was valid,

Hon. Justice Tobi still disagreed with the Court of Appeal. He

expressed the view that the ground was not valid. It was that

view that the 1 s t to 3 rd respondents now relied upon in their

arguments.

4.4.4 Now it is settled that the leading judgment is the judgment of the

court and any opinion expressed in a contr ibution which is not

contained in the leading judgment is only obiter. Refer to

Supreme Court decision in Idise v. Williams (1995) 1 NWLR

(Pt.370) where the Supreme Court held as follows:

“As for issues 3, 4 and 5, these were based on the concurring

judgment of Uche Omo, J.C.A., (as he then was) which is

not the lead judgment, whatever Uche Omo, J.C.A., said in

his concurring judgment, which differs from the lead

judgment, with which he agreed, can only be Obiter dicta,

and therefore it will be a mere acade mic exercise to

consider them”.

4.4.5 It follows therefore from this decision that the view of Tobi J.S.C.

which the 1 s t – 3 rd respondents relied upon is obiter which does

not bind this court not being the leading judgment. The same

thing goes for the other concurring judgments. Anything therein

which is not in the leading judgment is obiter.

4.4.6 It is important to also point out that the leading judgment and

the contributions emphasise the point that the ground formulated

and the facts in support must be read together to make a sense of

the ground of petition. Where there are no facts to predicate the

ground of the petition the ground or grounds will be ambiguous,

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vague and incomprehensible. Even Tobi J.S.C. in his contribution

agreed that once the ground of the petition comes within the

provisions of section 145 of the electoral Act , it would not matter

that additional words were used in couching the ground. Further,

the ground of the petition that was considered in that case was a

ground purportedly predicated on section 145(1)(b) of the

Electoral Act unlike here where the ground is based on section

145(1)(c) of the Electoral Act.

4.4.7 The case of Ogboru v Ibori [2004] 7 NWLR (pt 871) 192 at 223 -224

is also irrelevant here as the case relate to pred icating a ground

on petition on “irregularities” in the context of section 134(1)(b)

of the Electoral Act 2002 which is identical with section 145(1)(b)

of the Electoral Act, 2006. Ground 1 of the present petition is

predicated on section 145(1)(c) of the Electoral Act, 2006 and this

much has been admitted by the 1 s t to 3 rd Respondents.

4.5 Waiver of Right to Raise Objection

4.5.1 The objection now raised by the 1 s t – 3 rd respondents is a

challenge to the competence of the petition. It is submitted that

it is too late in the day for the respondent s to raise this objection.

Paragraph 49 of the Electoral Act, 2006 requires that any

objection to any perceived defect in a petition must be raised

timeously and when the party making the application has not

taken any fresh step in the proceeding after knowledge of the

defect. The Court of Appeal in Agagu v. Mimiko (2009) 7 NWLR

(Pt. 1140) 342 at 391 held at page 389 H-A on the point as follows:

“The appellant filed its reply to the petition on 13 th June,

2007. Prior to the filing of the appellant‟s reply, no

objection was taken to the competence or otherwise of the

petition. The issue of competence of the petition was

raised for the first time by the appellant in his final

address. There is substance in the subm ission of learned

senior counsel for the first respondent that at the time the

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appellant raised the issue of the competence of ground 1 of

the petition for the first time, the tribunal had become

bereft of the jurisdiction to entertain such issue having

regard to the provisions of paragraph 49(2) of the First

Schedule to the Electoral Act, No. 2 of 2006 ” .

4.5.2 The Court of Appeal had earlier held in the same vein in its

decision in Nyako v. Action Congress (2009) 2 NWLR (Pt. 1126)

524 where the Court held as follows:

“I concur. There is no merit in the submission of the learned

senior counsel for sixth respondent/appellant that even if the

objection were raised at the close of the trial, paragraph 49(2)

and (5) of the First Schedule to the Electoral Act d o not shut

out the appellants from raising objection against the petition

after the close of trial. The provision s do not merely enjoin that

an objection should be brought timeously, but also mandated

that they should be heard and determined before any further

steps are taken in the proceedings”…………….A reading of the

two sub- paragraphs recited above together shows that the

objection must be brought within reasonable time and when the

party making the application had not taken any fresh step in the

proceedings since acquiring knowledge of the defect. The tribunal

is enjoined to hear and determine the objection before any further

step in the proceedings provided the application is brought

timeously.”

4.5.3 The need for timeous raising of an issue concer ning a perceived

defect in an election peti tion was also emphasised by the

Supreme Court in Ojukwu v. Yar‟Adua (supra) at page 106 where

the court held as follows:

“If a respondent in an election petition feels strongly that on the face of it, the petition is patently unsustainable in the sense that if does not meet the requirements of the Electoral Act or the First Schedule to the Act or that it is lacking in materials to sustain it and therefore incompetent, he is at liberty to raise it and timeously too. And because it is an issue of jurisdiction which determination can be decisive of the whole litigation, the

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Election Tribunal or Court has the jurisdiction to entertain it.”

4.5.4 The Supreme Court found that the objection in the Ojukwu case

was raised timeously and also timeously decided by the tribunal.

See also INEC v. Action Congress (2009) 2 NWLR (Pt. 1126) 524

at 602 C-H.

4.5.5 In the foregoing premises, it is submitted that this tribunal is at

this stage bereft of the jurisdiction to enterta in this issue now

raised by the 1 s t to 3 rd respondents and the same should be

dismissed.

5. The Issue of Bindingness and Abandonment of Pleadings

5.1 In paragraphs 3.09 to 3.21, the 1 s t to 3 rd Respondents had

raised the issue of the need for evidence to be in li ne with

pleadings and the issue of abandonment of pleadings. The

Petitioners concede that evidence must be in line with

pleadings and that where evidence is not led on a matter not

pleaded such amounts to abandonment of pleading .

5.2 However, the Petitioners submit that the evidence led by them

are in line with their pleadings but concede that they have not

led evidence in the whole of Ede North Local Government and

Ola-Oluwa Local Government and thereby agreed that they

have abandoned their pleadings as far as only these two Local

Governments are concerned leaving only ten local

governments in dispute.

5.3 Further, the Petitioners have led evidence, oral and

documentary in respect of all the Wards in the following ten

local governments to wit: Atakumosa West Local

Government, Ayadaade Local Government, Boluwaduro Local

Government, Boripe Local Government, Ife Central Local

Government, Ife East Local Government, Ife South Local

Government, Ifedayo Local Government, Isokan Local

Government, and Odo - Otin Local Government. This is clear

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from the evidence of PW80, PW81 and PW82 and a host of

documentary evidence tendered covering all the ten local

governments. See paragraphs 31.1 to 34.4 of this Address for

the evidence of PW80, PW81 and PW82 covering the whole of

the ten local governments.

5.4 Further, as will be demonstrated, the pleading and evidence of

the Petitioners are sufficient to nullify the votes recorded for

the 1 s t Respondents in the ten local governments as unlawful

votes.

IMPORTANT POINTS DESERVING SPECIAL MENTION

6.1 Before embarking on a treatment of the two issues formulated by

the tribunal, the petitioners propose to address some important

points which arise from this petition and which deserve special

mention. They are as follows:

(i) Scanty evidence called by the 1 s t to 3 rd Respondents

(ii) Legal effect of failure of 4 th to 1367 th Respondents to

testify in support of their pleadings

(iii) Legal effect of failure of the 1 s t Respondent to plead

in his reply the votes objected to as required by

Paragraph 12(2) and 15 of the First Schedule to the

Electoral Act, 2006

(iv) Absence of Voters Registers

We shall now proceed to treat the points separately.

(i) The Scanty Evidence Called by The 1 s t to 3 rd Respondents

6.2 In paragraph 3.22 of the Written Address, the 1 s t to 3 rd

Respondents have sought to justify why it called only 62

witnesses. It is imperative to note that the evidence of each of

PW1 to PW60 are restricted to a polling unit as all the witnesses

claimed that they did not know what happened in any other unit

apart from his/her own, whereas the Petitioners called evidence

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in respect of the several units in the wards in the ten local

governments.

6.3 Whereas, the Petitioners had called evidence covering the several

polling units in each of the Wards, the Respondents had not

called evidence that is as widespread as that called by the

Petitioners, it is submitted that the effect is that there is no

rebuttal evidence for the evidence of the Petitioners.

6.4 While, it is true that the Petitioners will su cceed on the strength

of its case, the case of the Petitioners herein is strong because the

Respondents, for the most part did not lead evidence to

controvert the evidence of the Petitioners‟ witnesses; See Ajadi v

Ajibola [2004] 16 NWLR (pt 898) 91 and the scanty evidence led

were incredible and totally discredited under cross -examination.

6.5 It is also on the record that the other two sets of Respondents did

not call any rebuttal evidence. It is submitted that contrary to

paragraph 2.14 of the 1 s t to 3 rd Respondents written address, the

4 th to 1365 th Respondents and the 1366 th and 1367 t h Respondents

the effect of failure to so adduce evidenceis that they have

thereby abandoned their pleadings: See Alhaji Muhammadu

Maigari Dingyadi & Anor. v. Aliyu Magatak arda Wamako [2008]

17 NWLR (pt 1116) 395 at 431 G-H . It is not for a respondent to

claim that it is not calling evidence because the petitioners failed

to make out a case. In any, event the 4 th to 1365 th Respondents

and the 1366 th and 1367 t h Respondents have decided to take a risk

because failure to call rebuttal evidence it is a strategy that

would turn out to be disastrous as the Petitioners have made out

a good case on the evidence: See Akanbi v Alao [1998] 3 NWLR

(pt 108) 118 at 140, 143. See also Estate of General Sanni Abacha

v Eke-Spiff [2009] 7 NWLR (pt 1139) 97, 131 where .

(ii) Legal Effect of failure of 4 th to 1367 th Respondents to testify

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6.6 It is also on the record that the other two sets of Respondents did

not call any rebuttal evidence. It is submitted that contrary to

paragraph 2.14 of the 1 s t to 3 rd Respondents written address, the

4 th to 1365 th Respondents and the 1366 th and 1367 t h Respondents

the effect of failure to so adduce evidence is that they have

thereby abandoned their pleadings: See Alhaji Muhammadu

Maigari Dingyadi & Anor. v. Aliyu Magatakarda Wamako [2008]

17 NWLR (pt 1116) 395 at 431 G-H . The Court of Appeal in this

case stated the law on the point as follows:

“In the instant case, the tribunal ought to have struck out

the 3 rd to 43 rd respondents reply having rightly found that

no evidence was led in respect therefore. If that has been

done, the tribunal would have discovered that the

evidence led by the appellant in respect of the allegation

against those respondents stand unchallenged,

uncontradicted and uncontroverted. In the premises, the

tribunal would have found for the appellants in respect

thereof.”

6.7 See also FCDA v. Alhaji Musa Naibi (1990 3 NWLR (Pt. 138) 270

where the Supreme Court held as follows:

“Pleadings cannot constitute evidence and a defendant

who does not give evidence in support of his pleadings

or in challenge of the evidence of the plaintiff is deemed

to have accepted the facts adduced by the plaintiff

notwithstanding his general traverse.”………If the

defendant does not give evidence in support of his

pleadings, the averments therein are taken as having been

abandoned for they stand as no more than mere averments

which have not been supported.”

6.8 See also Fayemi v. Oni (2009) 7 NWLR (Pt. 1140) 223 at 28 9 E-F

where the Court of Appeal held as follows:

“In our circumstance, appellant h ad made available to the court

the various voters registers wherefrom the fact whether or not

voters whose names appear therein and who were accredited

18

before they voted could be deduced. The 2nd-16 th respondents

had the onus of proving that in sp[ite of the various “tickings”

on the registers rather rthan a ticking in blue as provided for

by the manual, the registered voters had in fact been accredited

before they voted. Having failed to lead in that wise, the

appellant by the combined operation of section 137 as well as

149(d) of the Evidence Act is entitled to judgment.”

6.9 In this case it was for the 4 th to 1365 t h respondents to give

rebuttal evidence against the eviden ce of the petitioners on the

various instances of non-compliances but they failed to. They

preferred to withhold evidence. This tribunal is therefore under

a duty to accept the evidence of the petitioners as unchallenged.

6.10 It is not for a respondent to claim that it is not calling evidence

because the petitioners failed to make out a case. In any, event

the 4 th to 1365 th Respondents and the 1366 th and 1367 th

Respondents have decided to take a risk because failure to call

rebuttal evidence it is a strategy that would turn out to be

disastrous as the Petitioners have made out a good case on the

evidence: See Akanbi v Alao [1998] 3 NWLR (pt 108) 118 at 140,

143. See also Estate of General Sanni Abacha v Eke -Spiff [2009] 7

NWLR (pt 1139) 97, 131 where. The arguments under this heading

will be further elaborated later in this address.

(iii) Legal Effect of failure of 1 s t respondent to plead in their Reply

particulars of Votes objected to required by paragraphs 12(2)

and 15 of the First Schedule to the Electoral Act, 2006

6.11 The pleadings of the petitioners in this case particularly at

paragraphs 12 and 13 allege that the 1 s t petitioner scored the

highest number of lawful votes cast at the election and that he

ought to have been returned. This pleading cast a duty on the 1 s t

respondent to comply in their Reply with the provisions of

paragraphs 12(2) and 15 of the First Schedule to the Electoral Act,

2006. The 1 s t respondent however failed or omitted to comply

with this mandatory requirement of the Electoral law. The effect

19

of such failure was recently discussed by the Court of Appeal in

the case of Agagu v. Mimiko (1009) 7 NWLR (Pt. 1140) 342 at 413

H to 414 A and H. The court held as follows:

“..it is incumbent on me to examin e whether or not the

appellant as the first respondent to the petition or the

person who was declared winner and therefore returned as

the Governor of Ondo State at the election held on 14 th

April, 2007 complied with the provisions of paragraphs 12

and 15 of the First Schedule to the Electoral Act, 2006.

Where the petitioner/first respondent herein claimed that

he scored the highest number of lawful or valid votes cast

at the election, as in the instant appeal, the first

respondent, that is, the party declared the winner is

required to comply with the mandatory provisions of

paragraph 12 of the First Schedule to the Electoral Act No.

2 of 2006. It requires the respondent to set out clearly in

his reply particulars of the votes which he intends to bject

to demonstrating how to prove at the hearing that the

petitioner is not entitled to be returned…………..Thus

the respondent is required to specifically put down

(i) The particulars of the votes he objects to;

(ii) The reason or reasons for his objection against such votes;

and

(iii) Show how he intends to establish at the trial that the

petitioner was not entitled to succeed or to be returned.

The consequence of neglect or failure of the respondent to

comply with the provisions of paragraph 15 of the First

Schedule to the Electoral Act is that the result tendered by the

petitioner is deemed not challenged or controverted. See

Hassan v. Tumu (1999) 10 NWLR (Pt. 624) 700 at 710 and 712. I

have carefully examined the respondent‟s reply , which is in

Vol. V1 at pages 2541-2620 of the printed record of proceeding

and cannot locate any averment satisfying the conditions set out

in paragraph 15 of the First Schedule to the Electoral Act, No. 2

20

of 2006. The refusal, neglect or failure of the appellant to

satisfy the provisions of the said paragraph has the effect that

the result tendered by the petitioners/first respondent herein, is

unchallenged and uncontroverted.”

6.12 In the premises, it is submitted that the failure of the 1 s t

respondent to comply with paragraphs 12 and 15 of the Fir st

Schedule to the Electoral Act, 2006 means that the results

tendered by the petitioners remain unchallenged and

uncontroverted. In other words the evidence of the petitioners as

to what represents the lawful votes in the election remains

unchallenged. The same should be accepted by this tribunal.

6.13 Without prejudice to the foregoing position of the law which is in

fact sufficient to give the petitioners judgment, we shall now

proceed to address other aspects of the case.

(iv) Absence of Voters Registers

6.14 One variety of non-compliance with the Electoral Act which

forms a major plank of the petitioners‟s case is that voters

registers were not made available at many polling units (see, for

instance, paragraphs 27.3 and 62 of the Petition) and even where

they were, an examination of them will show as we have

demonstrated in a review of the evidence of the witnesses that

the names of many of the witnesses of the respondents who

claimed to have voted are not borne out by the registers. Their

names were not ticked and the only conclusion from this is th at

they did not vote.

6.15 The evidence concerning Boripe Local Government is even very

grim. PW9 under cross-examination by the 1 s t – 3 rd respondents‟

counsel inter alia maintained that there was no accreditation

before voting in his ward due to the absenc e of voters register.

He is from Ward 1 of Boripe Local Government. He stated that

the INEC office was burnt prior to the elections, and names of

voters were merely written on pieces of paper during the election

21

which aided multiple voting. PW12 testified in the same vein as

PW9. He is from Ward 6.

6.16 Now, the 4 th to 1365 th respondents who have custody of Voters

Registers did not testify to debunk the evidence of PW9 or

produce the voters‟ registers for most of the wards of Boripe

Local Government. The importance of voters‟ registers to a valid

election has been pronounced upon in several cases.

6.17 The Court of Appeal per Akaahs JCA in Uweke v. Ejims (1999) 11

NWLR (Pt. 625) 39 at 53 stated the law as follows:

“I also agree that a person cannot vote until he has been

accredited and it is the stamping of the voter‟s card and

the marking of the electoral register that proves that

the accreditation did in fact take place. Where the

electoral register is not so marked but votes are returned

for the particular voting unit it will be safe to

conclude that such votes were not obtained throu gh the

due electoral process. Where therefore the voters register

had no marking but Forms EC8A or EC8A(1) are

produced showing scores, such scores can be excluded

from the valid votes scored by a candidate at the election.”

6.18 Recently again in the case of Fayemi v. Oni (2009) 7 NWLR (Pt.

1140) 223 at 287 C-E where the same non-compliance was relied

upon the Court of Appeal restated the law in the following

words:

“Unlike other species of non -compliance which effect on the

results of the election must be separately proved by the

petitioner, non-compliance arising from non accreditation of

voters is so fundamental and the effect it has on the result of

the election lies in the facts of its occurrence. You must have an

election lawfully so-called to be able to talk of the results of

that election. Election results ensue from lawful votes cast

by voters in a manner recognised by the law. The appellant in

the instance case had pleaded at paragraph 37(1) thus:

22

“That the 1 s t respondent was not duly elected by a majority of

lawful votes cast at the election.”

An election that proceeded without accreditation of vot ers does

not allow for the casting of lawful votes and any person

elected on the basis of votes cast by voters who had not been

accredited cannot be said to have been duly elected. The

election is voided ab initio and does not allow for the

emergence of any result.”

6.19 The petitioners herein, just as the petitioner in the Fayemi case

(supra), relying on the pleading at paragraph 15.1 of their

petition, “that the 1s t respondents was not duly elected by

majority of lawful votes cast at the election .” Obviously, a

situation where the voters registers were not produced by the

respondents to counter the evidence of PW9 the tribunal has only

one option open to it and that is to accept the evidence of PW9

that in the absence of voters registers only pieces of papers were

used for the election. An election in which pieces of papers

rather than voters registers were used or where voters names

were not ticked in voters register cannot on these authorities be

held to be lawful election. In other words, the 1 s t respondent

cannot be said to have been elected by a majority of lawful votes.

6. ISSUES FOR DETERMINATION

7.1 In the pre-hearing report issued at the close of the pre -hearing

session, the followings are the issues formulated for

determination by this Honourable Tribunal:

Issue No 1

7.1.1 Whether the 1 s t respondent was duly elected as Governor of

Osun State in the April 14, 2007 gubernatorial election in Osun

State is substantial compliance with the provisions of the

Electoral Act, 2006 and the manual for Ele ction, having regard

to the totality of the evidence adduced at the trial (both oral

and documentary).

23

Issue No. 2

7.1.2 Whether from the facts before the Tribunal the Governorship

election held in Osun State on the 14 th day of April, 2007 was

vitiated by any form of irregularities and/or corrupt practices

and in the circumstances warranting ordering a fresh election.

ARGUMENT

Issue No 1

Whether the 1 s t respondent was duly elected as Governor of Osun

State in the April 14, 2007 gubernatorial election in O sun State is

substantial compliance with the provisions of the Electoral Act, 2006

and the manual for Election, having regard to the totality of the

evidence adduced at the trial (both oral and documentary).

8.1 In arguing the first issue for determination , it is pertinent to

point out that the Petitioners called oral evidence and tendered

documentary evidence in respect of the following ten local

governments: Atakumosa West Local Government, Ayadaade

Local Government, Boluwaduro Local Government, Boripe Local

Government, Ife Central Local Government, Ife East Local

Government, Ife South Local Government, Ifedayo Local

Government, Isokan Local Government, and Odo - Otin Local

Government.

8.2 While it is conceded that there is presumption of regularity in

favour of a declared result, it is submitted that the presumption

is rebuttable and and it has been effectively rebutted by the

Petitioners in the instant case by leading credible oral and

documentary evidence showing that the 1 s t Respondent ought not

to have been declared.

8.3 As can be seen from Exhibit 91 and Exhibit 92(1-2) the 1 s t

Respondent was announced as having scored a total of 426,669

number of votes whilst the Petitioner was announced as having

scored 240,722 number of votes (See also paragraph 14 of the

Petition which was admitted) .

24

8.4 Further, from Exhibit 92(1-2), the votes as announced by the 4 th

and 5 t h Respondents as having been scored by the 1 s t Petitioner

and the 1 s t Respondent in the following ten Local Government

Areas are;

S/N on

Exh

92(1)

Local Governments Votes recorded

for the 1 s t

Petitioner

Votes recorded

for the 1 s t

Respondent

2 Atakumosa

West

2,489 15,471

3 Aiyedaade 3,096 33,805

5 Boluwaduro 1,784 7,902

6 Boripe 328 14,497

11 Ife Central 4,866 62,257

12 Ife East 13,746 35,574

14 Ife South 5226 16,312

15 Ifedayo 2041 8122

22 Isokan 3249 16,243

25 Odo Otin 5098 43606

Total for the 10

LGs

41,923 253,789

8.5 This is consistent with the petitioners pleading in paragraph 17 of

its Petition.

8.6 Thus, in the ten local governments in respect of which the

Petitioners led oral and documentary evidence in respect of the

allegations in the Petition, by Exhibit 92(1) , the 1 s t Respondent

was announced as having scored 253,789 votes, while the 1st

Petitioner was announced as having scored 41,923 votes.

8.7 We submit that it is in respect of the said 253,789 votes

announced as having been scored by the 1 s t Respondent in the ten

25

Local Governments that the Petitioners pleaded contending that

they are not lawful votes.

8.8 Section 145(1)(c) of the Electoral Act 2006 provides as follows:

An Election may be questioned on any of the following

grounds:

“(c) That the respondent was not duly elected by majority

of lawful votes cast at the election”

8.9 The pertinent issue that should be care fully considered by the

Tribunal in determining this Issue No.1 is the important question

what would make certain votes not qualify as lawful for the

purpose of Section 145(1)(c) of the Electoral Act 2006 .

8.10 It is submitted that what will make a vote to qualify as lawful

votes would be that there has been valid election conducted in

compliance with the provisions of the Electoral Act, 2006.

8.11 The word election has been defined to mean .. . . ." a process

including, voting, counting, collation and return o r declaration of

result., . . . . . .see the cases of Ojukwu vs Obasanjo & others [2004]

EPR 626 at 653 G see also chief Ojukwu vs Obasanjo & others

[2004] 12 NWLR pt 886 169 at 227. It was also held in the case of

INEC vs Ray [2004] 14 NWLR pt 892 92 at 123 F -G . . . . . . . ' it is trite

law that the concept of election denotes a process constituting

accreditation, voting, recording on all relevant INEC forms and the

declaration of results. The collation of results of the polling units,

making up the ward and the decl aration of results are therefore

constituent element of an election as know to law'

NON-COUNTING, ANNOUNCEMEMT, RECORDING OF RESULTS

ON RELEVANT FORMS AT UNITS, WARD AND LOCAL

GOVERNMENT LEVELS

8.12 A major plank of the case of the petitioners i s that elections were

not conclusive and votes were not counted and results were not

recorded in Form EC8A and were not announced and/or declared

in most polling stations and wards in the aforementioned local

governments; See paragraph 19.3, 22, 23, and 24 of the Pe tition.

26

8.13 In paragraph 27.2 the Petitioner allege that the election and the

declared results in the said Governorship election for the

disputed Local Government Areas of Osun State are invalid and

ought to be cancelled on the ground inter alia that the re were no

counting and announcement of result at the polling stations and

there were also no collation of election results at the ward level.

8.14 Specifically in relations to Atakunmosa West LGA: Paragraphs

32, 34, 35, 38, 39, 41; in relations to Ayeed adee LGA: Paragraphs

42d, 43, 44, 45 46, 47, 48, 49, 50, 51; in relations to Boluwaduro

LGA Paragraph 52d, 53, 57, 59, 61; in relations to Boripe LGA:

Paragraphs 64, 65, 66, 69, 70.6, 71; Ife Central LGA: Paragraphs

88.f (where it was specifically pleaded that votes were not

counted in the Polling Units and collated at the LGA Level), 89a,

86.3, 87.2, 88.2, 89, 91, 92.1, 95, 96; in relations to Ife East LGA:

Paragraphs 97.d, 98, 99, 100, 101, 102, 103, 104; in relations to Ife

South LGA: Paragraphs 105d, 106, 107, 108, 109, 110, 111, 112,

115; in relations to Ifedayo LGA: Paragraphs 116e, 117, 119; in

relations to Isokan LGA: Paragraphs 122, 123, 124, 131, 132; and

Odo Otin LGA: Paragraphs 133, 135, 136, 137, 139, 140, 141, 142,

143, 145, 146, and 148.

8.15 The Petitioners led cogent evidence in respect of these

allegations.

8.16 Section 28(1) 0f the Electoral Act 2006 provides thus:

“The Electoral Officer shall act as Returning Officer for election

to the office of Chairman of Area Council.

8.17 Section 28(2) provides that results of all elections shall be

announced by:

The Presiding Officer at the Polling Station;

The Ward Returning Officer at the ward Collation Centre;

The Returning Officer at the Local Government or Area Council;

The Returning Officer at the State Constituency Collation Centre;

The Returning Officer at the Federal Constituency Collation

Centre;

27

The Resident Electoral Commissioner who shall be the Returning

Officer at the Governorship election; and

The Chief Electoral Commissioner who shal l be the Returning

Officer at the Presidential election

8.18 In paragraphs 5.22 and 5.23 of their written address, the 1st to

3rd respondents, have argued that the petitioners failed to tender

fictit ious and authentic result and this is fatal to the case o f the

petitioners. It is submitted that this contention clearly

misconceived the case made out by the petitioners in the

pleadings and on the evidence. The case of the petitioners from

the pleadings was that all the results purportedly emanating from

INEC were not recorded at the relevant Polling units /wards and

local government collation centres and that they were not

product of a legally concluded elections.

8.19 Therefore, it is not the case of the petitioners that the re were two

set of results – one fake and the other original and as such there

is no such obligation on the petitioners to lead evidence in that

direction. In fact, in support of the allegations of the petitioners

that votes were not counted and results not announced and vote

note recorded at the relevant Polling units, majority of the

witnesses called by the 1 s t to 3 r d respondents admitted under

cross examination that they did not have personal knowledge of

counting, announcement and recording of results.

8.20 It is submitted that the case of Ezeazodo Siako vs Okeke [2005]

16 NWLR (pt 952) 612 is irrelevant in the context of this case. In

that case, the allegations of Adazinnukwu was that the election

results were forged and falsified and this was not made out in the

petition and evidence. The petitioners in this case have called

both oral evidence and tendered relevant electoral forms in prove

of his case and unlike in the case of Buhari and INEC (2008) 4

NWLR pt 1078 516 at 665.

8.21 It is submitted that the evidence before the Tribunal su pports the

case of the Petitioners. Whereas the Petitioners through PW1 -

28

PW66 and PW71-79 led cogent evidence that votes were not

counted at any of the polling units, scores were not recorded on

the electoral form at any of the polling units, results were n ot

announced at any of the polling units and there was no

collation of results at the Ward level, there is no cogent and

credible rebuttal evidence.

8.22 Even though RW1, RW2, RW3, RW4, and RW5 called by the 1 s t to

3 rd respondents claimed in their evidence-in-chief that elections

were concluded, votes counted, recorded and subsequently

announced, they admitted under cross-examination that they

went home immediately after voting and that therefore they did

not have personal knowledge whether elections were concluded,

votes counted, recorded and subsequently announced.

8.23 Also, RW6, RW8, RW9, RW10, RW11, RW13, RW14, RW15,

RW17, RW18, RW19, RW20, RW21, RW22, RW23, RW25, RW26,

RW27, RW28, RW29, RW30, RW31, RW32, RW33, RW34, RW35,

RW36, RW38, RW39, RW40, RW41, RW42, RW43, RW44, RW46,

RW47, RW48, RW51, RW52, RW53, RW55, RW56, and RW58 called

by the 1 s t to 3 rd Respondents merely stated in their evidence in

chief and under cross-examination that they went home after

voting and as such were in no position to personally give direct

and positive evidence if elections were actually concluded, votes

counted, recorded and subsequently announced.

8.24 Even RW7, RW12, RW16, RW24, RW37, RW49, R50, RW57, RW58,

RW59, and RW60 who claimed that they were party agents of th e

PDP and claimed in their evidence-in-chief that elections were

concluded, votes counted, recorded and subsequently announced

had their testimony on this issue totally discredited under cross -

examination. An evaluation of the evidence of RW7, RW 12, RW16,

RW24, RW37, RW49, R50, RW57, RW58, RW59, and RW60 on this

issue will be undertaken herein for its immediate relevance.

8.25 RW7 who did not state his occupation in his evidence -in chief

stated under cross-examination that he was a businessman.

29

However, the registration particulars in the voters register,

Exhibit 362D Item 156, read Olusayo David, male 27, civil public

servant. RW7 also stated that he did not know the time it takes

for verification and voting, even though he claimed to be a party

agent. Also, the witness who claimed that the election was free

and fair was shown Exhibit 132 D – result of Polling Unit page 4,

Unit 4, Ward 8 which he said he signed as agent and that in

column 7 therein, the total number of used ballot papers was 411.

He was also shown Exhibit 360D – ballot papers used in the unit,

C.T.C. 1-416 which showed that the ballot papers returned as

used was 416 contrary to what was recorded on Exhibit 132 D.

The witness then said that even though he signed 411 in Exhibit

132D, it was for INEC to explain the discrepancies. When asked

for the difference between 411 and 416, the witness gave an

incredible answer that he had told the court that he had res eat in

English and Mathematics.

8.26 RW12- In paragraph 10 of the witness deposition the witness

claimed that the party agent of AC and NDP signed for EC8A but

under cross-examination the witness stated that what he said was

that only himself and AC Party Agent signed and that he did not

know about NDP Agent. He emphatically stated that it is not

correct that other party agent signed form EC8A. Apart from the

contradictory testimony, on Exhibit 176, EC8A for Alafe Okero

Polling unit, where the witness said he was a polling agent

showed that no agent of NDP signed the form EC8A contrary to

paragraph 10 of the witness deposition. Also, there is AA agent

on Exhibit 176. The witness also gave contradictory testimony as

to where the counting of the votes was carried out. In paragraphs

9 of the witness deposition the witness stated th at at the end of

the election, INEC officials took the ballot boxes to the collation

center at the court hall and votes were counted. Also in

paragraph 10, the witness said that the party agent to AC and

NDP signed form EC8A and the result of the election was

30

announced at the town hall. Also, under cross -examination, the

witness stated that the votes were not counted at the polling unit

but that the boxes were taken to collation center for counting.

However, under re-examination, the witness stated that after the

voting exercise they counted the votes in my Unit.

8.27 RW16 Alfa Saka Dada ; The testimony of RW16 is that he was the

PDP party agent in Ward I, in Unit 03, located at Isale -Obanla, in

Otan Ayegbaju in Boluwaduro Local Government . He claimed

that votes were cast peacefully in his polling unit and votes

counted at about 3.00 pm without any disturbance. Under cross -

examination, the witness insisted that he signed his witness

statement and his specimen signature taken was admitted marked

Exhibit 463. The witness claimed that the signature on Exhibit 463

and the signature on his deposition are the same. The witness

also said that the signature in Exhibit 175(2) , the EC8A for Isale

Obaala Unit , is his own. However, a comparison of the signature

on Exhibit 463 and Exhibit 175(2) show they are clearly different.

Your Lordships are hereby urged to compare the signatures

under section 108 of the Evidence Act.

8.28 Even though RW16 claimed that he did not make any deposition

apart from the one he adopted, the witness was late r shown

another witness statement on pages 150 -151 of Record of court

and the witness confirmed that the contents are the same, that the

name same but different signature. The witness then admitted

that it was his deposition but different signature. Your L ordships

are also invited to compare the s ignature on Exhibit 463, Exhibit

175(2) and that on the witness statement on pages 150 and 151 of

Record. See, Jegede vs. Citicon (2001) 4 NWLR (Pt. 702) 112 at

134 .

8.29 RW24: Ajayi Folorunso of Unit 1, Ward 9, Atakumosa West. The

testimony of RW24 is that he was the party agent for PDP at

Muroko polling unit in the election. He claimed that he was at his

polling unit from the beginning to the end of election. He further

31

claimed that votes were counted, recorded and announced in the

presence of the party agents present in his unit and that the

election was peaceful and orderly in his unit and was not

disrupted by anyone.

8.30 Under cross-examination by 4 th to 1365 t h Respondents, RW24

categorically stated that “ the result form was signed by I and AC

Party Agent”. However, the lack of credibility of RW24 became

glaring under cross-examination by Petitioners‟ Counsel when

RW24 initially stated that “AC Agent and I signed the result

sheet” but later stated that there we re two party agents of PDP at

the Polling Unit and it was one of them that signed the result

sheet. RW24 also contradicted his earlier test imony by stating

that he cannot remember if he signed but that the AC Agent

signed. Still contradicting himself, whe n the witness was

confronted with paragraph 7 of his witness statement where the

witness claimed that the election result was signed “by the party

agent of PDP and AC”, the witness then said what he meant was

that PDP Agent signed and AC Agent also went th ere but that he

cannot say whether the AC Agent signed.

8.31 Also, contrary to the statement in paragraph 7 of the witness

statement, RW24 said under further cross-examination that he did

not say AC Agent did not sign and that what he said was that he

did not know if the AC agent signed. In clear contradiction of

paragraph 7 of the witness statement is Exhibit 13 3(1), the

Certified True Copy of Form EC8A for Muroko unit which clearly

showed that party agent of AC did not sign the result sheet .

Another area of contradiction is that RW24 under cross-

examination had initially stated that PDP and AC scored votes in

the unit but later under further cross examination when he was

confronted with Exhibit 133(1) that no vote was recorded for AC

in the unit .

8.32 The falsehood of paragraph 6 of the witness statement became

clear as RW24 could not assert what happened about

32

announcement and scores of the parties as RW24 stated that he

went to PDP side and AC agent went to AC side after the

announcement and we both col lected the result of our respective

Parties. That he did not know the votes scored, that when PDP

votes was announced, PDP signed, that is mean one of us signed

but its along time he can‟t recollect who signed. And after the

announcement of AC votes the Party Agent of AC went to their

side, but he did not know how he signed. Incidentally , no votes

were recorded for AC on Exhibit 13(1), the Certified True Copy of

Form EC8A for Muroko unit. There is evidence in support of the

case of the Petitioners that the result was not announced, counted

and recorded on the Form EC8A at the unit. As can be seen for

example the votes recorded on Exhibit 133(1) for PDP is 327

whereas the number of voters on the register was 315. Incredibly

the witness claimed he cannot subtract or add figures of 315 – 327

and that he did not know which is higher.

8.33 RW37 claimed to be a PDP party agent in ward 14, Unit 9 located

at Obitikun-Oluoko and that AC also had a Party Agent called

Samuel Adedeji and that both of them were on grou nd

throughout the election period. Contrary to his assertion that he

was on ground throughout the election, under cross examination

by the Petitioner‟s Counsel he said he voted at Onile‟s compound

an entirely different unit from where he claimed to have ac ted as

polling agent. However, contrary to the claim of RW37, Exhibit

385(C) the voters register for Onile‟s compound debunked his

claim that he voted as his name was neither accredited nor ticked

as having voted on the register. He is certainly not a credible

witness.

8.34 RW49 is Oyewunmi Musliyu of Unit 03, Ward 5 in Odo Otin Local

Government. The testimony of RW49 is that he served as party

agent of the PDP at Unit 03, Ward 5 at St. Paul‟s Primary School,

Ekosin, for the Gubernatorial and House of Assem bly Elections

held on the 14 th April, 2007. He further claimed that votes were

33

counted publicly and entered into the INEC forms which all party

agents signed after which copies were given to them. He finally

stated that he submitted the copy of the result given to him to his

party. There is however, no support for the testimony of RW49

because, as among the Forms EC8A, result sheets certified by

INEC as used in the entire Odo Otin Local government, which

were mostly blank, there is none for the polling unit of RW49. See

Exhibits 217(1 – 73) and R18 tendered by the Petitioners and the

Respondents respectively. In the absence of producing the results

that he claimed that he signed and received, the testimony is

worthless and most unreliable.

8.35 RW50 claimed that he was the party agent of the PDP at Oke-Asa

polling Unit at Ward 9, Iree, Boripe Local Government. He stated

that throughout the voting period from 8.00 am to around 3.00

pm he was at the polling unit monitoring the election. He stated

at the conclusion of voting he went to the collation centre at

Baptist High School Iree from where he left for his house after the

collation of result at around 6.00 pm.

8.36 Contrary to the assertion by RW50 that he stayed throughout the

election period in the unit where he acted as polling agent , under

cross examination by counsel to the 1366 th – 1367 th respondent he

claimed to have gone back home upon collection of his own copy

of the result after election, we submit that this is a clear

contradiction of paragraph 6 of his deposition on oath where he

claimed to have gone to the collation centre and left for his home

at around 6.00 pm.

8.37 RW50 initially claimed to have signed below the Form EC8A but

when confronted that the signature ought to be at the right side

and not below, he then claimed that he did not know whether he

signed below or in the right. The veracity of his claims as to the

conduct of the election was punctured when he was confronted

with the fact that most of the units in Boripe had no EC8A, this

he denied but when asked for his own copy, he claimed to have

34

taken it to their party‟s collation agent at the collation centre and

neither his party nor INEC produced the same. In the absence of

producing the results that he claimed that he signed and

received, the testimony is worthless and most unreliable. See

Amgbare v. Sylva [2009] 1 NWLR (pt 1121) 1 . Further, the

witness who also claimed to have voted was confronted with the

voters register for the unit and his name was not even on the

register for the unit as shown in Exhibit 398(B).

8.38 RW57: The testimony of RW57 is that he was the PDP party agent

at ward 12, Unit 6 located at Jawo‟s Compound, Inisa. Under

cross examination, this witness claimed to be a party agent for

PDP. He claimed election was peaceful and further claim that one

Bode Abioye stood in for AC and that Bode refuse d to sign result

sheet at the end of the election without any reason. Under cross

examination he agreed to stand by the integrity of what he signed

but when his attention was however drawn to the discrepancy on

EC8A i.e R18(7) and voters register i .e. 373(E) he then attempted

to deny the result saying that it is INEC that should explain the

discrepancy. Unfortunately INEC never came to clear the issue of

discrepancies. Your Lordships are also invited to invoke Section

108 in observing the difference between the signature on the

deposition of the witness as contained in his deposition, Exhibit

R18(7), the alleged result sheet and Exhibit 468.

8.39 RW58 , Elder Soji Ojuade; The testimony of RW58 is that he was

the Party Agent for Peoples Democratic Party (PDP) at St. Peters

School Akiriboto polling unit . He claimed that the Baale of

Akiriboto I came to vote at his unit after which he went back to

his house. He stated that the Baale Akiriboto I , or any other Baale

neither lay siege at his polling unit nor intimidate d any voters to

vote for PDP in his unit. He claimed that votes were counted,

recorded and result announced at his unit in the presence of

Party Agents of PDP and AC after which himself and the AC

agent - Ademola Olatidoye went together to Ward 7 collation

35

centre at Oju Court, Gbongan. He stated that there was collation

at Ward 7 and the results were announced at the centre, Oju

Court, Gbongan and both he and the AC Agent s igned INEC

Forms at Collation Centre. Under cross examination, contrary to

paragraph 5 of his statement he admitted that he did not know

the destination of Baaale of Akiriboto. His signature on his

witness statement is clearly different from the signature of the

PDP agent on the EC8A [Exhibit 117(8)] . We humbly urge your

Lordship to invoke Section 108 of the Evidence Act. Further, Exh

117(8), the EC8A form did not contain the details of the Presiding

Officer and neither was it stamped nor signed by the Presiding

Officer.

8.40 RW59: The testimony of RW59 is that he was the PDP party agent

for Ward 11, Unit 007 located at St. Peter Anglican Church

premises Inisa He stated that he was at the polling unit until one

party agent, namely Odebunmi Tunji for Action Congress and

Awoniyi Gomez for Alliance for Democracy (AD). He claimed

that he duly signed Form EC8A as PDP party agent while

Awoniyi Gomez AD party Agent equally signed but the Action

Congress, Odebunmi Tunji refused to sign . Under cross

examination by INEC he reiterated the authenticity of his

Parapraph 2 but contrary to paragraph 2 of PW59‟s deposition,

Exhibit R18 (65) showed that Awoniyi Gomez did not sign the

result sheet for AD.

8.41 RW60: His name was Adeyemi Najeem. The testimony of RW60 is

that he was the PDP Party Agent at Ward 6, Unit 01 located at St

Gabriel Primary School, Oore in Odo Otin Local Government. He

further claimed that the result was recorded in Form EC8A which

was signed by the AC party agent and himself. He finally stated

that he followed the INEC officials and the security agent to the

collating centre. Under cross examination, reiterated that he was

the party Agent but contrary to the entire testimony of PW60,

Exhibit R18(35), the CTC for St Gabriel Primary School, Oore in

36

Odo Otin Local Government tendered by the 1 s t Respondent

showed that the witness name did not appear on the Exhibit as

PDP agent. Rather, it was one Adebiyi F.A that was on Exhibit

R18(35). This evidence clearly supports the claim of the

Petitioners

8.42 In view of the foregoing, i t is submitted that there is no rebuttal

evidence against cogent evidence of petitioners‟ witnesses that

elections were disrupted and there was no counting and

announcement of results at the Polling units and wards. See

Olusola Adeyeye v Simeon Oduoye & 711 Ors Petition No:

NA/EPT/OS/12/2007 delivered on Friday the 23 rd of May, 2008

page 24 -25 on this issue.

8.43 Further evidence in support of the allegations of non -counting,

announcement and recording of the votes can be illustrated b y

some other evidence.

8.44 There is the testimony of RW44, Taofeek Abioye Makinde from

Isokan Local Governmemt who claimed in his evidence -in-chief

that he was at the collation center at 6.00p.m and under cross -

examination RW44 claimed that he was the col lation agent for the

PDP at the Local Government and that he signed the result of the

election for Isokan Local Government but Exhibit 142, Form EC8C

the result for Isokan Local Government, showed that the witness

did not sign the result for the Local Gove rnment. The name of

PDP collation agent for the PDP on Exhibit 142 is Alh Olaniyi

Alabi .

8.45 Also, in the case of Odo Otin Local Government, as can be seen

from Exhibit 217 and RW18 tendered by the 1 s t to 3 rd Respondents

most of the forms EC8A certified by INEC are blank containing

no results. In Odo Otin Local Government, Your Lordships will

find that Exhibits 217 certified by INEC as results forms EC8A for

Odo Otin Local Governments are blank. Also, in Exhibit R18

tendered by the 1 s t to 3 r d Respondents as certified true copies of

EC8A for the same Odo Otin Local Government. Your Lordships

37

will find that many of the so-called results forms in Exhibit R18

are blank, partially clear and some that are clear are not stamped

by the Presiding Officer.

8.46 For examples of unreadable and blank result Forms EC8A from

Exhibits R18 tendered by the 1 s t to 3 rd Respondents, we humbly

refer to Exhibit R18(2), R18(11), R18(17), R18(19), R18(20),

R18(22), R18(24), R18(36), R18(39), R18,(42), R18(43), R18(49),

R18(56), R18(57), R18(58), R18(59) R18(73), R18(76), R18(81),

R18(82), R18(101), R18(105), R18(106) and R18(108).

8.47 Many of the forms EC8A were also not stamped and these include

Exhibit R18(9), R18(12), R18(14), R18(15), R18(16), R18(18),

R18(21), R18(23), R18(25), R18(26), R18(27), R18(28), R18(29),

R18(30), R18(31), R18(32), R18(33), R18(34), R18(35), R18(36),

R18(37), R18(38), R18(39), R18(40), R18(41), R18(42), R18(43),

R18(45), R18(46), R18(47), R18(48), R18(51), R18(52), R18(53),

R18(54), R18(55), R18(56), R18(61), R18(62), R18(63), R18(64),

R18(61), R18(72), R18(72), R18(74), R18(75), R18(77), R18(78),

R18(79), R18(80), R18(84), R18(86), R18(87), R18(88), R18(89),

R18(90), R18(93), R18(94), R18(107) and R18(107).

8.48 In Ife Central Local Government, in l ine with the pleading that

votes were not counted in the Polling Units and collated at the

wards and LGA Level, it was clear from Exhibit 97(1), 97(3),

97(4),97(4),97(7),97(8),97(9),97(10), 97(11) being the forms EC8B

for different 9(nine) Wards out of eleven wards in Ife Central

Local Government that it was one “Alhaji S.O.A. Nofiu” signed as

PDP agent for the nine wards. The same “Alhaji S.O.A. Nofiu”

also signed Exhibit 96, the form EC8C, the Ife Central Local

Government result. Under cross -examination, both RW29 and RW

42 stated that Alhaji S.O.A. Nofiu was the Secretary of the 3 rd

Respondent at Ife Central Local Government during the election.

There could not have been proper collation of results: Section

28(2)(b) of the Electoral Act, 2006; Agagu v Mimiko [2009] 7

NWLR (pt 1140) 342, 409-410.

38

8.49 In Agagu v Mimiko [2009] 7 NWLR (pt 1140) 342, 409 -410, the

Court have held that by virtue of section 74(1)(g) of the Evidence

Act, the court has the power to take judicial notice of

geographical division of the world and that in that case, the

tribunal rightly, without pleadings and evidence took judicial

notice of the boundary lines of wards and the distance between

one collation center and another and found that one of the

polling agents of the appellant‟s political party who signed Form

EC8B for three electoral wards that are several kilometers apart

could not have signed the forms at the ward collation centers

because the collation of results of electoral units into Form EC8B

was supposed to be done at the same time at different ward

collation centers. The Court of Appeal therefore held that the

Tribunal rightly nullified the results in the three wards.

8.50 Your Lordships are hereby urged to nullif ied the elections in the

following Wards; Ilare 1, Ilare II I, Ilare IV, Iremo/Ajebandele,

Iremo III, Iremo IV, Iremo V, Akarabata and Moore Ojaja and Ife

Central Local Government affected by the serious irregularities:

Agagu v Mimiko [2009] 7 NWLR (pt 1140) 342, 409 -410.

8.51 Also, from PW81 which emanated from the orders of inspection

granted by the Tribunal there is unrebutted evidence to the effect

that:

“Upon demand by us, Electoral Officers of the following

seven local governments said there were no forms EC8A in

the custody of INEC and no such Forms EC8A w ere

produced by INEC for inspection and certification for a

total of 114 polling units across Seven of the Local

Government Areas to wit: Atakunmosa West Local

Government - 6 Polling Units; Boluwaduro Local

Government- 3 Polling Units; Boripe Local Government -

72 Polling Units - Ife Central Local Government - 11

Polling Units; Ifedayo Local Government - 4 Polling Units

39

- Ife East Local Government - 4 Polling Units; Ife South

Local Government - 14 Polling Units.

8.52 Exhibit 451 contained the breakdown of his findings.

8.53 It is further submitted that massive discrepancies between the

total votes recorded on the forms EC8A relative to the actual

ballot papers counted in court and tendered as Exhibits support

the case of the Petitioners that the result did not emanate from

the process of a concluded and credible election. Some

illustrations will be given here:

8.54 Atakunmosa Local Government: In Methodist Primary School,

Oke Oja – Osu Polling Unit , 550 ballot papers were recorded as

used on form EC8A (Exhibit 126(1)) but 596 ballots papers were

tendered for the same unit (Exhibit 304A (1 – 596)) leaving an

excess of 46 ballot papers.

8.55 In Atakunmosa Local Government: Comm Grammar School, Ibodi

Polling Unit , 719 ballot papers were recorded as used on for m

EC8A (Exhibit 129(1)) but 454 ballots papers were tendered for

the same unit (Exhibit 303(a) (1 – 454)) leaving a deficit of 265

ballot papers.

8.56 In Ayedaade Local Government: St Peter School, Oke Apata,

GbonganPolling Unit , 500 ballot papers were recorded as used on

form EC8A (Exhibit 112(1)) but 335 ballots papers were tendered

for the same unit (Exhibit 291(a) (1– 335)) leaving a deficit of 135

ballot papers.

8.57 In Ayedaade Local Government: Court Hall, Customary Court

Polling Unit , 428 ballot papers were recorded as used on form

EC8A (Exhibit 113(1)) but 960 ballots papers were tendered for

the same unit (Exhibit 293(a) (1 – 960)) leaving an

excess of 532 ballot papers.

8.58 In Ife East Local Government: Ife City College II, I lesha Road

Polling Unit, 400 ballot papers were recorded as used on form

EC8A (Exhibit 201) but 355 ballots papers were tendered for the

40

same unit (Exhibit 334(b) (1 – 400)) leaving a deficit of 45 ballot

papers.

8.59 In Ife East Local Government : St Gabriel Primary School II, Moore

Polling Unit , 900 ballot papers were recorded as used on form

EC8A (Exhibit 201) but 811 ballots papers were tendered for the

same unit (Exhibit 334(d) leaving a deficit of 89 ballot papers.

8.60 In Ife South Local Government: St Luke Pry School, Boluwaduro

Polling Unit , 250 ballot papers were recorded as used on form

EC8A (Exhibit 160(5)) but 171 ballots papers were tendered for

the same unit (Exhibit 324(e) leaving a deficit of 79 ballot papers.

8.61 In Boluwaduro Local Government: Town Hall

Polling Unit , 330 ballot papers were recorded as used on form

EC8A (Exhibit 184(1) but 198 ballots papers were tendered for the

same unit (Exhibit 345(a) leaving a deficit ballot papers.

8.62 In Boluwaduro Local Government: Obada Market Square Polling

Unit, 260 ballot papers were recorded as used on form EC8A

(Exhibit 184(2)) but 138 ballots papers were tendered for the same

unit (Exhibit 345(b) leaving a deficit of 122 ballot papers.

8.63 In Ife Central Local Government: Moremi High School

Polling Unit , 432 ballot papers were recorded as used on form

EC8A (Exhibit 98(4) but 481 ballots papers were tendered for the

same unit (Exhibit 284(d) leaving an excess of 49 ballot papers.

8.64 In Ife Central Local Government; Si juade Nursery and Primary

School Polling Unit , 485ballot papers were recorded as used on

form EC8A (Exhibit 98(6) but 314 ballots papers were tendered

for the same unit (Exhibit 284(f) leaving a deficit of ballot papers.

8.65 In Odo Otin Local Government; In Front of Adebomi Family

House, Okuku Polling Unit , 500 ballot papers were recorded as

used on form EC8B (Exhibit 216(2) but 63 ballots papers were

tendered for the same unit (Exhibit 274(a) leaving a deficit

of 437 ballot papers.

8.66 In Ifedayo Local Government; Asaoye Village Polling units

Polling Unit, 150 ballot papers were recorded as used on form

41

EC8A (Exhibit 188) but 30 ballots papers were tendered for the

same unit (Exhibit 346(d) leaving a deficit of 120 ballot papers.

8.67 These discrepancies ocuured in about 511 polling units in the ten

local governments. See ANNEXURE BD1 which is part of this

address for polling units by polling units‟ evidence of the

discrepancies in the quantity of ballot papers counted in court

and tendered as Exhibits and the total number of ballot pape rs

recorded as used on Forms EC8A.

8.58 Further, no ballot papers were count ed and tendered as exhibits

about 124 polling units. See ANNEXURE BD2 which is part of

this address for polling units by polling units‟ l ist of these units.

8.59 It is pertinent to submit that in INEC v Oshiomole [2009] 4

NWLR (pt 1132) 607 at 662-665 , one of the main reasons for

holding that Senator (Prof) Osunbor was not elected by lawful

majority vote was because the ballot papers brought by INEC

before the Tribunal did no tally with the figures on the result

sheet.

8.60 It is also important to note that the 4 t h to 1365 th respondents who

are the electoral officers that ought to count and announce the

results at the units, wards and collation centres, chose not to call

any rebuttal evidence.

Discrepancies in Votes Recorded for 1 s t Respondent on EC8A relative

to votes recorded in EC8B

8.61 There is also evidence of discrepancies in the votes recorded on

the EC8A for the 1 s t Respondent and the corresponding votes

recorded of the EC8B. Some illustrations are as follows:

IFE CENTRAL Local Government:

8.62 ILARE 1: On Form EC8A (EXH 98(1))for Oluorogbo High School

Unit, 394 votes were recorded for PDP but on EXH 97(1) the Form

EC8B for the Ward, 700 votes were recorded for PDP. On Form

EC8A (EXH 98(2)) for Idi-Obi polling Unit, 453 votes were

recorded for PDP but on EXH 97(1) the Form EC8B for the Ward,

520 votes were recorded for PDP. On Form EC8A (EXH 98(3)) for

42

Ope-Olu Hospital Unit, 151 votes were recorded for PDP but on

EXH 97(1) the Form EC8B for the Ward, 260 votes were recorded

for PDP. On Form EC8A (EXH 98(4)) for Moremi High School

Unit, 406 votes were recorded for PDP but on EXH 97(1) the Form

EC8B for the Ward, 430 votes were recorded for PDP. On Form

EC8A (EXH 98(7)) for the Frontage of Adeyera House Unit, 142

votes were recorded for PDP but on EXH 97(1) the Form EC8B for

the Ward, 300 votes were recorded for PDP. On Form EC8A (EXH

98(8)) for Open space Igboya (opp. Catholic Church)

Unit, 263 votes were recorded for PDP but on EXH 97(1) the Form

EC8B for the Ward, 265 votes were recorded for PDP. On Form

EC8A (EXH 98(12)) for Open space Adedeji Street Unit, 242 votes

were recorded for PDP but on EXH 97(1) the Form EC8B for the

Ward, 272 votes were recorded for PDP.

8.63 ILARE II: On Form EC8A (EXH 99(3)) for Irebami Line 1 Unit, 200

votes were recorded for PDP but on EXH 97(2) the Form EC8B for

the Ward, 270 votes were recorded for PDP. On Form EC8A (EXH

99(4)) for Irebami Line 1A Unit, 272 votes were recorded for PDP

but on EXH 97(2) the Form EC8B for the Ward, 28 votes were

recorded for PDP. On Form EC8A (EXH 99(9)) for Ajegunle Line

1(back of Arewa House) Unit, 162 votes were recorded for PDP

but on EXH 97(2) the Form EC8B for the Ward, 624 vot es were

recorded for PDP.

8.64 ILARE III: On Form EC8A (EXH 100(2)) for Akodi Wakesin Unit,

200 votes were recorded for PDP but on EXH 97(3) the Form EC8B

for the Ward, 307 votes were recorded for PDP. On Form EC8A

(EXH 100(3)) for Ooni Ilare 1 Unit, 54 vo tes were recorded for

PDP but on EXH 97(3) the Form EC8B for the Ward, 69 votes were

recorded for PDP. On Form EC8A (EXH 100(4)) for Ooni Ilare II

Unit, 262 votes were recorded for PDP but on EXH 97(3) the Form

EC8B for the Ward, 390 votes were recorded fo r PDP. On Form

EC8A (EXH 100(5)) for Akodi Akeran Unit, 702 votes were

recorded for PDP but on EXH 97(3) the Form EC8B for the Ward,

43

774 votes were recorded for PDP. On Form EC8A (EXH 100(6)) for

Akodi Gbuede Unit, 335 votes were recorded for PDP but on E XH

97(3) the Form EC8B for the Ward, 375 votes were recorded for

PDP. On Form EC8A (EXH 100(7)) for Akodi Olubuse Unit, 670

votes were recorded for PDP but on EXH 97(3) the Form EC8B for

the Ward, 941 votes were recorded for PDP. On Form EC8A (EXH

100(8)) for Akodi Obadio Unit, 165 votes were recorded for PDP

but on EXH 97(3) the Form EC8B for the Ward, 242 votes were

recorded for PDP.

8.65 ILARE IV: On Form EC8A (EXH 101(8)) for A.U.I. Pry. Sch.

Olaolu Unit, 181 votes were recorded for PDP but on EXH 97(4)

the Form EC8B for the Ward, 240 votes were recorded for PDP.

On Form EC8A (EXH 101(14)) for Open Space Igbo -Agbo Unit,

245 votes were recorded for PDP but on EXH 97(4) the Form EC8B

for the Ward, 250 votes were recorded for PDP.

8.66 IREMO AJEBANDELE: On Form EC8A (EXH 101()) for Awolowo

Hall, O.A.U. Unit, 229 votes were recorded for PDP but on EXH

97(5) the Form EC8B for the Ward, 2292 votes were recorded for

PDP. On Form EC8A (EXH 101()) for O.A.U. Quarters (2 nd Bus-

stop) Unit, 970 votes were recorded fo r PDP but on EXH 97(5) the

Form EC8B for the Ward, 972 votes were recorded for PDP.

8.67 IREMO III: On Form EC8A (EXH 103(1)) for Akodi Obalaye

Ajupepe Unit, 355 votes were recorded for PDP but on EXH 97(7)

the Form EC8B for the Ward, 407 votes were record ed for PDP.

On Form EC8A (EXH 103(3)) for Recreation Club Unit, 231 votes

were recorded for PDP but on EXH 97(7) the Form EC8B for the

Ward 301 votes were recorded for PDP. On Form EC8A (EXH

103(14)) for Open space London Street Unit, 455 votes were

recorded for PDP but on EXH 97(7) the Form EC8B for the Ward,

479 votes were recorded for PDP. On Form EC8A (EXH 103(15))

for Akodi Latale Unit, 264 votes were recorded for PDP but on

EXH 97(7) the Form EC8B for the Ward 284 votes were recorded

for PDP.

44

8.68 IREMO IV: On Form EC8A (EXH 104(2))for Akodi Akui Unit,

1352 votes were recorded for PDP but on EXH 97(8) the Form

EC8B for the Ward, 1382 votes were recorded for PDP. On Form

EC8A (EXH 104(9)) for Open space (opp. Sule Amao‟s House)

Unit, 112 votes were recorded for PDP but on EXH 97(8) the Form

EC8B for the Ward, 177 votes were recorded for PDP.

8.69 IREMO V: On Form EC8A (EXH 105(2)) for Akodi Asarogun Unit,

107 votes were recorded for PDP but on EXH 97(9) the Form EC 8B

for the Ward, 137 votes were recorded for PDP. On Form EC8A

(EXH 105(5))for Akodi Abewela Unit, 148 votes were recorded

for PDP but on EXH 97(9) the Form EC8B for the Ward 178 votes

were recorded for PDP. On Form EC8A (EXH 105(8)) for St.

Michael Pry. Sch. Ogbonagbara Unit, 23 votes were recorded for

PDP but on EXH 97(9) the Form EC8B for the Ward, 223

votes were recorded for PDP.

8.70 AKARABATA: On Form EC8A (EXH 106(1))forAkarabata Line 1

Unit 445 votes were recorded for PDP but on EX H 97(10) the

Form EC8B for the Ward, 821 votes were recorded for PDP. On

Form EC8A (EXH 106(2)) for Akarabata Line 2 Unit, 289 votes

were recorded for PDP but on EXH 97(10) the Form EC8B for the

Ward, 389 votes were recorded for PDP. On Form EC8A (EXH

106(4)) for the Frontage of L.I.E. Unit, 387 votes were recorded

for PDP but on EXH 97(1) the Form EC8B for the Ward, 955 votes

were recorded for PDP. On Form EC8A (EXH 106(6)) for L/G

Mini Market Unit, 197 votes were recorded for PDP but on EXH

97(10) the Form EC8B for the Ward, 200 votes were recorded for

PDP. On Form EC8A (EXH 106(8)) for the Frontage of Isawunmi

Unit, 169 votes were recorded for PDP but on EXH 97(1) the

Form EC8B for the Ward, 214 votes were recorded for PDP. On

Form EC8A (EXH 106(9)) for the Frontage of Lennards Unit, 281

votes were recorded for PDP but on EXH 97(10) the Form EC8B

for the Ward, 381 votes were recorded for PDP. On Form EC8A

(EXH 106(10)) for the Frontage of Little by Little Unit, 300 votes

45

were recorded for PDP but on EXH 97(10) the Form EC8B for the

Ward, 356 votes were recorded for PDP. On Form EC8A (EXH

106(11)) for S.D.A. Pry. Sch. Unit, 141 votes were recorded for

PDP but on EXH 97(10) the Form EC8B for the Ward 441 votes

were recorded for PDP.

8.72 MOORE OJAJA: On Form EC8A (EXH 107(16)) for Ido Street

Unit, 306 votes were recorded for PDP but on EXH 97(11) the

Form EC8B for the Ward, 430 votes were recorded for PDP. On

Form EC8A (EXH 107(18)) for Moore Unit, 339 votes were

recorded for PDP but on EXH 97(11) the Form EC8B for the Ward,

530 votes were recorded for PDP. On Form EC8A (EXH 107(15))

for King Solomon Unit, 6 votes were recorded for PDP but on

EXH 97(11) the Form EC8B for the Ward, 20 votes were recorded

for PDP. On Form EC8A (EXH 107(14)) for Ereola Club Un it, 104

votes were recorded for PDP but on EXH 97(11) the Form EC8B

for the Ward, 180 votes were recorded for PDP. On Form EC8A

(EXH 107(13)) for Alakowe Open Space Unit, 90 votes were

recorded for PDP but on EXH 97(11) the Form EC8B for the Ward,

150 votes were recorded for PDP. On Form EC8A (EXH 107(12))

for Opa Area Unit, 459 votes were recorded for PDP but on EXH

97(11) the Form EC8B for the Ward, 710 votes were recorded for

PDP. On Form EC8A (EXH 107(10)) for Ikoyi Quarters (St. Gabriel

Pry. Sch.) Unit , 189 votes were recorded for PDP but on EXH

97(11) the Form EC8B for the Ward, 250 votes were recorded for

PDP. On Form EC8A (EXH 107(11)) for Ife City Bus -stop Unit, 33

votes were recorded for PDP but on EXH 97(11) the Form EC8B

for the Ward, 405 votes were recorded for PDP. On Form EC8A

(EXH 107(9)) for Ifedapo Unit, 191 votes were recorded for PDP

but on EXH 97(11) the Form EC8B for the Ward, 400 votes were

recorded for PDP. On Form EC8A (EXH (107)(8))for open space

Alaba-nla Beside Total Filling Station Unit, 1074 votes were

recorded for PDP but on EXH 97(11) the Form EC8B fo r the Ward,

1470 votes were recorded for PDP. On Form EC8A (EXH 107(7))

46

for Fajuyi Road (Coca-cola bus-stop) Unit, 937

votes were recorded for PDP but on EXH 97(11) the Form EC8B

for the Ward, 1235 votes were recorded for PDP. On Form EC8A

(EXH 107(6)) for Opp. Papa Owoyomi Unit, 149 votes were

recorded for PDP but on EXH 97(11) the Form EC8B for the Ward,

310 votes were recorded for PDP. On Form EC8A (EXH 10 7(5))for

Opp. Police Station, Moore ojaja line 1 Unit, 252 votes were

recorded for PDP but on EXH 97(11) the Form EC8B for the Ward,

405 votes were recorded for PDP. On Form EC8A (EXH 107(4)) for

Ido Osun Unit, 194 votes were recorded for PDP but on EXH

97(11) the Form EC8B for the Ward, 374 votes were recorded for

PDP. On Form EC8A (EXH 107(3)) for Moore street (Akodi Luga)

Unit, 101 votes were recorded for PDP but on EXH 97(1) the Form

EC8B for the Ward, 400 votes were recorded for PDP. On Form

EC8A (EXH 107(2)) for Agbedegbede Unit, 20 votes were recorded

for PDP but on EXH 97(11) the Form EC8B for the Ward, 220 votes

were recorded for PDP. On Form EC8A (EXH 107(1)) for Ife City

Hall Area (Ile Araba Agbaye) Unit, 173 votes were recorded for

PDP but on EXH 97(11) the Form EC8B for the Ward, 310

votes were recorded for PDP.

8.73 IFE SOUTH L/G: IKIJA: On Form EC8A (EXH 98(1)) for Ikija -

Ifetedo Unit, 29 votes were recorded for PDP but on EXH 159(2)

the Form EC8B for the Ward, 89 votes were re corded for PDP.

8.74 AYEDAADE L/G: OTUN OLUFI WARD: On Form EC8A (EXH

98(1))for Maternity Centre, Ajegunle Oke- Elutu Unit, 33 votes

were recorded for PDP but on EXH 110(4) the Form EC8B for the

Ward, 133 votes were recorded for PDP. GBONGAN RURAL

WARD: On Form EC8A (EXH 98(1)) for Akinjepo Village Unit,

130 votes were recorded for PDP but on EXH 110(7) the Form

EC8B for the Ward, 136 votes were recorded for PDP.

8.75 ISOKAN L/G: OLUKOYI (OJA-OSUN): On Form EC8A (EXH

144(4)) for Olode ori-oke Unit, 342 votes were recorded for PDP

but on EXH 143(1) the Form EC8B for the Ward, 350 votes were

47

recorded for PDP. AWALA 1 On Form EC8A (EXH 153(6) for ADC

school Orita marun Unit, 226 votes were recorded for PDP but on

EXH 143(10) the Form EC8B for the Ward, 232 vo tes were

recorded for PDP. Fom this illustrative documentary evidence of

illegal recording of votes on Forms EC8B, Your Lordships will

have no difficulty in finding that the alleged results posted in

favour of the 1 s t Respondent are unlawful votes.

Absence of Voters Register

8.76 One variety of non-compliance with the Electoral Act which

forms a major plank of the petitioners‟ case is that voters

registers were not made available at many polling units and even

where they were, an examination of them will show as we have

demonstrated in a review of the evidence of the witnesses that

the names of many of the witnesses of the respondents who

claimed to have voted are not borne out by the registers. Their

names were not ticked and the only conclusion from th is is that

they did not vote.

8.77 The evidence concerning Boripe Local Government is even very

grim. PW9 under cross-examination by the 1 s t – 3 rd respondents‟

counsel inter alia maintained that there was no accreditation

before voting in his ward due to the absence of voters‟ register.

He is from Ward 1 of Boripe Local Government. He stated that

the INEC office was burnt prior to the elections, and names of

voters were merely written on pieces of paper during the election

which aided multiple voting. PW12 testified in the same vein as

PW9. He is from Ward 6.

8.78 Your lordship would take judicial notice of the order inspection

granted the petitioners to inspect all electoral documents

purportedly used for the conduct of the April 14 th 2007

Governorship election. In furtherance of these order, the

petitioners deployed enough manpower to carry out the court

order. The petitioners also obtained Certified True Copies of all

48

documents made available by INEC all of which were tendered

and admitted as Exhibit .

8.79 However, as your lordships record will show, INEC never made

available Voters Register for the entire unit in 7 Wards Boripe Local

Governments and the 4 t h respondent has not come to lead

contradictory evidence that the documents were made available to the

petitioners and this goes to support the pleadings of the petitioners in

paragraph 27.3 and 62 where the petitioners specifically alleges that in

Boripe Local Government there were no voters register upon which a

credible election could hold.

8.80 The 7 Wards in Boripe Local Government where no voters register

were not produce for the entire units are as follows; Oloti Iragbiji

Ward (7 Units), Oja Oba Ward (6 Units), College/Egbeda Road Ward

(10 Units), Isale-Oyo Ward (6 Units), Agba Ward (8 Units) , Ororuwo

Ward (5 Units), Ada I Ward (6 Units), and Ada II Ward (8 Units).

Another crucial evidence in support of the case of the Petitioners

pleaded in paragraph 27.3 and 62 is in Exhibit 92(1 -2), Form EC8D. On

Exhibit 92(1), the total number of registere rd recorded for Boripe

Local Government is 12, 631 but the vote recorded for the 1 s t

Respondent alone on Exhibit 92(1) is 14, 497 and the total vote cast

recorded on Exhibit 92(1) is 14, 839. This evidence also support the

case of the Petitioners that result were just arbitrarily recorded.

8.81 Now, the 4 t h to 1365 t h respondents who have custody of Voters

Registers did not testify to debunk the evidence of PW9 or produce the

voters‟ registers for most of the ward s of Boripe Local Government.

The importance of voters registers to a valid election has been

pronounced upon in several cases.

8.82 The Court of Appeal per Akaahs JCA in Uweke v. Ejims (1999) 11

NWLR (Pt. 625) 39 at 53 stated the law as follows:

“I also agree that a person cannot vote until he has b een

accredited and it is the stamping of the voter‟s card and the

marking of the electoral register that proves that the

accreditation did in fact take place. Where the electoral

register is not so marked but votes are returned for the

particular voting unit it will be safe to conclude that such

votes were not obtained through the due electoral process.

Where therefore the voters register had no marking but

Forms EC8A or EC8A(1) are

49

produced showing scores, such scores can be excluded

from the valid votes scored by a candidate at the election.”

8.83 Recently again in the case of Fayemi v. Oni (2009) 7 NWLR (Pt.

1140) 223 at 287 C-E where the same non-compliance was relied

upon the Court of Appeal restated the law in the following

words:

“Unlike other species of non-compliance which effect on the

results of the election must be separately proved by the

petitioner, non-compliance arising from non accreditation

of voters is so fundamental and the effect it has on the result of

the election lies in the facts of its occurrence. You must have an

election lawfully so-called to be able to talk of the results of

that election. Election results ensue from lawful votes cast by

voters in a manner recognised by the law. The appellant in the

instance case had pleaded at paragraph 37(1) thus:

“That the 1 s t respondent was not duly elected by a majority of

lawful votes cast at the election.”

An election that proceeded without accreditatio n of voters does

not allow for the casting of lawful votes and any person elec ted

on the basis of votes cast by voters who had not been

accredited cannot be said to have been duly elected. The

election is voided ab initio and does not allow for the

emergence of any result.”

8.84 The petitioners herein just as the petitioner in t he Fayemi case

(supra) rely on the pleading at paragraph s 15 of their petition

“that the 1 s t respondent was not duly elected by a majority of

lawful votes.” An election in which pieces of papers rather than

voters registers were used or where voters na mes were not ticked

in voters register cannot on these authorities be held to be lawful

election. In other words, the 1 s t respondent cannot be said to

have been elected by a majority of lawful votes.

8.85 It is submitted further that with the cogent evide nce called by the

petitioners, the burden shifted to the 4 th to 1365 th respondents to

establish that contrary to the petitioner‟s case, the ir presiding

50

officers, ward returning officers and LGA returning officers did

carry out their lawful duty of counting and announcing results at

the Unit, ward collation level and LGA level.

8.86 It is trite that burden of proof is not static and once a party has

led credible evidence in respect of a matter, the burden shifts to

the other party and failure by that party to call rebuttal evidence

will lead to judgment against it : See Amgbare v. Sylva [2009] 1

NWLR (pt 1121) 1.

8.87 It is submitted that all these allegations in the paragraphs

mentioned above were made against INEC (i.e. 3 r d – 148 th

Respondents) presupposing that elections were not properly held

in accordance with the provisions of the Electoral Act, 2006 and

consequently, the Petitioner led evidence (both oral and

documentary) in proof of the said allegations mentioned in the

said paragraphs thereby shifting the onus of proof to INEC: Ukpo

v Imoke [2009] 1 NWLR (pt 1121) 90 at 175 .

8.88 The fact that INEC failed to adduce evidence in proof of its

pleadings (in which they denied the allegations made against it

by the Petitioner) obviously shows that there is sufficient basis

for the nullification of the results in the ten local governments as

was done in the case of Amgbare v. Sylva [2009] 1 NWLR (pt

1121) 1.

8.89 We therefore submit that INEC must be deemed to have admitted

the Petitioners pleadings, namely:

8.89.1 that there was no counting of votes and non

announcement of results at the polling units in the 10

contested local government areas

8.89.2 that election were not conclusive, votes were not

counted, result were not recorded in most polling

stations.

9.89.3 Electoral materia ls such as ballot papers and ballot

boxes were snatched, seized and later stuffed with

51

illegal ballot papers thumb printed in favour of the 1s t

Respondent ;

8.89.4 Such ballot boxes with already thumb printed ballot

papers were later returned and forcefully deposited at

the collation centers and counted as valid votes;

8.89.5 that those ballot/scores were illegally recorded on Form

EC8A and eventually announced in favour of the 1s t

Respondent outside the polling units

8.89.6 that elections were held without recourse to voters register

and proper accreditation particularly in Boripe Local

Government Area.

8.91 We submit that the counting of votes cast and the announcement

of the results by the presiding officers at the pollin g stations is a

fundamental rule in the process of election and its principles.

8.92 If as in this case, there is uncontradicted, unchallenged and

unrebutted evidence that the votes were not counted nor results

announced at the polling station by the 4 th – 1365 th Respondents,

there can be no doubt that this failure and non-compliance has

substantially affected the result of the election in the affected

ten local governments.

8.93 The pertinent question to ask is what then is the effect of the

breach of the provision of the Act resulting in an election not

been conducted substantially in accordance with the principle s of

the Act?

8.94 Or put in another way what option is open to an election tribunal

where a petitioner has put before it unrebutted evidence of non-

compliance?

8.95 The answer to this all important question has been answered by

the Court of Appeal in Ajadi v Ajibola (supra) in the following

words:

“Once an election tribunal finds that there is non -compliance

with the law in respect of election in certain areas, votes cast in

such areas are to be cancelled” (Emphasis supplied)”

52

Further Acts Constituting Unlawful Votes

8.96 In the case of Iwu v Nwugo (2004) 9 NWLR (Pt. 877) 54 at 57 , the

Court of Appeal held that a case would have been made by virtue

of (Section 134(1)(c) of the Electoral Act 2002) (which is in pari

materia with Section 145(1)(c) of the Electoral Act 2006) for the

application of this section where it is established that an election

was tainted with alleged wanton acts of cheating, imp ersonation,

violence, obstruction and cancellation of election.

8.97 In other words, where it is established as required by law that an

election is tainted with acts of cheating, violence, obstruction,

gross irregularities or impersonation etc a Petitioner would have

made a case that the votes cast at such an election are not lawful

votes. Adeniji , JCA illuminated the matter as follows:

“With regards to paragraph 4(a) of the petition that is that

the 1st Respondent was not duly elected by a majority of

lawful votes cast at the election… the Appellant hinged his

claim on paragraph 7(a) i -v and (b) of the petition. The said

paragraph reads: (7) the entire purported election of 3 r d

May, 2003 in Ihile/Uboma was substantially marred by

gross electoral irregularit ies and violence”

8.98 The Court of Appeal then went ahead at page 70 per Adeniji JCA

to pronounce on the nexus between unlawful votes and votes

obtained amid violence and/or cheating in these words:

“One would see at a glance that if the facts supplied i n

those paragraphs are true, then a case would have been

made for the application of section 134(1)(c) of the

Electoral Act, 2002 (now section 145(1)(c) of the Electoral

Act, 2006) for such election would have been tainted with

the alleged wanton acts of cheating, obstruction,

cancellation of election etc …”

8.99 Also, in the case of Onoh v Okey (1999) 5 NWLR (Pt 602) 240 at

248 the Court of Appeal held as follows:

“With the evidence of massive electoral malpractices and

offences that characterized the elec tion in this case, can it

53

be safely said that the election was so conducted as to be

substantially in accordance with the Local Government

(Basic Constitutional and Transitional Provisions) Decree

No. 36 of 1998? I think not. There is evidence of an ugly

incident at 3 corner polling unit in Effraya Ward where

one Ebuta Ojong fired a gun in the air and carried away

the voting materials including the ballot boxes in his car.

Voting thereat was completely disrupted. The story of the

incident at Ayork 1 polling unit in Bendeghe Ekiem Ward

was not different. There one Awunghe Agbor, an agent of

the All Peoples Party to which the 1 s t Appellant belongs

hijacked the ballot box and gave it to Ayuk Ntui, the APP

Vice Chairman candidate and running mate of the 1 s t

Appellant, who broke the same on the floor. Voting

materials were vandalized. The same thing happened at

Agbor Oru polling unit of Bendeghe Ekiem Ward. There

was indeed widespread violence and intimidation in most

of the wards in the Local Government Area that made the

election not fair and free and in accordance with Decree

No. 36 of 1998”.

8.100 The recent decision of the Court of the Court of Appeal in Agagu

v Mimiko (2009) 7 NWLR (pt 1140) 342 at 401 FGH is very

instructive. The Court held as follows:

“On the complaint of allegations of violence, rigging and

other malpractices, which learned senior counsel said

were criminal in nature, and which needed to be proved

beyond reasonable doubt, the petitioner who makes

criminal allegations in an election petition but claims he

won the majority of lawful votes in that election will still

be entitled to his relief even when he fails to prove the

crime alleged beyond reasonable doubt, as long as he

succeeds in proving civil, allegations, which amount to

non-compliance with the Electoral Act. See Omoboriowo v

Ajasin (1984) 1 SCNLR 108 at 152-153.

54

8.101 In line with the above judicial authorities, it is the Petitioners‟

case that the 1 s t Respondent was not duly elected by majority of

lawful votes cast at the election; t hat the results announced by

the 4 th Respondent for 10 local governments namely: Atakumosa

West, Ayedaade, Boluwaduro, Boripe, Ife Central, Ife East, Ife

South, Ifedayo, Isokan and Odo -Otin Local Government Areas are

not and do not represent results of the lawful and valid votes

cast thereat and that the purported elections in the said local

government areas were vitiated by substantial non -compliance

with the mandatory requirements of the Electoral Act, 2006.

8.102 It was also the Petitioners‟ case that no election was conducted in

several polling stations and wards in the said local government

areas and that in few areas where elections were held, the

elections were marred by violence; that the elections were

inconclusive, votes were not counted and resu lts were not

recorded in Forms EC8A and were not announced in most polling

stations and wards. Also that already multiple thumb printed

ballot papers were forcefully deposited at collation centers and

counted as valid votes and were illegally recorded on Form EC8A

and eventually announced in favour of the 1 s t Respondent.

8.103 The Petitioners also allege that there were general cases of

multiple thumb printing of ballot papers, ballot -snatching and

stuffing by agents of the 1 s t to 3 rd Respondents, and that all the

widespread disruptions, irregularities and/or malpractices

referred to in the petition were done with the express and/or

implied consent, authority or instruction of the 1 s t , 2nd and 3 rd

Respondents acting severally or in concert.

8.104 We urge the Tribunal to hold itself bound by the said reasoning

and judgment of the Court of Appeal and to use same in

considering and determining the issue of cancellation of the votes

and nullification of the election in the said ten local government

areas.

55

Burden and Standard of Proof

9.1 It is trite by virtue of the provisions of Sections 135 and 136 of

the Evidence Act that the burden of proving the existence of any

fact is on the party who asserts it . This is because he who asserts

must prove. In a civil case such as this case, the petitioner has the

primary burden of establishing the facts he relies upon in support

of his case.

9.2 Also in Section 137 of the Evidence Act the burden of first

proving the existence of a fact in a civil case lies on the party

against whom the judgment of the court would be given if no

evidence at all or no further evidence is produced on either side,

regard being had to any presumption that may arise from

pleadings. If such a party adduces evidence which is acceptable

and establishes a prima facie case; then the burden shifts on to

the other party against whom judgment would be given if no

more evidence is adduced and so on until all the issues in the

pleadings are dealt with. That essentially is what is meant when a

civil suit is said to be decided on preponderance of evidence or

balance of probabilities.

9.3 It is also submitted that allegations bordering on criminal

allegation is to be proved beyond reasonable doubt; Section 138

of the Evidence Act . However, it has been held in Agagu v

Mimiko [2009] 7 NWLR (pt 1140) 342 at page 401, where a

petitioner makes criminal allegations in his election petition but

claims that he won majority of lawful votes in the election, he

will still be entitled to his relief even when he fails to prove the

crime beyond reasonable doubt as long as he succeeds in proving

civil allegations which amounts to non-compliance with Electoral

Act.

9.4 Furthermore, contrary to the contentions of the Respondents (Se e

paragraph 5.04 to 5.08 and paragraph 5.44, to 5.47 of the Written

Address of the 1 s t to 3 rd Respondents and paragraph 12-15 of the

Written Address of the 4 th to 1365 th Respondents), it is not true

56

that all the allegations in th is Petition are criminal in nature for

which the standard of proof is beyon d reasonable doubt.

9.5 There are two kinds of allegations arising from the Petition. One,

are allegations that are civil in nature as they complain about

non-compliance with the mandatory provisions of the Electoral

Act, 2006 on the conduct of a valid election while the second set

of allegations are those that may be said to involve criminal acts.

9.6 For the first set of allegations that are civil in nature as they

relate to complaining on non-compliance with the mandatory

provisions of the Electoral Act , 2006 in the conduct of a valid

election, see paragraphs 18, 20, 23, 24, 27.2,27.3, 29.d, 41, 42.d, 51,

, 52.d, 71, 59, 61, 62.d, 88.d &f, 95, 96, 97.d, 104, 105.d, 115,119,

116.e, 131, 132, 133.d, 148, and 151.2. of the Petition.

9.7 The allegations in the said paragraphs of the Petition bothering

on non-compliance with the provisions of the Electoral Act like

non-counting of votes, non announcement of results and non -

recording of election results on the relevant electoral forms at the

unit, ward and local government levels, absence of voters

register, failure to declare end of poll and that Conduct of the

election was marred by widespread irregularity resulting in

substantial non-compliance with the mandatory provisions of the

Electoral Act in particular Sections 28, 63(1)-(2), 64 (1)-(4), 66 and

75 (See also paragraph 151.2 of the Petition), are allegations

which require prove on the balance of probabilities: See Section

137 of the Evidence Act .

9.8 In INEC v Oshiomole [2009] 4 NWLR (pt 1132) 607 at 670 -671, it

was held that the standard of proof of a petitioner who alleg e

that there has been non-compliance with Electoral Act is on the

preponderance of evidence. This is because an election petition

being a specie of civil suit, is only required to be prov ed on

balance of probabilit ies and all that the petitioner needs to

establish is that the story of the Petitioners is more likely to be

true than that of the respondents.

57

9.99 My Lords, the weight of oral and documentary evidence led by

the Petitioners in this case and which has not been discredited by

the Respondents support the submission that the Petitioner s have

discharge the burden on them to the required standard.

9.10 The case of the Petitioners is particularly strong with the

documentary evidence, as will be seen from the evaluation of

documentary evidence led, corroborating the oral testimony

called. In INEC v Oshiomole [2009] 4 NWLR (pt 1132) 607 at 671,

it was held that where documentary evidence supports the oral

testimony, such oral testimony becomes more credible as

documentary evidence serves as a hanger from which to assess

oral testimony.

9.11 It is submitted that it is only in relation to the second set of

allegations that proof beyond reasonable doubt is required .

9.12 The Petitioners shall demonstrate that it has discharged the

burden of proof in respect of both the civil and criminal aspects

of the allegations in the Petition.

9.13 It is our submission that the Petitioners have duly established by

oral and documentary evidence that t he votes credited to the 1 s t

Respondent are not lawful votes in the ten local governments . An

evaluation of the evidence shall be done on local government

basis so as to show a clear picture of the case made out on the

evidence in each of the ten local gov ernments:

9.14 The next segment of this Address is devoted to evaluation of

evidence.

GENERAL EVALUATION OF ORAL EVIDENCE

Evaluation of Evidence in Respect Ife Central Local Government

Evidence of the Petitioners in Ife Central Local Government

10.1 In respect of Ife Central Local Government, the Petitioners

witnesses were Alfa Ibraheem (PW17), Deacon Kayode Ojo

(PW18), Adeoye Akeem Adewale (PW19), Ayo Adesakin (PW20),

Elubode Ademola (PW21), Towogbola Oluwaseyi (PW22),

58

Dabisiyu Olaobaju (PW28), Adedeji Taofeek (PW29), Akinnuga

Olusoga (PW39) and Ademiju Nasiru (PW40) and their

testimonies are as follows:

PW17

10.2 PW17 is Alfa Ibraheem who gave testimony for MOORE/OJAJA

Ward and his evidence-in-chief was that on the day of election, at

Agbedegbede polling unit, at about 11 a. m, Chief Obalufe of Ile

Ife arrived to intimidate and influence the voting. That When

Chief Obalufe was challenged he claimed the voting pattern was

ordered by the Ooni of Ife. That Upon a continuous protest

against him, he requested through his mobile phone for the

deployment of armed thugs and hoodlums who arrived led by

Wale Ojo, PDP Chairman for Ife Central Local Government, Chief

Atoferu, past PDP Chairman, Ife Central Local Government,

together with Honourable Taiwo Adebusola, o ne Muyiwa

Odikunrin, a PDP Councillorship aspirant in Moore Ojaja Ward

and Dayo Eleyemi. That these hoodlums made regular voting

impossible when they invaded the Agbedegbede Polling Unit,

Agbede Polling Unit, Ido Polling Unit, Ereola Polling Unit,

Obalogun, Seminary Opa Polling Unit, K. K Blocks Polling Unit,

Oke Itase Polling Unit, Eyiowukawi Polling Unit, Temi Pemi

Polling Unit and Alakowe – Opa Polling Unit, all at different

times. That they unleashed untold terror on the voting populace

and AC and other political party agents, and shot sporadically

into the air to scare away everybody at these various units, that

these individuals carted away the ballot boxes and ballot papers

to an unknown destination. That a lot of people sustained various

levels of injuries one being AC party agent Miss Saida Bello who

had her ankle dislocated and another party member who also had

his ankle twisted, both of them had to have P.O.P. casts on their

ankles and are yet to be discharged from the hospital. That as a

result of the activities of the aforementioned people Votes were

59

not counted and results were not announced at any of the polling

units.

10.3 Under cross examination, PW17 stated that on the day of the

elections, he arrived at his polling unit at 8:00 am, and did n ot

meet any INEC officials there. He stated that he followed

hoodlums who disrupted the elections from unit to unit, saying

they shot into the air scaring voters who ran away. He further

stated that he knows all the AC polling agents who gave him

agents reports because they are all fro Ife. These reports were

received immediately after the elections and the day after. He

was unshaken during cross examination, and his evidence was

not contradicted.

10.4 In view of the foregoing, the observation of the respondents that

this witness contradicted himself under cross -examination cannot

therefore be correct. There is no contradiction in the witness‟s

testimony when he said voting was disrupted. It is also a total

misrepresentation of this witness‟s testimonies un der cross-

examination that this witness said that he wrote his report based

on the reports of agents as he said clearly that his report was

based on both what he saw and what he received from party

agents. We refer this honourable tribunal to the proceedin gs of

the 6 th day of August, 2009, most especially the answer of this

witness to the cross-examination questions of Adelodun SAN who

was one of the counsel for the 1 s t -3 rd respondents on that day.

PW18

10.5 PW18 is Deacon Kayode Ojo who gave testimony for Iremo Ward

II, and his testimony is that on the day of election voting was

marred with intimidating violence and act of thuggery

perpetrated by thugs led by notable PDP stalwarts in the person

of Ropo Oyewole, the majority leader of the Osun State Hous e of

Assembly and the PDP candidate for the House of Assembly

elections in Osun State; Mr. Obafemi Fagbola, a commissioner in

the Osun State cabinet and Mr. Dele Awofisayo, a former

60

commissioner with the respondent. That these armed thugs

invaded, attacked and completely disrupted voting activities on

the day of the election. That this disruption was carried out with

the active connivance of the police men attached to the various

units while many others even followed them about executing this

inglorious assignment. That at Ife Girls High School Polling Unit,

fully armed PDP thugs under the command of one Ropo Oyewole,

Osun State House of Assembly member representing Ife Central,

one Adegbola Akeredolu pounced on and beat mercilessly the AC

polling unit agents, namely, Kunle Ojo and Michael Awosanmi

who refused them the opportunity of multiple voting. That at Lati

Eluyera Residence Polling Unit, one Biyi Odunlade, a PDP

aspirant for Chairmanship, Ife Central Local Government led

thugs to invade the Polling Unit where they massively did lots of

multiple voting after scaring away the electorates. That these

thugs took over the polling unit and conducted the election to

their satisfaction by dumping already thumb -printed ballot

papers in the box. That at Akintibu Polling Unit, PDP thugs

continued their invasion, scared people away and engaged in

multiple voting. That similar act was done at Living Hope,

Eleyele Polling Unit, by some other fully armed thugs led by one

Prince Femi Adewuyi, Sunday Aaye, and one man si mply known

as Layiwole. That in all the units, those thugs carted away the

ballot boxes and subsequently, results of their misdeeds were

announced by INEC. That votes were not counted at the polling

units and results were not announced.

10.6 Under cross examination, PW18 stated that he registered to vote

at L.A Primary School Iremo Ward 2. He stated that his ward is a

small community of 17 polling units, and it takes only 20 minutes

to move through all the units in the ward. He stated that after

visiting al l the units in his ward, he went home to eat. By the

time he returned to the polling unit, PDP thugs had disrupted the

elections. He further stated that the deputy speaker of the Osun

61

State House of Assembly led thugs who beat up Kunle Ojo and

Michael Oriyemi. He confirmed that he personally witnessed

everything contained in his witness statement.

10.7 This witness, contrary to the position of the respondents in their

written address was unshaken during cross examination, and his

evidence was not contradicted. As for why this witness though

literate would swear to a witness statement on Oath which carries

a jurat, this witness explained under cross -examination by Mr.

Niyi Owolade counsel to the 1366 th -1367 t h respondents that, that

had to be the case because he demanded that the content of the

document should be explained to him as he is not a lawyer. We

refer this Tribunal to the proceedings of the 6 th of August, 2009 in

this matter.

PW19

10.8 PW19 is Adeoye Akeem Adewale an agent of the 3 rd petitioner

who gave testimony as to what transpired at INEC Office in Ife

Central Local Government during the distribution of electoral

material on April 13, 2007 for the gubernatorial and House of

Assembly Election, held on 14 th of April, 2007. His testimony is

that allocation commenced at about 12 midnight, and one

Obafemi Fagbola, the Osun State Commissioner for water

Resources (a.k.a Obaf) sought the permission of the Electoral

Officer that he wanted to see him privately, a request which the

Electoral Officer and himself acceded to.

10.9 That when himself and the said commissioner were alone, the

commissioner called one Adedotun Adebowale (a.k.a Mere) a

staunch PDP member in the Local Government to see him, that he

was informed by Mere that they would remove ten thous and

bundles of ballot papers allocated to the Local Government Area

with a promise to give him Two Million Naira and send him to

London the next day if he acceded to the proposal. That he turned

down the offer and at that point someone informed him that th ey

had started allocating the voting materials inside. That on getting

62

there he discovered truly that allocation had started and

protested to the Electoral officer and the said Commissioner on

the ground that it was the Electoral officer that gave the

Commissioner permission to see him. That he immediately

resumed protest, and the thugs that came with the said

Commissioner suddenly started beating him mercilessly while

one of them popularly called Artillery tried to strangulate him

and saying that despite the fact that he refused to take the money

they offered him, he still had the effrontery to argue with their

boss, the said commissioner. That the said Artillery kept on

asking him to choose between acceding to their proposal and

losing his life. That he was rescued by Segun Omoworare and

Taiwo Olaiya who came in at this point and pleaded that he

should be left alone.

10.10 That after the allocation, he observed that the said Commissioner

went to meet about ten INEC supervisors in a separate office.

That he could see and hear what was going on because he was

looking through the window. That there, he saw the said

Commissioner share money to the INEC supervisors and told

them that they should not allocate voting materials to certain

units some of which are: 1 s t Bus-stop, OAU; 2nd Bus-stop, OAU;

Sport Complex, OAU; Obagbile quarters; L. A, Elefon Village;

Slaughter Slab, PG Hall, OAU. That he further told them that they

should be ready that he would come and take them with his

vehicle at a certain location.

10.11 That at about 4 a. m on 14 April, 2007, he left INEC office for

Omoworare‟s house which was very close to the INEC office. That

he returned to INEC office at about 6 a. m. only to find out that

about nine INEC supervisors, the Commissioner‟s boys that

earlier attacked him were in a mini bus with the said

Commissioner sitting in the front seat of the bus. That he then

saw some persons whom he took to be presiding officers

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struggling for the available voting materials without any

supervisor to allocate these materials to them.

10.12 That the next morning, during the voting period, he personally

visited the aforementioned polling units and found out that no

material was taken to the aforementioned polling units. That no

voting took place in all of the pol ling units: 1 s t Bus-stop, OAU;

2nd Bus-stop, OAU; Sport Complex, OAU; Obagbile quarters; L. A,

Elefon Village; Slaughter Slab, PG Hall, OAU.

10.13 Under cross examination, PW19 stated that he was the Local

Government Supervisor representing the AC, who was mandated

to monitor the dispersal or distribution of electoral materials on

13/4/07. He reiterated what was contained in his deposition that

he was offered inducement namely a trip to London to ignore any

irregularities that may be perpetrated. He further stated that

because he refused he was severely beaten up. He confirmed that

electoral materials were dispatched in his absence on the guise

that the electoral commissioner wanted to have a word with him.

Under cross examination, PW19 stated that despite the fact that

he can read and write in English, his lawyer interpreted the

content of his deposition to him, as that was the lawyer‟s duty.

He stated that he registered to vote at Akarabata polling unit,

and arrived there to vote at 8:00 am on the day of th e elections.

He confirmed paragraph 7 of his witness statement on oath that

thugs beat up his party agents. He was unshaken during cross

examination, and his evidence was not contradicted.

10.14 The 1 s t -3 rd respondents‟ observation in their written addres s that

this witness could not answer a question put to him as to whether

he knew that electoral materials were meant to be distributed to

Electoral officers rather than party agent is irrelevant as t he

witness gave evidence that his role was to monitor the

distribution of electoral materials.

PW20

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10.15 PW20 is Ayo Adesakin who gave testimony for AKARABATA

Ward and his testimony is that all the polling units in Akarabata

Ward are concentrated in Open Space, Lagere Motor Park. That at

about 11.30 a. m. on Election day PDP thugs loaded with two

eighteen-passenger buses led by one Kingsley Awosiya PDP

councillorship aspirant, Barrister Rotimi Adeyenuwo, Alhaji

Nafiu PDP party secretary in Ife Central Local Government to

invade the polling units in the ward, tha t these thugs were

wielding cutlasses and brandishing guns as well as other lethal

weapons. That these thugs sacked the polling units, beat all the

3 rd Petitioner‟s and other parties‟ agents except PDP, that these

thugs thumb-printed ballot papers massively in favour of PDP,

and stuffed same into the ballot boxes in the other 18 seater bus

packed full of fierce looking armed thugs. That these thugs later

held the agents hostage and released them at about 7.30 pm that

same evening.

10.16 Under cross examination, PW20 stated that despite the fact that

he can read and write in English, his lawyer interpreted the

content of his deposition to him, as that was the lawyer‟s duty.

He stated that he registered to vote at Akarabata polling unit,

and arrived there to vote at 8:00 am on the day of the elections.

He confirmed paragraph 7 of his witness statement on oath that

thugs beat up his party agents, despite the fact that there is no

agents report alleging same. He was unshaken during cross

examination, and his evidence was not contradicted.

10.17 There is no basis for the arguments of the respondents in their

written address for urging the contention that this witness‟

answer to a cross-examination question to the effect that he

would not be surprised by any agent that there is no statement by

any agent that was beaten up.

PW21

10.18 PW21 is Elubode Ademola who gave testimony for ILARE Ward 2

and his testimony is that on the day of election all the various

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polling units in the ward were sacked by armed thugs led by one

Kunle Jimson, the PDP Chairman for Ife Central Local

Government and one Jide Awoyemi, a PDP leader in the Local

Government Area in quick succession and at different times. That

the 3 rd Petitioners‟ polling agents at Arubiewe Polling Unit,

Ajegunle Middle Polling Unit, Ajegunle Olowo Idi Agbon Polling

Unit, Irebami and Orafidodo Polling Units were brutalised by

these thugs. That at Olowo Idi Agbon Polling Unit, one Mr.

Obafemi Fagbola the Osun State Commissioner for Water

Resources was the one who led the attacking squad that caused

heavy melee in the polling unit. That at the INEC office, the said

Fagbola and many other thugs were seen thumb -printing the

ballot papers meant for the general voters. That the hoodlums

carted away ballot boxes and ballot papers to unknown

destination. That as a result of the activities of these hoodlums

there was no counting of votes and no declaration of result at all

the polling units in the ward.

10.19 Under cross examination, PW21 confirmed paragraph 10 of his

witness statement on oath, re -iterating that there was no counting

of votes or announcement of results at his polling unit. He stated

that he voted at Olowo Idiagbon unit, but his vote was voided in

his presence. Upon being confronted with exhibits 18m and 18n

agent‟s reports prepared by Fayoola Rafiu and Awofadeju Jide, he

confirmed that those reports were prepared by two separate

individuals. He concluded by stating that although paragraph 6

of his deposition mentions only 5 polling units marred by

violence and irregularities, the violence was not limited to those

polling units. He was unshaken during cross examination, and his

evidence was not contradicted.

10.20 Since the witness has informed this honourable tribunal clearly

that the exhibits 18 M and N have been prepared by different

individuals, the insistence of the respondents in their written

address that the exhibits were prepared by the same person is

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totally baseless as the respondents‟ position is not supported by

any evidence. This is very clear from the answer given by this

witness to the questions of Mr. Famakin -Johnson, counsel to the

4 th -1365 th respondents during the proceedings of the 4 th of

August, 2009.

PW22

10.21 PW22 is Towogbola Oluwaseyi who gave testimony for ILARE,

Ward and his testimony is that on the day of election voting

started at 10 a. m and at about 11 a. m agents of the PDP were

preventing voters from voting at Methodist Primary School. That

when he challenged them, the PDP agents called Albert Adeogun,

the PDP House of Representatives candidate who is from the

ward. That the said Albert Adeogun later arrived the place with

armed thugs, that these thugs shot into the air, chased away

everybody and carted away the ballot papers and ballot boxes.

That same act of violence was repeated in all the other Polling

Units in the ward except at Central Primary School Polling Unit

where voting was duly conducted. That in all the other polling

units, voting were completely disrupted and voting was

inconclusive. That as a result of these votes were not counted and

results were not announced at any of these polling units.

10.22 Under cross examination, PW22 confirmed that elections were

conducted peacefully in only 1 unit out of the 17 units in his

ward. He stated that elections were held in only on e unit Central

Primary School Unit. He further stated that no results were

announced in other units because of disruptions caused by PDP

thugs who did not allow him to vote on the day of the election.

He stated that PDP thugs compelled voters to vote for t he PDP

which he objected to, and voting was further disrupted when

Prince Adeogun, a PDP stalwart, arrived with thugs to cause

mayhem. He was unshaken during cross examination, and his

evidence was not contradicted.

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10.23 The 1s t -3 rd respondents‟ arguments that this witness‟ evidence

lacks credibility because his evidence that elections were

disrupted and yet results were declared amount s to “blowing hot

and cold” cannot be correct. We say this because the evidence of

this witness both in chief and under cross examination was that

INEC still announced results in spite of the disruptions. We refer

to the proceedings of the 6 th day of August, 2009 and the answer

of this witness to the questions put to him by N.O. Oke SAN.

PW28

10.24 PW28 is Dabisiyu Olaobaju who gave testimony for ILARE, Ward

1 and his testimony is that on the day of election no proper

election was conducted in the Ward. That at the OAU Staff

Quarters, instead of six ballot boxes that were supposed to be

delivered thereat, only two boxes was delivered by the INEC

officials. That further to the foregoing, one Ropo Oyewole,

Majority leader of Osun State House of Assembly and a known

leader of the 3 rd Respondent, Rasheed Adebisi, immediate past

councillor of the Ward, Obafemi Fagbola, Commission er for

Water Resources and Bonfo Idowu led armed thugs, took over the

polling units in the ward and snatched the ballot boxes and took

them away. That votes were not counted and results were not

announced at any of the polling units in the Ward.

10.25 Under cross examination, PW28 stated that he only visited 6 out

of the 15 polling units in his ward. He confirmed paragraph 7 of

his deposition that one Idowu led thugs armed with guns,

cutlasses and other dangerous weapons to disrupt the elections.

He concluded his testimony by stating that the policemen saw the

atrocities being committed, and assisted the thugs in thumb

printing the ballot papers. He was unshaken during cross

examination, and his evidence was not contradicted.

10.26 It is submitted that the respondents‟ observation about this

witness that the admission by him that some of the polling units

are located on different roads makes his evidence unreliable is

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misconceived as the witness gave evidence of the facts that he

moved around the units of the ward.

PW29

10.27 PW29 is Adedeji Taofeeq who gave testimony for IREMO, Ward 1

and his testimony is that on the day of election, one Obafemi

Fagbola, a serving commissioner under Governor Oyinlola of

Osun State collected the election materials meant fo r OAU

community under the guise that he was helping them to convey

the staff. 17 of the 23 unit‟s materials disappeared in the process.

That no ballot box or paper was brought to Obagbile, L.A.

Primary School, Elefon, Sports Complex at OAU, Ajebandele,

Slaughter‟s Slab, Awo Annex, First Bus Stop, Post Graduate Hall

of Obafemi Awolowo University Polling Units and many other

Polling Units whereas results were later announced for these

Wards. That at the polling unit in Fajuyi Hall, while elections

were conducted no Form EC8A was made available. That on the

same OAU campus, the Electoral Officer, while on situation tour,

officially admitted the obvious fact that polling units were

diverted to unknown places and he agreed to put it down on

paper. PDP thugs invaded and unleashed violence on the voters

and AC polling agent, snatched and carted ballot boxes away at

Ajebandele Primary School, Polling Unit.

10.28 The same story of sorrow, tears and blood was enacted at New

Garage Polling Units when PDP thugs armed wi th cutlasses,

guns, axes and charms, in three buses invaded the polling units,

injured the AC agent, Mr. Kazeem Akinola. That PDP agents and

thugs offered monetary gratification to the 3 rd Petitioner‟s agents

so that the latter could allow them rig the ele ctions in this ward.

Upon refusal, they unleashed violence and inflicted grievous

bodily harm on them. That at Falaju Polling Unit, political thugs

were seen coming out of Senator Iyiola Omisore‟s house armed to

the teeth. The next thing was the overthrow of civilization as

naked terrorism became the order of the day. That in Ojoyin area,

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AC members protesting the carting away of the ballot materials

were shot at by the rampaging PDP thugs led by one Hon. Dokun

Adeniji. In the ensuing phenomenon, four perso ns sustained

gunshot injury and one died instantly on the spot.

10.29 Under cross examination, PW29 stated that he wrote his report on

the day of the elections when the events were still fresh in his

mind. Although his report was not among the exhibits tendered,

it stated that the elections were not free and fair, political thugs

invaded all but two polling units in the ward. He stated that

there were originally 14 polling units in his ward, but on the eve

of the elections an additional 12 units were create d. He stated

that he visited all 26 polling units on the day of the election, and

was categorical in his assertion that election materials were

diverted in 17 polling units. He stated that in Obafemi Awolowo

University, there were supposed to be 5 polling units, but only 1

unit was operational on the day of the elections.

10.30 He also stated that in Fajuyi, there were supposed to be 5 polling

units, but only 1 operated. He stated emphatically that no

election materials were brought to P.G hall,1 s t and 2n d bus stop,

Elemo village, Ogbagbile unit and sport unit. Despite these facts,

results were declared in all the polling units in the ward. He

further stated that Forms EC8A were not given to his agents in

O.A.U and Iremo Ward 1, and policemen were present i n only 7

of the 26 polling units. He stated that ballot papers were taken

away, and voters had to return home. He confirmed paragraph 12

of his statement on oath that a person was killed in the ensuing

mayhem caused by PDP thugs. His testimony under cross

examination was particularly damaging to the Respondents case.

He was unshaken during cross examination, and his evidence was

not contradicted.

10.31 Since this witness even under cross -examination confirmed that

he visited all the polling units in his wa rd and saw what

happened on the election day, the respondents can therefore not

70

be correct when they say of this witness that his evidence only

consists of what he was told by his agents. We refer this

honourable tribunal to the proceedings of the 11 th of August,

2009.

PW39

10.32 PW39 is Akinnuga Olusoga who gave testimony for IREMO Ward

5, and his testimony is that on the day of election voting in the

ward was marred by substantial irregularities, intimidation,

violence and thuggery perpetrated by members and agents of the

third respondent (PDP). That at Akodi Baba Sigidi Polling Unit,

Akodi Asarogun, Waluberin Compound, Ojikutu Open Space

Polling unit, Darikuduru Polling unit , Akodi Orunto Jaojo Polling

Unit, Aderemi Polling unit and several other polling units,

hoodlums, on the instruction of PDP leaders, invaded the

different polling units one after another, beat all AC agents,

threatened many with guns and carted away the ballot boxes to

unknown destinations. That at Ogbon Agbara Polling Unit INEC

officials and Party agents was luckier as some disciplined

security personnel prevented hoodlums from being able to deal

with them. That voting was duly completed, counted but there

was no Form EC8A for recording the result.

10.33 That INEC polling officials together with all party agents carried

the box to the INEC office where, surprisingly, violent PDP thugs

who were chased away earlier were now seen conducting

collation with INEC officials. That agent of the 3 rd Petitioner was

ordered to deliver the box and leave. That due to these activities

no collation was done in the presence of the agents of the 3 rd

Petitioner. That the votes cast at Akodi Lujumo II and Akodi

Atiki was not counted at the polling booth but at the INEC office

in the Local Government. That upon discovering that AC was

leading in the result, Hon wale Ojo ordered his thugs to deal with

the 3 rd Petitioner‟s agents present which they thoroughly did by

subjecting the 3 rd Petitioner‟s agent to merciless beating. That

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thereafter Wale Ojo, other members of the PDP and their thugs

began to void votes already cast for the AC by double thumb

printing on them. That at Ojoyin polling unit AC members and

voters who resisted the carting away of the ballot materials were

shot at by the rampaging PDP thugs l ed by Senator Iyiola

Omisore, Hon. Dokun Adeniji and Waidi Elepo Robi. That in the

ensuing phenomenon four persons sustained gunshot injury and

one Samson died instantly on the spot. He later tendered the

photograph of the dead and injured victims of the c allous

shooting spree marked as Exhibit IFC 7.

10.34 Under cross examination, PW39 stated that he did not visit the

police station to report the disruption he witnessed, he stated

that he knows Senator Iyiola Omisore, a former deputy Governor

of Osun State and a PDP senator. He confirmed that the AC had

polling agents in all the polling units in his ward on the Election

Day. He stated that he received Identification from his party the

AC, as opposed to INEC. He was not cross examined as to the

veracity of any of the allegations contained in his witness

statement on oath, nor was his credibility impeached. He was

unshaken during cross examination, and his evidence was not

contradicted.

10.35 Contrary to the position of the respondents in the ir written

address, it cannot be correct to say that he never visited the 18

polling units as paragraph 2 through to paragraph 10 of his

witness statement clearly shows this. This witness under cross

examination confirmed that he visited all the polling units and

that his evidence consists of what he saw. We refer to the

proceedings of the 25 th day of August, 2009.

PW40

10.36 PW40 is Ademiju Nasiru who gave testimony for IREMO Ward 3,

and his testimony is that on the day of the election voting did not

take place at the fol lowing polling units Recreation Club, St

Peter‟s Primary School, Ojatuntun, Open Space London street,

72

Akodi Obalaaye Ajupepe, Obalufon 1, Obalufon 2, Open Space

Ayibiowu, Moku, St. Murumba, gbelenkan, Ilara Open Space,

Frontage Alimi‟s house, Olubuse marke t and Akodi Latale all in

the Ward as some notable PDP stalwarts namely; Dokun Adeniji

a.k.a “Aluta”, former vice chairman Ife Central Local Government

Council; Alhaji Abdulyekeen sakariyawu a.k.a “Amorer” former

supervisory councillor in the Local Government, Adebowale

Adedotun a.k.a “Mere” PDP Chairmanship aspirant and a cousin

to Senator Iyiola Omisore and Mrs. Akinwande a.k.a “Iyalakara”

who were accompanied by thugs armed with guns, machetes, axes

and other dangerous weapons together with policemen at various

times invaded these polling units and disrupted hitherto peaceful

voting process.

10.37 That at Akodi jaran Awolude and Akodi Fayimoka Polling units,

these thugs snatched and carted away the ballot papers and the

ballot box for the unit. That at Aakodi Jaran Arinloye polling

unit, a traditional chief in Ile Ife popularly known as Obalufe,

Chief Solomon Omisakin came to influence and induce voters to

vote for the PDP and upon refusal by the voters to heed his

instructions, he called out a number of thugs who were armed

with cutlasses and guns. That these thugs shot into the air and

chased away the voters, AC polling agents and polling agents of

other political parties present and started thumb -printing the

ballot papers and dumping them into the ball ot box. That there

was no counting of votes and no result was declared at any of the

afore-mentioned polling units.

10.38 Under cross examination, PW40 stated that he was registered to

vote at Open Space Ilara. He stated that he visited all 17 polling

units in his ward on the day of the election, and knows the ward

quite well as he has lived there for 41 years. He confirmed

paragraph 5 of his deposition, and maintained that voting went

on peacefully in the morning until PDP thugs arrived snatching

ballot boxes and disrupting the elections. He further stated that

73

he personally witnessed the disruption of elections perpetrated

by PDP thugs, as he followed them from unit to unit in his ward.

He stated that the AC party agents remained at their various

polling units until the close of elections. He was unshaken during

cross examination, and his evidence was not contradicted.

Evidence of the 1 s t to 3 rd Respondents in respect of Ife Central Local

Government

11.1 In Ife Central Local Government: The 1s t to 3 rd Respondent

called 7 seven witneses from Ife Central Local Government, to

wit: RW23 Prince Timothy Olajide Awoyemi; RW25 Hon. Alhaji

Abdul Yekini Sakariyau; RW29 Obafemi Fagbola; RW30

Odikunrin Muyiwa; RW31 Barrister Rotimi John Adeyenuwo;

RW40 Hon. Rasheed Adebisi; RW42 Hon. Albert Adeogun;

RW23

11.2 RW23 Prince Timothy Olajide Awoyemi of Unit 7, Ward 2; The

testimony of RW23 is that he participated in the election as an

electorate and cast his vote at Ilare Ward 2 Unit 7 located at

Irebami line 6 Ile -Ife. He claimed to have gone to the polling unit

with his wife. He stated that he knew one Mr. Kunle Jimson as

the chairman of PDP in Ward 2, I lare Ile - Ife. He claimed that he

did not lead any thug anywhere on the Election Day and did not

set his eyes on the said Kunle Jimson on the day of the election.

He stated that he was able to cast his vote at around 10.30 am and

left for his house at around 10.40 because his house was very

close to the polling unit. He finally stated that he never went out

again after returning home.

11.3 Under cross examination, RW23 in his witness statement stated

his occupation as Public Servant but under cross -examination, the

witness stated that is a trader and that as at 8/6/2007 when he

deposed to the witness statement he was a trade r. The witness

said that he was public servant serving himself! The witness gave

incredible testimony when he said that he registered as Timothy

74

Olajide Adeniran Awoyemi and that he registered four names but

that Awoyemi is his surname. The witness also s aid that he did

not know the name his wife registered, though her names are

Beatrice Fumilayo Awoyemi. In paragraphs 2 and 3 of the witness

statement, the witness claimed that he participated as an

electorate and that he casted h is vote at Ilare Ward 2 Unit 7 at

Irebami Line 6, I le -Ife. However, an examination of Exhibit 442A,

Voter register for the unit revealed that the name of the witness

was not on the voters register as a voter in the unit . Thus, the

claim of the witness that he was an electorate and t hat he voted

at Ilare Ward 2 Unit 7 at Irebami Line 6, Ile -Ife is utter falsehood.

The witness also claimed that the voting exercise took him about

3-5 minutes whereas his name is not on the register. The witness

confirmed that he is a member of PDP, and t hat the chairman of

PDP in Ife Central as that time was Hon. William Ojo and the

Secretary of the party was Mr. S.O. Nofiu. He said he cannot

remember the name of the collation agent for his ward. He also

said that he did not know that Abiola Oladejo was t he PDP party

agent in Polling Unit 7 where he claimed he voted. He was said

he would not know that Abiola Oladejo, PDP Party Agent signed

for PDP and AC on Form EC8A at the election. The witness

further said that he was not interested in going to the Polli ng

Unit to see the counting so could not even know whether there

was counting and announcement of result in his unit . See Exhibit

99(1-15).

RW25 Hon. Alhaji Abdul Yekini Sakariyau of Unit 01, Ward 3;

11.4 The testimony of RW25 is that he took part in the April 14 2007

poll as an electorate. He stated that he knew one Ademiju Nasiru

because they worshiped in the same mosque. He stated that he

left his house for the polling unit at Iremo Ward 3, Unit 001

located at Obalaaye Ajupepe as an electorate at 9.30 a m and got

to the place at around 9.40am and met other electorates on the

line, ready to cast their votes. He stated that he casted his vote at

75

about 40minutes later and left for his house. He stated th at he

knew Dokun Adeniyi a.k.a Aluta and Adebowale Adedotun a.k.a

mere very well but did not see them on the 14th day of April

2007. He claimed to have only heard about Mrs. Akinwade but

did not know her and cannot even identify her if he sees her. He

stated that he did not carry any gun, machete or axes or an y other

dangerous weapons on the day of election and did not lead any

thug anywhere on the 14 t h day of April 2007 or any other day

whatsoever. He stated that throughout his stay at the polling

centre to cast his vote there was no problem whatsoever.

11.5 Under cross examination, RW25 who had claimed under cross -

examination by Counsel to 4 th to 1365 th Respondents that he was

attended to by INEC officials said during cross -examination by

the Petitioners that he never heard of INEC until the day he was

testifying even though this witness admitted that he is a

politician and a former supervisory councillor. Both in his

witness statement and under cross-examination, the witness

claimed that he participated as an electorate. He claimed that he

registered and voted at Obaluaye Ajupepe Unit even though he

did not know the unit number. He also claimed that his name was

ticked on the voters register. However, an examination of Exhibit

448M, voters register for Obaluaye Ajupepe, showed that his

name is not on the register and that his name was not ticked. We

humbly invite your Lordships to examine Exhibit 448M. Under

further cross-examination, the witness claimed that he did not

know Adebowale Adedotun except if he has other name by which

he may know him. He then said that he knew him as Mere and

that he did not know if its his real name. This is however

contrary to paragraph 7 of his witness statement where the

witness said “I know Adebowale Adedotun a.k.a. Mere”. He later

admitted under cross-examination that he knew that Adebowale

Adedotun is a PDP member. Incredibly, the witness also stated

76

that even though he is a politician he was not interested to know

the result of the election because he has party agents.

RW29

11.6 RW29 Obafemi Fagbola; The testimony of RW29 is that he is the

present commissioner for water resources and Rural

Development, in Osun State of Nigeria and that on 14th April,

2007 as a bona fide party member of P.D.P at about 10.00am in

the morning, himself with his wife went to Olorunsogo High

School Polling Unit, Ilare Ward 1 and queued up waiting for their

turn to vote he voted and waited for his wife to take her turn and

while waiting he exchanged pleasantries with all known faces

and went back to his house immediately. He claimed that there

were more than a hundred people at the Unit when he got there

so he spent about 45 minutes. He also stated that as at the time he

casted his vote and went back home there was no incident of any

act of thuggery, intimidation, harassment or anything whatsoever

and that he only went to the polling station with his wife and not

with thugs and neither did he attack nor disrupt the voting

exercise. He claimed not to be at any polling unit except the

polling unit where he voted talks less of visiting Olowo Idi

Agbon polling unit . He stated that he did not participate in mass

thumb printing of ballot papers meant for the general voters at

Olowo Idi Agbon polling unit or at the INEC Office. He in fact

claimed that Election was free and fair at his unit and that he did

not visit INEC office on 14th April 2007 and equally did not in

any way carted away ballot boxes and papers to unknown

destination. He claimed to have been informed by their party

agents later in the day that ballot papers were counted and result

declared and appropriate forms for results were signed by all

party agents. He denied being at the INEC office on the day of

the Gubernatorial Election and did not collect any election

materials meant for OAU community under any guise

whatsoever. He also claimed not to know any Mr. Adeoye Akeem

77

Adewale and did not in anyway offer him N2million or make him

any promise to send him to London nor hold any discussion with

him in any manner and equally did not meet any INEC Official to

make any arrangement or share money w ith anybody.

11.7 Under cross examination, RW29 claimed that he voted at Ilare

Ward 1 unit 1, Oluorogbo High School and that his name was

ticked on the voters‟ register. However, in Item 635 Exhibit 443A

voter register Oluorogbo High School, his photo and his name

were not ticked or accredited as having voted in that unit. When

confronted with this evidence under cross -examination, the

witness said that it is for INEC official to tell the court what

happened. Even though the witness claimed under cross -

examination by counsel to 4 th – 1365 th Respondents that the

election in his unit was the freest and fairest he ever witnessed,

this assertion has no credible basis as the witness claimed that he

went home to drinking champagne after voting and that he was

not there when the result was announced, that he did not have

personal knowledge of whether the result was collated or

announced at the Unit. He initially said that he knew the

collation centre for my Ward is at Oluorogbo High School and so

he had personal knowledge, he later said that he did not have

personal knowledge since he was not there. The witness stated

that Alhaji S.O.A. Nofiu is Secretary of PDP at the time of

election in Ife Central. He further stated that there are other 10

Wards scattered all over and that each Ward has each collation

center apart from Oluorogbo High School. He agreed that other

Wards are scattered all over Ife Central Local Government apart

from Oluorogbo High School which is a collation center for Ward

1. The witnesses had deposed in paragraph 9 of his witness

statement that “ballot papers were counted, result declared and

appropriate forms for results were signed by all party agents”.

To contradict this assertion, the witness was confronted with

Exhibit 98(1) which showed that contrary to paragraph 9 of the

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witness statement it was only PDP agent that signed the result

form and the agent of the other four parties did not sign.

11.8 Aside, the contradicting evidence in Exhibit 98(1), the witness

had no credible basis to truthfully make the statement in

paragraph 9 of the witness statement as the witness stated under

cross-examination that he did not even know when the election

ended as he was not there. The witness said he saw Hon. Ropo

Oyewole on the day of election and that he will surprised if Hon.

Ropo Oyewole said that he did not see him on the day of election.

The certified true copy of the frontloaded witness statement of

Hon. Ropo Oyewole admitted as Exhibit 466 showed that Ropo

Oyewole said that he did not see the witness on election day.

RW30 Odikunrin Muyiwa

11.9 The testimony of RW30 is that he got to his polling unit located at

Lugba compound Moore Street, I le - Ife at about 10.22a.m, on

14th April, 2007 for Gubernatorial and House of Assembly

elections. He stated that he met only about twelve people on line

waiting to cast their votes and he joined them. He stated that he

did not see Wale Ojo in his polling unit on the day of election. He

also stated that he did not see any of the following people

namely: Chief Atoferu, Hon. Taiwo Adebusola and Dayo Eluyemi.

He denied knowing Alfa Ibraheem. He stated that while he was in

his polling unit there was no problem whatsoever and casted his

votes and returned to his house and stayed in door throughout.

11.10 Under cross examination, RW30 claimed that he voted on the

election day at Lugba Compound, Moore Street, I le Ife. He

claimed that that election went peacefully under cross -

examination by Counsel to 4 th to 1365 t h Respondents but in

paragraph 7 of the witness statement t hat after voting he

returned home and stayed indoor throughout. He said he left the

polling unit some minutes after 11.00a.m.There was no way the

witness could know that election was peaceful throughout. The

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witness even said under cross-examination that after voting he

went home and that it was on the second day that he heard the

Polling Unit result.

11.11 Even though RW30 sated his name as Odinkunrin Muyiwa in the

witness statement, the witness claimed under cross -examination

that Adeyemi-Odikunrin is his surname and that he registered as

Adeyemi Odikunrin as his surname. However, in Exhibit 447B,

the voters register for Moore Street Unit 3, Ojaja Road, there is no

voter with the surname of Adeyemi Odikunrin registered there.

The witness claimed that he found error on the register and that

they told him that the error was from the computer. The witness

was however confronted that the register was manually written,

he then said he discovered the error on his card, that when he

had the temporary voter card, his names were complete and that

he did not know how the voters register is produced.

11.12 The witness admitted under cross -examination that he will not be

in position to know if election in his Unit was counted, collated

and announced. He claimed that his party had a Party Agent who

had the responsibility. He said he will be surprised that on

Exhibit 107(3) EC8A result Moore Ojaja Ward was not signed by

any Party Agent and in particular that of PDP. Indeed , no party

agent signed Exhibit 107(3). The wit ness said that it did not take

him more than 2 minutes from checking his name to actual

voting. It appeared that the witness was very conversant with the

location of several polling units in his ward even though he

claimed that he did not visit them on election day. The witness

said he knew Chief Atoferu, Hon. Taiwo Adebusola, Dayo

Eluyemi and that they are PDP members. The witness also said

S.O.A Nafiu was Secretary of PDP in Ife Central then and that

even though he did not know his Ward, he is not from

Moore/Ojaja.

RW31 Barrister Rotimi John Adeyenuwo

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11.13 The testimony of RW31 is that he woke up around 6.00 am on

14th April, 2007 and got to his office at about 7.30 am to handle

office jobs. He stated that he moved to his polling unit at

Recreation Centre, Lagere, Ile-Ife (at the back of his office) at

about 11.30 am on 14th April, 2007 for the Governorship and

House of Assembly election. He stated that he met a lot of people

waiting to cast their votes peacefully and joined them and after

casting his vote he retired to his office immediately. He stated

that he did not visit any polling units at all. He claimed to have

left his office to his house at about, 7.00 pm.

11.14 Under cross examination, RW31 admitted that he is a member of

PDP and has held offices under the auspices of PDP. Under cross -

examination by Counsel to 4 th – 1366 t h Respondents, the witness

claimed that everybody on that date voted for candidate of their

choice including himself and that he did not witness any incident

of ballot snatching and stuffing. The witness would not be in a

position to truthfully make this assertion having deposed in his

witness statement and under cross-examination that he left the

unit immediately after voting at about 12 noon and that he did

not come out of his office till about 7.00 p.m.

11.15 RW31 witness would not be in a position to testify that election

in his unit was free and fair and orderly. There is also

contradiction in the testimony of this witness as to the location of

the polling unit relative to his office. Whereas in paragraph 2 of

his witness statement he stated that his unit was at the back of

his office, under cross-examination by counsel to the 1366 th and

1367 t h Respondents he initially stated that the Polling Unit where

he voted was within a “walkable distance to my office”. But when

he was confronted with paragraph 2 of his statement, he then said

that the polling unit was at the back of his office.

11.16 RW31 was also evasive about time as regards during election but

he was concise about time on other matters. Under further cross-

examination the witness claimed that when he registered, I

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cannot remember my age then. He also said that on registration,

he cannot remember what he told the official was his occupation.

The witness later said that in 2006 when he registered, he was a

legal practitioner. Much later he claimed that the Adeyenuwo

registered in the register as a business man was him.

RW40 Hon. Rasheed Adebisi of Unit 1, Ilare Ward 1;

11.17 The testimony of RW40 is that he took part in the Gubernatorial

and House of Assembly election of 14th day of April 2007 as an

electorate. He stated that he left alone unaccompanied by nobody

to the polling Unit 001, Ilare Ward 1 located at Oluorogbo High

School, Ile - Ife. He stated that he arrived at the Polling Centre

around 10.00 am and was able to cast his vote around 10.30 am.

He stated that he did not see Ropo Oyewole either at the polling

centre or at any other place on that day but that he met Obafemi

Fagbola and they exchanged pleasantries. He stated that he left

the polling centre immediately after casting his vote and did not

see Bonfo Idowu on that 14th day of April 2007. He stated that he

did not lead any thug to any polling unit neither did he carry any

ballot box anywhere.

11.18 Under cross examination, RW40 a stalwart of PDP claimed to

have voted and as usual of others under cross examination by

INEC Counsel he claimed election was peaceful and orderly

despite the fact that he himself stated in paragraph 7 of his

deposition that he left the polling centre immediately after

casting his vote, a statement he restated under cross examination

by the 1365 th – 1366 th Respondents Counsel, in corroborating this

statement when cross examined by the Petitioners Counsel he

admitted that he would not know what happened after leaving

the polling unit and having admitted this much we submit he is

not in a position to know whether election was concluded, result

collated and announced.

11.19 In further discovery of the fallacious testimony of RW40, in

paragraph 3 of his deposition he claimed to have arrived at the

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polling unit around 10 a.m. the same time Obafemi Fagbola RW

29 claimed to have arrived at the same polling unit. He went

further to state in paragraph 4 that he cast his vote around 10.30

a.m. The twist however is that Obafemi Fagbola DW 29 claimed to

have spent 45 minutes at the polling unit and on his way out of

the polling unit he met and exchange pleasantries with Hon.

Rasheed Adebisi and Ropo Oyewole who were on the queue.

11.20 We submit that it is easier to know that all the three of them were

liars as it remains a mystery how someone who exchange

pleasantry with another on his way out at about 10.45 a.m. would

have also left the same unit at around 10.30 a.m. unit and the

other twist is that while Obafemi claimed to have seen both Hon.

Rasheed Adebisi and Ropo Oyewole on his way out of the polling

unit all of them being chieftains of PDP in the same Ward and

Unit, we submit that it will be more than incredible to hear the

witness say that he did not see Ropo Oyewole and also that he

would not know whether he is a registered voter in his unit.

RW42 Hon. Albert Adeogun

11.21 The testimony of RW42 is that he voted at Ward 4, Ilare Unit 1,

Olodo, Ile-Ife during the Governorship and Legislative Houses of

Assembly Election of 14/4/2007. He stated that he got to the

polling unit where he voted around 10.00am and was promptly

attended to. He stated that the affidavits of Towogbola

Oluwaseyi, Adebayo Najeem and Bamgboye Ayo sworn to on 11 th

May, 2007 have been shown to him and he has gone through the

same. He stated that the allegations levied against him as

contained in those affidavits attached to the petition are not true

and categorically denied them. He stated that he went to the

polling unit alone and not in the company of anybody and after

voting he went back home. He claimed to be a law abiding citizen

and that the election at the polling unit where he voted went on

smoothly and without any hitch.

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11.22 Under cross Examination, RW42 claimed that he voted at unit 1,

ward 4 and that the name of the unit is unit 1, Ogboru Compound

when he was challenged that Ogbodu Olodo Compound is unit 5,

he said that it may be correct, he also stated that it may be correct

to state that the second unit in the compound is unit 6. He said he

voted and that he got to the polling unit around 10.am and that

he did not stay at the unit for more than 20 minutes. He said he

cannot give answer to the question as to how many people voted

before him. He said he only heard the result of the election after 4

p.m and that he cannot say what happened after casting his vote.

He said he was not at the polling unit after that and he could not

know whether the election was concluded. He said that he cannot

remember the name of the collation agent of his party in his ward

and the name of the polling agent for his unit. He stated that

Alhaji S.O.A. Nofiu was the secretary of the PDP in Ife Central

Local Government and that even though he did not know the

ward that Alhaji S.O.A. Nofiu belonged to, he said he did not

belong to Ward 4. Even though the witness claimed that he is a

law-abiding citizen, he admitted that his election to the House of

Representative was nullified by the court.

Evidence of the Petitioners in Odo Otin Local Government

12.1 In respect of Odo Otin Local Government, the Petitioners

witnesses were Soladoye Fasanjo (PW1), Amusat Kamil (PW2),

Tajudeen Babatunde (PW3), Wasiu Ilufoye (PW4), Owolabi

Moshood (PW5), Femi Akintola (PW6), Adewumi Jonathan (PW7),

Emmanuel Folorunsho (PW8), Janet Babalola (PW44), Victoria

Ademola (PW45), David Adegboyega (PW47), Olayiwola Lateef

(PW48), and Awodeji Abayomi (PW). And their testimonies are as

follows:

PW1

12.2 PW1, is Soladoye Fasanjo who gave testimony of events in

FAAJI/OPETE, Ward 4 Odo Otin Local Government and his

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testimony is that on the day of election some thugs who were led

by one Rasaq Oyelami (a.k.a. K.K.) invaded polling units in ward

4, Odo Otin Local government. That these thugs were wielding

guns, machetes and some other weapons as well as shot into the

air to scare away the voters and the other party agents and

forcefully snatched the ballot boxes and carried them away. That

voting was completely disrupted in the polling units in the Ward

and that voters, agents of the 3 rd Petitioner and agents of the

other parties were scared away by the acts of violence carried out

by the aforesaid persons. And as a result of the disruption, votes

were not counted and results not announced at any of the polling

units in Ward 4 (Faaji/Opete).

12.3 Under cross-examination, PW1 stated that he is a business man

who carries on his business in Ilorin. It was further elicited under

cross examination that because they are all from his town, he

knows every AC polling agent in his ward who s ubmitted an

agents report. He stated that he spent about 10 minutes in each

unit before he proceeded to the next unit , thus he personally

witnessed the acts of violence perpetrated by PDP thugs, and did

not have to be informed by AC party agents. Under cro ss

examination by counsel to INEC, PW1 stated that he reported the

incidents of violence to the policeman stationed at his unit, but

was unable to report at a police station since there is none located

in his ward, and movement was restricted on the day of the

elections.

12.4 PW1 was a witness of truth. He was unshaken during cross

examination, and his evidence was not contradicted. The

suggestion of the respondents in their written addresses that

since this witness admitted under cross -examination that he

would be afraid if he sees someone shooting sporadically his

evidence is unreliable can not be correct as victims of violent

crimes have been known to give vivid accounts of the attacks on

them.

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PW2

12.5 PW2 is Amusat Kamil who gave testimony for EKOSIN/I YEKU,

Ward 5 and his testimony is that on the day of election some

thugs who were led by one Mr. S.O. Idowu invaded polling units

in the Ward. That these thugs were wielding guns, machetes and

some other weapons as well as shot into the air and forcefully

stuffed the ballot boxes with already thumb printed ballot papers

in favour of PDP in seven out of the eight polling units. That

voting was completely disrupted in 7 out of the 8 polling units in

the ward and that polling agents of the 3 rd Petitioner, agents of

other parties and voters were scared away by the acts of

intimidation, thuggery and violence carried out by the aforesaid

persons. And as a result of the disruption in the 7 units out of

eight in the ward votes were not counted and results not

announced at any of the 7 polling units in Ward 5

(Ekosin/Iyeku).

12.6 Under cross examination, PW2 stated that there are 8 polling

units in his ward, and he voted at Ekosin Community Grammar

School. He mentioned that he personally knows all the AC party

agents who submitted agent‟s reports to him. He categorically

stated that S.O Idowu a PDP member masterminded the rigging

of elections in his ward. PW2 further stated that he followed the

said S.O Idowu from polling unit to polling unit, and witnessed

the acts of violence and disruption he perpetrated. He concluded

by stating that the police were there but did not do anything

about it . The witness was a witness of truth. He was unshaken

during cross examination, and his evidence was not contradicted.

PW3

12.7 PW3 is Tajudeen Babatunde who gave testimony for Esa/Otun

Bale Ode, Ward 12 and his testimony is that on the day of

election some thugs who were led by known PDP leaders like

Kunle Amao, Bisi Jinadu, Shuahib Oyedokun in vaded the polling

units in the ward. That these thugs were wielding guns, cutlasses,

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and other weapons, shot into the air to scare away the voters and

intimidate the electoral officers and forcefully snatched ballot

papers and ballot boxes and carried them away. That voting was

completely disrupted in the polling units in the ward and that

voters and polling agents of the 3 rd Petitioner, agents of other

political parties were scared away by the acts of intimidation,

thuggery and violence carried out by the aforesaid persons. Some

agents of the 3 rd Petitioner were attacked and wounded. That due

to the disruption in the ward votes were not counted and results

were not announced at any of the polling units in Ward 12

(Esa/Otun). He further testify that on the day of the election at

polling unit 06 (Jehovah witness, at about 2.30 p.m., he was

informed by one Mr. Gabriel Oyeleke, the 3 rd Petitioner‟s Ward

Chairman, information which he verily believe, that in Polling

Unit 06 (Jehovah Witness) Mr. Gabriel seized some ballot papers

already thumb-printed in favour of PDP from the invading thugs

when there was struggle to resist the snatching of the ballot

boxes.

12.8 Under cross examination PW3 stated that he knows Alhaji Shuaib

Oyedokun, a former PDP deputy national chairman. He stated

that even though Shuaib Oyedokun is an elderly person advanced

in age, he led thugs to attack all the polling units in his ward. He

further stated that although his town is a big town, he personally

visited all the polling units in his ward in the morning on the day

of the elections, but was unable to visit them later in the day

because of the disruptions. He stated that in the polling unit he

voted in, voting was abruptly ended before the time prescribed

by the rules. This was a witness who had a detailed knowledge of

the events that occurred on the election day. When asked to list

all the AC agents in his ward, he mentioned all their names

without hesitating.

12.9 PW3 was a witness of truth. He was unshaken during cross

examination, and his evidence was not contradicted. The

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arguments of the respondents‟ counsel that the evidence of t his

witness is mere hearsay cannot hold water as the witness showed

that his evidence consists essentially of what he saw.

PW4

12.10 PW4 is Wasiu Ilufoye who gave testimony for I jabe/Ila Odo,

Ward 7 and his testimony is that on the day of election voting

started on a peaceful note until about 12 noon when a policeman

attached to a Unit 4, Konta called some people and informed

them the electorates were massively voting for AC in the unit.

That about Fifteen minutes later, some thugs came in 3 18 -seater

buses led by Bamidele Adeniyi (a.k.a. Zangaruwa); Ezekiel (Ofa

Poly student) arrived in the ward with guns, machetes, charms

and other dangerous weapons. That the arrival of these thugs,

made all the electorates and party agents took to their heels while

some stayed at a safe distance to watch what these thugs would

do. That these thugs moved from one polling unit to another and

emptying the ballot boxes and stuffing them with already thumb -

printed ballot papers in favour of PDP. That as a result of the

activities of these thugs, voting was completely disrupted in all

the polling units in Ward 7 (I jabe/Ila Odo).

12.11 Under Cross examination, PW4 stated that he along with the AC

party agents in the poll ing units in his ward wrote their agents

reports as soon as they witnessed the disruption of elections, that

although he voted, voting was disrupted shortly after. The

witness was a witness of truth. He was unshaken during cross

examination, and his evidence was not contradicted. It is not

correct as the respondents have contended in their written

address that this witness is evasive because according to the

respondents he did not state how he managed to observe that the

stuffing and emptying of ballot boxe s and the thumb printing of

ballot papers in favour of PDP. The witness has clearly stated this

in paragraph 7 of his witness statement on oath that he was

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observing them from a safe distance. This testimony was not

destroyed under cross examination.

PW5

12.12 PW5 is Owolabi Moshood who gave testimony for OLUKOTUN,

Ward 11 and his testimony is that on the day of election some

thugs came in blue 18-passenger bus invaded the polling units in

the ward. That these thugs were wielding guns, cutlasses, charms

and other weapons, the thugs shot into the air to scare away the

voters and intimidate the electoral officers and forcefully

snatched ballot boxes which they carried away. That voting was

completely disrupted in the polling units in the ward and that

voters and polling agents of the 3 rd Petitioner, agents of other

political parties were scared away by the acts of violence carried

out by the aforesaid persons. He stated that two members of the

3 rd Petitioner (Alhaji Rasheed Idera and Segun Agbadu) were

machete by these thugs in his presence. That by 1.15 p.m., these

thugs had concluded their nefarious activities with all the ballot

boxes carried away and all the electorates scared away. That

voting was irregularly conducted and/or totally disrupted in all

the polling units in the ward while votes were not counted and

results were not announced at any of the polling units in Ward 11

(Olukotun).

12.13 Under cross examination, PW5 stated that he voted in the

morning on the Election Day, that only a few people voted in his

unit before PDP thugs disrupted the elections. He further stated

that he received no prior training before the election. The witness

was a witness of truth. He was unshaken during cross

examination, and his evidence was not contradicted. Since this

witness has in his witness statement on oath stated that his

evidence consists of what he saw the suggestion of the

respondents‟ counsel in their written address that is evidence is

hearsay is therefore untenable.

PW6

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12.14 PW6 is Femi Akintola who gave t estimony for JAGUN/OSI

BAALE ODE, Ward 13 and his testimony is that on the day of

election some thugs who were led by known PDP members like

Mr. Kola Ojo, Alhaji Folorunsho Arekujo and Alhaji Oloyede

invaded the polling units in the ward. That these thugs were

wielding guns, cutlasses, and other weapons, these thugs shot

into the air to scare away the voters and intimidate the electoral

officers and forcefully snatched ballot boxes and carried them

away. That voting was completely disrupted in the polling u nits

in the ward and that voters and polling agents of the 3 r d

Petitioner, agents of other political parties were scared away by

these acts of violence carried out by the aforesaid persons. That

he was particularly beaten by the thugs when he tried putting up

resistance. That Some of the 3 rd Petitioner‟s polling agents who

also tried to resist the activities of these thugs were arrested by

security agents on the instruction of alhaji Shuahib oyedokun,

former Deputy National Chairman of PDP. That voting was

irregularly conducted and/or totally disrupted in all the polling

units in the ward and as a result votes were not counted and

results were not announced at any of the polling units in Ward 13

(Jagun/Osi Baale Ode).

12.15 Under cross examination PW6 stated that he was not allowed to

vote on the day of the elections by PDP thugs. He stated that

because his community is a small one, he can identify the

members of the PDP, and need not attend their meetings. He

further stated that though he did not make a writ ten report, he

informed the INEC officials and policemen in his ward about the

presence of weapons, but was ignored. He stated that he knows

Alhaji Shuaib Oyedokun a PDP chieftain who led thugs to disrupt

elections. He stated pointedly that he saw Alhaji S huaib

Oyedokun, Alhaji Oloyede and one Mr. Fola disrupting the

elections. He mentioned that in polling unit 4, only about 3

people voted before the elections were stopped. He stated that

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there was no voting at all in polling unit 2, and the elections were

disrupted by PDP thugs in polling unit 1. Under cross

examination by the 4 th Respondents counsel, he stated that he

witnessed all the facts he related to the tribunal. He further

stated that he was only able to visit 4 out of the 7 polling units in

his ward before the elections were disrupted by PDP thugs. He

stated that he witnessed more violence and disruption than was

contained in the agents report. When asked if he made a report to

the police, he stated that there was no police station in his ward.

He concluded by stating he was beaten up by PDP thugs, and

sustained minor injuries but did not have to see a doctor. The

witness was a witness of truth. He was unshaken during cross

examination, and his evidence was not contradicted. The attempt

of the respondents to make the evidence of this witness highly

improbable when they said in their written address that the

witness must have been a superman for him to have been in units

4, 5, 7 and 2 when disruptions occurred in those units has failed

signally. This is because the witness reiterated under cross -

examination by Mr. Gadzama SAN (counsel to the 4 t h -1365 th

respondents) said that”… all the polling units are close

together…” We refer this honourable tribunal to the proceedings

of the 4 t h day of August, 2009.

PW7

12.16 PW7 is Jonathan Adewunmi, he is one of the Local Government

Chairmanship Aspirant for the Action Congress and a registered

voter in Unit 9, Ward 15 and gave testimony of what transpired at

his unit and ward and his testimony is that on the day of the

election he went to ward 15, polling unit 9 where he was

registered to cast his vote but was not allowed to vote. He stated

further that in the ward, thugs led by, Sunday Alabi, Zachaeus

Adeniran, Ganiyu Lawal, Soji Ibikunle and Muritala Ajayi

invaded the polling unit in two 10 seater buses, a jeep and a

Nissan primera. That those thugs were with guns, cutlasses and

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machetes and they shot at random. That this group of thugs

hijacked the ballot bag and carried the bag away. That he was

chased away with guns and cutlasses and he had to run to Opa

Arin polling unit. That not long after he got to Opa Arin unit the

Governor of Osun State, Oyinlola came to the unit and carried

away the ballot box for the unit. That he left for his house and

later at around 11.30 a.m and 12.00 noon the same set of thugs

from the polling unit came to his house with guns, clubs,

cutlasses and machete and in the process destroyed his personal

belonging and also machete him on his head, hand and leg. That

he was left for dead in the pool of his blood and was later rushed

to the hospital where he received treatment. He further tendered

in exhibit a medical report marked exhibit JA1 to that effect.PW8

is Emmanuel Folorunso who gave testimony for

IGBAYE/IMULEKE, Ward 3 and his testi mony is that on the day

of election some thugs who were led by Mr. Bamidele Adeniyi

(a.k.a. Zangaruwa), Dr. R.A. Bello (Chairman, Ladoke Akintola

University of Technology, LAUTECH Teaching Hospital Board),

Mr. Adeniyi Bamidele who are known PDP leaders and some

other PDP leaders in the Ward invaded the polling units in the

Ward. That these thugs were wielding guns, machetes and some

other weapons. These thugs shot into the air and forcefully

snatched ballot boxes which they carried away. That voting was

completely disrupted in all the polling units in the Ward and that

agent of the 3 rd Petitioner, agents of other political parties and

voters were scared away by the acts of violence carried out by

these thugs. That election were irregularly conducted as well as

totally disrupted in all the polling units in the ward and as a

result votes were not counted and results were not announced in

any of the polling units in Ward 3 (Igbaye/Imuleke).

12.17 Under Cross examination, PW7 stated that he was a legal

practitioner, who had been called to the bar for 7 years. He stated

that he was enrolled as a barrister and solicitor of the Supreme

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Court with the name Jonathan Adewunmi sometime in 2005, he

however was unable to recall the name of the Director General of

the law school, nor the name of his lecturer in civil procedure,

neither could he remember the name of the Deputy Director

General of the Law School. Upon cross examination by the 4 th

Respondents counsel, he could not mention any of the courses he

studied at the Law School. He stated that on the day of the

election, he went to report the acts of violence at the police

station, but did not meet the police there. It has to be noted that

the witness‟s account of what he saw on the polling day was not

shaken by cross-examination.

PW44

12.18 PW44 is Janet Babalola who gave testimony for

OLOYAN/ELEMOSHO/ESA, Ward 14 and her testimony is that

on the day of election some thugs who were led by known PDP

members like Ganiyu Lawal invaded polling units in the Ward.

That these thugs were wielding guns, cutlasses and some other

weapons. The thugs also shot into the air and forcefully snatched

the ballot papers and ballot boxes and carried them away. That

voting was completely disrupted in the polling units in the Ward

and those voters, polling agents of the 3 rd Petitioner, agents of

other political parties were scared away by the acts of violence

carried out by these aforesaid persons. That voting was

irregularly conducted and totally disrupted in all the polling

units in the ward and votes were not counted and were not

announced at any of the polling units in Ward 14

(Oloyan/Elemosho).

12.19 Under cross examination, the witness was simply asked question

as to her ability to read and write, which she respond to. The

question then went on to who are lawyers were and the election

process she went through. As can be seen from the record the

witness was not asked question relating to her evidence in chief.

It can be recalled that the witness restated the fact that she voted

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very early in the morning before the election were disrupted by

the named PDP thugs. We submit that the respondents have not

in any way showed how the witness contradicted herself and in

the light of the foregoing we submit that her evidence should be

accepted.

PW45

12.20 PW45 is Victoria Ademola who gave testimony for ASI/ASABA,

Ward 9 and her testimony is that on the day of election some

thugs who were led by Lekan Oyediran, Soji Ibikunle and armed

with guns, machetes, acid, charms and other dangerous weapons

invaded the polling units in the ward. That these thugs went to

all the polling units in Ward 9 and scared away all the electorates

and party agents by shooting into the air. That she and others

stood at a safe distance to observed the activities of these thugs

on that they. That these thugs then took away all the ballot boxes

containing ballot papers and other election materials in all the

units without votes being counted or results announced. That

voting was completely disrupted in all the polling units in ward

9.

12.21 Under cross examination, PW44 stated that she voted at Oja Oba

polling unit at about 8 am on the day of the elections shortly

before PDP thugs disrupted the elections in her unit. She

explained that she could read and write, but cannot sign, and

would rather thumbprint. She further stated that her witness

statement was explained to her by one of the petitioner‟s lawyer

Mr. Badmus before she thumb printed. She was unshaken during

cross examination, and his evidence was not contradicted. The

observation of the respondents in their written addresses that

there are contradictions in the evidence of this witness on the

record of this tribunal is therefore unfounded as he evidence is as

lucid as can be.

PW47

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12.22 PW47 is David Adegboyega who gave test imony for

OKUA/EKUSA, Ward 8 and his testimony is that on the day of

election some thugs who were led by Bamidele Adeniyi (a.k.a.

Zangaruwa), Segun Babalola, A.S. Adetunji and Samson Oduoye

and armed with guns machetes, charms and other dangerous

weapons invaded the polling units in the ward. That these thugs

went to all the polling units in Ward 8 and scared away all the

electorates and party agents by shooting into the air. That these

thugs then took away all the ballot boxes, ballot papers and other

election materials in all the units without the votes being counted

or results announced. That as a result voting was completely

disrupted in all the polling units in the ward (Okua/Ekusa, ward

8).

12.23 Under cross examination, PW47 stated that the AC and the PDP

are the major parties in his ward, that the PDP has a large

following in his ward, but not as large as the AC. He mentioned

that voters queued up to vote before PDP thug‟s disrupted the

elections. He was unshaken during cross examination, and his

evidence was not contradicted.

PW48

12.24 PW48 is Olayiwola Lateef who gave testimony for ORE/AGBAYE,

Ward 6 and his testimony is that on the day of election some

thugs who were led by one Mr. Fatai Adeboye and Sarafa

Oyewole came in two 8-seater buses and invaded polling units in

the Ward wielding machetes, acid, cow bones, clubs and some

other weapons as well as injured a lot of people. That they also

threw certain liquid substance suspected to be an acid at some

people. That voting was completely disrupted i n all the polling

units in the ward and that polling agents of the 3 rd Petitioner,

agents of other parties and voters were scared away by the acts of

intimidation, thuggery and violence carried out by the aforesaid

persons. That voting was completely disru pted as these thugs

made away with the ballot boxes, the ballot papers and the other

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election materials in all the polling units. That as a result of this

there was no voting in any of the polling units in Ward 6

(Ore/Agbeye).

12.25 Under cross examination, no evidence was elicited from PW48 to

discredit him. He was asked if he was in possession of an INEC

Identity card or if he had ever worked in chemistry laboratory,

both of which he denied, He was unshaken during cross

examination, and his evidence was not contradicted. The

respondents have argued in their written addresses that this

witness should not be believed since his testimonies are

strikingly similar to those of PW47. This argument to say the

least is strange as there is no law which says that two individuals

who had witnessed the same event/s can not give accounts of the

event/s in the same or even use the same language in relating the

events.

PW79

12.26 PW79 is Awodeji Abayomi who gave testimony for OLUNISA,

Ward 10 and his testimony is that on t he day of election ballot

papers that were already thumb-printed in favour of PDP were

stuffed into the ballot boxes after attempt to snatch away the

ballot proved abortive and the polling agent of the 3 rd Petitioner

was threatened and compelled to participate in the counting and

forced to sign the result sheet. That at polling unit 2 and unit

Oyedele I some thugs who were led by Alhaji Shuahib Oyedokun,

a known PDP leader came in two 18 passenger buses and one 504

station wagon filled with mobile policemen invaded the polling

unit wielding guns, cutlasses and some other weapons, that those

thugs shot into the air to scare away voters and forcefully thumb -

printed the remaining ballot papers and thereafter snatched the

ballot papers and boxes and took them away. That voting was

similarly disrupted and serious irregularities and ballot box

snatching were carried out in some other unit in the ward. That

voting was completely disrupted in the entire unit to the

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exclusion of unit 005. That voting was irregularly c onducted

and/or totally disrupted in the majority of the units in the ward

and neither were votes counted nor result announced at almost

all the unit except in unit 005 and unit 008 where the polling

agent was forced to participate in the counting of vote and

signing of the result sheet.

12.27 Under Cross Examination, PW79 stated that Inisa is well known

to him, and there are only 4 wards in Inisa. When his factual

knowledge of Inisa was tested he accurately named all the 10

units in ward 10. He was not questioned as to the veracity of his

witness deposition, nor was any of the allegations contained

therein challenged. He was unshaken during cross examination,

and his evidence was not contradicted. The respondents have

argued in their written addresses that the evidence of this

witness to the effect that vehicles brought individuals who were

in police uniform to disrupt the voting was not covered by the

Petitioner‟s pleading can not be correct as the Petitioners have

pleaded already that voting was disrupted and by this evidence,

the witness was only giving evidence of the manner of the

disruptions.

Evidence of the 1 s t to 3 rd Respondents in respect of Odo Otin Local

Government

13.1 In Odo Otin Local Government , the 1 s t to 3 rd Respondents called

11 witnesses; These are: RW28 Bamidele Adeniyi; RW33 Soji

Ibikunle; RW35 Zaccheus Adeniran; RW36 Samson Oduoye; RW37

Job Atoyebi; RW38 Lekan Oyediran; RW45 Femi Okunola; RW49

Oyewunmi Musliyu; RW57 Tayo Oyedijo; RW59 Abiodun Abiona

Azeez; RW60 Adeyemi Najeem.

RW28 Bamidele Adeniyi of Ward 3 Unit 3 Odo Otin

13.2 The testimony of RW28 is that he is a member of Peoples

Democratic Party in Ward 3 while his polling unit is Unit 3 (St.

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Mary Primary School Igbaye). That he went to cast his vote at his

polling unit at around 11am on 14th April 2007. That he did not

lead anybody to the polling unit neither did he carry any weapon

on the day of election. He stated further that he left the polling

unit immediately after casting his vote to his house at station

road Igbaye. That he was inside his house throughout the day

watching television and listening to radio.

13.3 Under cross examination, RW28 claimed that he voted at unit 3

ward 3 (St Mary Primary School), that the voting process from

voting was not quite 2 minutes, not mo re. He stated further that

he left for his house immediately. Contrary to the claim of the

witness that he voted and was accredited, the name of the witness

was not ticked in Item 429 of Exhibit 377C for Unit 3 Ward 3.

Your Lordship is urged to examine Item 429 of Exhibit 377C in

finding that the witness told a lie when he claimed under cross -

examination that he saw his named ticked on the voters register.

The witness even denied Exhibit 357C, the certified true copy of

voters register.Even though the witness claimed that his house

was so close to the unit that he would have heard if there was

disruption, the witness stated that he heard the result of his

polling unit in the night and that he did not know when or where

it was collated because he went home. When confronted that

Exhibit 217 EC8A for Odo Otin Local Government, for his my

Unit was totally blank he said it cannot be blank because there

were so many votes. But at the same time the witness admitted

that he was not at the Polling Unit when for the re cording and

counting of the votes. He also admitted that he did not know

when the election ended even if at 3.00p.m.

RW33 Soji Ibikunle of Ile Olowa, Oyan, Odo Otin

13.4 The testimony of RW33 is that he is a member of PDP in Oyan,

Odo Otin Local Government, Osun State. That on the 14th of

April, 2007, he went out to vote at his polling centre at Owode

Market and returned home immediately. He stated further that he

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did not go anywhere at all after voting neither did he carry any

gun, cutlass nor charms, acid or any weapon at all. That he did

not have any thug and neither did he go about with thugs. He

went further to state that voting went on peacefully at his polling

centre.

13.5 Under cross examination, RW33 admitted that he is a member of

PDP and a leader in the Ward, he claimed he voted. He

remembered that he got to the unit at 10 am but could not

remember when he left the unit. The witness not being the first

person to get to the unit and neither was he an agent of any party

nor an accredited observer he said categorically that INEC

brought enough materials to the polling unit. Though he stated

under cross-examination by INEC that election were peacefully

conducted, contrary to that assertion he admitted not being in a

position to know whether election was concluded and votes

counted as he was not at the unit since he left after he

purportedly casted his vote.

13.6 Contrary to RW33‟s assertion that he voted Exhibit 375B, the

voters register for his unit discloses that he did not vote has his

name was neither accredited nor ticked to have voted. Clearly,

the testimony of the witness is a tissue of lies. Contrary to his

deposition in paragraph 5 the witness having admitted under

cross-examination by Counsel to the Petitioners he is not in a

position to state what happened after he left the polling unit as

he claimed in his paragraph 5. He even admitted that he would be

surprised that Exhibit 217(1 – 73) the certified true copies of

result for Odo Otin were not clear, ironically Exhibit R18

tendered by the Respondent does not even contained an EC8A for

his unit.

RW35 Zaccheus Adeniran of Apa-Oka Compound, Oyan

13.7 The testimony of RW35 is that he voted during the last

Governorship and House of Assembly Elections held on the 14th

April, 2007 at his unit at Onile's Compound and that he went to

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my polling unit to vote alone without carrying any arms and left

the polling unit immediately after casting his vote. That he was

in-door for the remaining part of the period of election on that

day.

13.8 Under cross examination, RW35 who admitted that he is a

member and a leader of the PDP claimed to have voted in

paragraph 3 of his deposition and went further to say that he left

for his house and stayed indoor throughout the remaining part of

the day in paragraph 4 of his witness statement. The witness who

never said he is an agent or the first person to vote at the unit it

cannot be believed when he said there were sufficient electoral

materials under cross examination by counsel to the 4 t h – 1365 t h

respondent. The witness however contradicted himself under

cross examination by the Petitioners counsel when he admitted

that he was not there when INEC brought election materials in

the Unit and do not know the number of ballot papers brought to

his Unit on that day, he admitted not knowing the number of

people registered to vote and that he is not in a position to know

as he is not INEC and do not have personal knowledge of

materials brought to the Polling Unit on that date.

13.9 RW35 further displayed his unwillingness to tell the truth when

having admitted under cross examination that he was in his unit

between 10.00 am and 11.00 am and since he did not go out to

other Units he would not know whether election was free and fair

in other Units he went further to say that h e was not in his unit

throughout the election period and was only there for less than

1½ hours the calculation of which in itself is wrong and for those

reasons if there was any problem he would not know. He went

further to state that he did not witness a ny counting of election at

any Unit, since he was not there personally and would not know

if election was concluded, results collated, counted and

announced in his Unit unless somebody reported to him because

he left at 11.00 am. The witness went further t o insist that

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election was free. The witness unbelievable testimony was further

exposed by the content of Exhibit 385(C) the voters register for

ward 14 unit 4 where he claimed to have voted as his name was

neither accredited nor ticked as voted. His testi mony remains

unbelievable as the result sheet for his unit was not provided by

INEC as majority of the EC8A certified by INEC were blank even

the R18 tendered by the respondent could not help the witness.

RW36: Samson Oduoye of ward 08 Odo Otin

13.10 The testimony of RW36 is that he went to the polling unit alone

without carrying any weapon whatsoever and t hat casted his vote

at around 10 am at Unit 1 (Oja Oba Polling Unit 01) Okua in the

presence of all party agents and the security agent. That he has

never carried gun in his life. That immediately after casting his

vote, he went straight to his house to rest and did not go out

again throughout the day as there was restriction of movement.

13.11 Under cross examination, RW36 while being cross examined by

counsel to the 4 t h – 1365 th respondent stated that he confirmed

that allegation of violence in his Unit was false. We submit that

in the face of paragraphs 4 and 5 of his deposition on oath RW36

cannot be rightly believed? And it is our humble submission th at

he is obviously not a witness of truth as his testimony under

cross examination by the Petit ioners counsel revealed. Under

cross examination he started out by being evasive about the time

he spent casting his purported votes, he also denied knowing the

time he got back home but was certain that he did not go back to

the polling unit. Furthermore and in confirming that he was not

at the unit he stated that he heard report from unnamed persons

that voting was concluded in his unit and that he also heard th at

collation of result was done at the collation centre. Ironically for

someone who admitted that he had a stake in the election all

these his hearsays were heard late in the night.

13.12 RW36 confirmed that he has been a politician since 2001 after his

retirement was effected by the then Governor Bisi Akande who

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incidentally is the chairman of the Action Congress, the witness

stated that he was bitter about his retirement and acknowledges

the fact that he is a special adviser to the Local Government

Chairman thus affirming his interest in ensuring his party win his

ward. With such an ambition he still maintained that he was not

bothered knowing the result until he was informed and in

another breadth he said he knew from the dancing crowd late in

the night. When confronted with the fact that result for majority

of the unit amongst which was his unit that is Exhibit 217

Certified True Copy of result sheet for Odo Otin were bla nk he

admits he would be surprised and to even worsen his case Exhibit

R18 tendered by the respondent also does not help his claims.

When asked about his relation with David Adegboyega and

Bamidele Adeniyi a.k.a Zangaruwa, he admitted knowing the

former but was quick to say he knew the former after election and

denied knowing Segun Babalola and A.S Adetunji all of whom

together they disrupted election.

RW37 Job Atoyebi of Oluoko‟s Compound, Oyan

13.13 RW37: Job Atoyebi of Oluoko‟s Compound, Oyan in Odo Otin

Local Government. The testimony of RW37 is that he was

appointed the party agent for the PDP in ward 14, Unit 9 located

at Obitikun-Oluoko in the election of gubernatorial and House of

Assembly election held on the 14 th day of April, 2007 while one

Samuel Adedeji stood in as party agent for the AC on the said

day. He further said election in the Unit started at around 8.30

am and that election in the unit went on smoothly throughout

without any disruption whatsoever. He stated that election was

concluded at 3.00 pm and counting of votes started immediately

in the presence of the party age nts and security agents after

which, the result of the election was announced openly. He later

claimed to have signed the result sheet while Samuel Adedeji the

AC agent refused to sign the Form EC8A but instead left in anger

for his house which was in front of the polling unit. He finally

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stated that he, the INEC Officers and the security agents left for

the collation centre at St. Peter‟s African Primary School, Oyan.

13.14 Under cross examination, RW37 an acclaimed PDP party agent

restated the same position while being cross examined by the

counsel for the 4 th – 1365 th respondent when he claimed that he

was the Party Agent for PDP on 14/4/2007 in his Unit and that

AC also had a Party Agent called Samuel Adedeji and that both of

them were on ground throughout the election period. Contrary to

his assertion that he was on ground throughout the election,

under cross examination by the Petitioner‟s Counsel he said he

voted at Onile‟s compound an entirely different unit from where

he claimed to have acted as poll ing agent and when confronted

with his claim of being at the unit throughout he claimed to have

spent about five minutes voting. Ironically Exhibit 385(C) the

voters register for Onile‟s compound debunked his voting claim

as his name was neither accredited nor ticked as voted on the

register. Still under INEC Counsel‟s cross examination the

witness who was not at the unit throughout as claimed by him

still said Election went peacefully in his Polling Unit and after

the election votes were counted and declared in presence of

himself and AC Agent. He claimed further that results were

announced openly and both of them were given Form EC8A to

sign. He claimed to have signed the form while AC agent

without any valid reason refused to sign the Form and he still

maintained that election was peaceful. One is left to wonder why

someone would just refuse to sign result sheet if indeed election

was truly peaceful.

RW38 Lekan Oyediran of ward 9 Odo Otin

13.14 The testimony of RW38 is that he went to the polling unit

(Asi/Asaba) to cast his vote at about 10.30am where he casted his

vote alone in the presence of all party agents and security agents.

He stated that he left the polling unit immediately after casting

his vote and went back to his house. He further stated th at he did

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not carry any weapon to anywhere and neither did he go to the

polling unit with anything. He claimed to be a lay reader at St.

Andrews African Church, Asaba, Odo Otin Local Government,

Osun State.

13.15 Under cross examination, RW38 a PDP member and former House

of assembly member who decamped from AD, the platform upon

which he was elected claimed to have voted on the day of the

election. The witness set out to be one who is not willing to tell

the truth right from the face of his deposition. Fi rstly he decided

to exempt his trade or profession from his deposition, secondly

he also decided not to disclose the exact polling unit where he

voted, but under cross examination he stated that he voted at the

unit in front of St. Andrew Church, Asi Asaba , whereas there are

separate unit one called St. Andrew and the other Opposite

African Church, but a look at the register for both unit discloses

that he was not a registered voter in both units. Finally to

dissolve any iota of truth in his testimony there was no result

sheet provided by INEC for the unit he allegedly claimed to have

voted as Exhibit 217 and R18 tendered by the Petitioner and

Respondents respectively were mostly blank.

RW45 Femi Okunola of Unit 1, Ward 4

13.16 The testimony of RW45 is that he was the accredited party agent

for Peoples Democratic Party in Unit 1, ward 4 Odo Otin Local

Government during the Gubernatorial and House of Assembly

elections held on 14 th of April, 2007. He stated that his duty was

to represent his party and monitor the voting in his ward to make

sure that there was no rigging. He claimed that election started

and it went well peacefully as there was no disruption of votes

and neither was there any fight, quarrel or trouble of any kind in

the unit. He stated that he knew Abdul Rasaq Oyelami (K.K) as

one of the party leaders in ward 4 but denied seeing him at his

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polling unit on that day. He stated further that he did not see him

with any gun, machetes or with thugs or charms on that day. He

claimed that election went without any hitch in the unit and

votes were publicly counted and result announced before being

recorded into the result sheet whereupon all the party agents

including him signed.

13.17 Under cross examination, RW45 clearly from the beginning

discloses that the witness statement he adopted was made under

a false name. Aside this, the testimony of the witness is replete

with contradictions. By paragraph 3 of the witness statement, the

witness stated that his duty is to represent my party and monitor

the voting in his ward to make sure that there is no rigging but

under cross-examination the witness stated that his duty only

relates to unit monitoring election in unit 1 and not to monitor

election in the entire ward. Both in paragraph 2 of the witness

statement and under cross-examination the witness claimed that

he was only a polling agent. However, the name of the witness

appeared in Exhibit 216(3), Form EC8B, which is the result for

Ward 4, as collation agent for the PDP. In paragraph 7 of the

witness statement and under cross-examination, the witness

claimed that election went without any hitch and it was publicly

counted and announced before it was recorded into the result

sheet whereupon all the party agents including him signed.

13.18 In furtherance of his testimony, the witness stated in paragraph 5

of his deposition that he knew Abdul Rasaq Oyelami but under

cross-examination, he initially said he did not know Abdul Rasaq

Oyelami. Furthermore, even though the witness claimed to have

sign beneath the result form, when challenged as to the proper

place agent signs his answer was that he did not know whether

he signed at the bottom or on the right side.

RW49: Oyewunmi Musliyu of Unit 03, Ward 5 in Odo Otin Local

Government.

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13.19 The testimony of RW49 is that he served as party agent of the

PDP at Unit 03, Ward 5 at St. Paul‟s Primary School, Ekosin, for

the Gubernatorial and House of Assembly Elections held on the

14 th April, 2007. He stated that voting commenced around 8.00 am

and ended around 3.00 pm on that day without any form of

molestation, intimidation or harassment of any voter. He claimed

that there was no incident of electoral malpractices during the

voting period as the law-enforcement agents kept the law and

party agents were present to monitor the election. He further

claimed that votes were counted publicly and entered into the

INEC forms which all party agents signed after which copies

were given to them. He finally stated that he submitted the copy

of the result given to him to his party.

13.20 Under cross examination, RW49 c laimed to be PDP agent at St

Paul‟s primary School, Ekosin polling unit , he claimed further in

paragraph 4 and 5 that there was no electoral malpractices during

the voting period and that votes were counted and publicly

entered into the INEC Forms that is; EC8A. he went further to say

the forms were signed by party agents and copies given to them,

he stated in paragraph 6 of his deposition that he gave his own

copy to his party, but unfortunately all his testimonies remain a

mere skeleton without flesh, as among the result sheet certified

by INEC as used in the entire Odo Otin Local government, result

which were mostly blank and of the few clear ones there is none

to ascertain the veracity of his testimonies this much is ev idenced

in Exhibits 217(1 – 73) and R18 tendered by the Petitioners and

the Respondents respectively. The witness or his party could not

even avail the Court with the copy allegedly received by him and

forwarded to his party.

RW57: Tayo Oyedijo of Unit 06, Ward 12 in Odo Otin Local

Government.

13.21 The testimony of RW57 is that he was the PDP party agent for the

Gubernatorial and House of Assembly election conducted on the

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14 th day of April, 2007 at ward 12, Unit 6 located at Jawo‟s

Compound, Inisa. He stated that he arrived at polling centre by

8.00 am on the Election Day where he met one Bode Abioye who

later informed him that he is the party agent for the AC as well as

some electorates. He stated further that voting commenced at

about 8.30 am under a peaceful atmosphere and ended at 3.00 pm.

He claimed that during the course of the voting exercise, there

was no disruption of any sort and that votes were counted

immediately after conclusion of election by 3.00 pm. He claimed

that result of the election was announced publicly and Form

EC8A was provided to be signed which he did sign but the AC

agent failed to sign and left the polling centre in anger. He finally

claimed to have followed the INEC officials and the security

agent to the collation centre located at Methodist Primary School,

Inisa.

13.22 Under cross examination, this witness claimed to be a party agent

for PDP. He claimed election was peaceful and further claim that

one Bode Abioye stood in for AC and that Bode refuse to sign

result sheet at the end of the election without any reason. Under

cross examination he agreed to stand by the integrity of what he

signed but when his attention was however drawn to the

discrepancy on EC8A i.e R18(7) and voters register i.e. 373(E) and

he then attempted to deny the result saying that it is INEC that

should explain the discrepancy, unfortunately INEC never came

to clear same. We submit that there is discrepancy between the

signature on the deposition of the witness as contained in his

deposition, Exhibit R18 and Exhibit 468.

RW59: Abiodun Abiona Azeez of Unit 07, Ward 11 in Odo Otin Local

Government.

13.23 RW59: Abiodun Abiona Azeez of Unit 07, Ward 11 in Odo Otin

Local Government. The testimony of RW59 is that he was the PDP

party agent for Ward 11, Unit 007 l ocated at St. Peter Anglican

Church premises Inisa at the Gubernatorial and House of

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Assembly Election held on the 14th April, 2007. He stated that he

was at the polling unit until one party agent, namely Odebunmi

Tunji for Action Congress and Awoniyi Gome z for Alliance for

Democracy (AD). He claimed that election process at the polling

unit commenced at 8.30 am and voters strolled into the polling

unit to cast their votes without molestation or harassment,

intimidation from any quarters and that there was no disruption

of election in any manner nor was there any disturbance. He

stated that it is a blatant lie that either Alhaji Rasheed Idera who

is his relation and Segun Agbadu, a motorcyclist were matcheted

on Election Day as these people are well known to him and the

following day after election he knew they were hale and healthy

without any physical wound. He claimed that voting was

regularly conducted in a peaceful atmosphere while votes were

counted at his polling unit at 3.00 pm. He claimed that he d uly

signed Form EC8A as PDP party agent while Awoniyi Gomez AD

party Agent equally signed but the Action Congress, Odebunmi

Tunji refused to sign on the ground that the result was not in his

party form. He further claimed that it is a known fact that Segun

Agbadu is an ANPP Ward Party Chairman and he was neither

harmed nor molested in any manner on the Election Day. He

finally claimed that the result of the election was made and

announced publicly at the polling unit which equally served as

the Ward Collation centre.

13.24 Under cross examination, Claimed that AC & AD had agent in the

unit namely Odekunmi Tunji & Awoniyi Gomez respectively in

his paragraph. Under cross examination by INEC he reiterates the

authenticity of his paragraph 2 and contrary to this R18 (65)

Awoniyi Gomez did not sign for AD.

RW60: Adeyemi Najeem of Unit 01, Ward 6 in Odo Otin Local

Government.

13.25 The testimony of RW60 is that he was the PDP Party Agent for

the Gubernatorial and House of Assembly elections held on the

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14th day of April, 2007 in Ward 6, Unit 01 located at St Gabriel

Primary School, Oore in Odo Otin Local Government. He stated

that he arrived at the polling unit around 8.50 am on that day and

met the security personnel on ground. He stated that one Musiliu

Afolabi introduced join him at the unit and claim to be the AC

party agent. He stated that voting process commenced at about

9.30 am after all processes had been put in place. He claimed that

election went on smoothly from the beginning to the end without

intimidation or harassment at all and he neither saw Fatai

Adeboye nor Sarafa Oyewole in his Unit on that day. He further

claimed that the voting exercise was concluded at 3.00 pm, and

the counting of votes was done immediately after which the

Presiding Officer announced the election result openly. He

further claimed that the result was recorded in Form EC8A which

was signed by the AC party agent and himself. He finally stated

that he followed the INEC officials and the security agent to the

collating centre.

13.26 Under cross examination, Claimed to be a party Agent but R18

(35) the relevant EC8A for the unit discloses that another person

signed the form. He also claimed to have signed when cross

examined by INEC counsel. R18 (35) finding discredit his entire

witness statement.

Boripe Local Government

Petitioners Evidence in Respect of Boripe Local Government

14.1 In respect of Boripe Local Government, the Petitioners

witnesses were Olorede Fatai Aderemi (PW9), Timothy Segun

Dokun (PW10), Adebiyi Babtunde (PW11), Idowu Ismaila

(PW12), Sanusi Wasiu (PW58), Olatunji Adesoye (PW62),

Oladosu Tajudeen (PW63), Oyewole Lukman (PW65) and Lateef

Akinwale (PW74) and their testimonies are as follows:

14.2 PW9 is Olorede Fatai Aderemi who gave testimony for Ward 1,

and his testimony is that on the day of Election thugs suspected

to be PDP thugs invaded the 7 polling units in ward 1 Iragbiji

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Town at different times, that these thugs shot into the crowd of

people that queued up to vote thereby causing pandemonium and

in the ensuing pandemonium they used the opportunity to snatch

ballot boxes and carted same away. That these thugs took the

ballot boxes to Senator Kola Ogunwale‟s house. That these thugs

later went round the ward and wreak havoc on the people and as

a result of these votes were neither counted nor result announced

at any of the polling units.

14.3 Under cross examination, PW9 stated that there was no

accreditation before voting in his ward due to the absence of a

voters register. He stated that the INEC office was bur nt prior to

the elections, and names of voters were merely written on pieces

of paper which aided multiple voting. He stated that he voted in

the morning and only a few people voted after him before the

elections were disrupted by PDP thugs. He pointed to paragraph

6 of his written statement on oath where he mentions Senator

Ogunwale a known PDP stalwart as a person who disrupted the

election aided by thugs. He stated that though he did not make

any report to the police, his party agents did. He concluded b y

stating that he did not have to make a report to the police as they

were present and witnessed all the acts of violence. He was

unshaken during cross examination, and his evidence was not

contradicted.

14.4 The respondents‟ comments in their written addr esses on the

evidence of this witness is they wonder how come he was not

wounded by any of the gunshots that were fired during the

disruptions in the ward!!!

PW10

14.5 PW10 is Timothy Segun Dokun who gave testimony for WARD 8,

and his testimony is that on the day of Election one Gbenga

Abioye, the younger brother of Abimbola Oyedele the PDP Local

Government Chairmanship Aspirant in Boripe Local Government

led thugs who invaded the polling Units and unleashed violence

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in all the polling units in the Ward. T he agents of the 3 rd

Petitioner were attacked at the polling unit by these thugs. Those

violent activities of these thugs scared away all the electorates

and polling agents at the polling units. That at Oke Baale polling

unit, He was attacked by these thug s who were armed with guns,

sword, clubs and other dangerous weapons and were at the point

of shooting him when He was rescued by Chief E. O. Oyaniran,

Baale of Ada and Chief M. O. Ojedele, Jagun of Ada. That voting

was completely disrupted in all the poll ing units and as a result

there was no counting of votes and no result was announced at

any of the polling units in the ward.

14.6 Under cross examination, PW10 stated that he is a registered

member of AC, and though he has not seen the register of

members for the PDP, he knows their members as they are from

the same community. He stated that he witnessed all that

transpired in his unit , and made a report detailing it. He

concluded by stating that there was no voters register in his

ward. He was unshaken during cross examination, and his

evidence was not contradicted.

14.7 The respondents in their written addresses have said of this

witness that his evidence is a narration of what his party agents

told him. This is not true as the witness has disclosed in h is

evidence how he moved around the various units in his ward on

the polling day and saw all that transpired and that he was even

attacked by the thugs.

PW11

14.8 PW11 is Adebiyi Babatunde who gave testimony for Ward 7, and

his testimony is that on the day of Election that barely thirty

minutes after voting started in the ward, thugs armed with all

sorts of weapons invaded all units in the ward except unit 1. That

in all the units invaded, these thugs snatched ballot boxes and

papers, engaged in multiple voting and stuffing of ballot boxes

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with the illegal votes. That voting was completely disrupted in

all the polling units except unit 1.

14.9 Under cross examination, the witness restated his assigned duty

as a Ward supervisor. He went further to state th at he made a

report which was submitted to his party chairman. The issue the

respondent tried to make out of the fact that a ward is divided

into unit cannot hold because the witness unequivocally stated

that his duty was to supervise the ward and doing le ss will

amount to incompetence on his part in any event the ward in

question as stated by the witness is not a large one. The witness

was unshaken under cross examination when he maintained that

his report contained what he actually saw. We submit that the

testimony of the witness cannot be impeached as he took a

holistic approach in his testimony when he admitted that election

was peaceful in one unit. The witness stated further that even at

the unit where election was peaceful, result were not collated,

counted nor announced at the polling unit making it impossible

for the agents to sign the result form.

14.20 PW12 is Idowu Ismaila who gave testimony for Ward 6, and his

testimony is that on the day of Election in the ward, voting went

on peacefully in all units except RCM 1 where ballot box was

snatched and carted away and at RCM 1 unit votes were not

counted and results were not announced.

14.21 Under cross examination, PW12 stated that there was no voters

register and no accreditation in his ward. He ment ioned that he

went collation centre but there were no INEC official present. He

further stated that he was aware that results in his ward were

cancelled by INEC. The most damaging testimony elicited from

him under cross examination was that the police assi sted PDP

thugs in snatching ballot boxes. He was unshaken during cross

examination, and his evidence was not contradicted. In spite of

the obvious clarity of the evidence of this witness, the

respondents still contend in their written address that the

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evidence of this witness is evasive without even stating how this

is so.

14.22 PW 58 is Sanusi Wasiu gave testimony for WARD 9, and his

testimony is that on the eve of the Election Day at about 9 p.m.,

PDP thugs led by Bisi (a.k.a Oju Ejo) serially attacked t he houses

of AC members in the town, shot into their houses

indiscriminately and beat the unlucky ones they were able to

catch. That many AC members and loyalist were therefore scared

out of town a day to the election. That on the day of the

purported election, all the units in the ward had been taken over

by thugs who were the only ones who thumb printed the ballot

papers and stuffed the boxes with them. That prominent among

these thugs were Bisi Oju Ejo, Alhaji Emaagbadun and Sina

Babadiya. That AC agent was not allowed to be present at any of

the polling units. That as a result of these there was no counting

of votes and announcement of results in any of the polling station

in the ward.

14.23 Under cross examination, PW58 stated that his party the AC

maintained polling agents in all 6 polling units in his ward, but

these agents were unable to carry out their mandated functions

because of disruptions occasioned by PDP thugs. He further

stated that he was prevented from voting by PDP thugs even

though he was registered to vote at maternity centre. He stated

that PDP thugs chased away all the voters with guns and other

dangerous weapons. He maintained that he did not vote despite

what was contained in his previous testimony. The respondents

wondered in their written addresses how this witness was able to

know that those thumb printing the ballot papers were PDP

members since he was not allowed to move close to come near the

polling units. This surprise of the respondents is not warranted

as the witness in paragraph 10 of his witness statement on oath

explained that he gained a personal knowledge of these events

when he visited the polling units.

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14.24 PW62 is Olatunji Adesoye who gave testimony for Ward 2, and

his testimony is that on the day of Election is tha t at Unit 1, thugs

came and invaded the polling unit, caused commotion and

snatched away the ballot box and polling papers. That everybody

including INEC Presiding Officers and polling agents of the

various parties had to run for dear life in the ensuing m elee. That

at Unit 2, thugs led by Kayode Idowu came in a civilian Coaster

bus belonging to Senator Ogunwale with the Senator‟s name

boldly inscribed on the bus invaded the polling unit , that these

thugs shot into the air, thereby caused great commotion a nd in

the middle of the commotion snatched away the ballot box and

polling papers. That the disruption operation in the Ward was

caused by the Kayode Idowu (a PDP House of Representatives

candidate) led thugs. That th is same man led his thugs to all the

other units in the Ward and made voting impossible after carting

away all polling materials. That He was also at the ward collation

centre and the Local Government Collation Centre where no

INEC official was present throughout the day whereas results of

elections were later announced on radio by INEC.

14.25 Under cross examination, PW62 stated that he was the 3 rd person

to vote on the day of the elections before elections were

disrupted. He further stated that PDP thugs arrived at about 12

noon, and carted away ballot papers and ballot boxes. He

maintained that they were led by Senator Bola Ogunwale and

Kayode Idowu. He was emphatic when he stated that he saw

Senator Ogunwale with a gun. He stated that there was no

counting of votes, he was at the collation centre at 3:00 pm and

remained there till 6:30 pm yet no INEC officials or policemen

came. He denied the imputation that he read his agents report

before writing his report and maintained everything contained in

his report was witnessed by him. He was unsha ken during cross

examination, and his evidence was not contradicted.

PW63

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14.26 PW63 is Oladosu Tajudeen who gave testimony for Ward 10, and

his testimony is that on the eve of the election 9 p.m., PDP thugs

led by Sunday (a.k.a Ejang), Amos serially attac ked the houses of

AC members in the town, shot into their houses indiscriminately

and beat the unlucky ones they were able to catch. That many AC

member and loyalists were therefore scared out of town a day to

the election. That on the day of the purported election, INEC

officials arrived at the polling stations with these thugs at about

9 a.m. That these thugs, were fully armed with guns, machetes,

clubs and other dangerous weapons that these thugs announced

to all present that the 3 rd Petitioner‟s polling agents and members

should leave all the polling units if they wanted to stay alive.

That all the polling units in the ward were taken over by thugs

who were the only ones who thumb printed the ballot papers and

stuffed the ballot boxes with them. That AC agent was not

allowed to be present at any of the polling units.

14.27 Under cross examination, PW63 stated that everything contained

in his deposition was what he witnessed, he stated that though he

saw INEC officials on the day of the election, they were in the

company of PDP thugs who shot into the air and disrupted the

elections, when confronted with his previous testimony that said

INEC officials did not turn up on the election day, PW63 insisted

they turned up, but elections were disrupted by PDP thug s. His

cross examination was concluded when he stated the policemen

were present, and witnessed all the disruption but did not act.

14.28 It is submitted that the respondents cannot be right when they

insinuated in written addresses that disruption of elec tion does

not mean that the election did not hold. It is our contention that

this is mere nitpicking as the evidence of the witness is

essentially that while the potential voters turned out with the

intention of casting their ballots, the process was disru pted by

the individuals who have been named by the witnesses and other

thugs.

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PW65

14.29 PW65 is Oyewole Lukman who gave testimony for Ward 3, and

his testimony is that on the day of Election at polling unit 1, He

was personally attacked, shot at and seriously injured when

thugs led by Kayode Idowu invaded the polling unit and carted

away the ballot box and ballot papers. That these thugs invaded

all the other polling units in the ward, repeating their violent

acts, snatching ballot boxes and ballot cartin g them away. That as

a result votes were not counted and results were not announced

at any of the polling units in the ward. That he later heard a

purported result for his ward announced on the radio.

14.30 Under cross examination, PW65 stated that there w as no voting in

his ward on the Election Day. He stated that elections were

disrupted by PDP thugs led by Kayode Idowu. He further stated

that INEC was unable to declare results in his ward because of

these disruptions. He stated that he was shot by PDP th ugs and

had to be taken to the hospital. He was unshaken during cross

examination, and his evidence was not contradicted. There is no

negation of this witness‟s testimony as alleged by the

respondents in their written addresses as the witness is

consistent in his testimony that no results were announced in the

polling units in the ward but that the results were announced on

the radio purportedly in respect of the ward.

PW74

14.31 PW74 is Lateef Akinwale who gave testimony for Ward 4, and his

testimony is that on the day of Election the mayhem in the

neighbouring ward 2 with the several gunshots imposed fear in

the electorates in ward 4 thereby causing them to take to their

heels. That at about 12 noon, armed thugs invaded the ward

moving from one polling unit to another at different times and

carted away the voting materials. That he witnesses the act of

these thugs who snatched the ballot boxes in each polling units in

the ward. That votes were not counted and results were not

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announced at any of the polling units in the ward. That he went

to the collation centre but there was no INEC official and no

results were collated at the collation centre.

14.32 Under cross examination, PW74 stated that thugs led by Kayode

Idowu disrupted the elections. He further stat ed that though he

does not know if the results in his ward were cancelled, but

knows Oyinlola was declared the winner. His cross examination

was brief, no questions were asked to impeach his credibility, nor

were any averments in his witness statement on o ath open to

scrutiny. He was unshaken during cross examination, and his

evidence was not contradicted. The comments of the respondents

that the evidence this witness is useless because he could not say

whether the results for the entire ward was cancelle d or not

render the evidence of the witness useless is simply unwarranted

as the witness is not obliged to say what he did not know.

Evidence of the 1 s t to 3 rd Respondents in respect of Boripe Local

Government

15.1 In Boripe Local Government: The 1 s t to 3 rd Respondent called 3

(three) witneses from Boripe Government, to wit: RW39, Abioye

Gbenga; RW43, Sunday Babadiya and RW50 Lawal Ayiloye

RW39 Abioye Gbenga

15.2 The testimony of RW39 is that he is the youth leader of P.D.P in

ward 8, Ada, Boripe Local Government and that he voted at L.A.

Primary School and thereafter went home. He stated that he did

not go with any Abimbola Oyedele or anybody at all as they are

not from the same unit or ward. He claimed that voting went on

smoothly without any violence or trouble at his polling centre.

15.3 Under cross examination, RW39 by virtue of paragraph 2 of his

statement on oath states that he is a PDP Youth Leader in his

ward. He stated in paragraph 5 of his deposition that voting went

smoothly without any violence or trouble at his polling centre

and also reiterate same assertion under cross examinations by

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both counsel for the 4 th – 1365 th and 1366 th – 1367 th respectively.

The witness, we humbly submitted cannot rightly make those

assertions in the face of paragraph 3 of his deposition where he

claimed thus “….That I voted at my Polling Centre L. A. Primary

School and thereafter went home”. The witness further

demonstrates that he is not worthy of belief when in the face of

obvious fact he claimed to have voted with his name accredited

and ticked on a voters register, we submit that this witness being

a member of the local government ought to be aware as it is a

general information that the voters register for most part of the

local government including that of h is own was burnt and even

INEC who conducted the election could not make available

register for his unit. To further compound the woes of this

witness no form EC8A was provided for his unit, an obvious

admission that no election took place in that unit . Th e witness

admitted knowing Abimbola Oyedele with whom he went about

disrupting election but denied seeing him. This witness testimony

became more incredible when in the face of all the above he insist

election was peaceful.

RW43 Sunday Babadiya

15.4 The testimony of RW43 is that he is a civil servant at Osun State

Polytechnic, Iree. He stated that he casted his vote at ward 9 unit

1, Iree at around 9.30am in the presence of the presiding officer,

party agents and security agent alone without carrying any

weapon or in the company of anything. He stated that after

casting his vote he immediately left for his house where he was

throughout the day.

15.5 Under cross examination, RW43 claimed that he voted at Oke

Maye, unit 1. He insisted that Oke Maye where he v oted was unit

1 but Exhbit 211(1) showed that Oke Maye is unit 2 not unit 1 and

he said he will not be surprised that Oke Maye is listed as unit 2.

Even though he claimed he voted, he said he did not know the

exact t ime he voted and that he cannot remember what time it

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took him from accreditation to voting. He claimed that he left

immediately after voting. Even though he admitted that he voted

before 10 a.m., he said he cannot remember that he left around 10

a.m. The witness said he would be surprised tha t voters register

for Boripe had been burnt before election. Incredibly, the witness

claimed that he did not know that 14, 497 is greater than 12, 631

and also that he did not know which one is greater between N12,

000 and N14,000. The witness was confronted with Exhibit 92

which showed that the total number of registered voters for

Boripe is 12, 631 and on the same Exhibits showed that the vote

for PDP alone is 14, 497. The witness admitted that he did not

know that there was no Form EC8A for Ward 9 Borip e in that

election and that he did not know that the whole election in

Boripe was mared by violence and was not concluded. It should

be noted that the witness did not under cross -examination denied

the absence of EC8A in ward 9 and disruption of election i n

Boripe Local Government.

RW50 Lawal Ayiloye

15.6 The testimony of RW50 is that he was the party agent of the PDP

at Oke-Asa polling Unit at Ward 9, Iree, Boripe Local

Government. He stated that throughout the voting period from

8.00 am to around 3.00 pm he was at the polling unit monitoring

the election. He stated at the conclusion of voting he went to the

collation centre at Baptist High School Iree from where he left for

his house after the collation of result at around 6.00 pm. He

claimed that throughout the period of the election and thereafter

he never carried any arms or dangerous weapons.

15.7 Under cross examination, RW50 claimed to have been the PDP

party agent at Oke – Asa Polling unit at ward 9, ire in Boripe

Local Government. Contrary to the al legation he claimed to have

stayed throughout the election period in the unit where he acted

as polling agent. Under cross examination by counsel to the

1366 t h – 1367 th respondent he claimed to have gone back home

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upon collection of his own copy of the result after election, we

submit that this is a clear contradiction of paragraph 6 of his

deposition on oath where he claimed to have gone to the collation

centre and left for his home at around 6.00 pm. Ironically under

the petitioners counsel‟s cross examination it was around the

same 6.00 pm that he got to the collation centre and was there till

the ward collation was almost through. The witness claimed to

have signed below the Form EC8A and later when confronted on

the areas where agents are expected to sign he simply said all he

knows is that he signed. The veracity of his claims as to the

conduct of the election was punctured when he was confronted

with the fact that most of the units in Boripe had no EC8A, this

he denied but when asked for his own copy, he claimed to have

taken it to their party‟s collation agent at the collation centre and

neither his party nor INEC produced the same. The witness who

also claimed to have voted was confronted with the voters

register for the unit and his name was not even on the register for

the unit as shown in Exhibit 398(B).

Atakunmosa West Local Government

Evidence of the Petitioners in respect of Atakunmosa West Local

Government

16.1 In respect of Atakumosa West Local Government, the

Petitioners witnesses were Gbenga Popoola (PW13), Adebiyi

Adelowo (PW14), Olowookere Adesoji (PW15), Omole

Adebamigbe (PW16), Bamidele Olanrewaju (PW46), Foluke

Oladosu (PW60), Titus Osobu (PW61) and Mudashiru Bello

(PW66) and their testimonies are as follows:

PW13

16.2 PW13 is Gbenga Popoola who gave testimony for Ward 7, and his

testimony is that on the day of Election He particularly

monitored the voting in Oke Osin polling unit. That even though

voting started on a peaceful note in the unit, Mr Dosu Babatunde

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former chairman of the local government and Mr Sanya

adetimilehin and Mr Akinwunmi Omotayo led thugs armed with

guns and machetes to stuff ballots paper already thumb printed

by non voters at the ward in favour of PDP into the ballot box in

Oke Osin polling unit in the ward. That he was particularly

attacked by these thugs who beat him up and tore his clothes. He

said that results declared for the election at Oke Osin do not

reflect the actual voting by the electorate in the unit.

16.4 Under cross examination, PW13 stated that as th e AC party ward

supervisor, his duty was to move within the different polling

units in his ward to supervise his party agents. He stated that it

was not within the sphere of his duties to canvass votes on the

Election Day. He further stated that the rule r estricting

movement does not preclude a party leader from moving within

his ward. He further stated that he was no accredited by INEC,

but by his party to oversee the conduct of elections in his ward.

When told to endorse his signature on a piece of paper by

respondents counsel, it was contended that the signatures were

different from those contained in his statement on oath; he

however insisted the signatures were similar. He confirmed

paragraph 16 of his witness deposition that he was attacked and

beaten by PDP thugs. He maintained under cross examination

that he could identify 3 members of the PDP who led thugs to the

voting centre. His cross examination was concluded when he

stated that he did not report the incidents he narrated to the

police because there were policemen who witnessed all that

transpired. He was unshaken during cross examination, and his

evidence was not contradicted.

16.6 The observation of the respondents in their written addresses that

the witness was not supposed to move round in hi s polling units

on the polling date assuming this to be true would not render the

evidence he gathered in the course of his movement inadmissible

as the law is clear that even evidence may be stolen. The further

121

observation of the respondents in their writ ten address about this

witness that since he admitted not being an agent in the unit, he

could not give evidence of the happenings in the unit ignores the

fact that this witness had said that he moved about the units in

the ward and his evidence is an account of what he saw.

16.7 The final observation of the respondents about the witness by

which they asserted that since the witness in spite his having

been beaten by thugs did not visit an hospital for treatment. This

submission is strange as there is no rule by which a person who

had suffered the kind of fate which was suffered by PW13 to visit

an hospital before their testimonies becomes credible.

PW14

16.8 PW14 is Adebiyi Adelowo who gave testimony for Ward 9, and

his testimony is that on the day of the Election voting started on

a peaceful note before Sanmi Asaolu, Dare Asaolu, Akanmu (PDP

ward youth Leader), Muyideen Jimoh, Mike Alu and Ajayi led

thugs armed with machetes and axes to invade the Polling units.

These thugs chased away all voters. That voting was totally

disrupted in all the 6 polling units in the ward. That as a result of

these votes were neither counted nor result announced at any of

the 6 polling units in ward 9.

16.9 Under cross examination, PW14 stated that he is a registered

voter, registered to vote at Osolo unit in Morocco ward. He stated

that he was prevented from voting on the Election Day by PDP

thugs. He maintained that despite the fact that there was

restriction of movement on the Election Day, he was permitted as

ward supervisor to move within the various units in his ward. He

explained that his party was not lawless in appointing him a

ward supervisor, and were not in breach of any INEC rules. He

was unshaken during cross examination, and his evidence was

not contradicted.

16.10 It is contended on behalf of the Petitioners that even if it is true

that the manner in which the witness had signed his name on the

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witness statement on oath in this matter is different from the

manner in which he had signed his name on an earl ier document,

this will not be enough to destroy his evidence as there is no law

which obliges a man to have only one signature. The observation

of the respondents in their written addresses on this point is

therefore of no moment.

16.11 PW15 is Olowookere Adesoji who gave testimony for Ward 3, and

his testimony is that on the day of Election voting started on a

peaceful note until one Mr. Ladipo, and other well known PDP

members led some thugs to invade the polling units in the ward.

These thugs chased away agents of the 3rd Petitioner and voters

away from all the polling units. He also said that election were

totally disrupted and as a result votes were not counted and

results were not announced at any of the 6 Polling Units in Ward

3.

16.12 Under cross examination, PW15 stated that there were no

elections in his unit. He maintained that the elections were

disrupted by PDP thugs led by one Mr. Oladipo a member of the

House of Assembly. He stated hat though he registered to vote at

Oke-Omi unit, he prevented from doing so by PDP thugs, and had

to run home in fear of his life. He concluded by stating there was

no collation of results at his unit. He was unshaken during cross

examination, and his evidence was not contradicted.

16.13 The respondents in their written addresses have argued that since

this witness had allegedly said that he ran away when mayhem

ensued anything he says about non-counting of votes amounts

hearsay. This with respect to the counsel to the respondents

amount to a distortion of the evidence of this witness as he had

indicated clearly in paragraph 5 of his witness statement on oath

that the electoral process was going on smoothly before it was

disrupted.

PW16

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16.14 PW16 is Omole Adebamigbe who gave testimony for Ward 8, his

testimony is that shortly after the voting commenced on the day

of the Election one Bayo Famuyiwa, Ajibola Dada, Shayo David

all PDP Stalwarts in the Ward led thugs to invade polling units in

the ward. These thugs were armed with machetes and guns. These

thugs attacked innocent voters and AC, party Agents in Ita Osan,

Inasin, Risawe and Isa Obi polling station. That there was no

resistance from any of them as the thugs were wielding deadly

weapons. He said that the unarmed man in police uniform, which

they all relied on for protection at Inasi polling units, took to his

heels when these thugs made a show of their pump action by

shooting indiscriminately. That this disruption led to the fleeing

of voters, AC party agents and other political party agents from

the voting centres and the thugs seized and fled with ballot boxes

and papers. That election was totally disrupted in all the 4

polling station in the ward and as a result votes were neither

counted nor result announced at any of the 4 polling station in

the ward.

16.15 Under cross examination, PW16 stated that he is a lawyer whose

practice is primarily in Lagos, and is a member of the Ikeja

Branch of the Nigerian Bar Association. He stated that the INEC

rules did not restrain a ward supervisor from moving through t he

various units within his ward to observe the election process. He

further stated that though he was not accredited by INEC, INEC

expected the various political parties to appoint supervisors to

monitor the conduct of elections. He confirmed paragraph 4 of his

deposition that PDP thugs came to his polling unit shooting into

the air and generally disrupting the elections. He stated that he

along with other AC agents were attacked by these thugs. He

further stated that he was unable to make a report to the police as

the policeman who was on duty where the attack took place

jumped out of the window and ran away in fear of his life. He

stated that he was prevented from voting by the PDP thugs, and

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voting ended in his ward at about 10:00 am because of the

disruptions. He was unshaken during cross examination, and his

evidence was not contradicted.

PW46

16.16 PW46 is Bamidele Olanrewaju who gave testimony for Ward 4,

and his testimony is that on the day of the Election voting started

on a peaceful note until the 2nd Respondent, Erelu Olusola

Obada, Chief Joshua Ogunleye and one Elder Gbenga Abiola led

some thugs which included Ibitoye Ogunbekun, Sunday Fadugba

(a.k.a. Eniari), Olaoluwa Famurewa, Seyi Awoniyi (a.k.a Body),

Bola Owosho Dare ·Jegede and forcefully snatched the ballot

boxes in two polling units (Temidire Primary School and Open

Space Ibodi Grammar School) and replaced the authentic ballot

boxes with other ballot boxes already stuffed with ballot papers.

That in 4 polling units, (Igila Unit, Iyere Un it, I lotin Unit and

Open Space Campus Area) the aforesaid persons forcefully

stuffed ballot papers into the ballot boxes in the said 4 units. That

the 3rd Petitioner's agents and some other voters were scared

away from all the polling units in the ward and the 3rd

Petitioner's were prevented from participating in counting of

votes, if any, in all the 6 polling units in the Ward. That there

was no counting of lawful votes in the polling units and results

were not announced at any of the polling units.

16.17 Under cross examination, PW46 stated that he voted on the day of

the elections at unit 2 open space grammar school Ibodi. He

stated that his party the AC, had polling agents in all 6 units in

his ward, but these polling agents were not allowed to observe

collation at the collation centre. The cross examination of PW46

was short; no evidence was elicited from him contradicting the

averments in his statement on oath. He was unshaken during

cross examination, and his evidence was not contradicted. The

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arguments of the respondents in their written addresses that

since AC had agents in the polling units election must have taken

place can simply not be correct as this witness and the reports of

the agents indicated that there was no election.

PW60

16.18 PW60 is Foluke Oladosu who gave testimony for Ward 1, and her

testimony is that on the day of Election voting started on a

peaceful note but at about midday, some persons who were led

by one Ogunleye Joshua Oladipo, who is the Osun State House of

Assembly Candidate on the Platform of the Peoples Democratic

Party, invaded the polling units in the ward. These people

disrupted voting by attacking polling agents of the Action

Congress and other voters. Those attacked were beaten and

machete and sustained wounds. That amongst the wounded in the

said attack were Messrs Gbamila, Chief Fagbamiye (a.k.a.

Gbogandan) and Kehinde Ajiyo.

16.19 Under cross examination, PW60 stated that she was a hairdresser.

She further stated that she knows one Gbamila, Chief Fagbamiye

and Kehinde Ajio, that they are all members of the AC. When

asked if she knew Kunle Fagbile, she replied in the negative. She

was then confronted with Exhibit R10, her witness deposition

which showed that the content was interpreted to her by Kunle

Fagbile. She responded saying the witness deposition was made

over 2 years ago, and all she recollects is that it was interpreted

to her by a man. None of the averments in her witness deposition

was impeached during cross examination. He was unshaken

during cross examination, and his evidence was not contradicted.

PW61

16.20 PW61 is Titus Osobu who gave testimony for Ward 5, and her

testimony is that on the day of Election voting was successfully

concluded in three polling units‟ viz. Epe, Igun and Abepe. That

in I jana Methodist Primary School Unit, one Chief J. Sunday

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Obadare (Chairman, State Universal Basic Education Board), Mr.

Kehinde Arowolo and Deacon Dele Amasa led thugs to invade the

unit. These thugs beat up, shot and wounded the 3rd Petitioner's

agent and other voters. That herself, Friday, Freeboy and Ropo

ani were attacked by these thugs when they made efforts to

prevent them from snatching the ballot box at Ijana Methodist

Unit 3. That votes in two units‟ viz. Odo Iju unit and Iyemogun

Unit were not counted at the polling units but the ballot boxes

were taken to OSU for counting and at OSU agents of the 3rd

Petitioner were violently attacked and driven away from the

collation centre thus preventing them from witnessing the

counting, if any. That at the INEC offic e, these thugs further

attacked some of their members who were seriously wounded.

That three motorcycles belonging to 3rd Petitioner's members

were seized by Chief Ogunleye. The victims of the attack at the

INEC office are Rotimi Ibironke, Isiaka Olaniyan.

16.21 Under cross examination, PW61 stated that there are 6 polling

units in her ward, and the AC was declared winner in 2 polling

units. She stated that though Ropo Oni and Friday Freeboy are

not mentioned in the poling agent‟s reports, they led the thug s

that disrupted the elections. He was unshaken during cross

examination, and his evidence was not contradicted. The

arguments of respondents in their written addresses that the

refusal of certain individuals who were attacked by thugs

namely, Patrick Lawrence, Olaniran Isiaka, Julius Muri to testify

deprive the evidence of this witness of credibility. In the first

instance, it has to be said that the said individuals have refused

to testify as there is nothing on record to say that they were

called and they refused to testify. Much more, the law does not

require that before the type of facts in issue in this case can be

proved the individuals in question ought to have been called so

long as the petitioners deem themselves able to prove their case

without calling this people.

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PW66

16.22 PW66 is Mudashiru Bello who gave testimony for Ward 10, and

his testimony is that shortly after voting commenced on Election

day, one Mr Omopariola and Richard Akinsehinde (a councillor)

led thugs who invaded Town Hall and Ogogodoja units in the

ward. These thugs were armed with machetes and guns with

which they snatched ballot boxes in Town Hall and Ogogodoja

units. That when the same attempts were resisted in Agbabiaka

and N.U.D polling units the ballot boxes were burnt by the thugs.

The particulars of the vehicles used to transport the armed thugs

that disrupted the elections in wards 10 and 11 are: a Mazda with

registration No “AE 55 SSU” and an 18 -seater Bus with

Registration No “XB 993 FFE”. That election were totally

disrupted in all the 4 polling units and as a result votes were

neither counted nor result announced at any of the 4 polling units

in ward 10.

16.23 Under cross examination, PW66 stated under cross examination

that he was a counsellor representing the UNCP for ward 11

Atakumosa West Local Government Area. He was not cross

examined as to the content of his written statement on oath, nor

was his credibility impeached under cross examination. He was

unshaken during cross examination, and his evidence was not

contradicted. The evidence of this witness , contrary to the

contention of the respondents , in their written address has not

been discredited simply because he was not accredited on the

polling date as a supervisor in the ward. We say this because

there is no law which stipulates that for a witness of the events

on an election day to be credible, he must have been accredited

by INEC to perform the role which he performed by INEC.

Evidence of the 1 s t to 3 rd Respondents in respect of Atakumosa West

Local Government

128

17.1 In Atakumosa West Local Government: The 1s t to 3 rd Respondent

called 10 (ten) witneses from Atakumosa West Local Government,

to wit: RW1 Ogunleye Joshua Oladipo; RW2 Deacon Dele Amasa;

RW3 Elder Joseph Akindele Obadare; RW4 Hon. Dosu Babatunde;

RW5 Chief Akinwunmi Omotayo; RW6 Ibitoye Ogunbeku; RW7

Sayo David; RW13 Akinsehinde Richard; RW14 Hon. Omopariola

Boluwaji; RW24 Ajayi Folorunso .

RW1

17.2 RW1 Ogunleye Joshua Oladipo of ward 3 Atakumosa West. The

testimony of RW1 is that he is the Honourab le member of State

Assembly representing Atakumosa East and West State

Constituency. That on the 14th April, 2007, when the election to

the office of the Governor of Osun State took place, He voted at

polling unit 001, Methodist Primary School Oke - Omi, in Ward 3

and after voting, he returned to his house. That he did not lead

some persons or/and thugs to any polling unit in Wards 1, 3, and

4 or/and any ward and did not disrupt voting at the aforesaid

polling units or/and wards. That he did not with any pe rson

or/and a group of person attack polling agents of Action

Congress or/and other voters. That he did not know Gbamila and

Kehinde Ajiyo in Ward 1, but he knew Chief Fagbamiye (a.k.a

Gbogandan) as a Chief in Osu Community. That on the said day

of election, he did not with Erelu Olusola Obada, Elder Gbenga

Abiola or/and any other persons led thugs or / and group of

persons to forcefully snatch the ballot boxes in Temidire Primary

School and open space Ibodi Grammar School and/or in any

other units in Ward 4 or in any wards. That he did not with the

aforesaid people replaced the authentic ballot boxes with other

ballot boxes already stuffed with ballot papers. That he did not

with the aforesaid people or any other people forcefully stuffed

ballot papers into ballot boxes in Igila Unit, Iyare Unit, I lotin

Unit and open space campus or/and in any units in Ward 4. That

the 3rd Petitioners agents and voters were not scared away in my

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unit, Methodist Primary School or in any other units in the Local

Government. He further states that votes were sorted, counted,

recorded and announced at his unit in the presence of the party

agents present namely, PDP, AC. He also claimed that election in

his unit was peaceful and orderly. He finally stated that he did

not seize the motorcycles of the 3rd Petitioner's member at the

INEC office or at any other place.

17.3 Under cross examination, RW1 said that he cannot remember the

day that he signed the witness deposition but that it was made in

2008. He claimed to have voted at Methodist Pry Sch Oke-Omi,

Osu and that he got to the polling unit at 8:30am and that he met

a lot of people there. He said that it took him within 5 minutes

from verification to the casting of vote and that he left for his

house immediately. He claimed that he knew of the result of his

unit after 3 pm when voting close I returned to unit to know the

result of election. This witness is not a credible witness, because

even though he claimed to have voted only in a unit, it became

clear from item 697 of Exh 365A (voters register for (Meth pry Sch

Oke-Omi 001) and item 688 of Exh 365B (voter register for polling

unit 02 Methodist Pry Sch) that there is evidence that the witness

registered and was accredited to have voted at two different

polling units. Further, even though there is clear evidence on

item 688 of Exh 365B that the name of the witness on that exhibit

was marked or ticked the witness falsely claimed, under cross -

examination, that there is no ticking against his name “but only

11” , whatever that means! The Petitioners humbly invite your

Lordship to again look at item 688 of Exh 365B where your

Lordship will find that the name of the witness was ticked in that

document.

RW2 Deacon Dele Amasa of ward 5, Atakunmosa West

17.4 The testimony of RW2 is that he was a former Chairman of

defunct Atakunmosa Local Government Council and a member of

PDP in Ward 5. He recollected that election to the Office of

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Governor of Osun State took place on the 14th April, 2007 and

that on the 14th of April, 2007 he voted at Methodist Primary

School I jana polling unit and after which he returned to his

house. He stated that he knew Elder Joseph Akindele Obadare

and Kehinde Arowolo. He went further to state that himself with

the said Elder Joseph Akindele Obadare and Kehinde Arowo lo or

any other persons did not lead thugs to beat up, shoot and wound

the 3rd Petitioner's agents or any party agent and voters. He

stated further that he with any other person(s) did not attack

Friday, Freeboy, Ropo Oni, Titus Osobu or any other persons. He

stated that himself and any other person(s) did not snatch the

ballot box at I jana Methodist Unit 3 or at any other units in the

ward and neither did he with any other person(s) prevent the 3 rd

Petitioner's agent or members from voting nor were they dr iven

away by anyone from the polling unit. He stated that he did not

with any thugs attack the 3 rd Petitioner's members or agents at

the INEC Office. Furthermore he stated that votes were counted,

recorded and announced In the presence of party agents and that

the election in his unit was peaceful and orderly.

17.5 Under cross examination, RW2 claimed that he voted on the day

of election, at Unit 3 Ward 5, Methodist Primary School I jana and

that Ward 5 is Ifelodun. He said he got to the Polling Unit

between 9.00a.m. and 10.00a.m., and met other people there. To

test the veracity and credibility of the witness, particularly as the

sum of his testimony was that he voted and went home, the

witness was initially shown Exhibit 368C and he claimed that

Exhibit 368C was not the voters register for his unit. He was later

shown Exhibit 368B, the voters register for Methodist Primary

School, Ijana, the polling unit where the witness claimed that he

voted. Even though this witness claimed that he voted both in his

evidence in chief and under cross -examination, the witness could

not find his name or picture in Exhibit 368B, the voters register

for Methodist Primary School, I jana, the polling unit where the

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witness claimed that he voted. It is submitted that with this

evidence, verifiable by Your Lordships on Exhibit 368B, this

witness lacked credibility and cannot be believed.

17.6 RW3 Elder Joseph Akindele Obadare of Oke - Ode, I jana Wasare,

Atakumosa West. The testimony of RW3 is that he is the

Chairman of Osun State Universal Basic Board and a Party Leader

in the Atakumosa West Local Government. He also recollected

that the election to the office of Governor of Osun State took

place on the 14th April, 2007. He stated that on the day of

election, he voted at Methodist Primary School, I jana Polling Unit

after which he returned to his house. He stated that he knew

Kehinde Arowolo as the immediate past councilor of Ward 5, and

also knew Deacon Dele Amasa as a former Chairman of

Atakumosa West Local Government. He stated t hat he did not

with anyone lead thugs or any other persons to beat up, shoot

and wound the 3rd Petitioners agent or/and any party agents and

other voters. He went further to denied that himself and the

Kehinde Arowolo and Deacon Dele Amasa or/and any other

person lead thugs or/and any other persons to beat 3rd party

agents or any other party agents he also stated that they did not

attacked one Friday, freeboy, Ropo Oni and Titus Osobu or any

other persons and neither did they snatch the ballot box at Ijana

Methodist Unit 3 or at any other units nor prevent the 3rd

Petitioner's agent or members from voting. He went further to

deny driven anybody away from the polling unit and that he did

not with any thugs attack 3rd Petitioner's members or agents at

the INEC Office. He claimed that votes were sorted, counted and

announced in the presence of party agents of PDP and AC in his

unit and results form signed by agents of PDP and AC. He finally

claimed that election was peaceful and orderly in his unit.

17.7 Under cross examination, RW3 said that Elder J. A. Obadare are

his full names. He stated that the election was conducted in

April, 2007 but that he cannot remember the date for it was a long

132

time now. He claimed that he voted at open space I jana Wasarie,

in front of Methodist Pry Sch. Unit 3 and that he got to the

Polling Unit between 10a.m. to 11.00a.m., and that he met a lot of

people and he queued up. He said initially that his witness

statement was written by his lawyer but he later stated that he

cannot say whether it was written by himself or his lawyer. To

test the credibility and veracity of this witness as to his written

deposition, particularly paragraph 4 of the written deposition,

the witness was shown Exhibit 368B, voters register for open

space I jana Wasarie, in front of Methodist Pry Sch. Unit 3, and

asked to confirm whether his name is in the list). The witness

confirmed that his name was not on the document. Even though

Exhibit 368B, voters register for open space I jana Wasarie, in

front of Methodist Pry Sch. Unit 3, is a certified true copy by

INEC as voters register for his unit , the witness claimed that

Exhibit 368B is not the document used during the election and

that his name was on the one used during the election.

17.8 The witness also confirmed that Exhibit 368B did not contain his

photograph. In the absence of production of any other register for

the unit by INEC or any other party, by Section 114 of the

Evidence Act, there is presumption as to genuineness of Exhibit

368B as the voters register for open space I jana Wasarie, in front

of Methodist Pry Sch. Unit 3 and the fact that the name or picture

of the witness was not on the Exhibit showed that the witness is

not a credible witness as he has come to court to tell lies about

his having voted on the day of election and went back home in

order for same to be some form of alibi against the allegations of

distruption of election levied against him by the Petitioners.

RW4 Hon. Dosu Babatunde of Ward 7 Atakumosa West L/G

17.9 The testimony of RW4, a lawyer is that he was the immediate past

Chairman of the Local Government and a PDP member. He stated

that he knew Sanya Adetimilehin as immediate past Special

Adviser in the Local Government and also knew Akinwunmi

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Omotayo as the Chairman of PDP in Atakumosa West Local

Government. He stated that on the 14th April, 2007 when the

election to the office of Governor of Osun State took place, he

voted at Oju - Oja Polling Unit after which he returned to his

house. That he neither went to Oke - Osin Polling Unit nor any

other units after voting. That he did not see the said Akintayo

Omitayo on the said 14th April, 2007 neither did he , Sanya

Adetimehin and Akinwunmi Omotayo lead thugs or any other

persons armed with guns, machetes and/or any other w eapons to

the ward. That they did not stuff ballot papers already thumb -

printed by non-voters at his unit or any other units in the ward.

That himself, Sanya Adetimehin and Akinwunmi did not put

already thumb-printed ballot papers into the ballot box in Ok e-

Osin polling Unit or any units o f the ward. He claimed that votes

were counted, recorded, announced and signed by the party

agents of PDP and AC in his unit and that election was peaceful

and orderly in his unit.

17.10 Under cross examination, RW4 said he voted at Oju Oja Polling

Unit. That he got to the Polling Uni t around 11.00a.m. He said

that on reaching there he saw people on the queue and joined the

queue. That he went to the polling unit from his house which

was adjacent to the Polling Unit and t hat it takes about 2 minutes

normal walking. That after voting he left for his house. That he

joined the queue and waited for about 45 minutes to 1 hour and

that it took him about 3 - 4 minutes from the time of verification

and when he voted.

17.11 RW4 displayed prevarication when he claimed under cross -

examination that he heard the counting and recording at a

distance. That he saw the recording but that he did not see what

they recorded. He later said that “they did not record after

counting”. In the same breath he said that “I saw the recording

but I was in a position to see the Party Agent signing. I saw the

recording, but I cannot say what they wrote”. Under cross-

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examination, the witness claimed that Adebisi Samuel and Friday

John were at the unit with him and were member of his polling

unit but when confronted with the fact that the names of Adebisi

Samuel and Friday John were not on the voter register for the

unit (Exhibit 373G, Oju Oja unit Oke Bode) , he said that it is

possible. Even though not an INEC official, the witness also

claimed under cross-examination that there are many

discrepancies in the register of voters. Adebisi Samuel and Friday

John were obviously with him at the unit for disruption of

election as they were evidently not register ed voters at the

polling unit. The witness also showed serious reluctance in

answering questions.

RW5 Chief Akinwunmi Omotayo of Ward 7 Atakumosa West

17.12 The testimony of RW5 is that he is the Chairman of people's

Democratic Party In Atakumosa West Loca l Government. He

stated that he knew Hon. Dosu Babatunde and Sanya

Adetimilehin. He claimed that he voted at Oke - Osin polling unit

on the day of election and returned to his house after voting. He

stated that himself, Dosu Babatunde and Sanya Adetimilehi n did

not lead thugs or any other persons armed with guns and

machetes to the ward. He further stated that they neither stuff

ballot papers already printed by non - voters at his unit or any

other units in the ward in favour of PDP nor stuff the said

already thumb-printed papers into the ballot box in Oke - Osin

polling unit or any units in the ward. He claimed that votes were

sorted, counted, recorded and announced in the presence of all

the party agents present and that election was peaceful in his

unit. He finally stated that the results declared in Oke - Osin

reflected the actual voting by the electorate in the unit.

17.13 Under cross examination, RW5 said he can read English, but

preferred to speak in Yoruba. He swore to the statement before

his lawyer. He claimed that he voted at Oke Osi Polling Unit and

that he got to the polling unit at 8.25a.m. He said it took about 5

135

minutes for his name to be checked in the voters register. From

the time of verification of his name and the time of voting, it did

not take him more than 2 minutes. He said he left the Polling Unit

around 8.45a.m. The witness is one that deliberately set out to

withhold facts from the Tribunal. He claimed under cross -

examination that even though he saw members of his Party who

came to vote he cannot remember their names, even the names of

those from his Unit because it has taken 3 years.

Notwithstanding that he was the Chairman at the Party of that

Unit, he said nobody greeted him and he cannot say whether

people recognized him or not. He said Sanya Soya Adetimilehin

is a member of PDP. The witness is not one of truth because even

though he emphatically stated at paragraph 8 of his evidence in

chief that “Votes were sorted, counted, recorded and announced

in the presence of all the party agents present” and in paragraphs

9 and 10 respectively that “the election was peaceful in my unit”

and “that the result declared in Oke -Osin reflected the actual

voting by the electorates in the unit”, the witness stated under

cross-examination that he only heard about the result of the

polling unit when the polling agent called him on phone at about

3.25 p.m.

17.14 The witness also admitted under cross -examination that he was

not present when the vote were sorted, counted and announced

and that it will be a lie if anybody including himself said that he

was present when the votes were sorted, counted and announced.

The witness also claimed that he had left his unit at about 8.45

a.m. With these admissions under cross -examination, there is

clearly no basis for the testimony of the witness in paragraphs 8,

9 and 10 of his evidence in chief and those statements were made

by the witness falsely and to deceive the Honourable Tribunal.

RW6 Ibitoye Ogunbeku of Ward 1, Atakunmosa West

17.15 The testimony of RW6 is that he voted at Methodist Primary

School Oke - Oja polling unit on the 14th April, 2007, when the

136

election to the office of Governor of Osun State took place. He

stated that he knew all the people mentioned in paragraph 5 of

the Petitioners' affidavit sworn to by one Bamidele Olanrewaju.

He denied being a thug and that he was not employed by Erelu

Olusola Obada, Chief Joshua Ogunleye and Elder Gbenga Abiola

or any other person as a thug. He denied replacing the authentic

ballot boxes with other ballot boxes already stuffed with ballot

papers at Temidire Primary School and open space Ibodi

Grammar' School or in any units. He stated that he did not with

anyone snatch ballot boxes and papers or forcefully stuff ballot

papers into ballot boxes in 4 units or in any units. He claimed

that he did not go to Ibodi on the 14th April, 2007 and neither did

he vote in any unit at Ibodi Ward 4. He stated that after voting at

his unit in Methodist Primary School Oke - Oja Polling Unit of

Ward one, he returned to his house. He finally stated that himself

and any other person did not scare away the 3rd Petitioners'

agents and voters from the polling units in Ward 4.

17.16 Under cross examination, RW6 did not state his occupation in his

witness statement. However, under cross-examination, the

witness who claimed that he cannot read and write stated that he

can sign and his specimen signature was admitted as Exhibit 463.

The witness stated that he started carpentry work since 1979. He

stated that he did not go to school, that was why he stated that he

had been following his father since the age of 12. The witness

who initially stated that he only calculated that he was 12 years

old in 1979 by calculating the age of his older siblings later

categorically stated that he was born in the year 1968! He said it

was his lawyer, Barrister Ogunjuyigbe, that wrote his witness

statement for him. The witness stated that he voted at Oke Oja

Primary School Osu and that he got there around 8.30a.m.

17.17 RW6 was evasive and hesitant when he was asked whether he met

his friends who are PDP at the polling unit, later stated that he

has no friend in PDP, but that he saw members of PDP, among

137

whom are Victoria Fasugba and Apostle Jayeoba and Victoria

Fasugba. The witness stated that he on ly knew about the result of

the election between 4.30 – 5.00p.m. The witness admitted that

he did not witness the collation, counting and announcement of

the results and that he was not present when the votes were

counted, collated and announced. Further, that the election was

not concluded in his presence and that he cannot say when it

ended.

17.17 The witness, admitted under cross -examination that he knew the

locations of C & S Primary School Osu Unit, Aru -Aji Open Space

Unit, and Atakumosa High School U nit and that they are within

his Ward even though he claimed in his evidence in chief that he

did not go to any other polling units on the election

17.18 The witness claimed that one of the people he saw at his polling

unit was Apostle Jaiyeoba but when he was confronted with

Exhibit 363A, the voters register for the units to pick the name

and picture of Apostle Jaiyeoba, the witness said that he did not

go to school; that he cannot see the picture properly. But the

witness later stated that he can identify photograph of Apostle

Jaiyeoba but that it is not there. In the same breath, the witness

was also stating that all the photos there are dark. Your

Lordship will find that this witness is not a reliable one, because,

the pictures in Exhibit 363A were not dark and as admitted by the

witness, the picture of Apostle Ja iyeoba, whom he claimed was at

the polling unit with him, was not in Exhibit 363A, voters‟

register of Methodist Primary School, Oke -Oja.

RW7 Sayo David of Ward 8, Atakunmosa West

17.19 The testimony of RW7 is that he was the party agent for PDP on

the 14th April, 2007 when the election to the office of Governor of

Osun State took place. He stated that he knew Bayo Famuyiwa

and Jibola Dada as members of PDP in his ward. He claimed to be

present at his unit , Ita - Osan from the beginning to the end of

election on the said 14th April, 2007. He states that himself, Bayo

138

Famuyiwa and Jibola Dada did not lead thugs or/and other

persons armed with machetes and guns to ward 8 and neither did

they attack innocent voters and the AC party agents in Ita -Osan,

Inasin Risawe and Isaobi polling stations or any other units nor

wield deadly weapons, pump action or any guns. He claimed that

the election was peaceful and orderly and that the election was

not disrupted in his unit or any other units in the ward by him

or/and any other persons. He claimed that votes were counted,

recorded and result announced in the presence of the party

agents present in his unit . He finally stated himself and any other

person did not seize and run away with ballot box and papers in

his unit or in any other units in the ward.

17.20 Under Cross examination, RW7 The witness who did not state his

occupation in his evidence-in chief stated under cross-

examination that he was a businessman. The witness claimed he

voted at Unit 4 Ward 8 Atakunmosa Local Government, Ita-Osan

Polling Unit. The witness who initially stated that he attended

Ibodi Grammar School and Ilesa Grammar School and that he had

West African School Certificate and star ted business after that, he

later stated that he was a student at Kiloru Grammar School,

Idominasi, to reseat English and Mathematics examination in

WASC. However, the registration particulars in the voters

register, Exhibit 362D Item 156, read Olusayo D avid, male 27,

civil public servant. The witness admitted that he knew the

difference between student and civil servant.

17.21 The witness stated that he did not know the time it takes for

verification and voting, even though he claimed to be a party

agent. Also, the witness who claimed that the election was free

and fair was shown Exhibit 132 D – result of Polling Unit page 4,

Unit 4, Ward 8 which he said he signed as agent and that in

column 7 therein, the total number of used ballot papers was 411.

He was also shown Exhibit 360D – ballot papers used in the unit,

C.T.C. 1-416 which showed that the ballot papers returned as

139

used was 416 contrary to what was recorded on Exhibit 132 D.

The witness then said that even though he signed 411 in Exhibit

132D, it was for INEC to explain the discrepancies. When asked

for the difference between 411 and 416, the witness gave an

incredible answer that he had told the court that he had reseat in

English and Mathematics.

17.22 Even though the witness claimed that Bayo Fa muyiwa, a person

with whom the witness was alleged to have distrupted the

election, registered in Unit 4 Ward 8, the witness was confronted

with Exhibit 362D – Voters register for the unit whet her Bayo

Famuyiwa was on the registers. The witness claimed he saw a

name in Item 182, that is, Patrick A. Famuyiwa 30501402301. He

admitted that the name in paragraph 3 of his witness statement is

Bayo Famiyiwa not Patrick Famuyiwa.

RW13 Akinsehinde Richard of Unit 4, Ward 10, Atakunmosa West.

17.23 The testimony of RW13 is that he participated as an electorate

during the Gubernatorial and House of Assembly e lections held

on the 14th April, 2007. He claimed to have left his house for the

polling centre at Ward 10, unit 4 located at N.U.D. Primary

School Ifewara to cast his vote. He stated that he got to the

polling centre at about 9.35 am and met voters on the queue and

therefore had to wait for his turn. He stated further that he was

able to cast his vote at about 11 am after which he left the unit for

his house and stayed indoor throughout the remaining part of the

day. He stated that he knew Mr. Omopariol a but did not see him

on the day of election as they belong to different unit . He denied

leading any thug either as an individual or with any councilor

anywhere on the day of election since he returned home

immediately after voting. He stated that he did not enter into any

vehicle at all on that day because his house is a walking distance

from the polling centre. He finally stated that he neither carried

any gun or machete, nor did he snatch any ballot box or boxes on

the 14th day of April, 2007.

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17.24 RW13 stated under cross-examination that he got to the Polling

Unit around 9.35a.m., but that he cannot say when he left home

even though his house is not too far from the Polling Unit. He

said that from accreditation to voting he spent around 2 -4

minutes. He said he left immediately after voting for his house

and that he would not know what happened after he left for his

house and that his evidence on conduct of electi on is restricted to

when he was at the polling unit. Even though the witness claimed

to be a farmer Exhibit 367D Item 92, showed that the witness is a

public servant and the witness admitted under cross -examination

that as an Executive Assistant to Governo r Oyinlola he is a public

servant. Also, that when he contested election and became a

Councillor in 1999, as a Councillor he was a public servant

RW14 Hon. Omopariola Boluwaji of Atakunmosa West

17.25 The testimony of RW14 is that he is a PDP member from

Atakunmosa west Local Government area. He stated that on the

14 th of April, 2007 at about 11.00 am he went to his polling unit

where he met voting exercise in progress and exchanged

pleasantries with people at the polling station, he stated that he

casted his vote and went back to his house but did not see Tope

Awotimide and Richard Akinsehinde on that day, he stated

further that in fact both Tope Awotimide and Richard

Akinsehinde are not in his ward and he only casted his vote and

went back home to his family. He stated that he did not use any

machetes or lead thugs to any polling units in Ifewara on 14th

April, 2007. He claimed that he did not own a gun and never

handled one in his life talk less of using gun to intimidate or

harass people. He claimed that to the best of his knowledge

voting exercise was free and fair in his units and in Ifewara

Township.

17.26 Under cross examination, Hon Omopariola Boluwaji The witness

claimed he voted in Ward 9 Ifewara, Unit 5 Maternity Centre

Ifewara. He said he voted at Unit 5 not Unit 4. He said he went

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to the polling unit with his wife but that he did wait for his wife.

He said that the time from presenting his voters card to casting

votes was not more than 5 minutes. The witness is one that has

come to give testimony of convenience because even though the

witness had stated in paragraph 5 of the witness statement that to

the best of his knowledge “voting exercise was free and fair in

my units and in Ifewara Township” admitted under cross-

examination that he did not know when voting ended and that he

only heard the result of election late in the evening – 6.30-

7.00p.m. The witness also admitted that he did not know the

number of Polling Units in Ifewara even though there are 2

Wards. He said his Ward is Ward 11 and t hat he was not in

another Ward to know if the election was fr ee and fair. He also

stated that he did not go round the units to know how the

election went and that he only knew what happened in his Unit

while he was there and that he will not know about other Unit,

These clearly contradict the testimony in paragraph 5 of his

witness statement that “voting exercise was free and fair in my

units and in Ifewara Township.”

17.27 There is further contradiction in the testimony of RW14 when he

initially stated that he knew Tope Awotimide and Richard

Akinseyinde and that he did not know their political party but

later stated that “we have PDP meetings in Ifewara, we attend

different PDP meetings in Ward level” and that he knows that

Richard Akinseyinde has been made Special Assistant on

Education to the Governor on PDP platform.

RW24 Ajayi Folorunso of Unit 1, Ward 9, Atakunmosa West

17.28 The testimony of RW24 is that he was the party agent at Muroko

polling unit on 14th April, 2007 when the election to the offi ce of

Governor of Osun State took place. He stated that he knew the

people mentioned in paragraph 5 of the Petitioners' affidavit

sworn to by one Adebiyi Adelowo. He stated that the said people

or other persons did not lead thugs or other persons armed wit h

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machetes and axes and that no voter(s) was chased away in his

unit. He claimed that he was at his polling unit from the

beginning to the end of election. He further claimed that votes

were counted, recorded and announced In the presence of the

party agents present in his unit and that the election was peaceful

and orderly in his unit and was not disrupted by anyone.

17.29 RW24 claimed in paragraph 2 of his witness statement to be the

party agent for PDP at Muroko polling unit. Under cross -

examination by 4 th to 1365 th Respondents, the witness

categorically stated that “ the result form was signed by me and

AC Party Agent”. However, the lack of credibility of the witness

became glaring under cross-examination by Petitioners‟ Counsel

when the witness initially stated that “AC Agent and I signed the

result sheet” but later stated that there were two party agents of

PDP at the Polling Unit and it was one of them that signed the

result sheet. He also contradicted his earlier testimony by stating

that he cannot remember if he signed but that the AC Agent

signed. Still contradicting himself, when the witness was

confronted with paragraph 7 of his witness statement where the

witness claimed that the election result was signed “by the party

agent of PDP and AC”, the w itness then said what he meant was

that PDP Agent signed and AC Agent also went there but that he

cannot say whether the AC Agent signed.

17.30 Also, contrary to the statement in paragraph 7 of the witness

statement, RW24 said under further cross-examination that he did

not say AC Agent did not sign and that what he said was that he

did not know if the AC agent signed. In clear contradiction of

paragraph 7 of the witness statement is Exhibit 13(1), the

Certified True Copy of Form EC8A for Muroko unit which clearly

showed that party agent of AC did not sign the result sheet

contrary to paragraph 7 of the witness statement.

17.25 Another area of contradiction is that RW24 under cross-

examination had initially stated that PDP and AC scored votes in

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the unit but later under further cross examination when he was

confronted with Exhibit 133(1) that no vote was recorded for AC

in the unit, the witness then stated that he did not look at AC‟s

votes, that he only looked at his own – PDP and that he did not

say that AC scored votes. The falsehood of paragraph 6 of the

witness statement became clear as the witness could not assert

what happened about announcement and scores of the parties as

the witness stated that he went to PDP side and AC agent went to

AC side after the announcement and we both collected the result

of our respective Parties. That he did not know the votes scored,

that when PDP votes was announced, PDP signed, that is , one of

them signed but its along time he can‟t recollect who signed.

And after the announcement of AC votes the Party Agent of AC

went to their side, but he did not know how he signed.

Incidentally no votes were recorded for AC on Exhibit 13(1), the

Certified True Copy of Form EC8A for Muroko unit.

17.26 Further, RW24 the witness claimed that the signature of the PDP

agent on Exhibit 133(1) is his signature, it is submitted that the

said signature is clearly different from the signature of the

witness on the witness statement and Exhibit 465. The witness

also denied Exhibit 361, certif ied true copy of the voters register

for Muroko unit and said that was not the vote rs register used in

the Unit. INEC or any other respondents did not bring any other

register for the unit. There is evidence in support of the case of

the Petitioners that the result was not announced, counted and

recorded on the Form EC8A at the unit . As can be seen for

example the votes recorded on Exhibit 133(1) for PDP is 327

whereas the number of voters on the register was 315. Incredibly

the witness claimed he cannot subtract or add figures of 315 – 327

and that he did not know which is higher.

Ayedaade Local Government

Petitioners Witnesses Ayedaade Local Government

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18.1 In respect of Ayedaade Local Government, the Petitioners

witnesses were Nafiu Raji (PW31), Kilani Salako (PW49),

Francis Oyediran (PW50), Sabaina Abiola Adegboye (PW51),

Alhaji Sulaimon Oyegbola (PW53), Tijani Jimoh (PW72) and

Fatai Salawu Animashaun (PW73) and their testimonies are as

follows:

PW31

18.2 PW31 is Nafiu Raji who gave testimony for Ward 5, and his

testimony is that on the day of Election some thugs led by Ambali

Oladosu, Jelili Adesiyan, one man popularly known as „Melo‟

invaded the polling units in the ward. That these thugs were

armed with guns, axes, machete, iron rod and other dangerous

weapons. That these thugs snatched ballot boxes, emptied the

valid votes cast and replaced it with their thumb -printed ballot

papers. That voting was totally disrupted in all the Polling Units

as ballot boxes were snatched and taken away by these thugs an d

as a result votes were neither counted nor results announced at

any of the polling Units in the Ward.

18.3 Under cross examination, PW31 stated that he had been invited

by the police on 2 occasions for questioning, but the allegations

were found to be untrue upon investigation by the police, and

were instigated by his political opponents. He stated that INEC

officials reported late for their duty on the Election Day, and

maintained that in his ward no election was conducted and no

results were announced. He further stated that there was no

counting or collation of votes. He also stated that INEC did not

declare results for his ward; rather results were written and

announced by the PDP. He stated that the elections were

disrupted in all the 17 polling units in his ward, and he followed

the PDP thugs from polling unit to polling unit , witnessing their

acts of disruption. He was unshaken during cross examination,

and his evidence was not contradicted.

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18.4 The respondents have stated in their written addresse s that this

witness contradicted himself when he said that the thugs who

disrupted the polls were led by Jelili Adesiyan rather than

Ambali Oladosu. The truth of the matter is that the witness had

deposed in paragraph 5 of his witness statement on oath that the

thugs were led by both Jelili Adesiyan and Ambali Oladosu. The

contradiction in this witness‟s evidence is therefore imaginary.

PW49

18.5 PW49 is Kilani Salako gave testimony for Ward 7 . His testimony

is that on the day of Election the Ba ales in the different villages

laid siege on the polling units insisting that they were executing

an order from above to the effect that everybody must vote for

PDP. The Baales intimidated many voters to vote for PDP and

votes were duly carried out thereafter. He said that INEC

officials left the various voting centre without the polling agents.

That he knew that no collation was done at the ward level but

results were announced on air as he personally visited the

collation centre at court Hall, Gbongan.

18.6 Under cross examination, PW49 stated that there are 17 polling

units in his ward, and his party the AC had polling agents in all

17 polling units. He further stated that he voted at Agripop unit

1, and could only visit 9 out of the 17 polling units in his ward.

He was unshaken during cross examination, and his evidence was

not contradicted.

PW50

18.7 PW50 is Francis Oyediran who gave testimony for Ward 8, and

his testimony is that on the day of Election voting was not held in

the authentic polling units within the ward. That all the electoral

materials were diverted to the palace of Oloogi of Ogi, a

community where there is just one polling unit. That he saw most

of the presiding officers meant for the other units (e.g. Kunl e

Egbetola, presiding officer, Ogi; Adeniji Adeyefa, presiding

officer, Lasole) and more than 5 ballot boxes at the palace of

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oloogi. That he saw a number of instances where the PDP thugs

and leaders were engaging in multiple voting and adequately

protected by armed security personnel and thugs, that at the

period, the palace was heavily guarded by armed thugs who

prevented the electorates from participating in the voting

exercise. That though the polling unit in Ogi was meant to be at

St. Stephen‟s Anglican Church, ogi but election materi al were

taken to the palace of Oloogi. That there was no voting at all in

all the polling units in the ward and as a result there was no

counting of votes or announcement of results in any of the 11

polling units.

18.8 Under cross examination, PW50 stated that he had never been a

member of the PDP nor had he ever worked for INEC in any

capacity. He stated that neither he nor his agents wore any

uniform identifying them as AC members on the Election Day. He

was confronted during cross examination with the transcript of

his testimony in the previous proceedings, where he stated he

stayed permanently in Tonkere. He stated that was false and as a

ward supervisor he could not have stayed permanently in

Tonkere. He was unshaken during cross examination, and his

evidence was not contradicted.

PW51

18.9 PW51 is Sabaina Abiola Adegboye who gave testimony for Ward

10, and her testimony is that on the day of Election peter Babalola

(a.k.a Peter Power), the Chief of Staff to the Osun State

Government, together with one Talibi Adegboyega Bello, a Legal

Practitioner, one Kehinde Olatoyosi, Tunde Akinbowale, Talibi

Bankole Adeowu, Honourable Sunday Akinpelu, Mr. Ademola

Onifade, Secretary to the State Primary Education Board,

Aiyedaade Local Government, Sola Adebowale, a Legal

Practitioner, Chief S. O. Olawoyin, Tunde Ogunsina and Biodun

Olanrewaju led some thugs who were armed with guns and

machetes, canes, charms and other dangerous weapons and

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snatched ballot boxes in 18 out of the 21 Polling Units. That these

thugs carted away the ballot boxes at St. Peter 2, Matako 1,

Matako 2, Ojetunde Village, Sabo 1, Sabo 2, I le Oluwo, Gbona,

Court 1, Court 2, Gbogbo Compound, Baptist 1, Baptist 2,

Alagbede Village, Abimbola Village, Ope Ayoola Village and

Bara-Iwo village polling units. That voting was completely

disrupted in all the 18 aforementioned polling units and neither

were votes counted nor results announced at any of the said

polling units. That thereafter, she saw these thugs take these

ballot boxes to the house of Talibi Adegboyeg a Bello where all

lawful votes cast at the polling units and carried with the boxes

were seen burnt while the emptied boxes were taken inside the

house of Talibi Adegboyega Bello. That in Alabameta Village,

Alagutan and Farm Settlements polling units, the voting exercise

was peacefully conducted and votes were counted and results

announced.

18.10 Under cross examination, PW51 stated that she is the AC woman

leader in Aiyedaade Local Government Area. She stated that

there are 9 villages in her ward, consisti ng of 21 polling units.

She stated that though she was registered to vote at Unit 6 Saint

Peter‟s field Orile Owu, she was prevented from voting by PDP

thugs. She stated that she visited 18 of the polling units in her

ward, and was prevented by the disrupt ions. She further stated

that because the PDP realised the AC was winning the elections

they disrupted it . She further stated that her agent‟s report got

missing when she was being chased by PDP thugs. She was

unshaken during cross examination, and her evidence was not

contradicted.

PW53

18.11 PW53 is Alhaji Sulaimon Oyegbola who gave testimony for Ward

4, and his testimony is that on the day of Election some thugs led

by Kamoru (a.k.a Elegunmeje), Alhaji Azeez Akomola, dele

Iyafulani, Segun Animashaun who were armed with axes, guns

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and machetes, invaded all the polling units in the ward and,

amidst gunshots and threats, snatched ballot boxes, emptied the

valid votes cast and replaced it with ballot papers which they

thumb printed themselves. That voting was totally disrupted in

all the polling units as ballot boxes were snatched and taken

away and votes were neither counted nor results announced at

any of the polling units in the ward.

18.12 Under cross examination, PW53 stated that as at 3:00 pm when

elections were to have ended he was hiding in the bush beside

Orita Ile Iwe polling unit because of the PDP thugs who had

chased away voters. That he indeed voted, but shortly after

elections were disrupted. He was unshaken during cross

examination, and his evidence was not contradicted.

18.13 Contrary to the position of the respondents in their written

addresses that this witness contradicted himself by claiming to

have visited all the polling units in his ward that he admitted

having visited only 8 units in the ward. This position of the

respondents misrepresents the testimony of this witness as he

only stated in his witness statement on oath that he visited

polling units in his ward without stating the number of the units

which he visited. The actual number o f the units he visited only

came out during cross examination. We refer this tribunal to both

the witness statement on oath of this witness and the answers

which this witness supplied to the questions which were put to

him by the counsel to the 1 s t -3 r d respondents during the

proceedings of the 27 th day of August, 2009.

PW72

18.14 PW72 is Tijani Jimoh who gave testimony for Ward 3, and his

testimony is that on the day of Election some thugs armed with

guns, clubs, machetes and other dangerous weapons, we aring

brown khaki uniforms came in a jeep donated by Association of

Local Government of Nigeria (ALGON) TO THE POLICE and

invaded the polling units in the ward. These thugs shot

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sporadically into the air. The action of these thugs scared away

the electorates and polling agents in all the polling units. That

these thugs then snatched ballot boxes emptied the valid votes

cast and replaced them with already thumb printed ballot papers.

That on getting to the ward, the policemen who accompanied

these thugs to the ward, got down from the vehicle and folded

their arms while watching the acts of the thugs as aforesaid. That

voting was totally disrupted in all the polling units as ballot

boxes were snatched and taken away and votes were neither

counted nor results announced at any of the polling units in the

ward. That she and some others went to the INEC collation centre

but found out that these thugs did not take the ballot boxes to the

collation centre.

18.15 Under cross examination, PW72 stated that his agents re port

comprised what he personally witnessed and all the AC polling

agents‟ reports. He further stated that he has never been a

member of the PDP. He maintained that he knows all the AC

polling agents in his ward, and one of those agents Adedokun Ojo

of unit 2 Gbadore had died. He was unshaken during cross

examination, and his evidence was not contradicted.

PW73

18.16 PW73 is Fatai Salawu Animashaun who gave testimony for Ward

1, and his testimony is that on the day of Election voting was

interrupted by the P.D.P thugs who were led by some PDP

leaders namely Mr. Segun Odekunmi, Mr Raifu Ajanaku and

Chief Abiola Morakinyo. These thugs shot sporadically into the

air thereby driving away voters at the same time molesting them.

That in the ensuing melee the thugs snatched the ballot boxes and

took them away to unknown destinations. That he narrowly

escaped death in the hands of the thugs hired by PDP when he

was brutally attacked and viciously beaten. That the 3rd

petitioner‟s polling agent at Molubinrin was ser iously wounded

when the thugs descended on him. That voting was totally

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disrupted in all the polling units and as a result votes were

neither counted nor were result announced at any o f the polling

units in the ward.

18.17 The only grouse which the respondents have with the testimonies

of this witness is that he did not mention in hi s witness statement

on oath that he was abducted. This observation of the

respondents is irrelevant as the most important thing is whether

the polls were disrupted and that this happened has been clearly

established by the witness.

Ayedaade Local Government

Evidence of the 1 s t to 3 rd Respondents in Ayedaade Local Government

19.1 The 1 s t to 3 rd Respondents only called 4 witnesses. These are,

RW21 Reuben Segun Odekunmi; RW22 Onifade Ademola; RW26

Alhaji Adeyanju Aliu; RW58 Elder Soji Ojuade .

RW21 Reuben Segun Odekunmi

19.2 The testimony of RW21 is that he is a leader in the P.D.P. in

Ayedaade Local Government Area of Osun State and that he

voted at Ile Asoro polling unit 01 In Ward 01 of Ayedaade Local

Government Area, Osun State on April 14 th , 2007 during the

Governorship and House of Assembly Elections. He stated that he

went alone to vote at the said polling unit around 8.30 am and

left the polling unit immediately after castin g his vote around

9.15 am for his home where he stayed in -door for the rest of the

day. He stated that on the day of election he did not carry any

gun, cutlass or any other dangerous weapon to the polling unit .

He claimed that election was peacefully condu cted at the polling

unit where he voted.

19.3 The witness claimed in paragraph 6 of his witness statement that

election was conducted peacefully at the polling unit where he

voted. However, in paragraph 4 of his witness statement, he said

that after casting his vote around 9.15. a.m. he left for his home

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and stayed indoor throughout. There is no factual basis for

paragraph 6 of the witness statement. Under cross -examination,

the witness had to admit that voting was only peaceful when he

was at the unit . Whereas the witness stated in paragraph 2 of his

witness statement that he is a leader of PDP in his local

government, the witness stated that he did not know the result of

election in his unit and that he did not care to know the result.

19.4 Even though the witness claimed that Olaide Odekunmi, who is

one of his children, was not at home during election, Exhibit 111

(item 5) showed that Olaide Odekunmi was a presiding officer

during the elections. The witness who had told the court that his

grandfather has 14 wives later when asked how many wives he

had, he told the court that it was a taboo to state the number of

wives a person has in his family. The witness s tated that the

voting process did not take up to 3 minutes, even though he

cannot be precise. Incredibly, the witness stated that when he

returned to his house there was nobody in his house even though

he admitted that he lives with his wives and children.

19.5 The witness who initially under cross examination denied

knowing or remembering one Moses Agbungbun later stated,

when he was confronted under cross -examination, that Moses

Agbungbun died in detention. He then stated that he reported

Moses Agbungbun as owing him money for cocoa to Police

Station and that Moses later died in

RW22 Onifade Ademola

19.6 The testimony of RW22 is that he registered and voted at unit 001

ward 10 on the day of election after which he went back to his

house to rest after voting. He stated that his attention was drawn

to the averment of One Mrs. Sabaina Abiola Adegboye and he

denied all the averments contained therein in its entirety. He also

stated that he did not go out with anybody and neither did he go

out with any thug or thugs on the day of election. He also stated

that he did not carry any gun or machete or any weap on and

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neither did he participate or see anybody snatching ballot boxes.

He stated that he did not see Peter Babalola a.k.a. Peter Power,

Talibi Adegboyega Bello, Kehinde Olatoyosi, Tunde Akinbowale,

Talibi Bankole Adeowu, Hon. Sunday Akinpelu, Sola Adebow ale

on the day of the election as I went home to rest immediately

after voting. He claimed that voting was not disrupted at all at

the unit where he voted.

19.7 The witness is not one of truth. In paragraph 8, the witness

claimed that voting was not disrupted at all at the polling unit

where he voted but in paragraph 3, he stated that he went back to

rest at his house after voting. The witness, under cross -

examination admitted that he did not know t he result of election

in his unit and that after he left the polling unit, he would not

know what happened. The witness stated that he knew Talibi

Adegboyega Bello, Kehinde Olatoyosi, and Sola Adebowale and

that they are all PDP members and all of them belonged to his

ward. The witness admitted knowing Sabaina Ab iola Adegboye

(PW 51) who testified against RW22 and that they belonged to the

same church. The witness admitted that he will not know if PW51

saw him on election day.

19.8 Under cross-examination, the witness claimed that he knew

“Peter Power” but that he did not know his full name as “Peter

Babalola” and that he was just hearing the full name of Peter

Power as Peter Babalola from Petitioners‟ Counsel. This is a

blatant lie because in paragraph 7 of the witness statement, the

witness stated the full name of Peter Babalola when he stated that

“I did not see Peter Babalola a.k.a, Peter Power…”

RW26 Alhaji Adeyanju Aliu

19.9 The testimony of RW26 is that he registered and voted at unit 06

ward 11 on the day of election after which he went back to rest at

his house. He stated that his attention was drawn to the averment

of one Mr. Ezekiel Abidoye and he denied all the averment in its

entirety. He stated that he did not go out with anybody and

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neither did he lead any thug or thugs on the day of election. He

also stated that he did not carry any gun or machete or any

weapon and neither did he participate in snatching of ballot

boxes or see anybody snatch ballot boxes. He further stated that

he did not carry any gun machete or charms or any dangerous

weapon on day of election or any other day as he is not a violent

person and he did not witness any snatching of boxes and neither

was any report of such made to him. He claimed that voting was

not disrupted at all at the unit where he voted and neither was

any report of such made to him from any unit in the ward.

19.10 Apparently in other to cover his activities of disrupting the

election, the witness claimed in paragraph 9 of the witness

statement that voting was not disrupted at all at the unit where

he voted whereas the witness had stated in paragraph 3 of the

witness statement that after he voted he went back to rest at his

house immediately after voting. It is incredible for a witness who

said he went back to rest immediately after voting again depose

that voting was not disrupted at all in the unit as he cannot be at

two places at the same time, his house and the polling unit .

Clearly, the testimony of the witness is a tissue of lies. I n view of

the deposition in paragraph 3 of the witness statement, the

statement by the witness under cross-examination by Counsel to

the 4 th -1365 th Respondents that election was peaceful, free and

fair cannot be believed as the witness is not in a position to state

what happened after he left the polling unit as he claimed.

RW58 Elder Soji Ojuade;

19.11 The testimony of RW58 is that he was the Party Agent for Peoples

Democratic Party (PDP) on the day of election attached to St.

Peters School Akiriboto polling unit where he remained

throughout the period of the elections. He stated th at no Baale

from any village came to lay siege at his polling unit and neither

did any Baale came to his Polling Unit to carry out any order

from above to the effect that everybody must vote for PDP he

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claimed that the Baale of Akiriboto I came to vote at his unit after

which he went back to his house. He stated that the Baale

Akiriboto I , or any other Baale neither lay siege at his polling

unit nor intimidate any voters to vote for PDP in his unit. He

further stated that his party arranged his movement fro m the

polling unit to the collation centre. He claimed that votes were

counted, recorded and result announced at his unit in the

presence of Party Agents of PDP and AC after which himself and

the AC agent - Ademola Olatidoye went together to Ward 7

collation centre at Oju Court, Gbongan. He stated that there was

collation at Ward 7 and the results were announced at the centre,

Oju Court, Gbongan and both he and the AC Agent signed INEC

Forms at Collation Centre. He stated further that Electoral

materials were given to his unit and neither were the materials

diverted nor thumb printed in the bush. He further stated that

neither was the 3rd petitioner‟s agent in his unit beaten nor were

ballot boxes and ballot papers removed. He claimed that Election

took place in his unit and same was conducted peaceful ly and

orderly.

19.12 Under cross examination, it became clear that contrary to

paragraph 5 of his statement he admitted that he d id not know

the destination of Baale of Akiriboto. His signatures are different

in relation to EC8A [exhibit 117(8)] and witness statement. The

EC8A for the unit Exhibit 117(8) does not contain the details of

the Presiding Officer and neither was it stamped & signed. He

attempted to deny the document which is a CTC.

Ife South Local Government

20.1 In respect of Ife South Local Government, the Petitioners

witnesses were Oladokun Gbenga (PW30), Olanrewaju Israel

Babalola (PW32), Azeez Oloyede (PW33), Olanrewaju Adewale

(PW41), Akin Adedigba (PW64), Adereti Akeem (PW71) and

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Ademola Adeyinka Kafidiya (PW76) and their testimonies are as

follows:

PW30

20.2 PW30 is Oladokun Gbenga who gave testimony for Olode Ward,

and his testimony is that on the day of Election at Ward 7 (Olode)

which is made up of 12 units, voting was disrupted by some

thugs who were led by known PDP members/leaders in the

Ward. That Ballot boxes and ballot papers were snatched at

gunpoint at some of the polling units in the Ward and taken

away. That it was to his knowledge that monstrous violence was

perpetrated on the pet it ioners‟ polling agents as some were

thoroughly beaten and injured and threatened by sporadic

gunshots. That one of such injured was Apostle J. O. Ogedengbe,

the AC polling agent at AUD units 1 and 2 of Olode Township

who was savagely dealt with by a group of thugs led by Taofeek

Adewole a.k.a Otiti, and Mathew Adedire a.k.a Materror. That

one Reverend, Bisi Odesola in company of other thugs, snatched

ballot box at Court hall Unit Olode Township. That election were

irregularly conducted as well as totally disrupted in 11 of the 12

polling Units in the Ward and votes were not counted and/or

announced at any of the affected Polling Units in Ward 7 (Olode).

That it was in only Agbonbiti Polling Unit that voting was

conducted without any form of disruption as t hese agents of

destruction could not reach the unit due to distance and

roughness of the road leading to the unit. That at Garage Olode

comprising five of the 12 units in Olode Ward, voting was

disrupted by some thugs who were led by known PDP

members/leaders like Hon. Diran Ayanbeku, Remi Arogundade

and Adebisi Ojo. Ballot boxes and ballot papers were snatched

from some of the polling units in the ward and taken away. That

Elections were irregularly conducted and visited with maximum

amount of malpractices as well as totally disrupted in all the

polling units in the Ward except Agbonbiti as mentioned above

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and votes were not counted, collated and/or announced at any of

the polling units and at the Ward level.

20.3 Under cross examination, PW30 stated that he was invited for

questioning sometime in 2007 over the stabbing of one Adedapo

Saka, but he was released after the police investigated the matter

without having to pay a dime. He stated that 8 persons were

invited by the police in respect of the stabbing, and all 8 were

released on the same day without paying bail. He further stated

that there were 12 polling agents under his supervision as ward

supervisor. He also stated that though he registered to vote, he

was prevented from voting on the Election Day b y PDP thugs. He

stated that he visited only 5 of the 12 polling units in his ward,

but his report contained an amalgam of what he saw and what his

agents reported. He stated that none of the allegations in his

written statement on oath was false as he know s all PDP thugs

that disrupted the elections in his ward.

20.4 PW30 was emphatic in stating that the elections in his ward were

disrupted by PDP thugs. He stated that there were no elections in

his ward, INEC officials did not show up, there was no collat ion

of results and results were not declared. He stated that he

reported these incidents to the chairman of his party in his ward

who in turn reported to the police. He was unshaken during cross

examination, and his evidence was not contradicted.

20.5 The complaint of the respondents about the evidence of this

witness is that Apostle Ogedengbe whom the witness mentioned

as having been wounded by the thugs was not called by the

Petitioners. It is submitted that the failure to call this gentleman

is of no relevance to the reliability or otherwise of this witness

PW32

20.6 PW32 is Olanrewaju Israel Babalola who gave testimony for

MEFOWORADE WARD, and his testimony is that on the day of

Election at Omifunfun Polling Units 1 and 2, about six soldiers

came with some PDP men among who was Hon. Layi Adebiyi

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from Olode. That these people stopped the election and took the

ballot boxes and INEC officials together with the polling agents

of all the parties to Olode Police Station and the Soldiers left.

That the Police took the ballot boxes and ordered all party agents

to leave. That as a result no votes were counted and no results

were announced at Omifunfun 1 and 2 polling units.

20.7 Under cross examination, PW32 stated that there are 13 polling

units in his ward. He stated that he did not know the names of

the policemen in his unit, and was unaware of an army unit in his

ward. He stated that he was a ward supervisor ad collation agent

for his party but was not accredited by INEC. He was unshaken

during cross examination, and his evidence was not contradicted.

PW33

20.8 PW33 is Azeez Oloyede who gave testimony for ARE WARD, and

his testimony is that on the day of Election some thugs armed

with guns, machetes, cudgels, charms and other dangerous

weapons led by Akin Famuyide (a.k.a Jaguu), One Azeez (a.k.a

Awo), David Adeoti (a.k.a Omolope) who are prominent PDP

members in the Local Government invaded the Ward and that the

thugs shot in the air and at the people. That some of the 3 rd

Petitioner‟s member in Idi -Odan unit, Mr. Suara Ajetomobi, Mrs.

Tope Oriade (Iya dami), Depo Ogunremi, Wole Oke, Adekunle

Gabriel and One Yemi (a non member of AC) were shot and as at

the time of lodging the Petition, the pellets are still lodged in the

body of Suara Ajetomobi. He stated that electorates and other

residents of the ward had to run for their lives. That he and some

others stayed at a safe distance from where they observed the

activities of these thugs and that these thugs carted away the

ballot box and other election materials in the unit .

20.9 PW33 further stated that the thugs then proceeded to Court hall

1, Court Hall 2, Town hall, Aiyetoro, AUD and Alagbado polling

units and repeated these nefarious acts. They then carted away

the ballot boxes in these units. That no votes wer e counted and

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no results were announced at any of these seven polling units.

That consequently, none of the 3 rd Petitioner‟s polling agent

signed the result sheet (Form EC8A). That these thugs later left

for the said Suara‟s father‟s house and vandalised t he whole

place. That at Amula, Owode and Akintola units, the 3 rd

Petitioner‟s members and sympathisers were intimidated and told

not to come to the polling units if they valued their lives and

property.

20.10 Under cross examination, PW33 stated that he ha d given evidence

in the previous trial where the reports of the polling agents in his

ward were tendered through him. When asked if the reports that

were before him had been marked showing they had previously

been tendered, he replied in the negative. He s tated that he first

witnessed the disruption of elections in Idi Odan unit, after

which he cautiously followed one Jagun who led PDP thugs to

Court Hall 1 unit. He stated that Suara Adejumobi, Wole Oke,

and Tope Oriade, members of the AC were shot by PDP t hugs. He

further stated that the police were present, and aided the PDP

thugs in disrupting the elections. He was unshaken during cross

examination, and his evidence was not contradicted.

20.11 The evidence of this witness is not in any way destroyed by the

failure of this witness to state where he was at 3 :00 pm on the day

of election as argued by the respondents in their written

addresses as this witness has proved the fact which needed to be

proved namely that election was disrupted on the day of electi on.

PW41

20.11 PW41 is Olanrewaju Adewale who gave testimony for IKIJA 2,

and his testimony is that on the day of Election in Ikija 2 located

within Ifetedo Township and adjourning villages with 11 polling

unit, there was massive violence, snatching of ballot boxes and

papers at gunpoint. That votes were not counted in 8 units of this

ward as a result of snatching of ballot boxes by PDP thugs. That

in Onipere unit, Goke Olasoji, Dayo Esodiji , Kazeem Adebiyi

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including some took the snatched ballot materia ls to unknown

destination. That in Baba Akodi unit , C.A.C 1, C.A.C. 2, Ilare and

Otutu Open Space polling unit, Wale Adentan, Adeoti David,

Waheed Oniwinde, Oduyanwa Julius and some other PDP thugs

stuffed the ballot box with already thumb printed ballot p apers

after hijacking the ballot box. That AC Agents and voters were

beaten and subsequently scared away.

20.12 Under cross examination, PW41 stated that there are 11 polling

units in his ward, and the AC had polling agents in all the units

in his ward. He stated that he only visited 10 out of the 11 polling

units in his ward. He stated emphatically that elections were not

free and fair in his ward. He was confronted with Exhibits 36B

and 36L which are reports from the AC polling agents stating that

the elections were peaceful and the PDP won.

20.13 The respondents in their written addresses have urged this

tribunal to reject the evidence of this witness on the ground that

same is concocted and designed to mislead the tribunal. It is

submitted on behalf of the petitioners that this comment on the

part of the respondents is as unfair as it is unwarranted. As it is

clear on the record of this honourable tribunal that the evidence

of this witness is direct, clear and even under cross -examination,

he related the events as he stated them in his witness statement

on oath.

PW64

20.14 PW64 is Akin Adedigba who gave testimony for AIYESAN

WARD, and his testimony is that on the election day in Aiyesan

Ward made up of 11 polling units, some thugs and some

uniformed men in black kits were led by known PDP

members/leaders, especially akin Famuyide, Honourable Niyi

Owolade, former Commissioner for Works in Osun State, one

Azeez (a.k.a. Awo), to invade the polling units in the ward at

different times. These thugs were wield ing cutlasses, guns,

charms and some other weapons with which they chased away

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voters from the polling units and then thumb -printed the ballot

papers in favour of the PDP with active connivance of the

security officials (i.e. the police officers) at the po lling units. That

he was aware that one Rasak Adedokun at Bolorunduro Unit 1, an

agent of the 3rd petitioner lost three of his toes to bullets shot at

one of his feet by these invading PDP thugs.

20.15 He further stated that these thugs further unleashed violence on

property of known members of the 3rd petitioner. That voting

was completely disrupted in the polling units in the ward by

agents of the 3rd respondent, agents of other parties and voters

were scared away by the acts of violence carried out by the

aforesaid persons. That e lection was irregularly conducted as

well as totally disrupted in all the polling units in the ward and

as a result votes were not counted and results were not

announced at any of the polling units in Aiyesan Ward. That at

Bolorunduro Unit 2, one of the petitioners‟ polling agents, Taju

Lasisi, was critically injured when the thugs of PDP struck him

with a spear on the thigh which pierced through his thigh. He

further at the hearing tendered the medical report issued and

photograph taken including the complaint made at Olode Police

Post marked as Exhibits IFS 3. That at Asawure Unit, Oyeniyi

Adewunmi, the petitioners‟ agent lost his ear to the knives of the

PDP thugs when he resisted their efforts at snatching the ballot

box. This had to be stitched back at the Olusanu Hospital at

garage Olode Township.

20.16 Under cross examination, PW64 stated that one of the AC polling

agents Taju Lasisi was wounded on the right leg by PDP thugs.

The incident was reported at Olode police station before he was

taken to Olusannu Hospital for treatment. He also stated that one

Razak Adepoju was shot on his feet by Mr. Famuyide a PDP

chieftain. He confirmed paragraph 7 of his witness statement on

oath that voting was completely disrupted in his ward. He was

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unshaken during cross examination, and his evidence was not

contradicted.

20.17 The respondents have attacked the evidence of this witness on the

ground that the place where two of the agents of the AC were

stated to have been injured as disclose d in the witness statement

on oath is different from the place in which he stated the y have

been injured when he was cross-examined. It is really difficult to

appreciate the point of the respondents in this respect as the only

point of significance is that these agents were injured in the ward

and that polls were disrupted.

PW71

20.18 PW71 is Adereti Akeem who gave testimony for ABIRI OGUDU

WARD, and his testimony is that on the day of the election at

Abiri Ogudu Ward made up of 10 units, some armed thugs who

were led by one Jimoh (a.k.a. Agalanta), one Tunde Alarape, the

Personal Assistant to Hon. Diran Ayanbeku, Ife South Local

Government Chairman and the PDP Osun State House of

Assembly Candidate invaded all the polling units at different

times. These thugs were wielding cutlasses, guns and some other

weapons. That the thugs attacked agents and voters at the polling

units, snatched ballot papers that were later thumb -printed in

favour of PDP and then stuffed same into the ballot boxes. That

some of the petitioners‟ agents were forced to sign Form EC8A at

gunpoint in six units out of 10 units with the exception of Kajola,

Gbafaari, Toba Polling Units where the AC agents were driven

into the bush with guns and Aba Ooni Unit, where the PDP thugs

thumb-printed, counted and signed the Form EC8A for and on

behalf of AC polling agent. That at Gbafaari and Kajola Units,

one of the Petitioners‟ polling agents Mr. Kazeem Akintilo and

himself were mercilessly beaten.

20.19 Under cross examination, PW71 stated that he made a report

detailing all he saw on the Election Day, and forwarded it to his

party chairman. He stated that although his report is not

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contained in the Exhibits tendered through him, it is summarised

in his witness statement on oath. He stated that Tun de Alarape

and Jimoh Agalanta known PDP thugs disrupted the elections in

his ward, and beat both him and one Kazeem an AC agent. He

further stated that there were no elections in his ward. He

reiterated paragraph 6 of his written statement on oath that som e

AC polling agents were forced at gunpoint to sign the forms

EC8A, a fact he witnessed. He was unshaken during cross

examination, and his evidence was not contradicted.

20.20 The respondents in summarising the testimonies of this witness

in their written addresses have urged this tribunal to consider

him a liar because according to them he did not visit all the

voting units as he has claimed. With respect to the respondents‟

counsel, this position is not correct as this witness is very clear in

his evidence that he visited all the polling units before the polls

started on the day of election and that he visited 6 units in the

ward when voting was supposed to have been underway but for

the disruption.

PW76

20.21 PW76 is Ademola Adeyinka Kafidiya who gave t estimony for Osi

Ward, and his testimony is that on the day of Election some thugs

who were led by Hon. Diran Ayanbeku, the house Of Assembly

candidate of P.D.P. in Ife South Local Government., Okikiade,

immediate past councillor in the ward and a prominen t PDP

member in the ward, Adeoye Ademiluyi (a.k.a. sorty) and some

others came in four (4) 18-seater buses and a jeep belonging to

Hon. Diran Ayanbeku to invade 6 polling units out of 11 polling

units in the ward. That these thugs while wielding cutlasses,

guns, charms and some other dangerous weapons, shot

indiscriminately into the air and at known 3rd petitioner‟s

members and sympathisers. That the violent act of these thugs

scared away the electorates and security agents attached to the

polling units took to their heels while he and some others stayed

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at a safe distance to observe the activities of these thugs. That at

Osi Sooko unit, voting had completed and votes were about being

counted when the thugs arrived, these thugs mercilessly beat the

AC agent at the unit, Biodun Ademiluyi and hijacked the ballot

box and took it to an unknown destination. That at Kajola units 1

and 2, Diran Ayanbeku and his thugs invaded the two polling

units, snatched the ballot boxes in which lawful votes cast were

contained, threw down the ballot papers, burnt them and carried

away the ballot boxes together with the unused ballot papers.

They took away the INEC officers at the units at gunpoint.

20.22 PW76 further stated that at Ara Joshua poling unit , the said Hon.

Diran Ayanbeku led thugs who shot at four members of the 3rd

petitioners and burnt the entire ballot papers of the votes that

were cast. He later exhibited the pictures of the persons shot at as

exhibits ATW 1. That these thugs then proceeded to snatching the

ballot boxes and forcefully carted them away with some other

electoral materials at Ara Joshua. That in all these 6 units, voting

was irregularly conducted as well as totally disrupted by acts of

violence by the aforesaid persons in the said polling units and a s

a result votes were not counted and results were not announced

at these 6 polling units in the ward.

20.23 Under cross examination of PW76, he stated all the 6 polling

units under his supervision, namely: Kajola 1 and 2 unit, Ara 1

and 2 unit, Osi-Soko unit, Osi Okero unit. He also stated that he

made a statement on oath which contains his written report given

to his party chairman. Witness stated further that he read his

agents reports before his deposition. He confirmed that he will be

surprised to hear that the result of his polling unit was intact. It

was again elicited under cross examination that witness gave

evidence before Naron Tribunal where he stated that he cast his

vote at Osi, and it was his duty as a party supervisor to be at the

place. He also confirmed that the pictures of those wounded are

with his lawyers. Furthermore, he stated that he was at the

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polling unit at kajola when they took the INEC Officials away.

Under cross examination by counsel to the 4 th to 1365 th

Respondents, witness stated that he was the collation agent for

his ward as accredited by his party and not INEC. Witness was

unshaken by all the sets of Respondents under cross examination.

20.24 The respondents in their written addresses have also alleged that

since the witness could not tell the name of the INEC official who

was taken away as stated in paragraph 9 of his witness statement

on oath, his evidence should be discountenanced. This to say the

least is startling as it has not been shown on the evidence

available that the names of different INEC officials during the

abortive election in the ward were displayed or disclo sed on that

day.

Evidence of the 1 s t to 3 rd Respondents in Ife South Local Government

21.1 The 1s t to 3 rd Respondents called only four witnesses from Ife

South Local Governmnt. These are: RW34 Akin Famuyide; RW41

Kazeem Adebiyi; RW51 Adebisi Ojo; RW55 Adeoye Ademiluyi

RW34 Akin Famuyide

21.2 The testimony of RW34 is that he is presently the chairman

caretaker committee Ife South Local Govemment and that on 14th

April, 2007 at about 10.30a.m at Are Ward Town Hall polling

units Ifetedo, he got to the polling station to cast his vote and

went back home. He stated that he did not see any Azeez (a.k.a

Awo) David Adeoti (a.k.a Omolope), Niyi Owolade on the day of

the election or neither did he own a gun and as a born again

Christian he does not engage in charms. He stated that he was in

his house all through the day of election and because of the

compactment of Ifetedo he knew as a fact that election was

peaceful, free and fair in his unit and throughout the ward in

Ifetedo town. He denied engaging in any act of harassment,

thuggery or violence on the day of election.

21.3 RW34 claimed in paragraph 5 of his witness statement that

election was conducted peacefully at the polling unit where he

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voted and the entire ward of Ifetedo. However, in paragraph 3 of

his witness statement, he said that at about 10.30 am at Are Ward,

Town Hall polling units Ifetedo, he got to the polling station cast

his vote and went back home. There is no factual basis for

paragraph 5 of the witness statement as he admitted under cross -

examination that he was not in a position to know whether votes

were collated, sorted, counted or announced. Whereas the witness

stated in paragraph 2 that he i s the chairman caretaker committee

Ife South Local Government, furthermore he admitted under

cross examination that he is an experienced politician and despite

his assertion in paragraph 5 as to the compa ct state of Ifetedo the

witness did not know the result of election in his unit and the

ward. He finally admitted that his appointment was a reward for

his labour and even deserves more than that.

RW41 Kazeem Adebiyi

21.4 The testimony of RW41 is that he is from Ikija Ward 2 of Ife South

Local Government and casted his vote at C.A.C. 2 polling unit on

14th day of April, 2007 after which he left for his house

immediately. He stated that he did not see Dayo Esodiji and Wale

Adeniran on April 14th 2007 and that he did not cause violence at

any place on 14th April, 2007 neither did he accompany any

person or persons to snatch ballot boxes or papers on 14th April,

2007. He further stated that the affidavit sworn to by one

Olanrewaju Adewale is not true.

21.5 Under cross examination, Kazeem Adebiyi claimed to have voted

at C.A.C polling unit 2 and under cross examination by Counsel

to INEC he claimed that election was peaceful, free and fair in his

unit. This same witness in paragraph 3 of his deposition stated

categorically that he left for his house after voting a nd under

cross examination by the Petitioner‟s counsel he admitted he

would not know what happened after he had left the polling unit .

Latter the same witness said though he would not see but he

would have heard if there was any disruption, ironically the same

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witness who claimed to have voted in the morning without

knowing when and how long it took him admitted that he did not

know when election ended. We humbly submit that the witness

cannot be believed as for him to admit that he did not know when

election ended he would also not be in a position to know

whether there was disruption or not. To further discredit the

testimony of this witness, he was confronted with Exhibit 414(C)

which is the INEC Certified True Copy of the voters register

allegedly used for the conduct of election in his unit and

unfortunately his name was not on the register. And like a

drowning man whose hope of survival is in clinging to an

available straw, and not being an INEC official denied the

register.

RW51 Adebisi Ojo

21.6 The testimony of RW51 is that during the April 14, 2007

Gubernatorial and House of Assembly elections he casted his vote

at Court Hall Unit, Olode and immediately went back to his

house at Isale Alawusa Area, Olode. He denied moving around

with Hon. Diran Ayanbeku, Remi Arogundade on 14/4/2007. He

also stated that he neither snatched ballot papers from anybody

on 14/4/2007 nor stuffed ballot papers into any ballot box on

14/4/2007. He further stated that he has read the affidavit

deposed to by Oladokun Gbenga and that all facts deposed to

therein are false.

21.7 Under cross examination a witness sworn as Adebisi Ojo all of a

sudden decided to be known as Adebisi Ojo Samson A. though,

he never gave the full meaning of the A. This witness claimed to

have voted around 2pm and that he would know what happened

as well as happening after he left the polling unit as his house

was close to the unit. The witness in another breath admitted he

would not see whatever was going on at the unit and that if there

is any form of malpractice he would not know since he left the

unit after voting. In a twist of fa te for this witness INEC the

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organizer of the election could not even make available voters

register of the unit he allegedly claimed to have registered. In

fact there were obvious discrepancies in the scores recorded in

the EC8A (exhibit 166(1)) with that of the EC8A (exhibit 159(7))

we invite your lordship to see these discrepancies.

RW55 Adeoye Ademiluyi

21.8 The testimony of RW55 is that on the 14 th day of April, 2007, he

did not accompany anyone in 4, 18 seater buses and a jeep

belonging to Hon. Diran Ayanbeku. He stated further that he did

not invade any polling units in Osi Ward neither did he wield

cutlasses, gun, charms and some other dangerous weapons as

alleged by Ademola Adeyinka Kafidiya nor shoot

indiscriminately into the air and at known 3 rd Petitioners

members and sympathizers as alleged by Ademola Adeyinka

Kafidiya. He also denied owning a gun.

21.9 Under cross examination, this witness who claimed to have voted

said under cross-examination that election was peaceful . In a bid

to cover the atrocity committed by himself, Hon. Diran Ayanbeku

and their cohort he frantically tried to create a scenario of the

impossibility of moving from Aiyesan to Osi by saying that the

journey will take a very longtime but later admitted it is possible.

This witness did not tell us how many days it took him to get to

the Court to testify.

21.20 We humbly urge your lordship to take cognizance of the fact that

he was alleged to have been riding in a jeep with the said

honourable and it is a known fact that jeeps are perfect off -road

vehicles. We submit that the witness lacks the credibility as far as

his testimony on the conduct of the election in his ward is

concerned because INEC, the organizer of the e lection, cancelled

result of three (3) units including the unit where the witness

claimed to have voted in Osi Ward as can be seen from exhibit

159(8) before Your Lordships.

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Isokan Local Government

22.1 In respect of Isokan Local Government, the Petitioners

witnesses were Adeniyi Olusegun Oyebola (PW52), Adesina

Mutiu Adegoke (PW54), Abolaji Saheed (PW55), Alabi Idowu

Oluwafemi (PW59), Mudashiru Asimiyu Olayinka (PW75),

Akanji Dolapo (PW77) and Mojeed Onifade (PW78)

PW52

22.2 PW52 is Adeniyi Olusegun Oyebola who gave testimony for Ward

11, and his testimony is that on the day of Election in ward 11,

Alhaji Moshood Lawal (a.k.a. Timayin) one Musefiu Olumagbo,

Tirimisiyu Alagbaa (a.k.a Titimayin), Olym pic photo, Ologan,

Mutiu, Sule Olorunsesan who are known members/ leaders of the

3rd respondents led a large number of armed thugs to disrupt

voting in all the polling units in this ward. That these thugs

illegally thumb printed ballot papers and stuffed the ballot

papers into the ballot box and high jacked the ballot box away to

an unknown destination. That in Faru Alapomu polling unit the

stolen ballot box was forcefully taken to an unknown destina tion

which later resurfaced at Faru A lapomu polling unit . The ballot

box was eventually taken to the collation centre where the Action

Congress party agents were not allowed to be present.

22.3 PW52 further stated that in Oosa polling Unit Oladebo Yisau, Dr

K.K. Akinroye and Peter Babalola (a.k.a. Peter Power) were part

of the thugs that disrupted the election in the unit . That in all

polling units in the wards in Isokan local government votes were

not counted and neither was form EC8A made available by the

INEC officials at the said polling units for immediate recording

of the election scores to be counter signed by the various party‟s

agents.

22.4 Under cross examination of PW 52 counsel to the 1 s t – 3 r d

Respondents, witness stated that he registered to vote but PDP

thugs led by Alhaji Moshood Olorun-esan did not allow him to

vote. Witness was registered to vote at Faru-Alapomu polling

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unit and he got to the unit in the morning before 9am, but could

not say the exact t ime because he did not have a wrist watch with

him. He also stated that he met few voters, but INEC officials

were not yet around. Witness confirmed that INEC officials

accredited people before thugs came to disrupt the election.

Again witness stated that voting is to start by 8am – 3pm under a

free and fair election. But in his ward the reverse was the case,

election did not start 8am.Furthermore, witness said he was at

Ayepe polling unit when the PDP thugs disrupted the election.

22.5 PW52 stated that Aiyepe was a collation centre and that he did

not see anybody to collate results. Witness said he got reports

from his agents of their own accounts in the unit , and he

personally saw what happened. What he saw is what he wrote.

Agent wrote what they saw. They chased away agents and he was

there and he saw other things i.e. he saw Peter power the chief of

staff in the Governor‟s office. He also saw that ballot boxes were

taken away. He did not agree with counsel that he has come to lie

rather to state what happened. The evidence of witness was firm

and remained uncontroverted.

22.6 The respondents in their written addresses in discussing the

evidence of this witness have said that the fact that the witness

admitted under cross-examination that the reports of the AC

agents in the ward did not include the fact that ballot boxes were

snatched “…put paid to the testimony in paragraph 5 -9 of his

written statement that snatched ballot boxes were snatched and

eventually stuffed and brought to the collation centre.. .”

22.7 While it is true that the witness admitted that the reports of the

agents did not include this fact, the respondents unfortun ately

did not state the full testimony of the witness on this issue as the

witness had said even under cross -examination that the reports of

the agents did not include the fact that ballot boxes were

snatched because the agents were chased away. We refer t his

honourable tribunal to the proceedings of the 27 th day of August,

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2009; most especially the answer which the witness gave to the

question of the counsel to the 1 s t -3 rd respondents during the

proceedings of that day.

PW54

22.8 PW54 is Adesina Mutiu Adegoke who gave testimony for Ward 6,

and his testimony is that on the day of Election in ward 6,

Apomu, comprising of Alapomu and St Banabas polling units) a

PDP stalwart, Alhaji Moshood Lawal (a.k.a Olorunesan), one

Yisau Oladebo and Kola Faesan led thugs alongside other

members of the 3rd Respondent and members of the National

Union of Road Transport Workers to disrupt voting in the various

polling units in the ward. That the group of people threatened

party agents of the 3rd petitioner with guns, cutla sses, charms

and beat up the said AC party agents and took them to police

stations. One of the said party agents taken to the police station

is Ogunlowo Abiodun from Alapomu 1 polling unit. That the

thugs later seized the ballot papers, embarked on thumb p rinting

of ballot papers and stuffing the ballot boxes with these papers.

22.9 Under cross examination witness stated that he was not beaten

but frightened. Police did not arrest nor prosecute anybody that

beat my agents. Witness said National Union of Roa d Transport

Workers disrupted the election . He confirmed that election starts

at 8am, and that he was at Alapomu II at 8.00am where he

registered to vote. He stated that at 3.00pm he was at the

collation centre expecting them to bring the result, he did no t see

them. Witness said he went at 8.00am to his unit to vote. Witness

said that while he was at Alapomu II he would not know what

was happening in other units.

PW55

22.10 PW55 is Abolaji Saheed who gave testimony for ward 10, and his

testimony is that on the day of Election in ward 10, one Lateef

Adeniran (a.k.a. Mao) Moshood Lawal (a.k.a. Olorun Esan),

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Honourable Ademola Opadola, Dr Kola Akinroye led some thugs

to invade the polling units in the ward that the thugs disrupted

voting in Awala, Okodowo, Agbaogun, Onikoko, Ita Marun and

Elebenla polling units. That the thugs also beat up AC agents and

threatened them with guns and cutlasses. That the thugs

eventually started thumb printing ballot papers and dumping

them in the ballot boxes.

22.11 Under cross examination of PW 55, Witness said that he was not

one of the Action Congress agents that was beaten, he was ward

supervisor. He also confirmed that his agents are alive . The

respondents in their written addresses have attacked the evidence

of this witness by alleging that this witness did not link the

individuals mentioned in paragraph 5 of his witness statement to

any political party. Well the simple response to this is that what

is in issue is whether the election was disrupted? The evidence on

the record in respect of the ward has shown this clearly it does

not matter whether those who caused the disruption are from

Mars!!!

PW59

22.12 PW59 is Alabi Idowu Oluwafemi who gave testimony for ward 2,

and his testimony is that on the day of Election in ward 2 (made

up of 6 polling units namely; St. David, Obaonileowo, Timi, Town

Hall, Ile Oke, Maternity Polling Units), the same Alhaji Taofeek

Abioye Makinde, Honourable Sulaimon Adio Oyegunle, Kolawole

Faniyi, Akeem Opeola, Latifu Gbadebori, Kamoru Biobaku, Taiw o

Ambali and Moshood Ambali, all PDP leaders/members, led

about 40 thugs to invade the polling units in the ward.

22.13 PW59 further stated that these thugs attacked all the agents of the

3 rd Petitioner in all the six polling units in the Ward and that the

thugs scared voters and agents of the 3rd Petitioner away .

Subsequently these thugs seized the ballot papers and started

thumb printing them which they later dumped into the ballot

box. One Mrs. Iyanda and a Member of the National Youth

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Service Corps simply known as Charity, a Police Officer, simply

known as Omotosho with No. 306906 and other policemen present

assisted the PDP thugs in the aforesaid activities. That in fact, in

Timi polling unit Honourable Sulaimon Adio Oyegunle pointed

gun at the witness and asked him to leave the polling unit

otherwise he loses his life. That voting was completely disrupted

as these leaders/members of the 3 rd Respondent and their armed

thugs did not allow voting to take place at any of the polling

units in the ward in accordance with the law. That votes were not

counted and results were not announced at any of the polling

units in Ward 2.

22.14 Under cross examination of PW 59, he stated that he is an OND

holder in Business Administration . That he is an Applicant.

Witness said there are 6 polling units in his ward. Action

Congress had party agents in each of the polling unit . He said

that he acted as a ward supervisor and never acted as an agent in

the polling units. He said he knows the duties of his polling

agents . Witness further stated that It was the duties of my agents

to stay permanently at the unit and watch/monitor election and

to sign INEC results, but the reverse was the case in his ward, as

agents were not allowed to stay in the unit. He also stated his

duties as a ward supervisor, was to monitor his agents and move

around the polling units. He said that he wr ote a report which is

not part in Exhibits 54a-f , and that the said report was given to

his party chairman in the Local Government Area

22.15 PW59 stated that PDP thugs did not allow him to vote despite the

fact that he registered to vote at maternity polling uni t and that

his voters card was torn by the PDP thugs le d by PDP leader. The

witness said that the PDP thugs have already chased the agents

away so he could not know that gun was pointed at him. The

reports were not written after the election, it was written after all

the agents have being chased away.

PW75

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22.16 PW75 is Mudashiru Asimiyu Olayinka who gave testimony for

ward 3, and his testimony is that on the day of the Election in

ward 3 (consisting of 6 polling units namely CAC, St Ritas,

Dispensary, Ikoyi-Ile, Alekuso, and Asejire Polling units), the

same Alhaji Taofeek Abioye Makinde, Honourable Sulaimon Adio

Oyegunle, Kolawole Faniyi, Akeem Opeola , Latifu Gbadebori,

kamoru Biobaku, Taiwo Ambali and Moshood Ambali together

with Messrs Alhaji Aminu and Alhaji Rasheed accompanied by

their armed thugs invaded the various polling units in this ward.

This group of people disrupted the hitherto peaceful v oting

activities by scaring away voters seized the ballot papers and

started thumb printing ballot papers in favour of the 1 s t , 2nd and

3 rd respondents. That the unlawfully thumb printed ballot papers

were then stuffed into the ballot boxes. That he is awa re that

votes were not counted and results were not announced at any of

the polling units in ward 3.

22.17 Under cross examination of PW 75 by counsel to the 1 s t – 3 rd

Respondents witness stated that he was not accredited by INEC

as ward 3 supervisor but nominated by his party. Witness said he

read the reports (exhibit 75a-h] before he wrote his deposition

and that he also read the reports of his agents before swearing to

the deposition. He stated that saw his agents before he testified

before the Justice Naron‟s panel but now he has not been seeing

them. He said that his Statement on Oath contains his reports.

Witness said he got to dispensary unit at about 11.30am, hanging

somewhere because Suleimon Ambali and others led thugs to

disrupt the election; they are PDP thugs he confirmed. He again

confirmed that he was at Dispensary polling unit , when the PDP

told the voters to come back the following week because they

have voted on their behalf. He said exhibit 75g, is the agents

report for Dispensary polling unit

PW77

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22.18 PW77 is Akanji Dolapo who gave testimony for ward 4, and his

testimony is that on the day of Election in ward 4 (consisting of 7

polling units namely Mopa, Abidemi, Alako, Oranran , Oranran 2,

Mowo-Oba and Olumelo polling units) very early in the morning,

Alhaji Abioye Makinde, Honourable Sulaimon Adio Oyegunle,

Moshood Ambali together with one Akeem Tibinu, the Chairman

of the National Union of Road Transport Workers and others led

thugs to invade the polling unit in the ward. That the thug s fully

armed with guns and cutlasses waylaid AC party agents around

Orita I jebu Palace Hall, Ikoyi, locked them up in the hall and

forced them to part with their money, phones and ID Cards. That

the said agents who are Sabitu Gbadamosi, Lasisi Usman and

Ganiyu Omoboriowo from Mopa Polling Unit were later taken to

State Criminal Investigation Bureau in Osogbo from where they

were transferred to Ife Prisons without any order of court to that

effect. That one Lasisi Sarafa, a party agent to the Action

Congress was attacked with cutlass on the head at the Abidemi

polling unit . That as a result of the attack he sustained a serious

injury which caused serious bleeding and was eventually taken to

the Boripe Hospital for treatment. That other AC agent were not

allowed to monitor the said elections thereby leaving the 3rd

petitioner with no party agents in the ward.

22.19 Under cross examination of PW 77, he stated that he made a

written report to his party chairman. He confirmed that report

was not part of Exhibits 77a-g shown to him. He stated that he

knows Lasisi Sharafa was in his house .He also confirms that all

other agents are alive. He said he is not aware that every political

party will send their agents name to INEC before election . In

view of the foregoing the claim of the respondents in their

written addresses that this witness did not give evidence about

the conduct of the election or non-compliance cannot be correct.

PW78

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22.20 PW78 is Mojeed Onifade who gave testimony for ward 8, and his

testimony is that on the day of the Election in ward 8, Prince

Afolabi Babatunde, Adio Sulayman, Moshood Lawal a.k.a.

Olorunesan and Kunle Akindunbi known members of the 3rd

Respondent led armed thugs who invaded and disrupted

elections at Awotedo, Bank area, Agunla, Ewenla, and quarry I &

II polling units at gun point. That the thugs stuffed ballot papers

already thumb printed for PDP candidates into the ballot boxes.

22.21 Under cross examination of PW 78, he stated that his own written

report given to the chairman is not among Exhibits 78a-g . After

the election had been disrupted, all the agents have ran away .

After the PDP thugs chased us away from the town, we have not

been seeking each other he added. He could not remember all the

names of his agent dictated to him because it had been a long

time but he stated that he has not being seeing them . Witness said

the agents submitted the reports to him on the day of election

after PDP thugs disrupted the election. He said the name of his

collation agent of his ward is Hon. Taiwo Osuolale and that he is

alive.

Evidence of the 1 s t to 3 rd Respondents in Isokan Local Government

23.1 In Isokan Local Government, 1 s t to 3 rd Respondents called nine

witnesses. They are: RW20 Dr. Kola Akinroye; RW27 Alhaji Azeez

Lateef Adeniran; RW32 Kolawole Faesan; RW44 Taofeek Abioye

Makinde; RW46 Alhaji Moshood Lawal; RW47 Alhaji Oladebo

Yissau; RW48 Afolabi Babatunde; RW52 Aminu Adedeji ; RW53

Faniyi Kolawole; RW56 Lateef Gbadebori

RW20 Dr. Kola Akinroye

23.2 The testimony of RW20 is that he practices medicine at Humana

Medical Centre and a member of P.D.P in Isokan Local

Government Apomu Osun State. He stated that he casted his vote

at Ward 8 around 11.00a.m on 14th April 2007 and thereafter

went back home and he was not at anytime with Peter Ba balola

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and Yisa Oladebo as he did not at anytime visited Ward 11. He

stated that on the day of election he did not leave his Ward and

equally did not see Alhaji Lateef Adeniran (A.K.A Mao),

Moshood LawaI (a.k.a Olorun Esan) Hon. Ademola Opadola talk

less of being with them and thugs to disrupt election or thumb

printing of ballot papers and stuffing of ballot boxes. He claimed

that to the best of his knowledge the election in his Ward was

free and fair and there was no incidence of any malpractices.

23.3 Under cross examination, RW20, Dr. Kola Akinroye In paragraph

4 of the witness statement and under cross -examination by

Counsel to the 1366 th and 1367 th Respondents, the witness said he

confirmed that election in his polling unit was free and fair but

under cross-examination by Counsel to 4 th to 1365 th Respondents,

the witness stated that he went home after casting his vote and

slept. The witness admitted under cross -examination that he will

not know what happened in his unit after he left the Polling Unit.

The witness certainly cannot give credible testimony as to

whether election was free and fair. The witness claimed that he

voted in Polling Unit 3 of Ward 8 and he initially claimed that he

cannot remember the name of the unit but later under cross -

examination, the witness claimed that his name was displayed on

voters list at Unit 3, Awotedo.

23.4 RW20 lacks any iota of credibility. Even though the witness had

stated in his witness statement that he voted around 11.00 a.m,

under cross-examination, the witness initially stated that he he

did not know the exact time he voted and that he cannot

remember. The witness later said that “I did not vote at

11.00a.m., it‟s not true that I voted at around 11.00a.m.”. Yet

when he was confronted with his witness statemen t (paragraph 2)

the witness now said he voted at 11.00a.m. Aside this obvious

contradiction, it is a tissue of lies that the witness voted and went

back home on the election day. This is because the name of the

witness is not on Exhibit 436C which is the V oters Register for

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Ward 8, Unit 3. Further, whereas the witness initially claimed

that he deferred to his ward chairman on all matters concerning

the party in his ward, he later stated under cross -examination

that he is a leader of PDP in Apomu and by his level of

responsibility, it behooves on him to have the report of conduct

of election in his Ward.

RW27 Alhaji Azeez Lateef Adeniran

23.5 The testimony of RW27 is that he got to his polling unit located at

Awala Village, Apomu at about 10.00 a.m on 14th April, 2007 for

the Governor and State House of Assembly election and met a lot

of people casting their votes peacefully and he joined them. He

stated that he did not know Abolaji Saheed. He also denied any

of the following people namely; Alhaji Moshood La waI, Hon.

Ademola Opadola, Dr. Kola Akinroye on the day of election as

alleged in the Election Petition shown to him. He denied having

thugs with him, nor carries cutlass and gun on any day or the day

of election as alleged in the aforesaid Election Petiti on. He

claimed that he casted his vote peacefully and returned to his

house.

23.6 Under cross examination, Alhaji Azeez Lateef Adeniran, the

witness admitted that he is the current Local Government

Secretary of Isokan Local Government and a PDP member. He

stated that his nick name is “Mao”. He stated that he knew Alhaji

Moshood Lawal, also known as Olorunesan, Hon. Ademola

Opadola, Dr Kola Akinroye and that these people are PDP

members. Incredibly, even though this witness is a politician and

a political office holder, he claimed that he only knew the result

of the election the following day and that he was not anxious to

know the result for his unit. He stated that he knew was when

people were jubilating that PDP had won. He claimed he knew

the result of his unit on the following day. He said that as the

secretary of Local Government and politician, he was not anxious

about the result . He said that he did not know about the result

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and that only INEC and party agent are supposed to know. Under

cross-examination by 4 th -1365 th Respondents the witness stated

that election in his ward was peaceful and orderly. The witness

cannot credibly make this statement in view of his claim that he

left for his house immediately and he did not even know about

the election until the following day.

23.7 There is evidence even gross deficiency in the ballot papers

certified by INEC as having being used by INEC in his polling

unit, unit 2 Awala Market, Ward 10, Isokan Local Government

which belie the claim of a regular election in the unit. By Exhibit

315(b)(1-333), there were 333 ballot papers certified by INEC as

having being used by INEC in his polling unit as against 372

ballot total votes recorded on Exhibit 153(1 -7), that is the

particular EC8A for the unit . There is thu s a deficit of 39 ballot

papers in the unit .

RW32 Kolawole Faesan

23.8 The testimony of RW32 is that he is a P.D.P party leader in Ward

9 of Isokan Local Government of Osun State and that on 14th

April 2007 he went to the polling station at 8.00a.m in the

morning but voting did not start until 9.00am and he casted his

vote at Oosa Ekan Ade polling unit. He stated he was not in any

waynear Ward 6 nor did he see Alhaji Moshood Lawal, Yisau

Oladebo and did not use gun, cutlasses and charms on anybody

neither did he partake in the stuffing of ballot boxes or

disruption of voting exercise in his unit as alleged in the Petition

shown to him. He stated that he equally did not aid or abet in the

disruption of voting exercise in all other wards in Isokan Local

Government.

23.9 Under cross examination by the 4 th – 1365 th respondents the

witness admitted that he is a leader of PDP and was the first

person to get to the Polling Unit to cast his vote and that when he

left he wouldn‟t know how proceedings went. He claimed that

immediately he voted his wife was the next person that was

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attended to, but he did not wait for her. Contrary to his statement

above as to not knowing how proceedings went after leaving the

polling unit he went further to state that i t will be unfortunate if

anybody alleges violence at the Polling Unit on Election Day. The

witness still claimed under cross examination by the petitioners

and the 1366 th – 1367 th respondent that the voting exercise after

he left was transparently peaceful contrary to his statement that

he wouldn‟t know what happened after he left . When asked why

he left his wife behind he stated that it is a constitutional issue as

it is his right he went to exercise and not under any obligation to

wait for his wife.

23.40 Despite his stance on the transparency of the election the witness

admitted that he would be surprised that ballot paper s supplied

by INEC as used is less than what was recorded on the EC8A for

the unit. Incredibly, even though this w itness is a politician and

a party leader, he claimed that he only knew the result of the

election in the night through people jubilating and that he was

not anxious to know the result for his unit. He said he heard the

result of his Ward in the evening and Unit at 8.00p.m.

23.41 The witness finally agreed later under cross-examination that he

was not there when the result was declared, compiled and

collated, announced and so not in a position to tell the Tribunal

whether the results was collated and recorded in his polling unit.

The witness however gave a new dimension when he disclosed

that his wife of ten years still bear her maiden name. Though , he

claimed his wife was the next person to vote after him, Exhibit

437C voters‟ register for the unit however shows the contrary as

neither was Omolara Faesan nor Omolara Oguniran as claimed by

him exist on the register.

RW44 Taofeek Abioye Makinde

23.42 The testimony of RW44 is that he is a resident of Ikoyi in Osun

State by virtue of which he is conversant with the facts deposed

to herein. He stated that he participated as an electorate in the

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election conducted on the 14 th day of April, 2007 at ward 1

located at AUD Primary School, Ikoyi. He claimed that the last

time he saw Honourable Adio Oyegunle last was on the 13 th day

of April in his house when he came to inquire about party agents

appointed for the purpose of 14 th April, 2007 election. He stated

that during the conduct of the election, he did not set his eyes on

Hon. Adio Oyegunle and only met him later in the day at about

6.00pm at the collation centre located at Apomu Town. He denied

seeing kola Ajisafe, Kolawole Faniyi, Akeem Opeola and

Moshood Ambali kamoru Biobaku on the 14 t h day of April, 2007.

He stated that he did not move about on this day as he only

casted his vote and went back home only to come out at 6.00pm

for the collation at the centre. He stated that he did not belong to

ward 2 and therefore cannot be at ward 2 for any purpose at all.

He stated that he knew Lateef Gbadebori and that Gbadebori is

his P.A Personal Assistant but was not with him on the 14 th day

of April, 2007. He also stated that he knew Alhaji Aminu as one

of the party leaders in his Local Government but did not see him

on the 14 th day of April, 2007.

23.43 RW44 stated further that he only saw Akeem Tibinu on the said

day at about 6.00pm at the collation centre and not during the

elections. He denied locking anybody up anywhere at anytime.

He also stated that he did not lead thug or thugs either as an

individual or with some people to beat any polling agent or

thumb print any ballot papers in the presence of policemen and

INEC Presiding Officers. He finally stated that he has been shown

a copy of the petition and all the allegations made therein as to

his personality concerning the roles he played on the 14 t h day of

April 2007 are false.

23.45 Under cross examination, RW44 claimed in paragraph 3 of the

witness statement that he participated as an electorate in the

election but it became clear under cross -examination that the

witness is a strong PDP stalwart and that he was even a former

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Commissioner under the auspices of the PDP. The witness

certainly lacked any iota of credibility as he claimed under cross -

examination that he was the collation agent for the PDP at the

Local Government and that he signed the resu lt of the election for

Isokan Local Government. This turned out to be falsehood as

Exhibit 142, Form EC8C the result for Isokan Local Government,

showed that the witness did not sign the result for the Local

Government. The name of PDP collation agent for the PDP on

Exhibit 142 is Alhaji Olaniyi Alabi.

23.46 The witness who had claimed that he did not know the collation

agent for his ward later claimed that Odeniyi Rasaki who signed

the Exhibit 143(1) as Ward Collation agent and Exhibit 144(5) as

polling agent for the unit was appointed as the collation agent for

his ward. The witness also claimed that it was at his house that

the ward collation result was brought to him and at the same time

that he cannot remember the names and how many polling agents

brought the result to his house. The witness admitted that he

could not say whether the result for his unit and ward was

announced and collated because he was not there. Apart from

being shown to be a liar , the admission by the witness that

results were taken to his house is a further evidence of

manipulation of the election procedure to the advantage of the 3 rd

Respondent.

RW46, Alhaji Moshood Lawal

23.47 The testimony of RW46 is that he is a party leader of PDP in

Isokan Local Government of Osun State and on 14 th April, 2007 at

about 10.00 am he went to ward 11 at St. Jude Aiyepe polling

station, took his turn to cast his vote after which he returned

home to his father‟s house in the village. He stated that after

returning home he did not in company of anybody or thugs

invade the polling units or illegally thumb print ballot papers

and stuffing of same in ballot boxes. He stated that he did not see

Hon. Ademola Opadola, Dr. Kola Akinroye, on the day of the

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elections and neither did he see Kunle Akindunbi, Adio

Sulayman, Afolabi Babatunde, Yisau Oladebo, Kola Faesan on the

election day as all of the people mentioned were not registered in

his ward.

23.48 RW46 further stated that he has never handled a gun in his life

and his religion does not permit him to engag e in any act of

violence, thuggery and harassment of innocent people. He

claimed that to the best of his knowledge and reports which their

representative gave him in his capacity as a party leader, election

on 14 th April 2007 was conducted in the most peac eful and

conducive atmosphere free from all act of thuggery, intimidation,

harassment and any known electoral malpractices.

23.49 Under cross examination, this witness admitted in paragraph 6 of

his deposition that he is a PDP leader, he claimed further in the

same paragraph that election was peaceful and conducted in a

conducive atmosphere, the same statement he reiterated under

cross examination by the Counsel to the other sets of Respondent.

This witness who claimed under cross examination to be a

practicing Muslim refused to swear by the Holy Quran, in

answering a question as to why he refused to swear with the Holy

Quran he stated that he was used to affirming an answer that

contradicted the deposition he adopted. In showing that this

witness is an embodiment of contradiction he claimed in

paragraph 5 of his deposition that he has never handled a gun in

his life and that his religion abhors same, but ironically under

cross examination it was shown that he was a retired Soldier who

fought wars.

23.50 RW46 admitted knowing those with whom he was alleged to have

disrupted election and under further cross examination he stated

that after voting he went to his father‟s house in the village and

never came out again. We submit that for someone who claimed

to have voted and went away to say election was peaceful can

only be a figment of his imagination and to escape this he

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claimed it was an unnamed agent that told him election was

peaceful. This witness toward the closure of his cross

examination was asked if he would still maintain the same stance

if he were to swear by the Holy Quran stylishly avoided the

question and became comical. We submit that the testimony of

this witness cannot hold water as he is not a witness of truth.

RW47, Alhaji Oladebo Yissau

23.51 The testimony of RW47 is that he got to his polling unit located at

Bodude, Apomu about 11.00 am on 14 t h April, 2007, Governor and

House of Assembly Election and met a lot of people on the line

waiting to cast their votes and he joined them. He stated t hat he

did not know one Tajudeen Adebayo and Shina Faisan as alleged

in the Election Petition. He stated the he did not go to Ekan Ade

Mosque on the Election day and did not have anybody with him

when he casted his vote and after casting his vote he for hi s home

alone. He claimed that no electoral malpractices occurred in his

polling unit when he was there as alleged in the Petition.

23.52 Under cross examination, RW47 Alhaji Oladebo Yissau The

witness admitted to be a PDP member and indeed a leader, he

claimed under cross examination by INEC Counsel that election

was peaceful but he admitted under cross examination by the

Petitioner‟s Counsel that he left the polling unit after voting,

when asked if he could see what happen after he left his answer

was that “…how would I know”. For this same witness to now

say election in his unit was peaceful.

23.53 This witness, a former police officer and NCE graduate, could not

calculate the age difference between someone born in 2006 to

2010 just as he did not know how old he was in 2007 though he is

presently 57. This witness claimed to have voted and

unfortunately his name is not on the voter‟s register for the unit

he claimed to have voted, Exhibit 437(F) Voters register for

Bodude unit 6 of ward 9 need no further ex planation for the

unbelievable story he had told as testimony. Finally for a witness

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who claimed to be party leader to say he was not interested in the

result of election being contested by his party cannot but be

ridiculous.

RW48, Afolabi Babatunde

23.54 The testimony of RW48 is that on 14 th April 2007 at Alapomu‟s

Palace polling station for the Governorship/House of Assembly

election he went to his polling station and cast his vote at about

12.45 pm after which he went back home and was not at anytime

near ward 8, he stated that he did not see Adio Sulayman,

Moshood Lawal and Kunle Akindunbi, who are all resident of

Ikoyi while he is a resident of Apomu, and he was not in the same

ward with them. He claimed that to the best of his knowledge

election was free and fair and he did not along with anybody arm

himself with weapons to carry out any act of thuggery.

23.55 Under cross examination, this witness claimed he voted at palace

polling unit , but under cross examination he admitted that it is

town hall unit . He claimed in paragraph 3 that to the best of his

knowledge, election was free and fair, and this knowledge of his

was based on the fact that the polling unit was in the palace

which was not true, he went further to state that if anything

happened he would have known, but ironically he admitted that

he left the polling unit and did not returned there. The witness in

answering further cross examination question said he did not

know when election ended in his unit and did not witness

collation, counting and announcement. It becomes even more

intriguing and incredible when the witness who said the polling

unit is within the palace where he lives to hear result of election

allegedly conducted in the same unit the next day. We submit

there is absolutely nothing to belief in the testimony of this

witness.

RW52, Aminu Adedeji

23.56 The testimony of RW52 is that he is the Chairman of PDP in Ward

3 of Isokan Local Government of Osun State and on 14 th April

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2007, at about 10.30 am he went to his polling station to cast his

vote and went back to his house which is about 5 or 3 electric

poles to the polling station. He stated that he was not in the same

ward with Taofeek Makinde, Hon. Sulaimon Adio Oyegunle,

Kolawole Faniyi, Akeem Opeola, Latifu Ambali and Moshood and

infact some of them are not known to him as alleged in the

Election Petition shown to him. He stated that during the voting

exercise and as a leader of his party he only covered activities of

the voting exercise in his ward but there was no act of thugger y,

thumb printing or ballot stuffing in his ward.

23.57 Under cross examination, this witness by virtue of paragraph 1 of

his statement admitted that he is the Chairman of PDP in the

ward and under cross examination he claimed that election was

peaceful in his ward when cross examined by INEC. Under cross

examination by the petitioner‟s counsel he stated that he voted

and returned home to stay there and further admitted that he did

not monitor any electoral activities hence contradicting

paragraph 4 of his deposition. Further into the cross examination,

he agreed that voting twice is an illegal act . The witness was

confronted with the voter‟s register for his unit that is exhibit

433B. A further look at the voters register shows that 530 were

accredited and ticked as having voted whereas EC8A for the unit

disclose less than the number accredited. He admitted being a

member of NURTW and indeed their vice chairman, and it is on

record that members of this organization were deployed in

disrupting the election.

RW53, Faniyi Kolawole

23.53 The testimony of RW53 is that he got to his polling unit at

Library, Ikoyi at about 10.00 am on 14 th April, 2007 for the

governor and State house of Assembly election and met people at

the unit waiting patiently to cast their votes and he joined them.

He stated that he did not see Isiaka Toromade in his polling unit

on the day of election as alleged in the Election Petition shown to

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him. Ha also stated that he did not see any of these people

namely; Alhaji Taofeek Abioye Makinde, Hon. Sulaiman

Oyegunle, Koto Ajisafe, Akeem Opeola and Moshood Ambali on

the day of election. He claimed that no thug or group of people

disrupted the election in his polling unit when he was present as

alleged in the Election Petition shown to him and that after

casting his vote, he did not visit any other polling unit but

returned to his house immediately.

23.59 Under cross examination, this witness from the outset proved to

be an incredible witness when under cross examination by

counsel to the 4 th – 1365 th respondent he stated that his house is

far from the polling unit and for that singular reason he would

not hear if there was any violence at the polling unit , in another

breath he was confirming that there was no disruption or ballot

stuffing and in fact said that election was peaceful. This in itself

is a contradiction coming from the same person who had earlier

claimed that he would not know if there was violence. The

witness‟s incredible testimony continues when answering

question from the Petitioner‟s counsel. An acclaimed civil servant

who testified in Yoruba and even went as far as saying

transaction in the ministry where he works are done in both

Yoruba and English language. His testimony become ludicrous

when he claimed that his deposition was taken, typewritten and

printed for him by the secretary of the tribunal. This witness

under cross examination claimed not to have heard nor read

about Moshood Ambali whereas the name was among the names

he listed in paragraph 4 of his deposition. The wi tness still under

cross examination stated that he cannot hear if there is violence

at the unit but still went ahead to say election was peaceful.

RW56, Lateef Gbadebori.

23.60 The testimony of RW56 is that he is a member of the PDP in

Isokan Local Government and that on 14 th April 2007 at ward 2 he

went to his polling unit to cast his vote after accreditation and

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went back home. He stated that he did not see Taofeek Abioye

Makinde, Hon. Sulaiman Adio Oyegunle, Kolawole Faniyi, Akeem

Opeola, kamoru Biobaku, Taiwo Ambali and Moshood Ambali on

14 th April 2007 and did not in any way lead thugs numbering

about 40 to scare people away or directed them to thumb print

ballot papers as alleged in the affidavit of the Petitioner‟s

Witness shown to him.

23.61 Under cross examination, this witness claimed that he is a trader

but in Exhibit 439(b), item 139, the occupation of the witness

stated was civil/Public servant. He claimed to have voted and

under cross examination by INEC, he claimed election was

peaceful. This witness later admitted under petitioners cross

examination that he wouldn‟t have seen anything since he voted

and left the polling unit. A controversial witness who in the face

of documentary evidence before the court argued that the unit he

belonged to was unit 2 where as Exhibit 439(6) shows that the

unit is 3. He admitted that he would not see if election was

conducted peacefully only to still say that he knew votes were

counted because he saw people jubilating.

Boluwaduro Local Government

24.1 In respect of Boluwaduro Local Government, the Petitioners

witnesses were Victor Olasunkanmi Fatoki (PW34), Adewale

Michael (PW35), Ojo Ekundayo Samuel (PW36), R. A. Ibrahim

(PW37), Hon. B. O. Gbadamosi (PW38) and Oludele Fabule

(PW43) and their testimonies are as follows :

24.2 PW34 is Victor Olasunkanmi Fatoki who gave testimony for Ward

6, and his testimony is that on the day of Election some thugs

numbering about 6 led by Opeyemi Ogundeji, son of Hon.

Akanmu Ogundeji, the PDP Candidate for the House of Assembly

in the Constituency, came in a vehicle belonging to Tunji

Abodunrin (a.k.a. Gbelepawo) and invaded 5 polling units in the

ward. That this group of people were shooting into the air to

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scare away the people at the polling units. That at Community

High School polling unit , he saw these thugs, this time led by

Adegbite Segun (a.k.a. Orisa) PDP polling agent at that unit, the

thugs thoroughly beat up the 3 rd Petitioner‟s polling agent with

wheel spanner and the flat part of a cutlass.

24.3 The witness further stated that Adegbite personally carried a gun

which he shot into the air several times. That due to this, all the

electorates and people in the said 5 polling units in the ward took

to their heels and voting was completely disrupted. That the

thugs moved from one polling unit to another, carting away the

ballot boxes, ballot papers and taking away the INEC officials at

the 5 polling units. That at unit 6 and 7 (Irepodun and Araromi -

Edi villages respectively), there was no voting at all as INEC

officials did not come to the polling unit at all. That later, at

about 12.30 p.m., at Irepodun Village, the witness and some

others saw some PDP leaders including Bayo Farinde, Fatoki John

in a vehicle laughing at them and saying: “stupid people, we

have completed voting in Irepodun village and Araromi Edi

while you are waiting at the polling units”. That he knew that

there was no counting of votes and announcement of results in all

the polling units in the ward

24.4 Under cross examination of PW 34, He stated that he was never

the National President of Igbajo Student union, but he was the

editor in chief of Gog Magazine. Witness stated that he was not

arrested and that it was the Chairman of the committee that was

arrested He also stated that he did not join the thugs , but was at

a distance watching PDP thugs disrupting the election, The

polling units are very close to each other. The PDP thugs were

lead by Ogundeji Opeyemi son of Hon. Akanmu Ogundeji, PDP

candidate and now House of Assembly member representing

Boluwaduro and Boripe constituency he stated.

24.5 PW34 again confirmed that the PDP thugs moved with different

types of guns, locally made guns and other improvised guns,

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shooting sporadically into the air at each unit, and they moved

away the ballot boxes to unknown destinations. Witness stated

that he did not know how to use guns nor cutlasses, since he has

never farmed in his life, but he during school days took part in

labour weeding of school compound. He said he attended

Community High School, Igbajo in Osun State he stated. Mr.

Alalade Matthew Soji was the party agent in Community High

School polling unit, but he did not know where he is . Witness

again confirms his paragraph 6 of his deposition as summary of

what happened at the election. He said his report was submitted

to his party chairman Local Government he stated.

24.6 PW34 stated that INEC did not give me him any form of

identification, but a tag was given to him by his party. Witness

said again that he does agree that Igbajo is fairly large town, but

it is surrounded by hills, having a steepy hill that leads to

Kirikiri Grammar school, on the left when entering Igbajo from

Ada. He said Community High School is at I jemu ward 6 in

Igbajo and that there are 21 polling units in Igbajo town and that

if one stands at the centre of Igbajo, you can see those polling

units in ward 6, but it is not possible to see those ones outside

the town He also said he has never attended PDP meetings

before. He added that he was not accredited by INEC, but by his

party. Witness again confirms disruption of election when he said

he was suppose to vote at Lowa-Ikan ward but the PDP thugs did

not allow him to vote.

24.7 It is submitted that the testimony of PW34 was not challenged by

the Respondents under cross-examination.

PW35

24.8 PW35 is Adewale Michael who gave testimony for Ward 10, and

his testimony is that on the day of Election at Nawair Ud Deen

Unit, some thugs armed with guns, axes, machetes, clubs and

other dangerous weapons were led by Dehinde Alalade, a State

Official of PDP and a member of Osun State Water Corporation,

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Tawakalitu Ayanbode, the woman leader of PDP in ward 10, and

Tunde Oladiran, Ward 10 PDP Chairman to invade the unit. That

the aforesaid people snatched the ballot box for the unit. That in

the remaining 8 units, votes were not counted at the polling units

as one Mr. E. A. Owolabi the INEC official, directed that the

ballot box be taken to Iresi Police Post. That when the electorates

insisted that votes should be counted in their presence at the

police station, they shot several canisters of tear gas into the air

to chase away the electorates and other people around. That these

ballot boxes were later forcefully taken away by armed policemen

led by the Commissioner of Police, Osun State, Sulayman Fa kai

with INEC officials going with them. That votes were not counted

at the polling units and results were not announced.

24.9 Under cross examination of PW 35, he stated that the ballot boxes

were taken to Iresi police post. He further stated that the 8

polling units are close to each other, but when the thugs moved

the ballot box from one place to another, he followed on a bike. It

was Mr. Owolabi that moved the box around 1.00pm and 1.30pm

witness stated. Paragraph 5 of my deposition is another

occurrence of Ballot Box snatching he confirmed under cross

examination.

24.10 Again, witness stated that it was his party that appointed him not

INEC and that he has never gone through the INEC manual

because he was not trained by INEC. He confirmed that he voted

at Malawudi polling unit and that he was neither the 1 s t nor the

last voter. Witness observed people on queue waiting to vote

before the disruption of election. Further under cross

examination, witness stated that ballot papers were ordered to be

taken to the police post in other units when he was suggested to

him that there was no disruption in the other polling units e xcept

Nawarudeen polling unit. He said that he did not know how

many Assistant Commissioner of police in Osun police command

but he identified officers by their ranks.

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PW36

24.11 PW36 is Ojo Ekundayo Samuel who gave testimony for Ward 5,

and his testimony is that on the day of the Election some thugs

numbering about 20 led by Tolulope Ogundeji, son of Hon.

Akanmu Ogundeji, the PDP Candidate for the House of Assembly

in the Constituency, came in two vehicles, one belonging to the

said Akanmu Ogundeji and the other belonging Tunji Abodunrin

(a.k.a Gbelepawo) to invade 7 polling units in the ward. That

these people were shooting sporadically in to the air to scare away

the people at the polling units. That due to this, all the

electorates and people in the 7 polling units in the ward took to

their heels and voting was completely disrupted. That these thugs

moved from one polling unit to another, carting away the ballot

boxes, ballot papers and taking away the INEC officials at the

polling units. That at Erunromi Compound in Isao Area of Igbajo

Town, these thugs attacked and killed one Mr. Aderemi Idowu,

the 3 rd Petitioner‟s polling agent for Cherubim and Seraphim

Polling Unit while he went to report the violence perpetrated by

the said PDP thugs in his polling unit to Mr. T.A.B. Olatunji. That

at about 2.00 p.m, the witness with one Dr. Ademola Onifade and

some other persons who are member of the 3 rd Petitioner

attempted to lodge a report of the killing to the police when we

met the said PDP thugs at the Igbajo Police Station with the ballot

boxes snatched at the various polling units in the ward already

filled with thumb-printed ballot papers. That at Unit 8 (Aragba

Village), there was no voting at all as INEC officials did not come

to the polling unit at all. That the witness and some others saw

INEC officials and some of the PDP thugs come out of the bush

close to unit 8 polling unit with ballot boxes filled with already

thumb-printed ballot papers. That he knew that there was no

counting of votes and announcement of results in all the polling

units in the ward.

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24.12 Under cross examination of PW 36, he stated that he could not

vote as PDP thugs did not allow him to vote. Witness said he was

a ward 5 supervisor. He stated that is not possible for Fatoki and

himself to write report together, because they are not from the

same ward. It is not true that on the day of election some of our

agents were causing trouble at the polling unit and none of them

was arrested. Aderemi Idowu is alive, I attended our party

meeting last on Sunday, and so I know all the members in my

ward including AD members in ward. I also know ANPP

members because we are living together in the same community

he stated. Witness could not tell the population of people in his

ward. There are many people on the registers of voters in my

ward. I do not know the voters number in my ward, but I know

that of my unit. Furthermore under cross examination by counsel

to INEC, witness stated he was accredited by his political party

and not INEC. The evidence of witness was not controverted

under cross examination.

24.13 The grouse of the respondents with the evidence of this witness is

that his evidence is “almost verbatim of that of PW34” . It is

difficult to see why this should stand in the way of the credibility

of the witness if the witness saw the same events as PW34 or

better still, if the events which they witnessed followed in the

same pattern, there is no reason why they should not relate the

events as they saw them.

PW37

24.14 PW37 is R. A. Ibrahim who gave testimony for Ward 9, and his

testimony is that on the day of Election some thugs armed with

machetes, clubs, sword and other dangero us weapons were led by

Sule Oyekanmi, the Councillor for ward 9 and Sunday Aina,

Ward 10 Councillor (both prominent members of PDP) to invade

Oju Eri unit and snatched the ballot box there. That in the

remaining six units, votes were not counted at the pol ling units

as the police insisted that the ballot boxes be taken to Iresi Police

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Post. That these ballot boxes were later forcefully taken away by

armed policemen led by the Commissioner of Police, Osun State,

Sulayman Fakai with INEC officials going with them. That the

police later shot tear gas canisters into the air to chase away the

electorates and other people around.

24.15 Under cross examination of PW37 he stated that he is a teacher in

a private secondary school called Muslim Comprehensive High

School Otan-Ayegbaju. But that he left the school close to 2 years

now voluntarily, as my take home pay could not take me home.

Witness joined AD before AC was formed but does not know his

registration number in Action Congress off hand. Yes, I Adewale

Michael (PW 35), he is older than me but we are friends. On the

day of the election I moved alone from pla ce to place. My report

is what he witnessed I did not copy Michael, I voted at Sabo -olobi

polling unit. I saw uniformed police men in every polling unit. I

don‟t know their ranks, since I was not a police officer. I have

never in my life held a gun. I am not a hunter but I can recognize

a hunter provided he carries gun. ANPP and PDP party agents

were at the polling units. I only know of two political parties that

took part in the election for the governorship . It was in the

afternoon around 2.00pm that I got to the unit when the police

ordered that the ballot boxes be taken to the police station for

safety. I left the unit around 5.00pm-6.00pm when the former

Commissioner of police and his entourage went away with the

boxes to an unknown destination. I got to the collation centre

around 5.30pm-6.00pm. Yes I know am aware that election should

be concluded by 3.00pm but the election was disrupted . I left the

collation centre around 30 minutes after. I signed my Statement

on Oath. Witness signed 2 times [ EXHIBIT R9 ]. I am also the

collation officer as well as a ward supervisor; I was accredited by

my party not INEC?

24.16 The first complaint of the respondents against the evidence of

this witness is that his evidence is too strikingly similar to tha t

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of another witness. As we have observed al ready there is not

unusual in two individuals who witnessed an event or a series of

events in relating the event or series of events in the very way

they have perceived the events.

24.17 As for the other complaint that the signature of the witness on his

witness statement is different from his signature on another

document, we submit that this is not true.

PW38

24.18 PW38 is Hon. B. O. Gbadamosi who gave testimony for Ward 1,

and his testimony is that on the day of Election about 40 thugs

armed with guns, machetes, axes and other dangerous weapons

invaded all the polling units in the ward. That these thugs

snatched all the ballot boxes in all the polling unit only to

resurface at the INEC office. That voting was disrupted in all the

polling units in the ward and as a result there was no counting of

votes and announcement of results in all the polling units in the

ward.

24.19 Under cross examination of PW38, he stated that his written

statement is correct and accurate. Witness looked at Bashiru

Olokede‟s report Exhibit 34a and read the last paragraph of the

report. The witness said he did not know the total number of

voters on the register for his ward, unit 3 and unit 5 because he is

not INEC official. He said he reported disruption of election to

the DPO in his Local Government Area. The police where there at

the unit and he also reported to the DPO in my Local Government

Area, he stated under cross examination. These were not

controverted.

24.20 The position of the respondents in their written addresses on the

evidence of this witness is that contrary to his evidence, voting

actually took place in the ward on the day of elec tion. It is

submitted on behalf of the peti tioners that the essence of the

evidence of this witness is that voting was disrupted.

PW43

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24.21 PW43 is Oludele Fabule who gave testimony for Ward 2, and his

testimony is that on the day of Election about 40 t hugs armed

with guns, machetes, axes and other dangerous weapons invaded

all the polling units in the ward snatching ballot boxes. That

voting was disrupted in all the polling units in the ward and

there was no counting of votes and announcement of results in all

the polling units in the ward.

24.22 The respondents in their written addresses attacked the evidence

of this witness on the ground that he did not disclose the identity

of those who committed the wrong doing and this was why he

was not cross-examined by counsel to any of the respondents.

This observation to say the least is astonishing as the witnessed

having established by his evidence that wrong doings were

committed in the ward on the day of the election as to mar the

voting process and the respondents having failed to cross-

examine him on his evidence, the consequence in law that his

evidence stands unchallenged and this honourable tribunal is

bound to accept same and rely on it.

Evidence of the 1 s t to 3 rd Respondents in Boluwaduro Local

Government

25.1 The 1s t to 3 rd Respondents witnesses are four; RW10 Dehinde

Alalade; RW11 Adegbite Segun; RW12 Simeon Falana; and RW16

Alfa Saka Dada

RW10 Dehinde Alalade

25.2 The testimony of RW10 is that he is an Ex -Officio member of

Peoples Democratic Party and a member of Board of Director

Osun State Water Corporation. He stated that on the day of

election he did not lead thugs or any other person(s) armed with

guns, axes machetes, clubs and other dangerous weapons to

invade and snatch ballot box at Nawair Ud-Deen Unit or any

other unit. He claimed to have registered and voted at Ikinfin /

Ago Fulani Polling unit Ward 9 and I did not go to Ward 10 and

196

did not visit Nawair Ud-deen Unit at all . He stated that he knew

Tawakalitu Ayanbode and Tunde Oladiran of Ward 10 as Party

Members only and that he did not snatch any ballot box.

25.3 Under cross examination, RW10 Dehinde Alalade The witness

both in paragraph 5 of his witness statement and under cross -

examination claimed that he voted at the election Ago Fulan i

Ikinfin even though he did not know the unit number and did not

know the exact t ime it took him to vote. To test the veracity of

the witness and his credibility, the witness was shown Exhibit

398F Voters‟ Register for Polling Unit 6 Ago Fulani to see

whether his name, Dehinde Alalade was on the voters register.

The witness admitted that Dehinde Alalade was not there but

incredibly the witness said he saw Ademola J Alalade, witness

and that was his name.

25.4 It is submitted that this is an answer of con venience and patent

falsehood calculated by the witness to cover up the fact that he

was not a registered voter at the unit where he claimed he voted

in his evidence in chief and under cross -examination. That this

witness is not a credible witness and cannot be believed is also

evident from his answer to questions surrounding his career and

age. He said he retired on 1 s t June, 1983 at Ata Oja High School as

a Bursar and that he was 39 years when he retired. This answer

put his date of birth in 1944. Upon f urther cross-examination, the

witness stated that he entered Modern School in 1955 and left in

1957 and that he started primary school in 1946. When it

suddenly dawned on the witness that with his previous answer

that he retired in 1983 at the age of 39 w ith the implication that

he was born in 1944 and that he therefore entered primary school

at the age of two (2), the witness then claimed that he was born in

1939 but his official age is 1944, that is, that December 4, 1939 is

the real date of birth. The witness is obviously an unreliable

witness that cannot be believed as to his testimony that he did

not disrupt the elections.

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RW11 Adegbite Segun

25.5 The testimony of RW11 is that he is a farmer and PDP member.

He claimed to have registered and voted in C ommunity High

School polling unit and thereafter returned to his house. He

stated that he did not lead thugs or any persons and did not beat

3 rd petitioners polling agent with wheel spanner and the flat part

of the cutlass as he had no cutlass on him at al l. He further stated

that he did not carry any gun or any weapons and did not shoot

into the air at the unit or any unit at all . He claimed that election

was peaceful at his polling unit throughout.

25.6 Under cross examination, RW 11 Adegbite Segun The witness

claimed that he is a farmer but in Exhibit 402B, item 11, the

occupation of the witness stated was artisan. The witness said

that he was approaching 35 years and that he was older than his

wife but the registration particulars of his wife, Foluke Ad egbite,

in Exhibit 402B, item 16, showed that the age of the wife was

older. The witness who claimed that he was just approaching 35

years also said that he cannot say if he was born before or after

independence. He claimed that it took him about five minu tes to

vote. Even though the witness claimed in paragraph 6 of his

witness statement that “election was peaceful in my unit

throughout”, the witness admitted under cross -examination that

after voting he went to his house and that he would not know

what happened after he left for his house. There is thus no factual

basis for the deposition in the witness statement and thus the

witness ought not to be believed.

RW12 Simeon Falana

25.7 The testimony of RW12 is that he was the party agent for PDP in

Ward 2 Unit 7 Alafe Polling booth for the elections held on 14th

April, 2007. He stated that he was at the unit with another PDP

agent Ademola Kazeem. He stated that he got to the polling

station at 7.30 am in the morning and met AC party Agent at the

polling station. He stated that at about 8.30 am the INEC Officials

198

along with security officers arrived at the polling station and

voting commenced at about 9.00 am while people voted without

any act of lawlessness, harassment or intimidation. He stated that

he knew Oludele Fabule because he is a native of Otan Ayegbaju

but did not see him at his unit on the day of the Gubernatorial

and house of Assembly Election on 14 th April, 2007. He claimed

that Election was conducted in a free and fair atmosphere and

there was no incidence of violence by any armed thugs carrying

guns, machetes, axes and other dangerous weapons. He further

claimed that election ended around 3.00 pm and the INEC

Officials took the ballot boxes to the collation centre at the court

hall and votes were counted and the agents were made to sign the

result sheet Form EC8A. He finally claimed that the party Agent

to AC and NDP signed Form EC8A and the results of the election

were announced at the town Hall.

25.8 Under cross examination, RW 12 Simeon Falana, the witness

stated under cross-examination that he is a politician and that he

has been in politics since 15 years ago and that his unit is also

called Alafe Okero. The testimony of this witness is

contradictory. In paragraph 10 of the witness deposition t he

witness claimed that the party agent of AC and NDP signed for

EC8A but under cross-examination the witness stated that what

he said was that only himself and AC Party Agent signed and

that he did not know about NDP Agent. He emphatically stated

that it is not correct that other party agent signed form EC8A.

Apart from the contradictory testimony, on Exhibit 176, EC8A for

Alafe Okero Polling unit , where the witness said he was a polling

agent showed that no agent of NDP signed the form EC8A

contrary to paragraph 10 of the witness deposition. Also, there is

AA agent of Exhibit 176. The witness also gave contradictory

testimony as to where the counting of the votes was carried out.

In paragraphs 9 of the witness deposition the witness stated th at

at the end of the election, INEC officials took the ballot boxes to

199

the collation center at the court hall and votes were counted. Also

in paragraph 10, the witness said that the party agent to AC and

NDP signed form EC8A and the result of the election was

announced at the town hall. Also, under cross -examination, the

witness stated that the votes were not counted at the polling unit

but that the boxes were taken to collation center for counting.

However, under re-examination, the witness stated that after the

voting exercise they counted the votes in my Unit.

25.9 RW16 Alfa Saka Dada; The testimony of RW16 is that he was the

PDP party agent in Ward I, in Unit 03, located at Isale -Obanla, in

Otan Ayegbaju in Boluwaduro Local Government, on 14th April,

2007 Gubernatorial and House of Assembly elections. He stated

that one Mr. Aliyu Olayemi was the Action Congress agent and

that voting started at about 8.00 am. He stated that he knew Hon.

B.O. Gbadamosi, whom he saw on the major road, passing by on

motor bike with Stephen Dosunmu as passenger with him. He

claimed that votes were casted peacefully in his polling unit and

votes counted at about 3.00 pm without any disturbance. He

claimed to have signed Form EC8A while Mr. Aliyu Olayemi

signed and collected his own copy of EC8A Form in his presence.

He stated that he followed the INEC Officials collation centre at

Court‟s Hall, Oke -Bale Otan-Ayegbaju, and claimed that the

collation was successful.

25.10 Under cross-examination, the witness insisted that he signe d his

witness statement and his specimen signature taken was admitted

marked Exhibit 463. The witness claimed that the signature on

Exhibit 463 and the signature on his deposition are the same. The

witness also said that the signature in Exhibit 175(2) is his own.

However, a comparison of the signature on Exhibit 463 and

Exhibit 175(2), the EC8A for Isale Obaala Units are clearly

different. Your Lordships are hereby urged to compare the

signatures under section 108 of the Evidence Act.

200

25.11 Even though the witness claimed that he did not make any

deposition apart from the one he adopted, the witness was later

shown another witness statement on pages 150 -151 of Record of

court and the witness confirmed that the contents are the same,

that the name same but different signature. The witness then

admitted that it was his deposition but different signature. Your

Lordships are also invited to compare the signature on Exhibit

463, Exhibit 175(2) and that on the witness statement on pages

150 and 151 of Record. Refer to Jegede vs. Citicon (2001) 4

NWLR (Pt. 702) 112 at 134.

25.12 Even though the witness claimed he was a farmer, he was shown

Exhibit 405B Item 253 which the witness stated contained his

name and compound and that they wrote trading there. Also,

whereas the witness claimed that his lawyer wrote correctly for

him, he stated, contrary to paragraph 1 of his witness statement

that he worked at unit 2 and not unit 3 as a Party Agent. The

witness admitted under cross -examination that he will not know

what happened in other units.

Ife East Local Government

26.1 In respect of Ife East Local Government, the Petitioners

witnesses were Tajudeen (PW23), Kayode Akintifonbo (PW24),

Segun Efunwole (PW25), Sanni Olanrewaju (PW26) and

Agunbiade Victor (PW27) and their testimonies a re as follows:

PW23

26.2 PW23 is Tajudeen Lawal who gave testimony for Okerewe Ward,

and his testimony is that on the day of Election at Okerewe Ward

II, voting was totally disrupted in the various polling units as

Known member/leaders of the 3 rd respondents like Honourable

Basiru Ishola Awotorebo, Former Minister of State for Water

Resources, Hon. Lambe Oyasope, Former Chairman of Ife East

Local Government and other led thugs armed with guns and

machetes to invade the polling stations in the ward. That in

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Wunmonije, Okiti , Olugbodo, Ladelatan, Jagudu, Agidi 1 and

Agidi 2 the aforementioned thugs scared away voters and agents

of the petitioners and forcefully took over the said polling units

and illegally thumb printed the ballot papers and stuffed the

ballot papers into the ballot boxes and represented same as

lawful votes. That at Loogun unit, voters resisted attempts to

snatch the ballot boxes and ballot box in the unit was abandoned

and was never counted. That at FSP polling unit the aforesaid

persons snatched the ballot box and took it to an unknown

destination. That voting was totally disrupted in all the polling

units as ballot boxes were snatched and taken away and votes

were neither counted and nor was result announced at any of the

polling units in Okerewe Ward II

26.3 Under cross examination of PW 23, he stated that he lives in Ile -

Ife, not Airport Hotel Lagos and I do not have a business in

Lagos. I am staunch member of Action Congress and a

chairmanship candidate of Action Congress. Witness said th at

there was no election on 14 th April, 2007, the election was

disrupted by Kazeem Ishola. The election did not hold, so it will

be wrong to say he lost the election. I am a farmer and a stake

holder in Action Congress. Yes because I am a statesman, I am a

stakeholder. Yes I am a registered voter at Okiti unit. I can‟t

remember my number now. Yes the post of a ward supervisor is

important to supervise my ward as created by my party. I was

appointed as ward supervisor because I am familiar with the

ward and I know all the 9 polling units in your ward. Hon.

Bashiri & Lambe lead thugs to disrupt the election. So I did not

vote. I got to my unit before the commencement of election,

around 7.30am. Voting and accreditation started around 9.00am. I

can‟t be precise but I know there are some people before me. No,

INEC did not give me tag of Action Congress, because they have

no right. My party gave me. My party agents were at the ir

respective polling unit before and after the election. These agents

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gave me written reports. They are still alive. Yes I made my own

report. It is correct to say that my report is not included in

exhibit 20a-i. I submitted the report to my chairman. I don‟t know

if they removed or tore off my own report from exhibit 20a-i. Yes

I confirm to this tribunal that there is a slip of paper on top of

these exhibits? SLIP IS ADMITTED IN EVIDENCE AND

MARKED EXHIBIT R4. It is my ward. It is so small and I saw

everything (malpractice) by myself. Yes voting went well in my

unit until 11.00am when the election was disrupted. I was at Okiti

compound (polling unit) around 11am. But the units are close and

I can see about 4 other polling units.

The distance between my polling unit and Wowannije (Exhibit

20e) is a trekable distance. They are very close to each other. I got

my polling unit in the morning. Immediately , thugs of PDP lead

by Minister of State for Water Resources disrupted the election.

There were no elections in these polling units. Yes in paragraph 6

of my deposition I mentioned 6 polling units. There was no

collation centre. We had the collation centre agent. But there was

disruption. We prepared for the election and we had an agent.

But I can‟t remember his name because it has been a long time.

That place is my father‟s house and I visited Ilobu unit around

8.00am. I cannot be precise as to when I left the unit, it is very

close and trekable. I revisited the unit after the first visit several

times. Hon. Gbenga Owolabi as claimed is the chairman of ife -

East. They appointed him there was not elect ion. I am a

chairmanship candidate because am still contesting for the post.

There was no election. I am not used to signing of documents

because of my irregularit ies of my signature but I thumbprint.

Yes, I notified my bank. I don‟t have cheque book. No I don‟t

have cheques . I use savings account not current account. Not

INEC forms, but OSIEC forms. Yes I signed it. Barrister Kunle

Adegoke interpreted my witness statement on oath to me . No his

name is on it, but I know him he stated under cross examination .

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Evidence of witness was not controverted . The respondents in

their written addresses have argued that the evidence of this

witness has been destroyed because while he said in one breadth

that due to the fact that his signature is irregular he usually

thumbprints documents, and that the witness however admitted

that he once signed “INEC documents” when he contested the

chairmanship of his Local Government. This observation is

irrelevant on the issue of reliability of the evidence of the witness

as thumbprinting, signature and making marks on documents are

all alternative ways of authenticating a document by the maker. It

is submitted that in so far as the person who is said to be the

maker of a document such as PW23 in this case has not denied

that he was the one who had authenticated a particular document

in any of the manners stated above, the genuineness of the

document can not be doubted just because the documents could

have been authenticated by the maker in a different manner than

he has done it in the particular instance.

PW24

26.4 PW24 is Kayode Akintifonbo who gave testimony for Moore Ward

1, and his testimony is that on the day of Election in Moore Ward

1, voting was disrupted by some armed thugs who were led by

some known P.D.P leaders among whom was the former Vice-

Chairman of Ife East Local Government, Hon. Lanre Awosemo,

Deacon Omoyaayi and the PDP House of Assembly Candidate, Mr

Jide Adeyeye to invade and disrupt voting activities in the

polling units and Ife City II polling unit. While attemp ting to

snatch ballot box at Oranfe Unit, irate mob angrily burnt down

the vehicle (with Registration No. XA 919 FEE, green in colour)

that the said thugs were using to convey thugs and snatch ballot

boxes. A ballot box snatched by the thugs and later aban doned

was discovered in the ward. That voters were molested and

driven away by the sporadic shootings and thereafter, the ballot

boxes in the ward were snatched and taken away to unknown

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destinations with the exception of Alaro polling unit. That voting

was totally disrupted in all the polling units and as a result votes

were not counted and result were not announced at any of the

polling Units in Moore Ward.

26.5 Under cross examination of PW 24 he stated that there are 10

polling units i .e. LA Primary School, CAC, St. Gabriel [witness

mentioned all the units.] Yes all the agents from the ten (10)

Local Government Area gave me their reports and I also went to

visit the places. I wrote a report of what I saw in the election. Yes

my report is among exhibit 21a-m. I submitted my report to my

chairman. And all my report is contained in my deposition. Yes

the party chairman is alive. Yes the 10 polling units are

concentrated in one place, but they are far from each other. About

3 units at a time, if you move 50 meters, you can see another 2,

and within a trekable distance 3 while the last (2) about 250

meters. Ife city 1, Ife city 2 and DPA are the 3 units at a time, the

next 2 are Oranfe and St. Gabriel 1,and the last five(5), are CAC,

L/A Primary School, Alaro and Obanloro polling units. 3 units

are together, 2units are not far from those 3 unit and another 3

units are not far from those 3 units then the other 2 units. Only 2

of the units are a bit far from others. PDP won Alaro polling unit

not AC. PDP scored 18 while AC scored 17, yet it was still

disrupted . Witness read the last paragraph of exhibit 21(i). I was

a member of AD before you moved to AC. I registered for Action

Congress in 2006 and my name was put in the membership

register. Yes other parties also have registers of members. No, I

have not read through the PDP register for my area. Am not a

graduate. I was a member of a College of Technology under

Governor Akande‟s Administration (member of Governing

Council] Esa-Oke Campus. I did not receive accre ditation from

INEC apart from my party because it is not INEC that should

accredit me. No I did not vote as the PDP thugs did not allow me

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to vote. I registered at Ife city 1, he stated under cross

examination which was not controverted.

PW25

26.6 PW25 is Segun Efunwoile who gave testimony for Ilode Ward 1,

and his testimony is that on the day of Election at Ilode Ward 1,

voting was totally disrupted by some guns and machete wielding

thugs who were led by some known P.D.P leaders among whom

were Surveyor Jide Adeyeye, Professor Wale Oladipo, Lambe

Oyasope, and Former Chairman of Ife East Local Government,

Prince Biodun Sijuade. These persons snatched ballot boxes in all

polling units in the ward except Oshogun unit. In Oshogun unit,

already thumb printed ballot papers were forcefully stuffed into

the ballot box. That he is aware that voting was totally disrupted

in all the Polling units as ballot boxes were snatched and taken

away and as a result votes were not counted and results were not

announced at any of the Polling Units in Ilode Ward 1.

26.7 Under cross examination of PW 25, he stated that he registered

vote at Seru polling unit. I don‟t know the unit number but it is

the first unit of my ward. Supervisor was written on the tag given

to me by my party. No, INEC did not give me any identification,

because I was accredited by my party not INEC. There are 8

polling units in my ward. They did not allow me to vote. The

thugs led by Prof. Wale Ladipo did not allow me to vote. Hon.

Lambe, Biodun Sijuade and Jide Adeyeni disrupted the election.

They came out from the palace. Yes am a staunch member of

Action Congress and have been a member from the beginning of

the party. Yes my name is in the register of members and I have

the card here. I can‟t say if other pa rties have membership

registers, but my party has. i got to my polling unit around

10.00am. I know Hekeem Fajuju [ exhibit 22b ] him if I see him. I

can‟t recall the time I visited his polling unit. But I went round in

the morning to make sure my agents were there. The disruption

started around 10.00am. It will not surprise me that my agent

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stated that voting went on peacefully at the beginning. There was

no result at Osoghun polling unit as the ballot box was taken

away. I don‟t know where my agents are. I t has been a long time,

since 2007. It is my duty to collate my ward result as a supervisor

and a ward collation agent. I was not accredited by INEC,

because I don‟t need to be accredited by INEC. Yes I made a

written report? Am not sure if my report is he re, it has been

submitted to my party chairman. The people disrupting the

elections y moved from one place to another . The disruption was

not simultaneously. He listed them units disrupted. Yes I

followed them from place to another. They started at Seru un it

where I was supposed to vote. I followed them and hid myself.

My ward is very small. Yes I did not report to the police, because

the police officers assisted them. They were in each polling unit.

And there is no police station in my ward and I was not s upposed

to go out of my ward. There is no paragraph in my deposition

where I stated that I did not report to the police station because

police were there so he stated under cross examination.

PW26

26.8 PW26 is Sanni Olanrewaju who gave testimony for Okere we Ward

3, and his testimony is that on the day of Election at Okerewe

Ward 3, voting was totally disrupted in all polling unit in the

ward as Known members/leaders of the 3 rd respondents like

Kemade Elugbaju, Hon. John Fashogbon, Yaya Adeyela, Marcus

Fadehan and the Special Assistant to Senator Iyiola Omisore,

Adedotun Adebowale (a.K.a Meree) led some thugs armed with

machetes and axes to invade the polling units in the Ward. These

thugs snatched ballot boxes and ballot papers which they took to

an unknown destination. That in the process of the ballot

snatching the duo of Mr. Kehinde Adesoji and Mr. Gani Oladunni

both members of the 3 rd Petitioner were wounded and

hospitalized. That election were totally disrupted in all the 10

polling units in Okerewe Ward 3. That Ballot boxes and ballot

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papers were snatched and taken away hence voting did not take

place and as a result no votes was counted and no result

announced at any of the polling units in Okerewe Ward 3. That he

knew that in St. Phillips 1 & 2, when an attempt to stuff ballot

papers into the ballot boxes was resisted by the witness, one

Lekan Adesanmi who was the PDP youth leader for that ward

slapped him and eventually mobilized Kemade Elugbaju, Yaya

Adeyela, Marcus Fadehan and some other unknown th ugs to deal

with him. That he was fortunate to be rescued by some police

men who moved him down to the Moremi Division C Police

Station.

26.9 Under cross examination of PW 26, he stated that he knows

Kehinde Adesoji, and Ganiyu as Members of his party whe re they

live. confirmed that they are still alive. Yes they were wounded.

Ganiyu was wounded and that Kehinde was wounded at Akorin

unit when he wanted to vote. Yes I a staunch member of Action

Congress. My chairman knows the purpose why he chose me as

the ward supervisor for 10 units. I am a registered voter of

Yekere Araromi unit. Yes my report is not in exhibit 23a, but I

wrote my report and gave it to my party chairman. Yes I know St.

Peter Grammar School polling unit, it is at Omiokun. My party

agent for that unit is Moses Olawoyi. I got to the place around

8.30am when presiding officers and agents were there and there

was nothing happening that time. Yes my name is in the Action

Congress register. I do not know if other parties have register,

but I only know of my party. No I have not seen PDP membership

register before but I know them because we grew up together in

the same place. And one of them brought me up. INEC did not

give me any paper to show I am a ward supervisor he stated

under cross examination.

PW27

26.10 PW27 is Agunbiade Victor who gave testimony for Okerewe Ward

1, and his testimony is that on the day of Election at Okerewe

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Ward 1, voting was totally disrupted by some armed thugs who

were led by known P.D.P. leaders among whom was Hon. K ola

Adewusi, the immediate past chairman of Ife East Local

Government. That these armed thugs snatched ballot boxes in all

the polling units in the ward. That voting was totally disrupted

in all the polling units as ballot boxes were snatched and taken

away and as a result votes were not counted and results were not

announced at any of the polling Units in Okerewe Ward 1.

26.11 Under cross examination of PW 27, he stated is full name as

Victor Agunbiade Oladapo. That he was a ward supervisor for

Action Congress on April 14 th , 2007 election and was appointed

before the election by his party chairman to monitor the election

of April 14 th , 2007. He said he was given a tag as a ward

supervisor for the ward and that he has 10 polling agents and

that they were appointed on the same day with him. He said he

saw INEC officers in the morning, but before noon they had

moved away with electoral materials. He said he visited all the 10

polling unit on the day of election. He said he personally visited

all the polling units under his supervision. He said on the day of

election, he noticed police officers. He said he understands

everything in his deposition and that he did not need interpreter .

Again, under cross examination by counsel to INEC, witness

stated that he was disallowed by the PDP to vote. Evidence of the

witness was not controverted.

Evidence of the 1 s t to 3 rd Respondents in Ife East Local Government

27.1 The 1 s t to 3 rd Respondents witnesses are: RW15 Hon. Basiru

Ishola Awotorebo; RW17 Hon. Prince Ebenezer Abio dun Sijuade;

RW18 Yaya Adeyela; RW19 Hon. Lanre Awosemo; RW54 Marcus

Fadehan

RW15 Hon. Basiru Ishola Awotorebo;

27.2 The testimony of RW15 is that his name was mentioned by one

Tajudeen Lawal, a deponent to the Petition and statement dated

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11th day of May, 2007. He denied knowing neither Tajudeen

Lawal nor any other person bearing such name and stated that

Paragraph 5 of Tajudeen Lawal‟s witness statement is false. He

stated that on 14 t h April, 2007 during the Governorship and

House of Assembly election he left his house around 9.00 am to

Okerewe Ward 2, Okiti unit to carry out his civic duty to wit: cast

his vote and having been cleared by the INEC Presiding Officer

he was given the ballot papers whereof he voted. He stated that

he left the unit for his house immediately after casting his vote.

He claimed that during the period of his voting election went on

freely and orderly and that he was neither involved in any act of

thuggery nor led any thug to facilitate disorderliness during the

election.

27.3 Under cross examination, RW 15 stated that he is a member of

PDP, in Ife and a prominent member of the party. He also stated

that he was a leader in Ife, Osun State. Notwithstanding his

admitted prominence, the witness incredibly insisted under

cross-examination that he did not know Tajudeen Lawal who

made allegations against him even though the said Tajudeen

Lawal is a prominent politicians who contested Chairmanship on

the platform of Action Congress and that he did not know that

Tajudeen Lawal ran under AD in election in the same Ward as

that of the witness. The witness appeared desperate to shut out

the facts. The witness said it took him no longer than 5 minutes

to vote but that he did not know the time that he returned home.

The witness stated that as at the time he left the Polling Unit

election has not ended and he admitted that he would not know

what happened after he left and that he was not there when the

result was announced.

RW17 Hon. Prince Ebenezer Abiodun Sijuade

27.4 The testimony of RW17 is that he did not know Segun Efunwole

who alleged him in his witness statement dated 11th May, 2007

and that by virtue of his position, he is conversant with the facts

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depose to herein. He claimed that paragraphs 1,2,3,4,5,6, 7, and 8

of Segun Efunwole‟s s tatement are not true and same denied by

him. He stated that he registered at Okerewe Agidi polling unit

where he voted on 14 th April, 2007 during Gubernatorial and

Legislative Houses of Assembly and that he did not visit or have

anything to do with Ilode Ward 1. He denied being in the

company of Professor Wale Oladipo, Lambe Oyasope or any thugs

during the election period. He claimed not to be aware of

anybody snatching ballot boxes nor forcefully stuffing ballot

papers into ballot box. He finally stated t hat he voted around

12.00 pm and left the place for his house.

27.4 Under cross examination, RW 17 Prince Biodun Sijuwade Under

cross-examination by INEC Lawyer, the witness said that the

polling unit was “directly in front” of his house but under cross -

examination by 1366 th and 1367 th Respondents the witness said

that the polling unit was “a stone throw” to his house. Again,

under cross-examination, the witness claimed that the polling

unit was in front of his house. The witness said he knew

Professor Wale Oladipo and Lambe Oyasope as member of PDP

but that he did not know them very well. The witness was

challenged that he did not vote but rather distrupted election in

company of Professor Wale Oladipo and Lambe Oyasope.

27.5 Even though the witness denied this allegation and claimed to

have voted in Agidi compound Okerewe 2 which he said was on

Ajamapo Street, the witness was confronted with Exhibit 387D,

voters register for Akodi Agidi II, Ajamapo Streeet, the unit

where he claimed he voted, the witnes s could not however find

his name on the voters register. It is submitted that this witness

lacks credibility having claimed to have voted in the unit but his

name was not on the register for the unit. It is incredible that a

witness who admitted to be a full time politician would claim

that he did not know what happened in other units in his ward on

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the election day and that he did not know who won in other units

in the Ward.

RW18 Yaya Adeyela

27.6 The testimony of RW18 is that he is a registered voter at Ifelodun

polling unit located at about one hundred meters to his house. He

acknowledged Sanni Olanrewaju as a prominent member of the

Action Congress (AC) in his area whose affidavit her had seen

and read particularly paragraph 3 -7 thereof. He stated that the

statements contained in the said paragraph concerning his person

are totally false and untrue. He stated further that as a registered

voter he went to the Ifelodun polling unit to cast his vote on the

14 th of April, 2007 during the Governorship and Hou ses of

Assembly election in Osun State and soon after casting his vote,

he returned home as directed by the election officials who

conducted the exercise. He finally claimed not to see anyone

disrupting the voting exercise or snatch ballot box neither did he

singly or in concert with anyone snatch any ballot box.

27.7 Under cross-examination, RW 18 claimed that it took him 2 – 3

minutes to vote. He admitted knowing Kemade Olagbaju, Hon.

John Fashogban and Marcus Fadehan as PDP members. Under

cross-examination by counsel to 4 t h to 1365 th Respondents, the

witness claimed that he confirmed that the election in his Unit

was excellently free and fair. However, under cross -examination,

the witness admitted that after casting his vote he went back

home and stayed at home and that he did not come back and that

he did not know anything that happened at the polling unit since

he did not go back. This is clear contradiction for a witness to

state that election was “excellently free and fair” and at the same

time to state that he did not know anything that happened at the

polling unit.

27.8 Also, the witness in paragraph 2 of his witness statement, the

witness said that he registered as a voter at Ifelodun polling unit

“located at about one hundred meters” to his house. Contrary to

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this, the witness, under cross -examination stated that the polling

unit is about 300-400 meters. There are also discrepancies in the

age of witness stated before the Tribunal and that on the voters

register. The witness, under cross -examination stated that he was

born on 17 th October, 1960, and that he was now 49 plus and that

he will be 50 this year. However, Exhibit 390J, Item 306, which

has the name and photograph of the witness, has 40 years written

on it. The witness admitted that he is a m ember of PDP. The

witness stated that is wife, Olawunmi Adeyela, registered with

him in the same unit but that he cannot say if his wife voted. He

claimed that he left the wife at home in the morning while he

went to vote and that as at the time he came b ack she was not at

home. If indeed, the witness had gone to the polling unit and

returned back home immediately, he should at least be in a

position to know the whereabout of his wife or possibly meet the

wife on the way back from the unit. The story of th e witness is

incredible.

RW19 Hon. Lanre Awosemo

27.9 The testimony of RW19 is that one Kayode Akintifonbo in his

witness statement of the petition dated 11 th May, 2007 alleged

him in paragraph 5 therein and that by virtue of his position he is

conversant with the facts therein. He stated that paragraphs

1,2,3,4,5,6,7 and 8 of the witness statement of that Kayode

Akintifonbo are not true. He claimed to be registered after for the

said election at Ife City college unit where he claimed he voted

on 14 th April, 2007 during the Governorship and Legislative

Election. He stated that on 14 th April, 2007 around 9.00 am he

went to the polling unit to cast his vote and upon voting he

immediately left the polling unit and went back to his house

where he was throughout the day. He denied being in the

company of deacon Omoyayi, Oladosu, Jide Adeyeye or thugs to

disrupt election and voting.

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27.10 When being led to adopt his witness statement by counsel to 1 s t

to 3 rd Respondents, the witness claimed to be an hotelier and

politician and under cross-examination by the Petitioners‟

Counsel, he maintained that he is an hotelier and politician and

that while hotelier is his permanent occupation, politics is part

time. This is contrary to his witness deposition where he gave his

occupation as being a politician. The witness admitted that he

was a former vice chairman of Ife East Local Government. Under

cross-examination by counsel to 4 t h to 1365 th Respondents, the

witness had claimed that election was free and fair in his unit b ut

under cross-examination by the Petitioners‟ Counsel, the witness

admitted that from his house he was not able to see the Polling

Unit as his house was very far from the polling unit .

27.11 He claimed to have stayed in bed and that it was one Mr.

Aderanti, the party agent that came to his house to tell him that

PDP won. However, when confronted that no party agent signed

the result for his unit, the witness said he will not know since he

went home and that he will be surprised that the party agent did

not sign because the agents were on ground. An examination of

Exhibit 209(1-9) containing Form EC8A for Ife City College where

the witness claimed to be his unit was not signed by any party

agent including that of the PDP even though the witness claimed

that it was the PDP agent for that unit that informed him of the

result.

RW54 Marcus Fadehan

27.12 The testimony of RW54 is that he is a registered voter in CAC

Primary School, I loro Polling Unit Ile -Ife where he voted in the

Governorship and legislative Houses Election on 14 th April, 2007.

He stated he returned to his house which is about 300 meters

away from the polling station. He also stated tha t he has read the

statement on oath of one Sanni Olanrewaju of Okerewe Ward 3

dated 11 th May, 2007 and that paragraphs 1,2,3,4,5,6,7,8 and 9 are

false and same denied by him. He stated that himself as a person

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or in company of other person or persons did not invade any

polling station with offensive weapons and did not disrupt the

election on the day.

27.13 This witness claimed to have voted on the day of the election and

under cross examination by counsel to the 4 th – 1365 th respondent

claimed that election was peaceful. This witness stated that he is

a trader and did not state what parameter he used in denying

paragraph 1 – 9 of the Petitioner‟s witness in the person of Sanni

Olanrewaju (PW26). Contrary to his assertion, under cross

examination by INEC that election was peaceful, he admitted

under Petitioners Counsel cross examination that he was not in a

position to know what happened at the unit when he was not

there. This witness was however shown not to have voted as his

name was not ticked as having been accredited for voting.

Ifedayo Local Government

28.1 In respect of Ifedayo Local Government, the Petitio ners

witnesses were Tunde Awoyale (PW42), Adebisi Azeez (PW56)

and Babatunde Rauf (PW57) and their testimonies are as

follows:

PW42

28.2 PW42 is Tunde Awoyale who gave testimony for Ward 4, and his

testimony is that on the day of Election One Major Omotara (rtd),

one Yemi Faronbi (Chairman of Osun State Broadcasting

Corporation) and one Funmilayo Olasehinde who are known PDP

members/leaders led soldiers and mobile Policemen to invade all

the 5 polling units in ward 4. That the aforementioned people

scared away the voters, agents and members of the 3 rd Petitioners

and then stuffed the ballot boxes with already thumb -printed

ballot papers in favour of their PDP candidates. That when the

witness challenged them at Unit 1, they descended on him by

beating him mercilessly before carting away the ballot papers and

boxes.

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28.4 Under cross examination of PW 42 he stated that he is from Ward

4 Ifedayo Local Government Area with 5 units in his ward. I

write your statement yourself. He confirmed that his statement is

correct. The witness clarified the units in his ward. He said

Adeoti Adegboyega was his polling agent in unit 1 and that all 5

agents presented reports of what happened on that day of

election. Witness read paragraph 6 of his deposition and also

looked and confirmed exhibit 37(j) report of the party agent in

unit 1

28.5 It is submitted that the observation of the respondents on the

evidence of this witness to the effect that since the other agents

of the AC did not indicate in their report that any body was

beaten, the evidence of this witness in which he stated this

should not be believed. The respondents have however ignored

the evidence of the witness under cross-examination where he

stated clearly that he reported what he saw. We refer this

honourable tribunal to the proceedings of the 26 th day of August,

2009.

PW56

28.6 PW56 is Adebisi Azeez who gave testimony for Ward 2, and his

testimony is that on the day of Election One Major Omotara (rtd),

one Yemi Faronbi (Chairman of Osun State Broadcasting

Corporation) and one Funmilayo Olasehinde who are known PDP

members/leaders led soldiers and mobile policemen to invade 3

of the 6 polling units in the ward 2, namely Alagbede, Abalagemo

and Ominla polling units where they scared away voters and

members of the 3rd petitioners and then stuffed the ballot boxes

with the already thumb printed ballot papers in favour of their

PDP candidates. That votes in the above named three units were

not counted in the units as required, furthermore, voting was

totally disrupted in all the polling units while at Idi Odan and

Ominla units, these invaders did not allow anybody to vote but

rather engaged in multiple voting among their limited but armed

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few in favour of PDP candidates. That during the invasion of the

following unit namely: Abalagemo and Alagbede polling units.

Messrs Taye Abidoye, Gboyega Adeniyi, Rafael Awoyemi were

wounded by these thugs when their efforts at carting away the

ballot box were resisted.

28.7 Under cross examination of PW 56 stated he knew one Mr.

Awoyale of Oke-Ila who is an Action Congress member and that

both of them are Action Congress members of Ifedayo Local

Government Area. We meet in Court when we came to sign our

deposition in Court that was when he knew him as an agent of

Action Congress. He was an Action Congress agent of ward 4. It

was not possible for us to be together because the problem was

too much and the ward was a bit far apart. I was working in ward

2 while he was working in ward 4. No, ward 4 is in Oke -Ila while

ward 2 is in another place. I know whether he has testified

before. Yes, there are many villages under ward 2. In my ward 2

were I worked. There is one village having one unit. The units are

scattered in villages. We have about 3 villages under one unit.

The villages are not far from the polling unit . Ominla polling unit

is far from the centre of the place (village). I registered to vote at

Ada-obalumo polling unit. My unit (Ada -obalumo polling unit)

where I worked was the first unit I went to. I got there at about

7.30am waiting for INEC officials. INEC officials arrived at after

8.00am but before 9.00am. When they came we inspected election

materials voting commenced around 10.00am. Yes I was at Ada -

obalumo till 10.00am after I cast my vote I moved to other units.

It is not possible to know what was going on at other places, not

until I visited all the other polling unit that I know what was

going on. I did not visit Ominla on the day of election, it was

after the election that I went there. It was my agent that told me

what happened at Ominla unit. I got to Alagbede polling unit at

about 12.00pm. But at time the election had been disrupted. I had

visited another unit before I got to Alagbede. It could not take

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beyond few minutes to get to Alagbede. I got to Abalagbemo

polling unit before 11.00am because it is closer to my unit. I know

all that transpired in Abalagbemo between 7.30am and 11.00am

because my agent there called me on phone that PDP staunch

member have called PDP thugs to come and disrupt election at

the polling unit . I know Taiwo Abidoye (paragraph 7) and also

Gboyega Adeniyi, and Raphael Awoyemi. They are alive, but

after election they were and driven away. We have not heard any

bad report about them. By INEC rules election closes by 3.00pm,

but PDP thugs disrupted the election. At 3.00pm on that day after

chasing us away we thought they will take the snatched ballot

paper to the collation centre. Only for us to hear they announce

result. I was at the collation centre expecting the stolen Ballot

Boxes. As at 3.00pm I was at the collation centre but nothing was

collated. Yes I know that result should be announced before being

taken to collation centre after announcing results in units, but

there was not free and fair election, they scared us away. Shot in

to the air, machete agents and people and people ran into the

bush. At 3.00pm when election was to finish and result

announced, it is not possible to be at 6 places but I was at

collation centre. I voted at my unit. At 3.00pm . I was supposed to

be at the collation centre and I was there. Aiyetoro is the

headquarters of my ward. I am the ward supervisor. It is my

party that nominated me. Yes it is true that INEC should accredit

the agent of the collation centre but a thug lead by Omotara did

not allow that to happen. It is true but the PDP thugs did not

allow all these to happen. Am fasting I can not lie that there was

disruption of election because my party lost the election. The

witness said all his report content is included in his deposition.

28.8 The respondents counsel in their written addresses have argued

that the admission of the witness that “the 6 poll ing units in the

ward (ward 2) are scattered give the lie to his testimony that he

visited all the polling units”. While the witness agreed that the

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villages are scattered, the witness gave a clear answer even under

cross-examination that after he has cast his vote, he went to other

units in the ward. We refer the tribunal to the answer to the

cross-examination question of the counsel to the 1 s t -3 rd

respondents during the proceedings of the 27 th day of August,

2009.

PW57

28.9 PW57 is Babatunde Rauf who gave testimony for Ward 1, and his

testimony is that on the day of Election One Major Omotara (rtd),

one Yemi Faronbi (Chairman of Osun State Broadcasting

Corporation) and one Funmilayo Olasehinde who are known PDP

members/leaders led soldiers and mobile policemen to invade the

various polling units in ward 1, Ifedayo local government where

they scared away voters and agents and members of the 3rd

petitioners and then stuffed the ballot boxes with the already

thumb printed ballot papers in favour of their PDP candidates.

That voter were molested and driven away by sporadic shootings

of guns into the air and thereafter, the ballot boxes in the wards

were snatched and taken away to unknown destinations together

with the presiding officers. That during their invasion of I sinmi

Olotu polling unit, Mr Segun Emmanuel Taiwo was wounded by

these thugs when he resists their efforts at carting away the

ballot box for that unit. That voting was totally disrupted in all

the poling units and as a result votes were neither counted and

nor results announced at any of the polling units in the ward.

28.10 Under cross examination of PW 57 he stated, I am from ward 1

Ifedayo Local Government Area. I was born in ward 1 and I

reside there in Onifare Village. There was no polling unit at

Onifare village but a polling unit was at Asa -Oye village. I

registered at Asa-oye village that was were I voted. On the day of

election I did not travel from Onifare village to Asa-oye village.

They match the villages together and there is only one polling

unit for both. My is ward 1 not ward 4. I know ward 4 in Ifedayo

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Local Government in Oke-i la. I can‟t answer how far ward 4 in

Oke-ila to ward 1 because am not a surveyor. Ward 4 in Oke-Ila

and ward 1 in less city both in Ifedayo Local Government Area.

Both wards are in different towns. In Ifedayo Local Government

Areas election was held on the same day in all the three (3)

wards. I registered at Asoye polli ng unit . I got there in the

morning I don‟t know the exact t ime because I did not have a

watch. I was not wearing a wristwatch but we were accredited in

the morning. I can‟t say for how long I was in the polling unit

because there was no watch but we were there till the presiding

officers brought election materials. INEC brought voting

materials. I voted before the PDP thugs disrupted the election. It

was in the morning that I voted before the PDP thugs came.

Nobody had wristwatch among us. Not 6 (six) poll ing unit in my

ward but eight (8). I don‟t tell l ies we have 8 polling units in

ward one. The 8 polling units are under our ward but the villages

are not far. I know Adebisi Azeez (PW 56) he is from ward 2 not

ward 1. I know Tunde Awoyale (PW 42) he is fro m Oke-Ila. He

was a ward supervisor in his Local Government Area. The 8

polling unit are (a) L.A. Primary School Ajegunle unit 1, (b) L.A.

Primary School Ajegunle unit 2 beside unit 1, (c) Akinrun unit 3,

(d) Asa-oye unit 4, (e) Ajebamigbele unit 5, (f) Oy i Araromi unit

6, (g) Oyi Adio unit 7, (h) Oyi Adunni unit 8. I voted in Asa -oye

polling unit before the PDP thugs disrupted the election. There is

no free and fair election in other polling unit. PDP thugs did not

allow election to go peacefully in those unit. I had agents in other

polling units giving me accurate information and thereafter I too

went to see all that happened. Yes I was at Asa -oye I was not at

other polling units but my agents informed me all that happened.

The 8 polling units they are scattered in the village but are not

far from each other. Oyi -Adid and Asa-oye unit is not far to each

other. It is only a surveyor that can know the distance. It will

take 20 minutes if you trek. From Asa -oye to Akinrun polling unit

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3, about 5 minutes if I t rek. There is not unit called Isimi -olotu in

my ward it is a village. At 3.00pm on the day of election I was at

collation centre at L.A. Primary School polling unit 2.

28.11 The grouse of the respondents with respect to the evidence of this

witness is that his evidence is similar to that of the PW56. As we

have argued in response to similar arguments of the respondents

with respect to evidence of some other of the petitioners‟

witnesses, we submit that there is not hing wrong in two

individuals giving accounts of an event which they witnessed in a

similar version or even in the same language.

Evidence of the 1 s t to 3 rd Respondents in Ifedayo Local Government

29.1 Only two witnesses were called, RW8, Major Samuel Olufemi

Omotara and RW9 Dr. Yemi Farounbi

RW8 Major Samuel Olufemi Omotara

29.2 The testimony of RW8 is that he is the person referred to as Major

Omotara in the statements of Babatunde Rauf of Ward 1; Adebisi

Azeez Ward 2, Tunde Awoyale Ward 4 and Babatunde Joshua of

Ward 5 of Ifedayo Local Government Area all belonging to Action

Congress which statements were made and sworn to on 11th May,

2007. He stated that on the 14th day of April during the

Governorship and Legislative Houses Election he went to his

polling unit in ward 8 at Ora to cast his v ote around 11 am alone

and not in company of anybody. He stated that he did not invade

any polling unit with thugs nor engage in any election

malpractice as alleged in the statements referred to above. He

claimed to be a law abiding citizen as he returned home

immediately after casting his vote. He denied vehemently all the

allegations levied against him in the statements referred to and

claimed that while he was at the polling unit , election went on

smoothly without any hitch. He finally stated that all th e

locations mentioned in those statements are outside Ora township

and he never went out of Ora that day.

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29.3 Under cross examination, RW8 Major Samuel Olufemi Omotara

testified in English Under cross-examination, the witness claimed

that he voted at Oke Alafia Polling Unit Ward 8 but that he did

not know the Polling Unit Number. He said he did not know the

people that he mentioned in paragraph 2 of his witness statement

even though he referred to them as “all belonging to the Action

Congress” in paragraph 2 of his witness statement and he

admitted under cross-examination that he had gone to Abuja

twice in respect of allegation of brutalization. Notwithstanding

the testimony on record before the tribunal against the witness,

the witness said under cross-examination that it was not true that

somebody testified that he was brutalized by me and that he will

surprised.

29.4 He admitted that he was not the only person in my Ward that

allegation should be made against him. He further admitted that

he is a leader in PDP and hold visible and rewarding office in the

State and that the office might have been given to him because of

his position in the party. He also admitted that due to his high

office he was able to issue a circular for a 100 person per Local

Government for purpose of the Tribunal. The witness is a

henchman for PDP. The witness cannot be believed that that he

did not disrupt voting. He was also confronted with evidence of

his multiple registrations in Exhibit 352D Item 485 – and item 492

on Exhibit 352D with two different voters identification number.

RW9 Dr. Yemi Farounbi

29.5 The testimony of RW9 is that he voted during the Governorship

and Legislative Houses Election on 14th April, 2007 at Ward 9,

Ora in Ifedayo Local Government Area, osun State. He stated that

he has been shown and read the statements sworn to by

Babatunde Rauf of Ward 1, Adebisi Azeez of Ward 2, Tunde

Awoyale of Ward 4 and Babatunde Joshua of ward 5 of Ifedayo

Local Government Area of Osun State - all belonging to Action

Congress and which statements were sworn to on 11th day of

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May, 2007. He stated that on the day of the election which was

14/4/2007 he went alone to the polling unit and not in company

of anybody at all and voted at around 2 pm. He stated that all the

allegations levied against him as contained in those statements

referred to are totally false and categorically denied them. He

claimed to be a law abiding citizen who did not engage in any

election malpractice as he went home after casting his vote. He

stated that all the locations mentioned in those statements are far

from his polling unit and he did not visit any of those locations

on that day knowing full well that there was restriction of

movements. He claimed that while he was at the polling unit the

election went on smoothly.

29.6 In paragraph 2 of his witness statement, the witness claimed that

he voted on the day of election and under cross -examination, he

claimed to have voted at Unit 1, R.C.M. School Ward 9 Ifedayo

Local Government. He claimed it took him about 4-5 minutes to

vote. The witness was clearly hesitant in admitting that his

position as Chairman of Osun State Broadcasting was a political

appointment. He admitted that he was reappointed Chairman, by

Governor Oyinlola‟s PDP on 21/7/2008, that is, a fter the 2007

election. He stated that he is a foundation member of PDP; I am

one of the leaders of PDP in Osun State and indeed in Nigeria

and that his daughter, Mrs. Ayonide Seriki Farounbi, is the Hon.

Commissioner of Osun State Ministry of Commerce, Co rporation

and Industry. To test the veracity of the witness and his

credibility, the witness was shown Exhibit 351D, voters register

for RCM Ora Primary School where the witness claimed to have

registered and the witness admitted that his name was not ther e.

The witness was also shown Exhibit 351A -G, the voters register

for all the units in Ward 9 and he also could not found his name

in any of the register.

29.7 Even though the witness claimed that he had a voters‟ card and

that he voted, the witness cannot be believed as his name was not

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on the register for the unit where he claimed to have voted and

indeed in all the register for Ward 9, Ifedayo Local Government.

Despite the facts that the name of the witness was not on the

register, the register was replete with multiple registration of

family members of the witness - See Exhibit 351A-G.

Evidence of Subpoenaed witnesses Tendering Video Evidence

30.1 The Petitioners also called four witnesses by way of subpoena

and they all tendered video clips on the o ccurrence on the day of

election. These are, PW67, PW68, PW69 and PW70.

30.2 Precious Chigbu, from T.V. Continental , formerly known as

GOTEL TV stated that he was served a subpoena on Monday the

24 th day of August, 2009 requesting that he make a written

statement concerning this case which he complied with. The

subpoena was admitted as Exhibit 63. He stated that on April 14,

2007, he was scheduled by his office to cover the Gubernatorial

and House of Assembly Elections in Osun State. He stated that he

specifically covered Odo Otin Local Government Area of Osun

State. He stated that during the course of his coverage, he visited

several polling units in the local government Area and that one of

the polling units he visited on the election day was a polling uni t

at Araoye Hall, Unit 7, Ward 13, Osi/Bale Ode, Odo Otin Local

Government where he made a video recording of the voting

activities he saw. He stated further that in the said polling unit

many voters were voting more than once. He then tendered the

Video cassette of his recording which was admitted as Exhibit 64.

30.3 Exhibit 64 was shown in the open Court and from the picture one

could see INEC officials in their light green vest fiddling with

what appears to be a register, the ballot box was conspicuously

shown with one man continuously filling the ballot box with

casted votes, and subsequently others joined him in these

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nefarious activities. Amongst the crowd was someone wearing a

uniform.

30.3 Under cross examination, PW67 stated that the organization he

works for is a private one, and that as a professional he does his

job as required and that knowing the board of directors has

nothing to do with his competency as a journalist. The witness in

response to a question of date stated unequivocally that it is a

matter of preference and the tape is tagged for its purpose. He

was asked about the number of people on the recording, we

submit that the document speak and show for itself and any oral

contradiction cannot affect the quality of the job. On the issue of

identification we submit that outside the usual INEC poster there

was really nothing to show as the place being a rural settlement

does not have signage to show where it is being done and the

respondents have not punctured the fact that it was done on the

election day at the location. The value of the evidence of the

witness is that it confirms the alleged malpractice in the election.

PW68

30.4 Titus Morakinyo Fapohunda, a Cinematographer in the

employment T.V. Continental (formerly known as Gotel

Television). He stated that he was served on Monday 24 t h day of

August, 2009 with a Form1A requesting that he make a written

statement concerning this case and this he did. The subpoena was

admitted as Exhibit 65. He stated that on April 14, 2007, he was

scheduled to cover the gubernatorial and house of assembly

elections in Osun State. He stated that he covered the election in

Odo Otin Local Government Area of Osun State. He stated that

during the course of his coverage, he visited several polling units

in the local government amongst which is the polling unit at Ile

Ogun in Okuku where he saw that many of the voters at the

polling unit were voting more than once. He stated that he hid

himself in an uncompleted building where he had a vantage view

of the events at the said polling unit and made his video

225

recordings from there. He tendered the Original video recording

made at the polling unit in Ile Ogun, Okuku, Odo Otin Local

Government Area of Osun State recorded and was admitted as

Exhibit 66.

30.5 Exhibit 66 was played in the open court and from the picture it

appear to be a normal voting activities until several people were

shown engaging in the act of multiple thumb printing, we humbly

urge your lordship to see the video again.

30.6 Under cross examination the witness was asked about the name

of his editor whom he simply called Mr. Stanley, we submit that

not knowing the surname of one‟s superior has no bearing on the

competence of a professional, we submit further that in an

average working environment colleague s call themselves by

either their first name, surname or nickname and in any event the

respondents have not come with another name to debunk the fact

that the witness‟ editor is Mr. Stanley. Further into the cross

examination he was asked to confirm the re lationship between

the C.E.O of his organization and the first Petitioner which he

did. The respondent did not confront the witness that his

relationship with his boss affected his professional competence

nor how it determines who to deploy to car ry out an official

assignment.

30.7 The witness was asked whether he has been to Osun State to

cover any event aside the election, we submit that in any

organization, it is the boss that direct who to do what and it has

not been shown by the respondents the releva nce if any, a

previous coverage in Osun State has to do with the testimony of

the witness. The issue of date remains a matter of preference as

the tape has enough description of its content. He was also asked

question as to landmark, to this we submit that polling unit has

no peculiar landmark and the respondent have not led any

contrary evidence to show that the unit is not where the witness

claimed to have done the recording and being a rural settlement

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we wonder what kind of landmark the witness is expec ted to look

for.

PW69

30.8 EROGBOGBO OLAWALE, a Journalist with Lagos Television, was

subpoenaed and the subpoena was admitted as Exhibit 67. The

witness stated that journalism has been his work for about 21

years. He stated that he was deployed by his off ice to monitor

and record the Osun State April 14, 2007 Gubernatorial and

House of Assembly Elections. He stated further that on the day of

the said election, his area of focus was Ile -Ife in Osun State and

in the course of my official duties; he observed an electoral

officer and a police officer riding a motorcycle. He stated that the

Electoral Officer had in his possession a ballot box containing

ballot papers. The witness stated that he followed the motorbike,

and made a video recording of the ensuing scene with his camera.

He tendered the video recording that he made of the incident on

the day of Election and it was admitted by this Honourable

Tribunal as Exhibit 68. The witness not knowing the particular

scene of the recording made enquiries and was inf ormed that the

recorded scene was Moore area of Ife Central Local Government.

30.9 Exhibit 67 was played in the open Court and a man wearing

police uniform was shown on a bike with an INEC official

carrying ballot box, and upon questioning by the journalis t, the

man informed them of a disruption going on and that they were

taking the ballot box to a Police station.

30.10 Under cross examination PW69 was asked about the organization

and who the boss was, he was further ask question in relation to

where his former boss now works and he gave his answer, we

submit that the respondents have failed woefully to show the

bearing the information sought has on the competence of the

witness in relation to his testimony. The witness was further ask

the issue of date and footage which the witness gave his view and

the witness also add that situation determines whether data can

227

be included in the recording, at this juncture it is our humble

submission that data input on a recording requires setting as it is

not automatically done, we submit further that newsworthy items

does not give advance notice as can be seen from the scene of the

video and should the witness start setting the camera he would

not have capture the scene.

30.11 We submit further that the type of camera u sed also has a role to

play as to data insertion on recording and the respondent having

not cross examined the witness to ascertain whether the camera

used was one that can automatically insert data cannot use the

absence of data to impeach the witness.

PW70

30.12 Abayomi Kazeem Oni-Orisani, a Cameraman with Lagos

Television was subpoenaed and the subpoena was admitted as

Exhibit 69. He stated that in April, 2007, he was sent from his

office, Lagos Television, to monitor and record the Osun State

April 14, 2007 Gubernatorial and House of Assembly Elections.

He stated that he covered Odo-Otin Local Government in Osun on

the election day and that during the course of his official duty, he

got to a polling unit where he observed some young men armed

with cutlasses and other weapons. He stated that he immediately

proceeded to a nearby uncompleted building where he could have

a clear shot of the activities of the armed men as well as the

polling unit. He stated that he made the video recording of what

he observed from the uncompleted building and tendered the

video cassette which was admitted as Exhibit 70. The witness not

being familiar with environment made enquiry as to the polling

unit and was informed that the unit is Oba Otegbola in Odo Otin

Local Government.

30.13 Exhibit 70 was played in the open Court and from the display it

was obvious that the recorder was trying to get a stable angle to

do the recording, the picture shows a particularly disturbing and

chaotic scenes with men armed with weapons. Gunshot could also

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be heard which led to further pandemonium and in the ensuing

melee an INEC officer could also be seen.

30.14 Under cross examination, PW70 the respondents tried to use the

witness‟ testimony to discredit others but the basis upon which

they chose to discredit them cannot hold water as the witnesses

including PW70 stated emphatically that it is a matter of

preference and absence of data does not render the recordings

invalid.

30.15 On the issue of giving the recorded cassette to his editor does not

in any way suggest any manipulation and the respondents has

not even led any evidence to contradict same. Also on issue of

time fluctuation that the respondent pick cannot for various

reason amongst which is the fact that the witness is not expected

be recording irrelevant scenes in the name of not breaking the

timing, it is also a known fact that pressmen are interest ed in

news items and once a good scene produces itself a good

cameramen should not hesitate to capture same, another valid

reason is that the camera runs on battery which a good

professional must know how to conserve all these and can easily

account for a time fluctuation in any recording. On the issue of

not knowing Mr. Dele Alake, we submit that knowledge of Mr.

Dele Alake does not in any way add or remove from the

authenticity of the testimony of the witness and the video

evidence.

Evidence of PW80 Paul Jobbins

Summary of Evidence of Paul Jobbins, Fingerprint Expert

31.1 The evidence of PW1 relate to findings in respect of incidence of

multiple thumb-printing by an individual or some individuals.

The evidence covered ten local governments to wit; Atakumosa

West, Ayedaade, Boluwaduro, Boripe, Ife Central, Ifedayo, Ife

East, Ife South, Isokan and Odo -Otin Local Governments.

31.2 The findings are:

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31.2.1The comparison revealed great numbers of instances of multiple

voting where there were long runs of consecutive ballot papers

bearing same thump impressions that had been made by the same

person.

31.2.2That the significant level of the evidence discovered shows that

many thousands of multiple votes had been cast and that many

people had been involved in the process of multiple voting.

31.2.3That by the sheer volume of the multiple votes identified, it was

clear that they were not random instances of persons merely

seizing the opportunity of casually casting more than one vote

but the result of a determined and systematic operation.

31.2.4The overall result of the fingerprint examination and comparison

for the aforesaid ten local governments was as follows:

a) Total Ballot Papers Examined = 203,574

b) Total Ballot Papers with Multiple Votes = 85,177

c) % Of Total Ballot Papers Examined With Multiple Votes = 41.84

%.

d) Total Ballot Papers with No Images Including Poorly Scanned

Ballot Papers = 40,353

e) Total Ballot Papers that had impressions with either Insufficient

Detail to Reliably Confirm Multiple Voting or Others that

disclosed detail that could not be matched = 78, 044

31.3 The finding of multiple votes affected 524 polling units across the

ten local governments: Exhibit 90(1-35) contain the breakdown of

the findings at it affects the polling units .

31.4 PW80 further testified that if images with insufficient detail were

to have been recorded as multiple votes the final figure disclosed

in the report would be significantly higher.

Evaluation of Evidence of PW80, Paul Jobbins

31.5 One of the most successfully used methods of election -rigging in

Nigeria is multiple-thumb printing of ballot papers. Riggers seize

or collude with INEC officials to obtain ball ot papers still in

booklet form and each rigger can thumb print hundreds, even

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thousands of ballot papers. It is this heinous malpractice that the

1s t – 3 rd respondents committed widely and deliberately in at

least 10 local governments, namely: Atakumosa W est, Ayedaade,

Boluwaduro, Boripe, Ife Central, Ifedayo, Ife East, Ife South,

Isokan, and Odo- Otin.

31.6 The petitioners perhaps for the first t ime in the history of election

petitions in Nigeria sought the most competent expert assistance

possible to help determine scientifically the extent if any of

multiple thumb printing at the gubernatorial elections in Osun

state held on the 14 th of April 2007. The petitioners engaged 51

British police finger print experts led by the world renowned,

now deceased Adrian Forty.

31.7 Their investigation and analysis as contained in the report of

Adrian Forty (deceased) and the testimony of Paul Jobbins (PW

8O) who led the team after the death of Mr. Forty contained some

of the most astonishing facts ever to be revealed a bout an

election.

31.8 These facts are contained in Paragraph 39 -44 of the sworn witness

statements of PW80 (Paul Jobbins). In paragraph 39, PW80

categorically states inter alia that;

“The overall result of the finger print examination and

comparison for the aforesaid ten local governments was as

follows:

(a) Total ballot papers examined 203,574

(b) Total ballot papers with multiple votes 85,177

(c) % of total ballot papers examined with multiple votes

41.84%”

31.9 PW80 (Paul Jobbins) then goes on in paragraph 40, 4 1 and 42 of

his sworn witness statement to include the breakdown of his

findings by local government, ward and polling unit respectively,

full details of which are in the schedules attached to the witness

statements as exhibits 88,89 and 90 respectively.

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31.10 Exhibit 88 is a breakdown by local government area of numbers

and percentages of multiple votes found in 10 local governments

of Osun state:

31.11 Atakumosa West, of 17,349 ballot papers purportedly cast for the

1s t and 2nd respondents 6,685 multiple votes were found

representing 38.5% of the purported votes cast for the 1 s t and

2nd respondents in that local government.

31.12 In Ayedaade local government of the 34,991 votes purportedly

cast for the 1 s t and 2nd respondents, 13,552 multiple votes were

found, representing 38.75% of votes purportedly cast for the 1 s t

and 2nd respondents in that local government.

31.13 In Boluwaduro local government of the 6996 votes allegedly cast

for the 1 s t and 2nd respondents 1,309 were multiple votes

representing 18.7% of votes purportedly cast for the 1 s t and 2nd

respondents in that local government.

31.14 In Boripe local government of the 12,231 votes allegedly cast for

the 1s t and 2nd respondents, 6,227 were multiple votes

representing 50.9% of the votes purportedly cast for the 1 s t and

2nd respondents in that local government.

31.14 In Ife-central local government of the 34,565 votes allegedly cast

for the 1 s t and 2nd respondents 19,550 were multiple votes

representing over 50.6% of votes purportedly cast for the 1 s t and

2nd respondents in that local government.

31.15 In Ifedayo local government of the 10,339 votes allegedly cast for

the 1s t and 2nd respondents 1,929 were multiple votes, i.e. 18.5%

of votes cast for 1 s t and 2n d respondents.

31.16 In Ife-east local government of the 23,741 votes allegedly cast f ot

the 1 s t and 2nd respondents 12,508 were multiple votes

representing over 52.7% of votes purportedly cast for the 1 s t and

2nd respondents.

31.17 In Ife-south local government of the 13,692 votes allegedly cast

for the 1 s t and 2nd respondents 4,215 were multiple votes

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representing 30.8% of the votes purportedly cast for the 1 s t and

2nd respondents.

31.18 In Isokan local government of the 13,956 votes allegedly cast for

the 1s t and 2nd respondents 3,770 were multiple votes,

representing 27.0% of the votes purportedly c ast for the 1 s t and

2nd respondents.

31.19 In Odo-otin local government of the 35,654 votes allegedly cast

for the 1 s t and 2nd respondents, 15,432 were multiple votes

representing 43.3% of the votes purportedly cast for the 1 s t and

2nd respondents.

31.20 In sum, the testimony of PW80 (Paul Jobbins) concluded that of

the total 203,574 votes allegedly cast fo the 1 s t and 2nd

respondents in the 10 contested local governments, 85,177

representing 41.84% were multiple votes!

31.21 No part of the testimony of PW80 (Paul Jobbins),neither his

breakdown of numbers of multiple votes found on a local

government by local government basis (EXH 88) or on a ward by

ward basis (EXH 89), or on a polling unit by polling unit basis

(EXH 90) was controverted either expressly or tacit ly in cross-

examination by any of the respondents. His testimony having

been admitted without objection, and not having being

controverted in cross-examination is admissible to show that

elections in the ten local governments regarding which evidence

was led through the report and the votes cast for the 1 s t and 2nd

respondents were fraught with overwhelming cases of multiple

voting.

31.22 Regarding the issues raised by the respondents, especially at

pages 206-209 of the Joint final address of the 1 s t , 2nd and 3 rd

respondents, it is quite evident that the respondents had great

difficulty with attempting in their address to discredit a witness

they had practically runaway from in cross -examination. The

respondents‟ claim that the witness‟s expertise was never

demonstrated before the tribunal is simply absurd. Here is a

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witness whose testimony regarding his qualifications, experience

and expertise was never challenged before the tribunal. In

paragraphs 1-7 of his testimony PW80 said

(i) I am an independent finger- print consultant

(ii) That I have for over 35 years been involved in the

examination and comparison of finger, thumb, palm and

foot impressions.

(iii) I am qualified as a finger- print and handwriting analyst

having attended the Advanced finger print course a t New

Scotland Yard London.

(iv) In my career, I have examined thousands of impressions

since qualifying as a finger print expert in 1973.

(v) As part of my qualification and experience, I attended

fingerprint Bureau trainer course in 1991 at the National

Training Centre, Durham.

(vi) In 1991, I served as finger print expert on the United

Nations Mission to Cambodia to verify voters ‟ identity.

31.23 None of these clear and categorical assertions, were ever

contested in cross-examination, except for a nit -picking mention

in their address that PW80 said in his testimony that he had over

35 years experience as a finger print expert, whereas Exhibit 81

(page 1) puts his experience at 30 years. It is noteworthy that the

PW80‟s witness statement clearly indicates tha t he qualified as a

finger print expert in 1973. There is little doubt that Mr. Jobbin‟s

experience is clearly over 35 years as he stated in his witness

statement.

31.24 Of even greater moment is the fact conveniently ignored by the

respondents, that PW80 had previous experience in finger print

investigation in election matters having worked for the United

Nations as a finger print expert to verify “voter‟s identity”. This

clearly qualifies him as an expert in electoral matters.

31.25 The respondents‟ submission in respect of Exhibit R14, a

document they claimed was generated from the internet is again

234

simply ludicrous. The said document was a report of a medal of

bravery and integrity awarded to PW80 for his work as a marine

reserve in the Congo. But even the report and citation – Exhibit

R14 noted that:

“In his civilian occupation, Paul Jobbins served as a

finger print officer with Avon and Somerset constabulary

until his retirement in 2001.”

31.26 The report further noted that even his reserve engagemen t with

the army required cooperation from the Police, his employers at

the relevant time:

“With the support of the police, he was able to make a

substantial commitment to Royal Marines Reserve

Bristol. . .”

31.27 Furthermore in re-examination, (which was strenuously opposed

by respondents but allowed by the tribunal) PW80 (Paul Jobbins)

explained that in the U.K. being a reserve in the army merely

meant that aside from keeping a regular job, the „reserve; (as the

name implies) could be called up for military duties in the service

of the nation. His primary occupation as he noted, which he

worked on at least 5 days a week was as a finger print expert, the

reserve training which was part time, was done at the weekends.

31.28 On the issue of whether the PW80 use d originals of ballot papers,

the use of scanned images is perfectly acceptable in finger print

comparison and identification. Indeed under cross -examination

respondent‟s witness RW61 (Dr Ndara Abasi Ekong) admitted

that at the Federal Bureau of Investigat ion (FBI) where he trained

as an expert, using IAFIS, a thousand finger prints could be

matched within a second, he then went on to say:

“That final identification is by the use of what FBI had in

their record. They are copies produced from IAFIS, they

would be scanned but would not be manipulated copies”

235

31.29 Furthermore, RW61 admitted that at scenes of crimes fingerprints

are photographed for comparison purposes. He then said

categorically:

“I have used photographs before several times”

31.30 Indeed RW61 (Dr Ndara Abasi Ekong) admitted in court that he

himself had tendered scanned copies before the court. He said in

his testimony:

“I have seen R19(2) containing an example of a clear

finger print on the right hand side… Both were tendered

as evidence of a clear print. The two clear prints tendered

in this court case are scanned copies”

31.31 More importantly, RW61, (Dr. Ekong) under cross -examination in

response to the question whether he ever saw the scanned copies

used by Paul Jobbins said:

“I did not see the scanned copies of Paul Jobbins…”

31.32 None of the respondents witnesses in anyway impugned the

quality or authenticity of the scanned copies used. Even RW61,

never even saw the scanned copies. Without seeing the scanned

copies used, or demonstrating that there was something wrong

with them in the cross-examination of the expert witness, it is

strange indeed that the respondents in their final address would

now seek to achieve what they woefully failed to do at the trial.

31.33 The suggestion that the scanned copies could have been

manipulated is one that is at best speculative, but more

poignantly it amounts to desperately clutching at straws. The

whole point of the trial which has gone on for close to a year was

to ensure that their hypothesis that scanned copies could be

manipulated was tested. Each time the opportunity to do arose,

they shied away from it , hoping as it is now apparent to use the

cover of an address to kill a report which shows beyond

reasonable doubt that well over 40% of votes cast in the 10

contested local governments were multiple votes.

236

31.34 Regarding the respondents‟ submission that there is nothing to

confirm or corroborate or verify the qualification of the other

experts listed in Exhibit 81 (pages 1 -35) (Adrian Forty‟s written

statement) Again this submission demonstrates the failure of the

respondents to impugn the qualifications and expertise of the

experts at the appropriate time i.e. when PW80 (Paul Jobbins)

testified. Not only did he affirm the written stateme nts of their

expertise, their being serving U.K. Police Finger print experts

(see para 10) of his witness statement PW80 states that:

“A list of finger print experts involved in this enquiry with

their qualifications and years of experience in the field et c is

attached as Exhibit PJ4”

31.35 The respondents submit without authority of course, that aside

from his sworn statement where he showed the qualification of

each expert, the schedule ought to have been signed again by

him! At no time was the qualificat ion of the experts questioned.

Rather the respondents seemed more interested in discerning

which of them were married to each other! As it turns out and

even by their own evidence R14, PW80 and one of the other

experts Nicola Jobbins are husband and wife , clearly showing

that there was nothing sinister about husbands and wives being

in the same profession.

31.36 Regarding the submission that PW80 (Paul Jobbins) only

„verified‟ 10% of the analysis done. This is a distortion of the

evidence of the PW80, to obfuscate the issues clearly testified

upon by the witness.

31.37 It is crucial to note that PW80‟s testimony and his report was

based entirely on the report of Adrian Forty (now deceased) who

supervised, and directed the work of the other 48 experts.

31.38 Paragraphs 15-17 of PW80‟s witness statements clearly lays out

his testimony and the proper sequence of facts and events:

“15. I know that Mr. Adrian Forty, upon completion of the

fingerprint analysis, swore to a witness statement to

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which was attached schedules of our findings as experts

who participated in the fingerprint analysis of the ballot

papers and the witness statement was filed on the 22 nd

January 2008 at the registry of the Election Petition

Tribunal at Osogbo. Now produced, shown to me and

marked as Exhibit PJ2 is a certified true copy of the said

witness statement of Mr. Adrian Forty and the attached

exhibits which included schedules of our findings as

experts in the fingerprint analysis as crosschecked and

certified by M Adrian Forty. I recognize the signature on

the said certified true copy of the witness statement as

that of Mr. Adrian Forty” .

16. I know that the said Mr. Adrian Forty died on the 2nd

January 2009 at Ravenswood, 522 Cleevehill, Downend,

United Kingdom. A copy of the death c ertificate of the

said Mr. Adrian Forty is hereby attached as Exhibit PJ3

17. Consequent upon the death of the said Mr. Adrian

Forty, in partnership with Mr. John Gendle I took over the

fingerprint consultancy established by Mr. Adrian forty.

The instruction from Action Congress remained

outstanding. I assumed responsibility for the

investigation and rechecked a sample of the results

contained in the schedules of the findings of the said

experts in relation to the following ten local governments

out of the initial twelve local governments covered by the

said findings of the experts as crosschecked and certified

by Mr. Adrian Forty.

31.39 As clearly stated by PW80 in paragraph 17 above, PW 80 using

Adrian Forty‟s report extracted only the results of 10 local

governments (as opposed to twelve in the report) and went the

further step of cross-checking samples of Adrian Forty‟s report

again. It is to the number of samples rechecked that he gave the

figure of 10%. No change whatsoever was made by PW80 in the

results of the fingerprint investigation in 10 local governments

238

as found produced by Adrian Forty, either on a ward by ward or

polling unit by polling unit basis. The only difference was that 2

of the local governments investigated by Adrian Forty were lef t

out of PW‟s report as only 10 local governments were needed to

establish the petitioners case. Whether PW80 did a sample check

or not, the report was the joint work of 51 experts including

himself, under the direction of the now deceased Adrian Forty.

The rechecking of a sample again strengthens the quality of the

work rather than diminishes it in any way. PW80‟s role as one of

his principal assistants made him suitable to lead the team and

present the report on the death of Adrian Forty.

31.40 The respondents in another spurious conclusion submitted that

PW80 admitted that wetness of the thumb or perspiration or

improper handling of scanned images could affect the quality of

thumbprints examined, and that since evidence was not led that

the thumbs of witnesses were not wet nor scanning perfectly

handled the evidence could not be relied upon!

31.41 In both Adrian Forty‟s and PW80‟s written statements, they

professionally and truthfully acknowledged ballot papers that

were smudged or contained insufficient details and categorically

stated that they were satisfied with the quality of prints they saw

upon which their conclusion on multiple voting was based. When

such clear testimony has been given and reports tendered, it is

surprising to the say the least, that the respondents would

suggest that an answer to a hypothetical question about the

possibility of wet thumbs or improperly scanned images is

sufficient to displace clear evidence on the point.

31.42 Surely, all that the respondents could have done would have been

to demonstrate that those hypothetical events took place either in

cross-examination of PW80, or by rebuttal evidence of their own

expert(s). Indeed in answer to a question from respondent‟s

counsel to the effect that if the person handling the machine did

not handle it well it could affect the qualit y of scanned images

239

PW80 said „That is basic truism, but in this particular instance

there were a good number of quality images”.

31.43 On the issue of a purported log book for the movement of ballot

papers, PW 80 not only denied the existence of any such book but

clearly detailed the chain of continuity in his testimony and

under cross-examination.

31.44 As to the issue of why the other experts were not called as

witnesses the PW 82 stated under cross-examination that the

reason was that it would have cost too much in terms of time and

finances to have all the witnesses in court. He said :

“Secondly at the end of the analysis there was a collective truth

clear from the analysis that 51 experts and myself, they could

have been here to defend and attest but for time and expenses

such will consume” .This is in consonance with the exception

created by Section 91(2) of the Evidence Act to the effect that

the statement of a witness not called to testify is admissible if

tendered through another where there is evidence that undue

delay and expense would be incurred if the witness is called. It

is clear that calling 51 experts to testify on examinations that

could be reduced and were reduced to one r eport would

inexorably waste time and money. It stands to reason therefore

that this is an excellent case to apply the exception against the

possibility of hearsay by section 91(2).

31.45 Further, the condition that the maker of a document need be

called as a witness needs not be satisfied where the witness is

“beyond the seas and it is not reasonably practicable to secure his

attendance”(Section 91(1)(i) of the Evidence Act. )There is no

doubt from the testimony of PW80 that all the other 49 experts

reside in the United Kingdom and it would not be reasonably

practicable to secure their attendance.

31.46 Indeed the legal justification for PW80 to present Adrian Forty‟s

report is founded on the same proviso, where it provides that

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requirement that the maker of a document sought to be tendered

must be called as a witness is waived where the maker is dead.

31.47 Regarding the testimony of RW61 (Dr. NdaraAbasiEkong) there is

little doubt that the entire testimony is of precious litt le use to

the respondents.

31.48 First RW 61, admitted that he carried out hi s own investigation

2 years after the elections were concluded and that the ballot

papers were “gummed together”, “wet” and “even smelling”. He

further admitted that “…. the purple ink used in some local

governments is not ideal ink most of it is water based and will

faint and migrate into the paper,….. Yes…the storage can affect

the quality if proper ink was not used….the longer the time of

storage when good ink is not used the poorer the material”. It is

not surprising therefore that most of the ballot papers examined

by RW61 were smudged. On the other hand the scanning process

conducted by PW82 for the use of the team of experts led by

Adrian Forty commenced on May 31 s t 2007 a month after the

elections. Clearly the quality of prints available to the petitioners

was vastly superior to that available to RW61.

31.49 Secondly, and more importantly RW61 admitted that he did not

specifically examine the respondents votes in the contested local

governments as was done by the Adrian Forty team who

examined all the votes purportedly cast for the 1 s t and

2ndrespondents.Any comparison of the results of PW80 and RW61

is therefore a comparison of apples and oranges.Thirdly,RW61

admitted after reading Exhibit 90 page 4 that in:

“Ayedade Paul Jobbins examined 121 polling unit while

examined 11 units.

Boluwaduro Paul jobbins examined 58 units while I examined

11 units

Ifedayo PJ examined 60 while I examined 11

Ife East PJ examined 39 units while I examined 7

units…..(complains)

241

Ife South PJ examined 83 polling unit while I examined 27 units

Isokan PJ examined 41 while I examined 10 units

Odo Otin PJ examined 96 polling unit while I examined 23

units…”

31.50 Fourthly, RN16 admitted that even in the local Government in

which he claimed to have examined ballot papers, he examined

only a few.

31.51 Under cross-examination RW61 finally concluded that his opinion

about the poor quality of the ballot papers was based on the

general way that Nigerians tended to thumbprint ballot papers!

31.52 Fifthly, RW61‟s testimony as to the number of ballot papers he

examined within a 35 day time frame working from 9a.m. to

5p.m. showed that he either lied about that number or did not

examine the documents with minimal care or diligence.

31.53 RW61 claimed that he examined 40% of the ballot papers

amounting to over 60,000. He also claimed that even after

examining each ballot paper, he saw to it that his conclusion was

recorded in writing by his assistants. The entire process he said

(even for smudged documents) took over 30 seconds per ballot

paper. For the other categories, of prints he examined, he claimed

that he spent at least over a minute and up to 4minutes. It was

put to him in cross-examination that even if he spent only an

average of 30 seconds on each print, including (recording),

working from 9a.m. to 6p.m. without even a second of rest, he

would need 57 days to conclude the 65…ballot papers and not 34

days which he claimed he spent.

31.54 Sixthly, the RW61‟s report was fraught with misstatements,

misrepresentations and errors which he admitted to repeatedly in

cross-examination. Some of the more poignant examples are

where under cross-examination, he was confronted with Exhibit

19(3) which when compared with the figures in his repor t showed

that he had purportedly examined more ballot papers than were

actually used in the particular local governments!.

242

31.55 Seventhly, RW61 admitted under cross -examination that “I am

aware that there are several multiple votes in the PDP votes of

2007 Governorship Election” .

31.56 Undoubtedly the testimony of RW61 which was meant to rebut

the testimony of PW80 and was even prepared after hearing Pw

80‟s testimony proved to be an unmitigated disaster .

Evidence of RW61 Ndara Abasi U. Ekong

32.1 The 1s t to 3 rd Respondents had called RW61 purportedly to

contradict the evidence of PW80 but as can seen in the evaluation

of evidence of PW80, evidence of RW61 is worthless and cannot

contradict the evidence of PW80.

32.2 In his evidence-in-chief, the witness claimed that when the INEC

officials brought the ballot papers used for the Governorship

Election of 14th April for the disputed Twelve (12) Local

Government Areas of Osun State, namely - Atakumosa West Local

Government, Boripe Local Government, Ede North L ocal

Government Area, Ife Central Local Government Area, Odo -Otin

Local Government Area, Ife - East Local Government Area,

Ayedaade Local Government Area, Ife South Local Government

Area, Isokan Local Government Area, Boluwaduro Local

Government Area, Ola- Oluwa Local Government Area and

Ifedayo Local Government Area to his team, they were full of

dust and the ballot papers were folded together with rubber

band.

32.3 He also said that he observed that correct procedure was not

adopted in affixing the finger print which by scientific standard

is not good for forensic examination. He therefore said because of

his observations, he could only get poor images because most of

the prints were smudged. He claimed that from his observation

of the poor impressions on the ballot papers, he produced a

scientific report on why it will be difficult to use the poor

243

impressions on the ballot paper to arrive at a good forensic

analysis report.

32.4 He claimed that incorrect procedure of obtaining fingerprint,

tampering and poor storage had affected the said ballot papers

and no Automated Finger Print Identification System (AFIS)

could produce good and correct result in the circumstance. He

said that he resorted to employing the use of visual and

instrumental analysis of the original finger print impression of

the ballot papers rather than the scanned copies to avoid

distortion and errors.

32.5 He said that he decided to classify the impressions into: Smudged

(S); Faint (F); Partially Clear (CP.); Clear (C) . and No Vote (NV).

32.6 He said that his overall findings showed that most of the

impressions on the entire ballot papers he examined were blurred

or faint, a negligible percentage were partially clear, even smaller

percentage were clear while no vote accounted for some . He

therefore claimed that it is scientifically impossible to determine

with certainty that multiple votes were involved since less than

10% of the total votes were clear whereas partially clear,

smudged and faint impressions were over 90% of the total

impressions on the ballot papers.

32.7 He also claimed that in the circumstances under which the thumb

printing were made and the conditions under which the ballot

papers were kept it is not possible to get accurate fingerprint

ridge patterns of majority of the ballot papers examined.

32.8 The evidence of RW61 cannot be said to be contradicting evidence

to that of PW80. The evidence of RW61 is totally unreliable as he

claimed that he could not analyse multiple finger prints in ballot

papers because according to him, more than 95% of the total

votes in the election were smudged or faint impressions. It

however became clear under cross -examination that the witness

(RW61) did not even know the total number of votes as he

244

admitted that he did not know the total number of ballot papers

used in the 12 local governments.

32.9 The witness later admitted under cross examination that the total

votes in the 12 LG that he claimed to have examined is 347, 965

and that he examined only 156, 367 ballot papers leaving a

difference of 191, 618 not examined.

32.10 Further, contrary to the evidence in chief of RW61 and in his

report (R22) that more than 95% of the total votes could not be

analysed. It became clear under cross -examination that the

percentage of what the witness claimed to have examined relative

to the total votes is just 44.93%. So the conclusion of RW61 is

totally false and calculated to deceive the tribunal.

32.11 Also, the evidence and report of RW61 is full of errors and

falsehood.

32.12 The witness gave examples of what he called examples of Clear

Print. In Exhibit R22 the witness exhibited what he called a clear

print from Unit 4 Ward 3 in Boluwaduro Local Government. But

in his findings as stated in Exhibit R24(21) the Witness reported

that there was no Clear finger print for ward 3 Unit 4. A clear

contradiction of what he had exhibited in R22 of having example

of a clear finger print in ward 3 Unit 4 .

32.13 When the witness was asked under cross examination by the

Petitioners that his report for Boluwaduro as contained in Exhibit

R24 is wrong or not, the witness did not respond and merely

stated that the Counsel to the Petitioner should proceed to

another cross examination.

32.14 It is submitted that where a witness evades a question under

cross examination the court will presume that the answer to the

question if given will be prejudicial to the case of the party on

whose behalf the witness testifies –see per Ogundare JSC in

Orianwa v. Oken 2002 14NWLR Pt 786, pg. 157at 165 Para b -c

and pg 187 para G.

245

32.15 Also, in Exhibit R19(13), the witness said the finger print in the

exhibit was taken from the ballot paper in Ward 4 Unit 2 of

Olaoluwa Local Government and that it is an example of a clear

finger print from that unit. The witness was then shown Exhibit

R24(21) which shows that in the column for clear print for Ward 4

Unit 2, zero (0) was recorded for the column for clear finger print

in that unit . It was then that RW61 admitted that the information

that no clear finger print in Ward 4, Unit 2 of Ola Oluwa Local

Government as stated in exhibit R24(21) was not correct.

32.16 It thus appear that in only two instances where the witness

exhibited good examples of clear finger prints, he falsely

reported in his findings that there were no clear finger print in

the same unit. There is thus an irresistible conclusion to any

reasonable person that all his other claims of absence of clear

finger prints for the purpose of testing whether there is multiple

finger printing in the election are tissues of lie.

32.17 It is also submitted that the evidence of RW61 cannot be a

rebuttal of the testimony of PW 80 because even in the instances

where he claimed to have found clear prints, RW61 did not bother

to examine whether there were multiple printing.

32.18 It also became clear under cross-examination, that the RW61 did

not examine ballot papers in most of the polling units where

PW80 reported finding some multiple thumb printings.

32.19 The testimony of the witness-in-chief with regards to the use of

original finger prints i s not reliable and under cross-examination,

the witness admitted that scanned images of fingerprints can be

used. He admitted that FBI used scanned electronic image for its

integrated automated finger print identification system or IAFIS.

The witness also admitted the he had personally used

photographs of finger prints impression to do finger print

analysis.

246

32.20 Furthermore, the claim that finger print analysis cannot be

carried out on scanned image is also contradicted by the finger

print in exhibit R19(13) and R19(11).

32.21 RW61 admitted that the finger print in exhibit R19(13) was

scanned by his Assistant and the charting or identification of the

ridges on exhibit R19(13) was done at his office. RW61 also stated

that the two examples of clear print tendered in his report were

clear prints.

32.22 Any statement by RW61 on the quality or character of the images

of ballot papers used by PW80 will be hearsay and speculative as

he admitted under cross-examination that he never saw the

scanned images of ballot papers used by PW80 and that he was

not there when the images of the ballot papers were used by

PW80.

32.23 Still further, the witness gave contradictory testimony as to the

reasons for what he claimed to be smudged ballot papers.

Whereas he claimed under his evidence in-chief that smudge

ballot papers was caused by application of too much ink and

under cross examination by the counsel to the 4 th to the 1365 th

Respondents. However under cross -examination by counsel to

1366 t h and 1367 th Respondents, he claimed that the condition

under which the ballots papers were delivered to him were

gummed together and in semi-wet conditions as the ballot papers

smelt.

32.24 Under cross-examination, RW61 admitted that a damped paper

will be smudged depending on the ink and that the storage can

affect the quality if proper ink was not used. He admitted that

purple ink was used in some local government and that it was

water based which will faint and migrate into the paper.

32.25 Aside his contradictions on the issue of smu dged ballot paper,

Your Lordships will take judicial notice that the Petitioners

obtained the order of scanning and inspection in August 2007 and

carried out the scanning and inspection immediately thereafter.

247

However, RW61 admitted that he examined the ba llot papers

more than two years after the election. RW 61 can therefore not

be in a position to truthfully testify on the state of the ballot

papers in 2007 when the election was just done and the ballot

papers still fresh which was the period the Petition ers scanned

the images of the ballot papers used by PW80 and his team of

experts.

32.26 Your Lordships will also note from the records of the court that

RW61 admitted so many errors in his reports.

32.27 There is also evidence obtained under cross examinat ion of RW61

which shows that either the witness should be disbelieved or that

the elections in Atakunmosa West and Boripe Local Governments

are invalid. Under cross-examination, the witness asserted that

by his exhibit R19(3) he examined 20,941 ballot pape rs in

Atakunmosa West Local Government Area, whereas, exhibit 92

Form EC8D showed the total votes for Atakunmosa West is 18,

550. Also, under cross-examination and by exhibit R19(3), RW61

claimed to have examined 15,233 ballot papers in Boripe Local

Government Area, whereas in exhibit 92, the Form EC8D, the

total number of votes for Boripe Local Government is 14,839.

32.28If this evidence is true, it supports the case of the Petitioners that

no valid election was conducted in at least the two local

governments concerned here.

Evidence of PW81, Adeola Akintunde Olayiwola

33.1 Pursuant to the court order granted by the Tribunal in favour of

the Petitioners, the Petitioner made use of the orders in respect of

inspection and making copies of electoral documents. It is in this

behalf that the Petitioners has called PW81 as a witness to give

evidence of the state of electoral materials during the inspection.

33.2 The evidence of PW81 covered ten of the thirty local governments

in Osun State. These are: Atakumosa West, Ayedaade,

Boluwaduro, Boripe, Ife Central, Ifedayo, Ife East, Ife South,

248

Isokan, and Odo-Otin local governments and the evidence are as

follows:

33.3 No EC8A for 114 Polling Units across seven local governments

and yet results were supposedly collated and allotte d to the said

polling units on the Forms EC8B, EC8C and EC8D: Exhibits 451

and 452.

33.4 86 Blank Form EC8As were certified and supplied by INEC in

Odo Otin Local Governments and yet results were supposedly

collated and allotted to the said polling units on the Forms EC8B,

EC8C and EC8D: Exhibits 453 and 454.

33.5 Ballot papers supplied by INEC as used were less than the total

number of ballot papers recorded on Forms EC8A as having been

used for the respective polling units affecting 560 polling units

cutting across the ten local governments. That there was a deficit

of 90,372 ballot papers found in the said 560 polling units:

EXHIBIT 455.

33.6 Ballot papers supplied by INEC as used were more than the total

number of ballot papers recorded on Forms EC8A as having been

used for the respective polling units affecting 116 polling units

cutting across nine local governments. In this regard, there was

excess of 10,561 ballot papers found in the said 116 polling units:

EXHIBIT 4566.

33.7 That there were discrepancies in the total num ber of votes and

the number of voters purportedly accredited to vote as well as

the total number of registered voters in the ten local governments

as follows.

33.8 That in 201 polling units in eight of the local governments the

total number of votes recorded on the Forms EC8A was more

than the number of persons ticked to have been accredited to vote

on the voters register produced for inspection and certified by

INEC: EXHIBIT 457.

33.9 That in 368 polling units in eight of the local governments the

total number of votes recorded on the Forms EC8A was less than

249

the number of persons ticked to have been accredited to vote on

the voters register produced for inspection and certified by INEC:

EXHIBIT 458.

33.10 That in 71 polling units in eight of the local governments, the

total number of votes recorded on the EC8A is more than the

number of registered voters on the voters‟ register produced for

inspection and duly certified by INEC: EXHIBIT 459.

33.11 That in 172 polling units in eight of the local governments, no

voters register was produced for inspection by INEC: EXHIBIT

460.

33.12 Forms EC8B produced by INEC for inspection and certified by

INEC for Ife Central Local Government revealed that it was one

Alhaji S.O.A. Nofiu whose name and signature appeared as the

agent for the Peoples Democratic Party (PDP) in nine out of

eleven wards in Ife Central Local Government whereas ward

collation of results is supposed to be held simultaneously in the

respective wards. See Exhibits 97(1-11).

33.13 PDP votes for Boripe Local Government recorded on For m EC8D

(which is 14, 497) is more than the number of registered voters as

recorded on the same form EC8D (which is 12, 631).

33.14 These evidence of irregularities, affected 879 polling units in the

ten local governments

Evaluation of the Evidence of PW80

33.15 The respondents in evaluating the evidence of Mr. Adeola

Akintunde Olayiwola the PW81 have made certain observations

as to why the evidence of this witness should not be relied on in

these proceedings. It is submitted that these observations are

most irrelevant and ought to be discountenanced by the Tribunal.

33.15 The first reason according to the respondents is that this witness

claimed in his written deposition that to be an IT expert,

statistician and management consultant, whereas according to the

respondents “…cross -examination revealed that his basic

qualifications arte BA English and PGD in advertising and Public

250

relations and he is not skilled in the field in respect of which he

adduced evidence before the tribunal”

33.16 Furthermore, that none of the reports prepared by the witness

and tendered as exhibits 451- 460 was signed by any of the 20

persons that were said to have prepared the exhibits.

33.17 The respondents claimed further that the claim of the witness to

being an IT expert collapse further when under-cross

examination, the witness could not according to the respondent

understand concept connected to statistical analysis, his claim

that he analysed electoral documents was thus contradicted.

33.18 His inability to appreciate common English/ Linguistic

terminologies such as syntax and morphologies “… portrays him

as a potential danger of an expert witness when he is not familiar

with common terminologies in English Language where he

alleged he possessed a Degree”

33.19 That the admission of the witness under cross-examination that

he once described himself as Analyst to the petitioner negate his

earlier testimony that he was not an agent or analyst to the

petitioners.

33.20 The respondents also contend further in their written address

that the admission of the witness that his organisation was paid

by the petitioners made his evidence “ …suspect which must be

approached with a lot of caution and circumspection. His

evidence that that he does not know the directors of the Institute

for which he work negates his earlier denial that Dr. Kayode

Fayemi who is the AC Gubernatorial candidate in Ekiti State was

not a Director of the Institute”. The respondent argues that this

further shows the witness as inconsistent.

33.21 The respondents also argue that Exhibit 217 at pages 5 and 10

brings out the lie in the testimony of the witness that the Form

EC8A for the ward was blank.

251

33.22 The respondents also argue that the certification by INEC of some

of the electoral forms belie the claim of the wit ness as to the non-

availability of the form i.e. Form EC8A for the period.

33.23 The respondents finally argued in their written addresses that in

any case the witness does not qualify as an expert since he la cks

the requisite qualification and that all told he is an untruthful

witness.

33.24 It is submitted that the observations of the respondents on the

evidence of this witness are highly misplaced. In the first

instance, while the witness described himself as an analyst, this

witness never described himself as an expert. This nonetheless

would not render his evidence valueless.

33.25 As to the argument that the reports which were tendered by this

witness were not signed by him or any other person, it will be

recalled that this witness was only assiste d by the other

individuals in his team. In any case, the said reports were

attached to his witness statement on Oath which he duly

authenticated by signing his name on the document and he

identified them in the said witness statement on oath.

33.26 The record also shows clearly that it is not true that the witness

could not understand English/Linguistic terminologies like

syntax and morphologies.

33.27 In addition, we submit that the fact that a witness was paid for

the services which he has rendered to t he party who has called

him as a witness will not render the evidence of such witness

unreliable.

33.28 We also contend on behalf of the petitioners that the issue

relating to the relationship between Dr. Fayemi and the

organisation to which the witness belongs are totally irrelevant to

the issue before the court.

33.29 On the issue of Exhibit 217, Your Lordships are humbly urged to

peruse Exhibit 217 which clearly supports the evidence of PW80

252

on blank EC8A from Odo Otin Local Government. Also, Exhibit

R18 tendered by the 1 s t to 3 rd Respondents support the evidence

of PW80 on this issue.

33.30 The plethora of anomalies with respect to electoral documents

highlighted in several parts of this Address supports the

evidence of PW80.

33.31 Furthermore, contrary to the submissions of the Respondent that

the court cannot take cognisance of the evidence of PW80 on the

ground that the witness is usurping judicial function. It is

submitted that that is not tenable as the evidence is predicated on

order of inspection granted by the Tribunal.

33.32 In Aregbesola v Oyinlola (supra), the Court of Appeal held that

when a Tribunal granted an order for inspection pursuant to

Section 159 of the Electoral Act, 2006, it is expected that there

should be a report on the inspect ion. In any event, the 1 s t to 3 rd

Respondents also applied for and obtained orders of inspection

but did not call rebuttal evidence. The 4 t h to 1365 th Respondents

also elected not to call rebuttal evidence.

33.33 On the essence of the provision of section 159(1 ) of the Electoral

Act, 2006 the Court of Appeal per Omage J.C.A in the case of

Aregbesola v. Oyinlola [2009] 14 NWLR (pt 1162) 429 at 478

paragraph B – D

“…the above provision enables a petitioner to inspect

documents in the custody of INEC for the purpo se of Instituting

or maintaining an Election Petition to my mind, it is so obvious

that the intention of the Legislature is that evidence obtained

upon the orders for inspection/scanning will support the

petition.”

Evidence of PW 82, Tunde Yadeka, an Independent Information

Technology Expert and Software Data Analyst

34.1 The evidence of PW82 relate to findings in respect of the ten

Local Governments to wit: Atakumosa West, Ayedaade,

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Boluwaduro, Boripe, Ife Central, Ifedayo, Ife East, Ife South,

Isokan and Odo-Otin Local Governments and the findings are:

34.2 From the analyses of the serial numbers of the original ballot

papers supplied by INEC as having been used and the serial

numbers of ballot papers in the EC40C and/or EC25, it was

revealed that 38,908 (Thirty Eight Thousand, Nine Hundred and

Eight) ballot papers which have their serial numbers on EC40C

and/or EC25 were found to have been used in polling

units/wards/local governments other than the polling

units/wards/local governments that the ballot papers were

supposed to be used: See Exhibit 461(4) . These ballot papers were

found in a total number of 326 polling units across the affected

local governments: Exhibit 461(5).

34.3 Another analysis carried out was whether or not a single booklet

of ballot papers was used in more than one polling unit. From the

analyses of the serial numbers of ballot papers supplied by INEC

as having been used in the polling units/wards in the said local

government areas, it was found that ballot papers from a single

booklet were used in two or more polling units and this incidence

of using ballot papers from split ballot paper booklets in two or

more polling units affected 69,401 (Sixty Nine thousand, Four

Hundred and One) ballot papers: Exhibit 461(6) . The affected

ballot papers were found in a total number of 592 polling units:

Exhibit 461(7).

34.4 PW82 also carried out an analysis to determine whether the ballot

papers used in a polling unit came from more than the number of

ballot paper booklets supplied for the polling unit on the

EC40C/EC25 and/or whether the ballot papers used in a polling

unit came from more than the number of ballot paper booklets

that could have been used to produce the number of ballot papers

used in the polling unit . From the analysis carried out, it was

found out that:

254

in 509 polling units, the ballot papers used in a polling unit

came from more than the number of ballot paper booklets

supplied for the polling unit on the EC40C/EC25 and/or that

the ballot papers used in a polling unit came from more than

the number of ballot paper booklets that could have been used

to produce the number of ballot papers used in the polling

unit. This finding involved a total number of 176,512 (One

Hundred and Seventy Six thousand, Five hundred and

Twelve) ballot papers in the said local governments. Exhibits

461(8) and 461(9).

34.5 The evidence of irregularities in the misuse of ballot papers by

PW82, the Computer expert, further corroborates the evidence of

irregularities in Electoral Materials discovered in physical

inspection report by PW81 and finding of multiple thumb-

printing by PW80.

Evaluation of Evidence of PW82

34.6 The witness made a 37-paragraph statement on oath accompanied

with ten exhibits, TY1 – TY10 (all admitted in evidence as

Exhibits 4611 -1 0) to establish the Petitioner‟s case to the effect

that:

a. The result of the Governorship election in Osun State was

conducted on 14/4/2007 and out of 30 Local Government Areas

in the State where election took place, the results from ten (10) of

the local Government Areas are questionable. The affected Local

Government Areas are Atakumosa West, Ayedaade, Boluwaduro,

Boripe, Ife Central, Ifedayo, Ife East, Ife South, Isokan and Odo -

Otin Local Government Areas;

b. The Ballot Papers used in the election for each of the affected

Local Government Areas were obtained from the proper custody

(INEC) and all the parties agreed that the ballot papers should be

scanned for the purpose of forensic inspection and analysis by

expert(s); Please refer to paragraphs 7, 8 and 12 of the Statement

on oath;

255

c. The gathering, scanning and certification of the ballot papers

used was done in the presence and under the scrutiny of:

(i) Counsel to the 1 s t – 3 rd Respondents;

(ii) Two Information Technology experts representing the

1s t – 3 rd Respondents;

(iii) INEC Officials;

(iv) State security operatives; and

(v) Police officers.

d. The witness created and designed a software which was capable

of sorting, listing and analyzing the numbers and numbering

patterns of the ballot papers.

e. The Forensic inspection and analysis were done and a

report/outcome of the exercise was presented and filed before

this Honourable Tribunal.

34.7 The report/outcome of the forensic inspection and analysis of the

ballot papers in respect of the affected Local Governments show:

i. A sum of 38,908 ballot papers with the ir serial numbers on

EC40C and or EC25 were found to have been used in polling

units/wards/local governments other than where the ballot

papers were supposed to be used; Please refer to Exhibit

4614 . The ballot papers were found in a total of 326 polling

units across the affected ten local government; Please refer

to Exhibit 4615 .

ii. A single booklet meant for the use of a single polling unit

was found to have been used for two or more polling units

and the affected ballot papers totaling 69,401 ( Exhibit 4616)

spanning from 592 polling units in the affected ten Local

Government Areas; Please refer to Exhibit 4617

iii . The number of ballot paper booklets used in a polling unit

in many of the affected ten local government areas was

more than the number that could have been used. A total

number of 176,512 ballot papers were affected in 509 polling

units. Please refer to Exhibit 4618 -9 .

256

34.8 The entire evidence of PW82 as presented in paragraph 1 above

was corroborated by some other witnesses particularly, PW80 and

PW81. More importantly, the evidence of PW82 remains

unchallenged and uncontroverted under cross -examination. It is

an established principle of law that where a piece of evidence is

neither challenged nor controverted, such evidence is credible

evidence which the court must act upon. In the locus classicus

case of Uku v Okumagba [1974] 3 S.C. 35 , it was held as follow:

Evidence that is related to a matter in controversy that is

neither successful debunked , nor controverted at all , for that

matter is good and credible evidence that ought to be acted

upon by trial judge

34.9 It is not in doubt that PW82 was presented as an Expert Witness

as permissible under Section 57 of Evidence Act. The Petitioner has

established the competence of PW82 as an expert in paragraphs 2

and 3 of the Statement on Oath. It was established that PW82 has

depth of training and skills in “ Information Technology Solutions

practice and Software Data Analysis” in addition to his first degree

in Chemical Engineering for the past 25years. These statement s

were never discredited by the Respondents in anyway under

cross-examination. It should be noted however that what is

required of an expert lies not in the number or form of certificate

obtained but “acquisition of special skill(s)”.

34.10 In ANPP v Usman (2008) 12 NWLR (Pt. 1100) 1 at 72 para D – F,

the Appellate Court in a similar Governorship Election Petition

described an expert as follows:

An expert is a person who in the opinion of the court has

got sufficient practice or experience in the particular fie ld

of knowledge as a professional or amateur. It follows

therefore that it s not only academic qualifications or

formal training that can make one an expert in a particular

field.

34.11 See also Ajani v Comptroller of Customs (1952) 14 WACA 34;

Aigbadion v State (1999) 1 NWLR (Pt. 586) 284.

257

34.12 PW82 in paragraph 3 of his Witness Statement deposed to the fact

that he received training in ASCOM/MONETEL in France,

Softpro Corporation in Germany, amongst others, in MICR

document processing solutions, fingerprint bi ometric

programming, process design, modeling and simulation.

34.13 PW82 in open court also demonstrated practically his strong

analytical skill and expertise when asked in cross examination

how he arrived at his results.

34.14 PW82 by all standards is therefore an ex pert with the required

special skills to give evidence on analysis of documents generally

which are electronically serialized including but not necessarily

limited ballot papers. The Petitioners‟ case amongst others is that

there were electoral malpractice s relating to ballot stuffing,

multiple voting and irregularities that substantially affected the

conduct of the Governorship election held on the 14 th of April,

2007 in Osun State. See paragraph 4 of the Statement on Oath .

34.15 PW82 having given evidence in th is case, the kernel of

admissibility of the expert opinion particularly in an Election

Petition as in the instant case is the factual basis upon which such

opinion is made and the factual basis must be supplied to the

Court.

34.16 This is the position of the law as re-established recently by the

Court of Appeal in the Election Petition that arose from the April

14 th 2007 Kebbi State Governorship Election as contained in

ANPP v Usman (2008) (supra) 1 at 68 para E – H where it was

held:

Where evidence presented to the court or tribunal is based

on the opinion of an expert, the factual basis of such opinion

must be supplied to the court as it will enable the court to

determine the admissibility of the opinion and the weight to

be attached to it.

34.17 PW82 in his testimony, particularly in paragraphs 24, 25, 26, 27,

28, 29, 30 and 32 of the Statement on Oath, demonstrated the

258

source, steps taken and findings that formed the basis of arriving

at his opinion contained in paragraph 33 in his Statement and

which remains uncontroverted. Importantly, even under cross -

examination of PW82, no contrary evidence was presented to

discredit or contradict the source, steps and findings.

34.18 Beyond preponderance of probability, the Petitioners through

PW82 established that in the affected ten local governments areas

in Osun State, ballot papers and booklets of ballot papers which

ought to have been used in a polling unit were found used in two

or more polling units. The implication of PW82‟s evidence is that

there was ballot stuffing, and irregularities in the conduct of the

election that substantially affected the outcome of the election.

34.19 In his evidence, PW82 using his expertise and inviolable

unaltered material (scanned ballot papers used for the election in

the polling units in the affected local government areas), from the

proper custody (INEC) demonstrated that each of the polling

units was issued a booklet containing certain serial numbers

which can only be found in a specific polling unit as evidence in

Form EC25 and Form EC40 and except by allusion, a booklet

issued for Polling Unit A cannot and must not be found in Polling

Unit B . Where this happens, it means that the ballot papers to be

found in Polling Unit B will be more than what it ought to

contain. Hence, the ballot paper s must have been stuffed in

Polling Unit B .

34.20 PW82 was therefore entitled and justified to express his opinion

upon the factual basis to assist this Honourable Tribunal. Of

course, drawing inferences from facts fall within the judicial

power of the Court. However, in cases of foreign law, native law

or custom, or of science or art or as to identity of handwriting or

finger impressions, the opinion of an expert may be required.

This is the purport of Section 57(1) of the Evidence Act.

34.21 PW82 did not stop at stating that ballot papers and booklets

meant for a polling unit were found in two or more polling units

259

but also went further, uncontroverted, to demonstrate the number

of polling units and ballot papers affected in all the affected ten

local government areas. The ballot papers which ought to be in

Polling Unit A but found in Polling Unit B represents illegally

vote cast. The only flimsy point raised at cross -examination was

whether or not PW82 signed the attendance sheets. All PW82

said was that there were times he signed the attendance sheets

and times he did not signed.

34.22 No evidence led that any visitor who failed to sign attendance

sheet could not be allowed into the INEC‟s premises; No evidence

was led that certain percentage of attendance must be obtain ed.

More importantly, it was never controverted that PW82 was

introduced to INEC Officials alongside with other parties. It is

therefore not surprising that ballot papers were released to him.

The Respondents‟ intention is to paint a picture that PW82‟s

attendance at the inspection exercise was irregular but their

intention would be baseless if juxtaposed with paragraphs 7 – 18

of PW82‟s Statement on Oath. Assuming that there was a

requirement for percentage of attendance for PW82 to be met

(which is denied); this did not vitiate the findings and this

explains for it not being controverted by the Respondents as there

are no reasonable ground(s) to defeat PW82‟s evidence. Please

refer to ANPP v Usman (supra) on page 68. It was further held by

the Court of Appeal that in appropriate cases, the opposing

Counsel is expected to cross -examine the expert witness in order

to raise doubt to the witness expert. Where the opposing party

fails to elicit facts to create the doubt, such party is at his own

peril and he wil l be deemed to have admitted the expert

evidence.

34.23 Having established ballot papers stuffing in several polling units

in the affected ten local government areas, the reasonable

conclusion and necessary implication is that all the votes cast

using the stuffed ballot papers are invalid votes and must be

260

severed from the total number of the votes cast at the election. To

this end, there is no doubt as to the purported total number of

votes cast as announced by the 4 th Respondent but this does not

represent the valid number of votes cast.

34.24 Professor Babatunde Adeleke, RW62, who was engaged for the

sole purpose of discrediting the testimony of PW82 failed

woefully in this attempt. He clearly came across as a very

careless statistician and dishonest witness:

He claimed in his Witness Statement to have made several

visits to INEC office but during cross examination admitted

that he only visited the INEC office once.

He also admitted that he did not see or inspect any of the

ballot papers or documents used by PW82 in reaching his

conclusions but merely did a critique of PW82‟s report on

highly suspicious and subjective parameters.

RW62 also admitted in Table 2A (which he claimed to have

extracted from EC25) that the spectrum of serial numbers

which INEC put there were outrageous. This confirms,

rather than contradicts, PW82‟s contention of ballot

splitting.

He further corroborates PW82‟s testimony by admitting that

ballot papers from the same booklet could be found in more

than one polling unit.

He admitted several errors in his testimony and made false

claims against PW82

He could no longer remember several of the documents

made available to him which he found his report on and

later said one of the documents had unclear numbers and

considered it over stretching himsel f to do a proper or

thorough job

34.25 Applying the doctrine of severance in election matters of this

nature particularly where the Petitioner‟s case involves ballot

stuffing and multiple voting as recognized in the case of

261

Nwobodo v. C. C. Onoh and 2 Ors [1984] All N.L.R 1 where Bello

JSC held as follows:

However, the provisions of section 137 (1) are subject to the

principle of severance of pleadings which may be stated

thus: If in any civil proceeding the averments alleging a

crime are severable and if a fter such severance there still

remain in the pleadings of the plaintiff or the petitioner

sufficient averments devoid of the criminal imputation

against any party to the proceeding and on which the

plaintiff or the petitioner can succeed in his claim or

petition, then the burden of proof upon the plaintiff or

petitioner is to prove his case within the balance of

probability.

34.26 Due to the inability of the Petitioner to establish that the

remaining parts of the Petition could not sustain the Petitioner‟s

claims as contained in the Petition, the Supreme Court went

further to hold that:

With these considerations in mind, when I applied the

principle of severance to the petition and disregarded all

the averments alleging crimes against the respondents, I

found what remained of the petition could not be sustained

having regard to the totality of the evidence adduced by the

parties

Non-Signing of Exhibit 461 1 -9

34.27 The Respondents contend that failure to sign Exhibits 461 1 -9

renders them useless and that the oral evidence of PW82 cannot

cure this defect. This argument is completely misconceived:

The exhibits form part of the Witness Statement of PW82.

The Witness Statement was duly signed by PW82. The

Witness Statement is merely an abridged version of the

contents of the exhibits. It is trite law that exhibits attached

to documents form part of the document. See …..

PW82 rightly declared under examination –in- chief as well

as cross examination that the exhibits were prepared by

262

him. The authorship of the said exhibits was never in

dispute.

34.28 The provision of Section 91(4) of the Evidence Act is most relevant

here:

“For the purposes of this section, a statement in a

document shall not be deemed to have been made by a

person unless the document or the material par t thereof

was written, made or produced by him with his own

hand, or was signed or initialed by him or otherwise

recognized by him in writing as one for the accuracy of

which he is responsible .” (Emphasis ours)

34.29 The import of this provision is that where a document is

acknowledged in writing by a person, such document is deemed

to have been made by such person. Though the exhibits in

question are unsigned, PW82 has formally acknowledged in his

Witness Statement that the exhibits were prepared by him. T his

puts paid to the entire question. The Supreme Court in Ordia v.

Piedmont (Nig) Ltd (1995) 2 NWLR (Pt. 379) 516 at 528

considered the admissibility of a document which was tendered

by a person who did not sign the document. The document was

signed by another official of the company. The Court held, per

Iguh, JSC at page 535:

“In the first place, Exhibit P1, on the unchallenged

evidence before the trial court, was prepared by PW1. It

was therefore a document, the accuracy for which he was

responsible. Although it was signed by his managing

director and not by himself, it is in law a document made

by the witness. See section 90(4) of the Evidence Act [now

91(4)].”

34.30 The purport of the case is quite clear. The mere fact that a person

tendering a document did not sign the document does not make

the document inadmissible if the person tendering it

acknowledges responsibility for making the document.

263

The law is that where a document is not inadmissible per se

but is only admissible subject to certain conditi ons, the

admission of such a document without objection constitutes

a waiver of the conditions to which its admissibility is

subject. This was the position taken by the Supreme Court

in A.G Oyo State v. Fairlakes Hotels (No.2) [1989] 5 NWLR

(Pt.121) 255 . The exhibits are ordinarily admissible. Had the

Respondents intended to object to their admissibility, such

objection should have been raised at the time the exhibits

were to be tendered. Not having raised any such objection,

it is too late in the day for the Respondents to raise such

objection at this stage.

Payment of Expert Fees

34.31 The Respondents have also observed in their summary of

evidence that PW82‟s fees for the job were paid by the Petitioners

through the late Adrian Forty. This is, no doubt, m eant to cast

doubts on PW82‟s testimony and independence. However, it is

our contention that the payment of an expert‟s fees by a party is

not proof of the expert‟s partiality or incompetence. It is not

enough reason for a court to reject an expert opinion .

34.32 The Court of Appeal has taken this position in Ize-Iyamu v.

Alonge (2007) 6 NWLR (Pt. 1029) 84 where it was held that the

fact that an expert is paid by the person who procured his service

is immaterial. We deem it pertinent to quote the decision of the

court on the point at page 115 where the court held as follows:

“In resolving this point, it is worthy to note the provisions

of S. 91(3) of the Evidence Act which provides as follows: -

(3) Nothing in this section shall render admissible as

evidence any statement made by a person interested at a

time when proceedings were pending or anticipated

involving a dispute as to any fact which the statement

might tend to establish”.

264

In other words, by virtue of section 91(3) of the Evidence

Act, Cap. 112, Laws of the Federation of Nigeria, 1990, any

statement made by a person interested at a time when

proceedings were pending or anticipated involving a

dispute as to any fact which the statement might tend to

establish is inadmissible. See Salako v. Williams (1 998) 11

NWLR (Pt. 574) 505. However, as rightly submitted by

respondent‟s counsel, expert evidence is treated as an

exception to section 91(3) of the Evidence Act. In Apena v.

Aiyetobe supra it was held that a surveyor or any expert in

his field of knowledge who makes a statement in any form

in respect of a matter in court at any stage of the

proceedings is generally regarded as a person who has no

temptation to depart from the truth as he sees it from his

professional expertise. The submission of appellant s

counsel on this issue is not tenable as there is no evidence

to support the conclusion that DW2 as handwriting analyst

made the report to favour the respondents because they

paid him. There must be real likelihood of bias before a

person making a statement can be said to be a “person

interested” within the meaning of section 91(3) of the

Evidence Act”.

34.33 In the same vein, we respectfully submit that the fact that PW82

was allegedly paid by the Petitioners is irrelevant to the veracity

of his testimony.

RW62 Babatunde Lateef Adeleke

35.1 This witness was called by the 1 s t to 3 rd Respondents purportedly

to rebut the testimony of PW81 but as has been seen herein and in

the subsequent evaluation of the evidence and report of RW62,

the evidence of RW2 can never be said to be a rebuttal evidence

to that of PW81. In his evidence-in-chief claimed that he was

engaged to critically examine all relevant electoral documents

used in the conduct of the gubernatorial election of 14 th April,

265

2007 in Osun State as wel l as scrutinize the claim or reports of

PW82 in order to confirm the correctness or otherwise of the

evidence of PW82. He claimed that he also visited “INEC office,

Osogbo on diverse dates in furtherance” of his instructions. He

claimed that he perused and analyzed relevant electoral materials

during the conduct of the gubernatorial election on 1 4th April,

2007 as well as the reports of PW82. He claimed that himself and

his colleague examined the said relevant electoral materials in the

“ten (10) disputed Local Government Areas”.

35.2 He claimed that the findings of PW82 are not correct. He claimed

that it is not true that there were 5099 polling units or any

polling units where ballot papers that were found at any such

polling units came from ballot papers not assigned to such

polling units of From EC25A and/or EC40C. He also claimed that

“it is not verifiable or true that there is stuffing of ballot papers

in the disputed local governments/wards/polling unit”.

35.3 This witness is the most unreliable witne ss and his testimony

cannot in any way be said to contradict the expert testimony of

PW82. Contrary to the claim of RW62 in paragraphs 15 and 16 of

his witness statement that he perused, analysed and examined

“relevant electoral materials/documents” but un der cross-

examination, he admitted that he did not examine any ballot

papers and that it was not part of his assignment to examine

ballot papers. For a witness who came to court to seek to give

evidence and opinions on use and misuse of ballot papers, what

more electoral material can be relevant than the ballot papers.

35.4 Also, while RW62 in paragraph 14 of his witness statements

claimed that he visited INEC office on “diverse dates”, admitted

under cross-examination that he visited INEC office only once.

35.5 RW62 in paragraph 21 of his written disposition claimed the

PW82 had made some claims in respect of 5099 units. But when

confronted to point out where PW82 made claims to 5099 polling

units, RW62, had crossed out the last 9 from the 5099 in the

266

witness statement with him in the witness box. But the crossing

out was not initialled and is not reflected in any other copies

before the court and with the parties. This definitely shows that

RW62 lacks all forms of credibility.

35.6 The table 1a is based ent irely on RW62 speculations as the

testimony of PW82 was that he was supplied by INEC with ballot

papers for the polling unit where the serial numbers of those

ballot papers appeared and he discovered that there was

misapplications of ballot papers. The only credible way that the

evidence of PW82 of misapplication of ballot papers can be

contradicted is by bringing the actual ballot papers on unit -by-

unit basis and demonstrate that the ballot papers with serial

numbers as reported by PW82 were not for the po lling unit he

claimed that INEC gave him the ballot papers for but not be

merely making a remark on the table as done by RW62.

35.7 It is submitted that the evidence of RW62 cannot be said to be

rebuttal evidence to that of PW82 because by his own admissio n,

RW62 did not carry out any independent analysis of ballot papers

with a view to making his own findings. RW62 admitted that

what he has done was to offer a critique of the report of PW82.

Assuming without conceding that RW62 could be said to be an

expert in the relevant field, what will be a contradicting evidence

from him will be evidence of analysis of the same materials used

by PW82 but arriving at a opposite or different conclusions.

35.6 Whereas PW82 based his report and findings on ballot papers

supplied to him by INEC on a polling unit -by-polling unit basis,

RW62 by his admission only examined the report of PW82 and

was never given any ballot paper by INEC. Therefore the whole

report and so called findings of RW62 were based on his own

assumptions and speculations.

35.7 It is incredible for the witness to state under cross -examination

that inability to get relevant documents for the ten local

governments in dispute is clearly not an impediment to be able to

267

contradict Pw82‟s evidence. This is becau se according to him he

relied on assumptions and that to be able to nullify the

hypothesis you are required to fault the hypothesis in just one

out of the several possibilit ies. Therefore having not based his

findings on concrete facts and the same kind of materials used by

PW 82, the evidence of RW62 is entirely unreliable, speculative

and cannot in any way be said to contradict the evidence of

PW82.

35.8 Furthermore, even though RW62 claimed not to be a very careless

statistician, he later admitted to some errors in stating figures in

his report. For instance, in the footnote of table 2(b) of exhibit

R27(19), RW62 made a false allegation against PW82 based on his

(RW63) errors in setting out the correct serial numbers of ballot

papers in item 16 of table 2 (b) of exhibit R27(18).

35.9 The witness (RW62) admitted under cross -examination that the

formula to be used in arriving at the quantity of ballot papers

distributed to a unit is by deducting the lower range of serial

number from the upper range. The witness was then led to apply

this formula to the ranges of serial numbers he set out in his table

2(a). For instance, in item 1 on the table, (St Phillips Pry School),

deducting the lower range of 51554301 from the upper range of

51558500 leaves a difference o f 4,200. In item 2 on the table (Isale

Obaala) deducting the lower range of 51560701 from the upper

range 51558101 leaving a difference of 3700. This is against the

claims of RW62 that INEC ballot papers has a limit of 500 and at

the most 1000 leaves.

35.10 Further, in setting out his table 2(a) and 2(b), RW62 merely set

out negligible information. For instance RW62 claimed that his

table 2(a) is extracted from exhibit 186 but he only listed

information for only 11units out of 74 polling units. Further, the

evidence in paragraph 22 of the witness statement is

contradictory. The paragraph reads:

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“That we found that it is not verifiable or true that there

is stuffing of ballot papers in the disputed local

governments/wards/polling units”

35.11 It is submitted that it is contradictory to state that stuffing of

ballot papers is not verifiable and that it is not true that that

there is ballot stuffing. At the best, it would be said that RW62 is

equivocal in his position on existence of stuffing of ballot papers

and as such has not given reliable testimony on this issue.

35.12 By the end of cross-examination, RW62 admitted that many of the

ranges of ballot papers which he extracted from exhibit 186 and

put in table 2(a)contained number of ballot papers that are

„outrageous‟ going by INEC specification. This is clearly an

admission of the whole essence of the evidence of PW82 by RW62,

a witness of the 1 s t to 3 rd Respondents.

LEGAL SUBMISSIONS

Burden and Standard of Proof

36.1 There are two issues to address under th is heading viz:

(1) what is meant by proof beyond reasonable doubt

(2) what is meant by proof on the balance of probability

Proof beyond reasonable doubt

36.2 In Akalezi v State [1993] 2 NWLR Pt. 273 Pg. 1 at 13, the Supreme

Court per Ogwuegbu J.S.C . adopted the following dictum of Lord

Denning in Miller v Minister of Pensions (1947) 2 All ER Pg.

372, where he said,

“Proof beyond reasonable doubt does not mean proof beyond

shadow of doubt. The law would fail to protect the community if

it admitted fanciful possibilities to deflect the course of justice.

If the evidence is so strong against a man as to leave only a

remote possibility in his favour which can be dismissed with the

sentence „of course it is possible, but not in the least probable,‟

the case is proved beyond reasonable doubt but nothing short of

that will suffice.”

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36.3 Further in State v Akpabio [1993] 4 NWLR Pt. 286 Pg. 204 at 224 -

225, Oguntade J.C.A. said,

“For the purpose of my opinion here it is important to

emphasise the import of the words „beyon d reasonable

doubt‟ used in Section 137 (1) of the Evidence Act. A doubt

is a reasonable one when (1) there is evidential basis for it

– and in this connection, I am talking of the evidence

concerned being credible and accepted as true and (2) when

in consequences therefore the mind of the court is thrown

into a state of unsureness or uncertainty as to the true

circumstances in which the crime imputed to the prisoner

occurred and in particular as to whether the suspect had

committed it. It is not every doubt that leads to the

acquittal of an accused. Only „a reasonable doubt‟ borne

out by the evidence can do so. In the sa me way a fanciful

and unreal doubt cannot have that consequence .”

36.4 It has also been held that the doubt being emphasised in the

requirement of proof beyond reasonable doubt is reasonable, not

slightest or fanciful or all doubt; Ezike v Ezeugwu [1992] 4

NWLR (pt 236) 462 at 472-3.

36.5 In GRANVILLE I ABIBO vs. GODWIN TAMUNO & ORS (1999)

4 NWLR [Pt. 599] 334 at 339 Opene JCA, held:

“A proof beyond reasonable doubt has been taken to mean such

a degree of cogency which is consistent with and equivalent to a

high degree of probability. It does not eliminate the possibility

of any doubt whatsoever including remote possibility."

36.6 It is submitted that the evidence of Petitioners‟ witnesses provide

the evidential basis for proof „beyond reasonable doubt‟ as

enunciated in the above cases, particularly when their evidence

was not challenged under cross -examination. In addition, the 1 s t –

3 rd Respondents have not been able, by credible and reliable

evidence, cast „any doubt‟ and/or „reasonable doubt‟ on the

allegations of disruption of election, stuffing of ballot boxes with

illicitly thumb printed ballot papers etc as alleged in the Petition

270

and established by the evidence of PW1-PW66 AND PW71-PW79

and Exhibits 12(A – F), 13(A – E), 14(A – D), 41(A – E), 55(A – D),

56(A – C), 62(A – D), 44(A – C), 45(A – O), 46(A – S), 48(A – D),

72(A –G), 73(A – E), 32(A – H), 33(A – F), 34(A – I), 35(A – O),

38(A – G), 8(A – G), 9(A – G), 10(A – F), 11(A – E), 53(A – H),

57(A – F), 58(A – G), 61(A – J), 74(A – E), 15(A – W), 16(A – P),

17(A – L), 18(A – P), 19(A – N), 20(A – I), 25(A – N), 26(A – Z),

21(A – M), 22(A – M), 23(A – N), 24(A – J), 27(A – V), 29(A – T),

36(A – V), 60(A – X), 71(A – T), 37(A – K), 51(A – L), 52(A – K),

47(A – E), 49(A – F), 50(A – F), 54(A – F), 75(A – H), 77(A – G),

78(A – D), 1(A – E), 2(A – H), 3(A – H), 4(A – G), 5(A – G), 6(A –

G), 39(A – N), 40(A – I), 42(A – E), 43(A – G) and 79(A – H).

36.7 We submit that the Tribunal should hold that the Petitioner have

proved their case beyond all reasonable doubt.

Proof on balance of probability or preponderance of evidence

36.8 The Petitioners pleaded in paragraphs 19.1, 19.3, 23, 24, 2 9(d), 41

and 42(d) and several other paragraphs of the petition and led

evidence, oral and documentary (as well as video evidence) to

show that there were wide spread irregularities contrary to the

provisions of the Electoral Act, 2006 and that the electio n was

vitiated by substantial non-compliance with the mandatory

statutory requirements of the Electoral Act 2006 which non -

compliance substantially affected the validity of the said election

such that none of the candidates in the said elections can be

validly returned as having validly won the elections in the

affected Local Government Areas.

36.9 The Petitioners have also pleaded that elections were not

conclusive and votes were not counted and results were not

recorded in Form EC8A and were not announce d and/or declared

in most polling stations and wards in the 1 0 Local Government

earlier mentioned.

36.10 The position of the law on standard of proof in an election

petition is proof on the balance of probabilities or on the

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preponderance of evidence; Buhari v. Obasanjo [2005] 2NWLR

(pt. 910) 241at 518. See also Omoboriowo v. Ajasin (1984) 1

SCNLR 108. It is humbly submitted that the Petitioners have

been able to prove all the above-mentioned allegations through

their oral and documentary evidence on balan ce of probability.

This is more so, when none of the Respondents led any contrary

evidence to debunk the evidence of the Petitioners‟ witnesses.

The Nature and Cogency of Testimony of the Petitioners‟ Witnesses

37.1 Faced with the cogent and credible testimony of the Petitioners‟

witnesses, the Respondents have deployed some untenable

arguments against the nature of the testimony and the capacity of

the Petitioners‟ witnesses. It will be demonstrated anon that there

is no substance whatsoever in the contentions of the Respondents

against the testimonies of the Petitioners witnesses.

37.2 Section 155 of the Evidence Act provides that everyone is deemed

to be competent, to testify in a court except the court considers

the person unfit to testify as a result of the person‟s inability to

understand the question put to him, or is unable to give rational

answers to them, either as a result of the person‟s tender age or

extreme old age, physical inability of either the body or the mind,

or any other course of the same kind.

37.3 It is submitted that there is no provision in the Electoral Act of

2006 which prevents officers of a political party from testifying

on behalf of a party in an election. Every political party is

entitled to design her party structure in wha tever manner it

pleases. It is further submitted that whether a political party

appoints polling agents, ward agents, monitors or supervisors,

ward collation officers, local government area monitors or

supervisors or collation officers, state supervisors a nd agents, by

whatever name they are called is her own internal business.

37.4 All that the Tribunal should be and ought to be concerned with is

whether the witnesses brought forward have come to give first

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hand evidence of what they saw and or did or did not do- Section

77 of the evidence Act.

37.5 It is submitted that competence to testify in a law court is

determined by the substantive rules of evidence and not the

Electoral Act- Section 1 of the Evidence Act. It is further

submitted that by the combined provisions of Section 77 and 155

of the Evidence Act PW1-PW66 AND PW71-PW79 , are competent

witnesses. Moreso, the evidence that they have given is as regard

what they positively assert as having witnessed directly and

personally- Section 77 of the evidence Act.

37.6 It is submitted that a testimony will only be regarded as hearsay,

where the person making the statement is not the one who either

saw it , heard it, perceived it , nor gave it as his own personal

opinion, but rather as what was said to him by another person;

See Omonga v. State(2006)14 NWLR (pt.1000)532 C.A;

Obinwunne v. Tabansi-Okoye (2006) 8 NWLR(pt.981)1004 C.A.

37.6 Furthermore, the petitioners need not call polling agent as

witnesses. It has long been settled by case law that the number of

witnesses called is not material but whether the evidence is

cogent and compelling thus a party does not need to present a

galaxy of witnesses to prove his case. See OSAZUWA vs. ISIBOR

(2004) 3 NWLR [Pt. 859] 16 at 37. It is submitted that the Supreme

Court decision in MUHAMMED BUHARI & ANOR vs.

OLUSEGUN OBASANJO & ORS (2005) 13 NWLR [Pt. 941] at

page 1 esp. at page 315 para B-D is not authority to say that only

party agents can be called to testify in an election matter.

37.7 It is submitted that by Section 62(1) of the Electoral Act, 2006

aside from voters, the following are entitled to be at the polling

units: candidates, polling agents, poll clerks, persons lawfully

entitled to be admitted and observers. Section 62(1) of the

Electoral Act provides thus:

“The Presiding Officer shall regulate the admission of

voters to the polling station and shall exclude all other

273

persons other than candidates, polling agents, poll clerks

and persons lawfully entitled to be admitted including

accredited observers, and the Presiding Officers shall keep

order and comply with the requirements of this Act at the

polling station.”

37.8 It is further submitted that persons lawfully entitled to be

admitted include party supervisors. Besides the aim of the

provision is to prevent unruly behaviour within the polling unit

or station hence the presiding officer is empowered to remove

anyone who behaves in a disorderly manner. No presiding officer

has testified before this Tribunal that he ordered the removal of

any of the ward supervisors as in PW1-PW66 AND PW71-PW79 as

to render them incompetent to give evidence.

37.9 It is further submitted that the nature of the responsibilities of

PW1-PW66 AND PW71-PW79 as ward supervisors and the fact

that they testified that they moved from one polling unit to

another cannot render their testimony as inadmissible hearsay.

The evidence of PW1-PW66 AND PW71-PW79 is evidence of what

they directly witnessed.

37.10 Furthermore, all the witnesses deposed to the fact that as ward

supervisors their responsibility was to monitor, supervise and

coordinate all the activities of their polling agents in all the units

in their respective wards. They were also to monitor election

results at the ward level during collation and to receive written

reports from their polling agents in the ward after the election.

They further stated that on the day of election they moved

around visiting one unit after the other in the ward under their

supervision in order to discharge their responsibilit ies. They then

proceeded to depose to the facts and violent acts that allegedly

occurred in each of the units they visited.

37.11 It is submitted that the testimonies of the witnesses were not

debunked under cross examination by the Respondents. The

testimony of the witnesses were not seriously challenged by the

274

1s t to 3 rd Respondents who called some witnesses, while the same

testimony should be deemed admitted by the 4 th -1367 th

Respondents who elected not to give evidence .

37.12 It is further submitted that apart from the direct and positive

testimony of the witnesses of the Petitioners, there is also

corroborative evidence in Exhibits 12(A – F), 13(A – E), 14(A – D),

41(A – E), 55(A – D), 56(A – C), 62(A – D), 44(A – C), 45(A – O),

46(A – S), 48(A – D), 72(A –G), 73(A – E), 32(A – H), 33(A – F),

34(A – I) , 35(A – O), 38(A – G), 8(A – G), 9(A – G), 10(A – F), 11(A

– E), 53(A – H), 57(A – F), 58(A – G), 61(A – J) , 74(A – E), 15(A –

W), 16(A – P), 17(A – L), 18(A – P), 19(A – N), 20(A – I), 25(A –

N), 26(A – Z), 21(A – M), 22(A – M), 23(A – N), 24(A – J) , 27(A –

V), 29(A – T), 36(A – V), 60(A – X), 71(A – T), 37(A – K), 51(A –

L), 52(A – K), 47(A – E), 49(A – F), 50(A – F), 54(A – F), 75(A – H),

77(A – G), 78(A – D), 1(A – E), 2(A – H), 3(A – H), 4(A – G), 5(A –

G), 6(A – G), 39(A – N), 40(A – I) , 42(A – E), 43(A – G) and 79(A –

H) which are reports of the Petitioners‟ polling agents submitted

to the Petitioners‟ witnesses in their capacity as Ward

Supervisors.

37.13 All the witnesses testified in the following terms that “ apart from

my personal knowledge of these events when I visited the

polling units in the ward, I also received written reports from

the polling agents in all the polling units in the ward ”… They

then proceeded to tender the reports submitted to them by their

polling agents and marked as Exhibits listed in paragraph 37.12

above.

37.14 In addition many of the witnesses were able to establish in cross

examination that the units are not far apart and they in fact

visited the units several times over.

37.15 The 1 s t to 3 rd Respondents, had argued in paragraph 3.23 that

some of the witnesses have observed exactly the same thing in the

ward and local governments and that this is not supposed to be

the case. It is submitted that the premise of the argument of the

275

1s t to 3 rd Respondents is speculative. Similarly, the argument by

the Respondents that the Petitioners witnesses gave incredible

testimonies is speculative and not supported by the evidence of

these witnesses on the records. It is a matter for evaluation by the

Tribunal whether what the witnesses said they witness ed

happened as has been narrated or not.

37.16 It is submitted that the cases of Ajadi v Ajibola [2004] 16 NWLR

(pt 898) 91 at 201 per Umoren JCA who delivered a concurring

judgment and Esangbedo v The State (1998) 4 NWLR (pt. 113) 57

at 83 do not support the proposition canvassed by the

Respondents in paragraph 3.23 that witnesses cannot give similar

account of similar incidents witnessed by them even though the

similar incidents occurred at different wards an d local

governments. Indeed, what the cases of Ajadi v Ajibola (supra)

and Esangbedo v The State (supra decided) was that the facts

that there are minor variation in accounts by witnesses of a single

event would not be held to be that the evidence of the w itnesses

are contradictory and it was in that context that the

pronouncement quoted by the 1 s t to 3 rd Respondents was made. It

is thus submitted that the 1 s t to 3 r d Respondents deliberately

quoted the passages of the judgment out of context.

37.17 It is also submitted that the submission in paragraphs 3.24 and

3.25 of the Respondents written address that failure by the

Petitioners to call registered voters prevented from voting is fatal

to the case of the Petitioners failed to take into cognisance the

pleadings of the petitioners and the evidence led in support. The

case made out from the pleading and the evidence of the

Petitioners was that even though election commenced in most of

the polling units but that the election were disrupted around

noon or afternoon and that votes were not counted, announced

and recorded on the relevant electoral forms at the polling units

and that the results were not collated and announced at the Ward

276

collation centres. Also, that there were multiple thumb -printing

of ballot papers, among others.

37.18 It is submitted that the Petitioners‟ witnesses, who in the main

are ward supervisors, gave direct, positive and credible

testimony in support of the allegations in the Petition: See per

Ogunbiyi J.C.A in the case of Lasun v. Awoyemi [2009] 16 NWLR

(pt. 1168) 513 at 553 paras. D-H. It is submitted that the cases of

Awuse v Odili [2005] Alll FWLR (pt 261) 248 at 287 and Chime v

Onyia (2009) 2 NWLR (pt 1124) 1 at 42 are not apposite in this

context. Further, the Petitioners have ca lled oral evidence of

PW1-PW66 AND PW71-PW79 who said they were present at all

the relevant polling units in their wards and that the election

were disrupted and that notwithstanding the disruption, results

were declared. These include the evidence of PW67-PW70 who

tendered upon subpoena video evidence of electoral irregularities

and disruption recorded on the election day.

37.19 Further, the Petitioners called PW80, PW81 and PW82 who also

gave evidence in respect of analysis of documentary evidence in

support of the Petition. It is thus submitted that the case of Engr

Ahmed Yusuf & Anor v Danbaba Danfulani Suntai [2010] All

FWLR (pt 502) 1002 at 1032 cited by the Respondents in

paragraph 3.25 is in support of the Petitioners herein.

Furthermore, the Petitioners are entitled to tender relevant

documents and the court can act on such documents - See INEC v

Oshiomole [2009] 4 NWLR (pt 1132) 607 .

37.20 Faced with the compelling testimony of the petitioners‟

witnesses, the 1 s t-3 rd Respondent have argued in paragraphs 5.12

to 5.21 that the evidence of Ward Supervisors are not helpful and

that the Polling agents reports tendered by the Petitioners

witnesses are of no value. The Respondents in the main seek

refuge in what Akintan JSC said in Buhari v Obasanjo (2005) 13

NWLR (Pt.941) 1 at 315 to the effect evidence of persons who

were in the field should have been called.

277

37.21 With respect, the reference to this case is not helpful to the

Respondents for the following reasons:

37.22 In that case, unlike in this case, PW1 and PW2 did not receive any

written report from those at the field. They were giving evidence

on a form given to PW1 and later passed to PW2.

37.23 In the instant case, apart from there being a written report from

persons under him, which he received in the course of his duty,

each of these witnesses also witnessed much of what is contained

in the reports admitted. One paragraph common to the deposition

on oath of each of those witnesses reads:

”apart from my personal knowledge of these events when I

visited the polling units in the ward, I also received

written report from the polling agents….

37.24 This constitutes a very remarkable departure from what

happened in Buhari‟s case.

37.25 As what was tendered by these witnesses who were ward

supervisors were written report and in consideration of their

probative value, these reports have been properly admitted and

ought to be utilized in the light of Section 91(1)(b) & (2) of the

Evidence Act which provides that the condition that the maker of

the statement shall be called as a witness need not be satisfied.

(2) In any civil proceedings the court may at any stage of the

proceedings, if having regard to all the circumstances of the case

it is satisfied that undue delay or expense would otherwise be

caused order that such a statement as is mentioned in subsection

(1) of this section shall be admissible as evidence or may without

any such order having been made admit such statement in

evidence (a) not withstanding that the maker of the statement is

available but is not called as a witness. (underlining mine)

37.26 It is trite that election petitions are sui generis with great

emphasis on speed and avoidance of delay. Indeed, many of the

interlocutory decisions of this Honourable Tribunal have echoed

278

the need for speed or avoidance of delay in election petitions. If

the position of Akintan, JSC in his concurring judgment were to

be interpreted the way Respondents would want us believe, much

absurdity will be the result . First , it will mean that for a single

local government with about 15 wards, each ward having about 5

polling units, about 75 witnesses will be required just to tender

reports.

37.27 In the light of the foregoing authorities, it is clear that the

Respondents have misconceived the position of the law a nd we

urge the Honourable Tribunal to ignore this belated objection to

the reports.

37.28 It is further submitted that, as against the contention of the

Respondents in paragraph 5.12-5.21, the witnesses of the

Petitioners who are Ward Supervisors who gave direct evidence

of what they saw, heard and perceived during the conduct of the

election in line with section 77 of the Evidence Act. It has been

held that Ward Supervisors are competent witnesses to give

evidence in relation to the conduct of an election. Per Ogunbiyi

J.C.A in the case of Lasun v. Awoyemi [2009] 16 NWLR (pt. 1168)

513 at 553 paras. D-H held thus:

“In other words, the tribunal found as a fact that all the

witnesses called by the Petitioner were ward supervisors in

their respective wards. It also went further to specify their

responsibilities which were, to supervise and coordinate all

the activities of the Action Congress polling agents in all

the polling units and monitor election result at the ward

levels during collation, and to receive written reports from

the agents in the wards after election. Having specified and

concluded thus far, it is out of place for the same Tribunal

to find at page 720 that the Electoral Act, 2006, does not

recognize a ward supervisor and has no place for such a

person or office. This I say especially in the light of the

phrase “persons lawfully entitled to be admitted to the

polling station” as provided for by section 62(1) of the

279

Electoral Act, 2006. With the schedule and responsibilities

of the Ward supervisors so specified by the lower Tribunal,

one wonders who else other than such officers, should be

those persons lawfully entitled to be admitted. I hold

therefore that it is totally out of place for the 1 st and 2nd

respondents counsel to submit that the ward supervisors

were illegally present at the various wards indicated. The

use of the word “shall” in section 62(1) of the Electoral Act

is certainly mandatory and the operation which I hold is in

favour of the ward supervisors being lawfully entitled to be

admitted.”

37.29 Also, Per Ogunbiyi in page 554 para A -B further held thus:

“It is totally alien to our law I hold, to say that only

polling agents, presiding officers, polling clerks, voters and

observers that are competent to give evidence of what

happened at a polling unit or collation centre. Any person

can qualify as a competent witness upon satisfying the

conditions laid down in sections 77 and 155 of the Evidence

Act.”

37.30 As matter of fact, the rejection of the evidence of Ward

Supervisors called by the Petitioners that was one of the reasons

for order of retrial by the Court of Appeal in Lasun v. Awoyemi

[2009] 16 NWLR (pt. 1168) 513.

37.31 It is pertinent to note that in making the pronouncement in

Senator Ibikunle Amosun v INEC & Ors, quoted on pages 118 to

189 of the 1 s t to 3 rd Respondents‟ written address, Garba JCA did

not advert his mind to the decision in Lasun v Awoyemi (supra).

However, Ogunwumiju JCA who adverted to the case of Lasun v

Awoyemi (supra) held on pages 16 to 17 of His Lordship

judgment held:

“As to who can give evidence of what transpired at any

polling unit, I think that anyone who satisfies the

requirement of the combined effect of S. 77 and S. 155(1) of

the Evidence Act- that is anyone who witnessed (saw,

280

perceived or heard) the event is qualified to give evidence

during trial, be it in relation of any of the parties, a bye -

stander, voter, party agent, INEC official etc. the Electoral

Act contains no special provisions on evidence and is

therefore governed by the Evidence Act. I cannot agree that

party agents or members of the political party cannot give

evidence of what they saw, or heard. It would be a

ridiculous interpretation of S. 91(3) of the Evidence Act to

exclude witness statements on oath made pursuant to the

Practice Directions simply because they were made by

party members. Excluding them from giving evidence

defeats their purpose at the polling stations and the

collation centres‟. See Lasun v. Awoyemi (2009) 16 NWLR

Pt. 1168 Pg. 513” .

37.32 It is our humble submission that the petitioner‟s witnesses gave

direct oral evidence of what happened during the conduct of the

election and having satisfied the provision of sections 77 and 155

of the Evidence Act, their evidence should be believed. See also

the cases of Contract Resources Nig Ltd vs. Wender (1998) 5

NWLR pt.549 @ 243; Omorinbola II v. Mil. Gov., Ondo State

[1995] 9 NWLR (part 418) 201 at 221 B -C.

37.33 It is also submitted that during cross -examination of the

Petitioner‟s witnesses, additional facts were elicite d which

supported the allegations in the Petition. We submit that these

facts are of equal strength with those averred in the evidence –in-

chief. We refer Your Lordships to the Supreme Court case of Gaji

v. Paye [2003] 8 NWLR (part 823) 583 at 611 A -B (per Tobi, J.S.C.)

where it was held that:

“It is new learning to me that evidence procured from

cross-examination is inadmissible. Evidence procured from

cross-examination is as valid and authentic as evidence

procured from examination-in-chief. Both have the potency

of relevancy and relevancy is the heart of admission in law

of Evidence”

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37.34 The Respondents even conceded in paragraph 5.18 that “a Ward

Supervisor is not disqualified ab initio from giving evidence”.

Having made this concession, the bottom is knocked off the entire

contention of the Respondents and whatever concerns they are

raising are matters of evaluation and ascription of probative

value which is within the province of Your Lordship s‟ judicial

powers.

37.35 It is finally submitted that the testimony of Petitioners‟ witnesses

who are Ward Supervisors were not impeached under cross -

examination. The witnesses stood firm and gave additional facts

that confirms their testimony in examination in chief.

37.36 The Respondents have also argued in paragraph 5.29 that since

the witnesses of the petitioners who gave those gripping account

of violence and hooliganism perpetrated by agents of the 3 rd

Respondent, were mostly members of the 3 rd Petitioner, their

evidence should be dismissed, as some neutra l persons ought to

have been called.

37.37 In pursuit of this curious argument, the petitioners cited Azubia

v Ogunewe(2004) ALL FWLR (Pt. 205) 289 at 301 . Even from the

portion of this case cited by the Respondents, it is apparent that

it is inapplicable in the circumstances of this case. Hear the court

stated in that case:

“Among the neutral people he could have called are the

police and other security officers who were known to have

been posted to monitor the election. The agent, of other

political parties and INEC officials are also among those

who could have been called to give such evidence”

37.38 But this is a case where the petitioners pleaded that the police

and INEC officials thoroughly compromised themselves , apart

from the fact that they were eve n parties to the Petition. The

evidence on record also shows that the police and INEC officials

connived with those who sabotaged the election. It therefore does

not make sense that the Petitioners should call INEC officials and

282

the Police as witnesses as they are not neutral in the instant case.

Indeed INEC and Police that frontloaded witness decided at the

end of the day not to call any evidence and thereby to abandon

their pleadings. In any event, the petitioners‟ witnesses gave

cogent and credible evidence which were not even challenged

under cross-examination.

37.39 More importantly, it is not the law that members of a political

party cannot testify for that political party. The election in

question is guided by the Electoral Act, 2006 and proceedings o f

the Tribunal are regulated by the Electoral Act and Practice

Directions as well as the Evidence Act. There is no where in these

laws where a member of a political party is precluded from

giving evidence for the party. No wonder the Respondents did

not cite any authority!

37.40 Competence to testify in a law court, including the Tribunal is

determined by the substantive rules of evidence. By the combined

provisions of Sections 77 and 155 of the Evidence Act, all the

witnesses are competent to testify.

ON EFFECT OF FAILURE OF INEC TO CALL EVIDENCE IN

REBUTTAL OF ALLEGATIONS OF ELECTORAL IRREGULARITIES

AND NON-COMPLIANCE WITH THE PROVISIONS OF THE

ELECTORAL ACT

38.1 The allegations of irregularities and non compliance with

mandatory provisions and principles of the Electoral Act is a

complaint made against the Commission i.e. 4 th -1365 th

respondents. Rather than the Commission challenging these

allegations they elected not to call any witness in support of the

denials they made in their reply. It is submitted that the legal

consequence is that the commission abandoned the averments in

their reply. Thus, it is the law that were a party fails to call

evidence in support of its case, the court is entitled to resolve the

matter against that party unless there be so me other legal reasons

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to the contrary. See: Ali Lawan v Yama. (2006) 2 EPR Pg.642 @

663, F-G . In the circumstance of this case, there is no legal reason

to hold the contrary.

38.2 It is further submitted that whatever is not denied by a party who

had the opportunity of denying same is deemed admitted and a

trial court is bound to rely and act upon same; NEWBREED ORG.

LTD vs ERHOMONSELE (2006) 5 NWLR (Pt. 974) 499 at 527;

AGBI vs OGBEH (2005) 8 NWLR (Pt.926) 40 . In Leadway

Assurance Co. Ltd v Zeco Nig. Ltd. (2004) 11 NWLR (Pt.884) 316

at 329, the Supreme Court, per Katsina Alu JSC put it this way:

“Where evidence is given by a party to any proceedings was

not challenged by the opposite party who had opportunity

to do so, the court of trial has a duty to act on the

unchallenged evidence before it”

38.3 It is further submitted that by electing not to call any evidence,

the 4 th-1365 th Respondents have abandoned their pleadings with

the attendant consequence that the 4 t h-1365 th Respondents will be

deemed to have accepted the facts of electoral irregularities and

substantial non-compliance with the provision of the electoral

Act adduced by the petitioners. It is further submitted that, in the

circumstances, the burden of proof on the petitioner is minimal.

See HONIKA SAWMILL NIG LTD vs MARY (1990) 5 SCNJ 186

at 195.

38.4 Furthermore, as a matter of law, the burden of proof is not static

but shifts. Section 135-139 of the Evidence Act (supra). The

position of the law is that where an adversary fails to adduce

evidence to put on the other side of the imaginary scale of justice

minimum evidence adduce by the lat ter side would suffice to

prove its case.” Per Mukhtar JSC in NEWBREED ORG. LTD v

ERHOMOSELE (2006) 5 NWLR (Pt. 974) 499 @ 527 paras F -G. See

also BURAMMOH v BAMGBOSE (1989) 3 NWLR (Pt. 109) 352.

38.5 It is further submitted that the effect of not leading evidence in

support of their pleadings is that the 4 th – 1365 t h Respondents as

284

well as the 1366 th and 1367 th Respondents have abandoned their

pleadings thereby leaving the evidence of the Petitioner as

unchallenged, uncontroverted and hence, admitted.

38.6 We submit that failure of the 4 th – 1365 th Respondents as well as

the 1366 th and 1367 th to adduce evidence in support of their

pleadings have far -reaching effect on the Petition. As recently

held by Belgore, J .C.A. in Alhaji Muhammadu Maigari Dingyadi

& Anor. v. Aliyu Magatakarda Wamako [2008] 17 NWLR (pt

1116) 395 at 431 G-H :

“…the tribunal ought to have struck out the 3 rd to 43 rd

Respondents‟ reply having righ tly found that no evidence

was led in respect therefor. If that has been done, the

tribunal would have discovered that the evidence led by

the appellant in respect of the allegation against those

respondents stand unchallenged, uncontradicted and

uncontroverted. In the premise, the tribunal would have

found for the appellants in respect thereof. ”

38.7 The foregoing clearly brings to fore the effect of the failure to

adduce evidence in support of pleadings. We further refer My

Lords to the case of Ajibade v. Mayowa & Anor [1978] NSCC Vol.

11 page 458 at 461 line 10-20 . We also find it pertinent to refer

My lords to the holding of Nnamani, J.S.C. in FCDA v. Naibi

[1990] 3 NWLR (Pt. 138) at 270 at 281 D-F where he held thus:

“I think it is necessary to refer to some well settled and now

trite principles of pleadings in order to resolve this matter.

Pleadings cannot constitute evidence and a defendant who does

not give evidence in support of his pleadings or in challenge of

evidence of the plaintiff is deemed to have accepted the facts

adduced by the plaintiff notwithstanding his general traverse. ”

38.8 We submit that the foregoing clearly establishes the fact that the

4 th – 1365 th Respondents as well as the 1366 th and 1367 th

Respondents admitted all the allegat ions made against them by

the Petitioners as contained in the Petition and adduced in both

oral and documentary evidence.

285

38.9 In paragraphs 19.3, 22, 23, 24, 27.2 of the Petition, the Petitioner

made allegations against INEC (i.e. 4 t h – 1365 th Respondents) to

the effect that the declared results in the said Governorship

election for the ten Local Government Areas of Osun State are

invalid and ought to be cancelled on the ground inter alia that

there were no counting and announcement of result at the polli ng

stations and there were also no collation of ele ction results at the

ward level and that the conduct of the election in the said Wards

was marred by wide spread irregularities . See also paragraphs 32,

34, 35, 38, 39, 41, 42d, 43, 44, 45 46, 47, 48, 49, 50, 51, 52d, 53, 57,

59, 61, 64, 65, 66, 69, 70.6, 71, 89a, 86.3, 87.2, 88.2, 89, 91, 92.1, 95,

96, 97.d, 98, 99, 100, 101, 102, 103, 104, 105d, 106, 107, 108, 109,

110, 111, 112, 115, 116e, 117, 119, 122, 123, 124, 131, 132,133, 135,

136, 137, 139, 140, 141, 142, 143, 145, 146, and 148. Evidence was

led by the Petitioners in support of the allegation .

38.10 It is submitted that all these allegations in the paragraphs

mentioned above were made against INEC (i.e. 4 t h– 1365 th

Respondents) presupposing that e lections were not properly held

in accordance with the provisions of the Electoral Act, 2006 and

consequently, the Petitioner led evidence (both oral and

documentary) in proof of the said allegations mentioned in the

said paragraphs thereby shifting the onus of proof to INEC: Ukpo

v Imoke [2009] 1 NWLR (pt 1121) 90 at 175 . The fact that INEC

failed to adduce evidence in proof of its pleadings (in which they

denied the allegations made against it by the Petitioner)

obviously shows that there is sufficient ba sis for the nullification

of the results for the Ten Local Governments as was done in the

case of Amgbare v. Sylva [2009] 1 NWLR (pt 1121) 1.

38.11 We submit that as not only did the 4 t h – 1365 th Respondents and

the 1366 th and 1367 th not adduce any evidence, the cross

examination of the Petitioner‟s witnesses by the 4 th – 1365 t h

Respondents as well as the 1366 th and 1367 th did not elicit any

evidence in support of the averments in their joint reply. We

286

therefore urge Your Lordships to strike out the replies of the 4 th –

1365 t h Respondents as well as the 1366 th and 1367 th . We refer to

the case of Alhaji Muhammadu Maigari Dingyadi & Anor. v.

Aliyu Magatakarda Wamako (supra) at page 433.

38.12 My Lords, we submit that where Your Lordships strikes out the

4 th – 1365 t h Respondents as well as the 1366 th and 1367 th replies,

the effect would be as stated by Belgore, J.C.A. in Alhaji

Muhammadu Maigari Dingyadi & Anor. v. Aliyu Magatakarda

Wamako (supra) at page 433:

“There ceased to be a contest between the appellants and

the 3 rd to 43 r d respondents before the tribunal, the 3 r d to 43 rd

respondents having admitted the claims of the appellants

as regards the conduct of the elections. This is by operation

of the law. If the appellants are required to prove the

averments relating to the allegation against the conduct of

the election, by the 3 rd to 43 r d respondents, only minimal

proof is required.”

38.13 We humbly urge your lordships to follow the decisions of the

above cases.

Linking the Perpetrators of the Proved Elec toral Malpractices to the

1s t , 2nd and 3 rd Respondents

39.1 The Respondents had argued that the allegations that agents of

the 1 s t , 2nd and 3 rd Respondents were involved in thuggery, ballot

snatching and stuffing had not been proved (See paragraph 5.25

to 5.27 of the Written Address of the 1 s t to 3 rd Respondents). It is

humbly submitted that the contentions of the Respondents are

not in line with the evidence o n the Records. Nearly all the

witnesses called by the 1 s t to 3 rd Respondents were the people

that the Petitioners alleged in the Petition to be members,

chieftains, or stalwarts of the 3 rd Respondent. Almost all these

witnesses admitted under cross -examination that they are

members or chieftain of the 3 rd Respondent. As it turned out, they

gave incredible testimony in an attempt to disprove the

287

allegations (refer to evaluation of the testimony of RW1 -RW60

which leads to an irresistible conclusion that their real activities

on the day of election was to disrupt the elections and engage in

ballot snatching, stuffing and multiple thumb printing.

39.2 It is submitted that the names mentioned by the petitioners‟

witnesses as being the ringleaders of these electoral crimes and

members of the 3rd respondents have not been cleared. Since the

names mentioned are sa id to be known members of the 3rd

respondents, the onus shifted to the respondents to show that

they did not do what the petitioners said they did. It is further

submitted that since the 1st and 2 nd respondents were sponsored

by the 3 rd respondent, the acts of the 3rd respondent and her

agents or members, are the acts of the 1st and 2 n d respondents.

39.3 In paragraph 65 and 66 of their reply the 1 s t- 3 rd Respondent

pleaded as follows:

The respondents deny all the allegation of violence,

intimidation, perpetration of breaches of the Electoral Act made

and set out in the paragraphs of the petition aforesaid.

Further still, the Respondents state that the individuals named

in the paragraphs of the petition aforesaid were neither their

agents not helpers at the election.

39.4 The Respondent never suggested to Petitioners witnesses that any

of the various persons named by the witnesses as chieftains and

members of the 3 rd Respondents were not their members.

39.5 It is further submitted that the argument of the Respondents that

it must be shown that electoral offences were committed by the

candidate or someone sponsored or authorised by him, again

appear to smack of a lack of appreciation of the quantum of

evidence in court over this issue.

39.6 Providing an answer to this argument, we first set out what the

Supreme Court said in Amaechi v INEC (2008) 5 NWLR (Pt.1080)

227 at 317-318 , per Oguntade, JSC:

“Now section 221 of the 1999 Constitution provides:

288

No association, other than a political party shall canvass

for votes for any candidate at any election….

The above provision effectually removes the possibility of

independent candidacy in our elections and places

emphasis and responsibility in elections on political

parties. Without a political party a candidate cann ot

context…. It is only a party that canvasses for votes… in

mundane and colloquial terms, we say that a candidate

has won an election in a particular constituency but in

reality and in consonance with Section 221 of the

Constitution, it is his party that has won the election.”

(underlining mine).

39.7 The import of the foregoing is that the actual entity who contested

the election and must bear emphasis and responsibility for all that

transpired is the political party , the 3 rd Respondent herein.

39.8 In this case, the evidence that violence, brigandage resulting in

acts such as snatching of ballot boxes was great indeed. In some

units, evidence was led to the effect that even though elections

started peacefully they became disrupted by invasion of polling

units and booths by armed thugs and hoodlums of the 3 rd

Respondent. That in this disruption, ensuing chaos, mayhem and

voters‟ intimidation, the hoodlums and thugs engaged in other

malpractices such as ballot box snatching, ill icit thumb printing of

ballot papers and so on.

39.9 In their evidence, the witnesses of the petitioners gave a graphic

account of how these offences were committed. Indeed, the

witnesses mentioned the names of the ring leaders of these thugs

adding that they are known members and lea ders of the PDP and

in some instances stating the public or party office they currently

occupy. In appropriate cases, these witnesses gave the registration

numbers of the buses in which these thugs were conveyed.

39.10 Weighed beside the Supreme Court posi tion in Amaechi‟s case

that it is the political party that has the emphasis and

289

responsibility in elections and seeing that it is this same political

party that has caused the violence through its officers, members

and agents, we submit with respect that t hese acts of violence

were acts of the party that contested the election and they ought

not to benefit from it.

39.11 The party which in any case must always act through its leaders,

officers and members, cannot now wash its hands like Pontius

Pilate off the acts of its agents.

39.12 It is instructive to note that the Respondents did not quite deny

the facts of violence as pleaded by the Petitioners and illustrated

by evidence.

39.13 No wonder therefore that none of the witnesses who captured the

incidences of violence was cross examined on this point. In this

wise, it is too late for the Respondents to chase shadow as the

failure to cross examine these witnesses on these vital issues

amount to acceptance and what is accepted is deemed proved. See

Gaji v Ipaye (2003) 8 NWLR (Pt. 823) 583 at 605.

39.14 We submit that since the 3 rd Respondent sponsored the 1 s t and 2nd

Respondents, the acts of the 3 rd Respondents are the act of the 1 s t

and 2nd Respondents.

39.15 Furthermore there is no merit in the submission that the

Petitioners have not linked the acts of disruption to the 1 s t

Respondent. In this regard, there is unrebutted and

uncontradicted evidence of evidence of PW7, Jonathan Adewunmi.

Part of the evidence-in-chief of the PW7 was that when he got to

Opa Arin unit on the election day, the Governor of Osun State,

Oyinlola, the 1 s t Respondent, came to the unit and carried away

the ballot box for the unit.

39.16 It is submitted that the contention of the Respondents against the

evidence of PW7 lacks merit and is totally unsupportatble by the

evidence on the records. For the following reasons: The fact that

PW7 was attacked by PDP cannot be a basis to disbelieve PW7. In

any event PW7 tendered medical report, Exhibit 7 in respect of the

290

injury sustained; there is no requirement in law that such evidence

as that given by PW7 must be corroborated by a polling agent in

the unit where the event occurred. The court can rely on the sole

testimony of a witness on a matter so far as same is credible - see

Ogboru v. Ibori (2007) Vol. 34 WRN 52 at 106 - 107 lines 45 - 15,

(CA).

39.17 Contrary to the claim of the 1 s t to 3 rd Respondent in paragraphs

5.27(3) and 5.27(4), PW7 never, under cross-examination, gave the

testimony ascribed to him in paragraph s 5.27(3) and 5.27(4). The

witness was not asked any question about his evidence -in-chief

while being cross-examined by all the Respondents - See the

Proceedings of 4 August, 2009 . Therefore, although the point

being made by the Respondents on the issue of evidence of PW7

and pleading is not supported by the Records, it is submitted that

it is not the law that oral evidence must tally with pleadings with

mathematical exactitude: See Ejimadu v. Delta· Freeze Ltd. (2007)

13 NWLR (Pt. 1050) 96 C.A.

39.18 The issue of remembering the actual year of call or the name of

Director General of the Nigerian Law School is absolutely

irrelevant to the testimony of PW7 about the conduct of the

election. It may well be that the witness could not immediately

remember. In any event, as your Lordships will see from the

Records, none of the Respondents challenged the evidence -in-chief

of PW7 under cross-examination. The evidence is thus

uncontradicted and ought to be accepted: See lze-Iyamu v. Alonge

(2007) 6 NWLR (Pt. 1029) 84 C.A.

39.19 In Omman v. Ekpe (2000) 1 NWLR (Pt 641) P. 365 at 372 p aras, G –

A , it was held that evidence which is not contradicted by positive

testimony and is not inherently improbable or unreasonable

cannot be arbitrarily or capriciously discredited, disregarded,

despised, rejected, even though in the particular case the witness

is a party or an interested witness and unless such evidence is

shown to be untrustworthy, it is taken as conclusive and binding

291

on the court or at least it is entitled to and should ordinarily be

accorded substantial weight.

39.20 It is too late for the Respondents to chase shadow as the failure to

cross examine PW7 on the vital issue of involvement of the 1 s t

Respondent in the disruption of the election amount to acceptance

and what is accepted is deemed proved. See Gaji v Ipaye (2003) 8

NWLR (Pt. 823) 583 at 605.

The Issue of Non-Tendering of Stuffed Ballot Boxes

40.1 It is submitted that there is no merit in the submission of the 1 s t to

3 rd Respondents in paragraph 5.28 of their written address tha t

failure to tender the stuffed ballot boxes is fatal to the case of the

Petitioners.

40.2 It is submitted that the submission failed to take into cognisance

the totality of the pleadings and evidence of the Petitioners that

the stuffed ballot papers were carried away by the thugs led by

members and chieftains of the 3 rd Respondent. In view of these

pleadings and evidence where did the Respondents want the

Petitioners to find the already snatched ballot boxes.

40.3 It is also submitted that the case of Buhari v Obasanjo [2005] 12

NWLR (pt 941) 1 does not affect the case of the Petitioners here as

in that case what the Supreme Court held was that it was wrong

for the Tribunal to have held that ballot boxes containing ballot

papers were tendered before it whereas same was not the case.

The Alleged Dumping of Documents on the Tribunal

41.1 It is submitted that there is no merit in the submission of the

Respondents that the Petitioners merely dumped documents on

the Tribunal. Most of the documents tendered by t he Petitioners

were certified true copies of electoral documents obtained by the

Petitioners consequent upon orders of inspection by the Tribunal

and the Petitioners called the evidence of PW81 who relate d in his

evidence and Exhibits 451-460 the electoral documents with the

Petitioners case. PW81 also identified some other electoral

documents already in exhibits before the Tribunal.

292

41.2 Ironically, it is the Respondents that are complain ing about

purported dumping that are also urging your Lordship to

discountenance the evidence of PW81 that amply related the

documents with Petitioners‟ case.

41.3 Aside, the evidence of PW1, the Petitioners also advert to relevant

documentary evidence in cross -examining the Respondents

witnesses and have fully addresses your Lordship on the

relationship of the documentary evidence to the case of the

Petitioners in several palaces in this address. It is submitted that

contrary to the submissions of the Respondents, your Lordships

have the power and are under a duty to eval uate the documentary

evidence tendered once your Lordships have been addressed upon

them.

41.4 It is submitted that contrary to the submissions of the

Respondents, your Lordships have the power and are under a duty

to evaluate the documentary evidence tendered once your

Lordships have been addressed upon them.

41.5 In INEC v Oshiomole [2009] 4 NWLR (pt 1132) 607 at 663 -664, it

was held that once a document is received in evidence, and is so

marked, it becomes an evidence before the court or tribunal and it

has the duty to evaluate the probative value of every evidence

tendered before it.

41.6 In response to a similar argument now canvassed herein by the

Respondents, the Supreme Court in Arabambi v. Advance

Beverages Ind. Ltd. [2005] 19 NWLR (Pt.959) 1 at 29A and 30 H

and 31 A-B, which by some curious coincidence was also handled

by the lead counsel for the 1 s t to 3 rd respondents herein Yusuf Alli,

SAN the Supreme Court emphatically rejected the submission that

documents were just dumped on the court and he ld as follows:

“As for the argument of learned Senior Advocate that

exhibits P1-10 were merely dumped on the court, I fail to

find substance in this argument. It is on record that most

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of the exhibits were admitted in evidence, without

objection……………………………………………………

As for the learned trial Judge privately investigating the

exhibits especially exhibit P10, I cannot see that the

learned trial Judge did any such thing as this is not

reflected in the judgment. I cannot fathom what gave the

learned Senior Advocate the idea, for I sniff some

mischief in that submission, the learned Senior Advocate

with due respect certainly went too far and I don't hesitate

to express the view that he was most unfair on the learned

trial Judge. A trial Judge whilst evaluating evi dence is at

liberty to examine and peruse most carefully documents

and oral evidence before him. That is part of his judicial

function, and if he fails to do so then he is failing in this

duty. In fact, even where necessary, a Judge ought to comb

any crucial evidence before him with the finest tooth

comb to ensure that the credibility and reliability of the

evidence is ascertained and applied towards the just

determination of the case. If doing that is what the

learned senior counsel say is tantamount to pr ivate

investigation, then it is most unfortunate”.

4.17 See also, TOBI JSC decision in Buhari v. INEC (2008) 19 NWLR

(Pt. 1120) 246 at 415 E-F where in answer to a similar contention

as herein raised by the 1 s t to 3 rd respondents held as follows:

“The basic aim of tendering documents in bulk was to

ensure the speedy hearing of election petitions and that is

good because it facilitates the speedy hearing of the

petition. But that does not ipso facto permit the court to

attach probative value to documents th at lack such value.

At the end of the day and the end of the day is the writing

of judgment, the trial Judge will remove the chaff from the

grain by scrupulously examining the documents to see

whether they have the content of probative evidence.”

294

41.18 It is also clear from this passage that just as held in the Arabambi

case (supra) it is still the trial judge that will have to scrupulously

examine the documents allegedly dumped on the court to

determine their probative value. So contrary to the arguments of

the respondents, in election matters documents can be tendered in

bulk to promote speedy hearing.

41.19 It will be recalled that it was even the tribunal during the

tendering of ballot papers that directed that ballot papers be

tendered together on ward basis to promote speedy hearing of the

petition.

41.20 Further, submit, the arguments of the Respondents appear to be

confused and self contradictory because in attacking the evidence

of PW1 they then argued that it is the function of the Tribunal to

evaluate documentary evidence thus that the tribunal should

“refuse the attempt to usurp the functions of this court by the said

same witness” - see page 213 of the 1 s t to 3 rd Respondents‟ Written

Address.

41.21 It is submitted that your Lordships can look at the documentary

evidence and the address of counsel and tables prepared linking

the documentary evidence tendered with the case of the

Petitioners.

41.22 Support for this submission is derived from the illuminating

judgment of Aikawa JCA in Terab v Lawan (1992) 3 NWLR (pt

231), 569 at 592D where it was held:

“But one has to bear in mind the nature of Forms EC8A and

EC8B as exposed in Decree No. 50 of 1991. The two forms

show the polling station, the code number, the ward and

the local government area they r elate to. They are statutory

forms and when tendered give full and conclusive

information needed for a polling unit. A petitioner who

tendered them in proceedings has by so tendering them

given all the necessary evidence which is discoverable

from the forms. Is it reasonable for a tribunal to expect that

295

when a Form EC8A or EC8B is tendered the party tendering

either will have to read the contents of each form to the

court as further evidence? I think not. The forms

themselves carry bold information to the polling units to

which they relate. They can therefore be easily linked with

particular areas and facts pleaded . It is a misapplication of

the principle in Duriminiya v C.O.P. (supra) to expect the

petitioner to come and read afresh to the court the same

evidence already contained in the Exhibits which were

tendered and received without objection. The Tribunal

erred seriously by failing to see that Forms EC8A and EC8B

are statutory forms complete on their own as to their source

and purport and which cannot therefore be equated with

ordinary documentary Exhibits”. (underlining ours)

41.23 See also Ajadi v Ajibola [2004] 16 NWLR (pt 898) 91.

Newspaper Reports

42.1 The Petitioners also tendered Exhibits 93(1-2), the certified true

copy of This Day publication of the 15 th day of April, 2007 .

42.2 Under section 212 of the Evidence Act certified true copies of

public documents may be produced in evidence in proof of the

contents of the public documents or parts of the public

documents of which they purport to be copies.

42.3 Exhibit 93(1-2), the Thisday newspaper report under Osun

election reported as follows:

“No fewer than six persons were yesterday feared dead during the

Governorship and House of Assembly elections in Ila -Orangun,

the headquaters of Ila local government area and ifewara in

Atakumosa West local government area of Osun State.

Also, a nine year old girl identified as Maria Olojede was hit by

a stray bullet shot by some political hoodlums suspected to be

sponsored by the Peoples Democratic Party (PDP) at Ode-Omu in

Ayedaade local government area of the state during the conduct

of the elections.

296

Similarly, no fewer than 20 ballot boxes were snatched away by

some political hoodlums at various locations in the three

senatorial district of the state wh ile three police stations in

Iragbiji, heard quarters of Boripe local government area of the

state were vandalized by political thugs.

The affected areas were Ile Ife, Ikirun, Ijebu Ijesha, Osu, Ifewara

and Ode-Omu where a nine year old girl was allegedly shot by

those described as political thugs who stormed the area on the

directive of some desperate politicians in the state.

Although the elections were peaceful at the commencement of the

exercise, the conduct of the polls turned chaotic as political

thouts allegedly sponsored by the ruling party in the state

invaded some of the polling centres thereby turning the centres to

theatres of violence”

42.4 The tendering and reliance on the certified copies of newspapers

is also covered by paragraph 4(6)(d) of the Practice Direction.

42.5 We urge the Tribunal to hold in the circumstances that the

petitioners have fully established their case as pleaded. See

Ayeni v Dada (1978) 11 NSCC 147 at 159 lines 45 -52; 160 at 1-37

and 38-52.

42.6 The decision of the Supreme Court in the case of Ayeni & Ors v

Dada & Ors (1978) 11 NSCC 147 at pages 156 and 160 clearly

shows that the court can properly attach much weight to such

documents notwithstanding that their makers were not called as

witnesses to be subjected to cross-examination.

42.7 It is instructive to produce in extensio the relevant portion of the

leading judgment of Fatai -Williams, JSC (as he then was) to

underscore the point. At page 156 lines 18 -40, the learned Justice

stated as follows:

“…. The court below admitted exhibits F and G in

evidence pursuant to section of the Evidence Act which

provides:

“Any entry in any public or other official book, register or

record, stating a fact in issue or relevant fact and made by

297

a public servant in the discharge of his o fficial duty, or by

any other in performance or a duty specially enjoined by

the law of the country in which such book, register or

records is kept, is itself a relevant fact”

Therefore, the Court of Appeal allowed the appeal and

ordered a retrial before another judge after observing as

follows:

“We agree with the submissions of Alhaji Babalakin that

exhibits F and G taken as a whole constituted „res inter

alios acta” because the contents of those two exhibits were

not made on oath and the makers of them (particularly Mr.

R.A Vosper) were not called as witnesses to be subjected

to cross examination during the trial of the case in hand.

The gist of the maxim „res inter alios acta‟ is that

objection is raised to a piece of evidence as hearsay on the

ground that the particular statement was made or given

without oath and without any opportunity to cross

examine the maker of the statement by the party

prejudicially affected by such hearsay evidence. See

paragraph 647 of Phipson on Evidence, 11 th edition at page

278”

42.8 Then at page 160 lines 29-53, the learned Justice stated thus:

“….. It only remains for us to add, at this juncture, that

the documents (exhibits F and G) were duly certified by

an officer of the National Archives. It seems to us,

therefore, that quite apart from the provisions of Section

38 of the Evidence Act, (Cap. 62), the two documents

(exhibits F and G) are also admissible in evidence as

public records by virtue of the provisions of Section 7 of

the Public Archives Act. We wish to point out, however

that although the two exhibits (F and G) are admissible

under either the Evidence Act of the Public Archives, the

weight to be attached to their contents is another matter.

Nevertheless, it cannot be gain said that the learned trial

298

judge attached much weight to them. Be that as it may,

and bearing in mind the other evidence, both oral and

documentary such as the Federal Surveys map of the area

(exhibit k) and the letter dated 29 th October, 1962 written

by the Olajaoke (the defendant‟s headchief) t o the

Olukoro of Ikoro (the headchief of the Ikoro people)

exhibit N) which were also considered in detail by him, it

seems to us that he was justified in doing so”

42.9 Clearly therefore the Supreme Court held that though the maker

of exhibits 93(1-2) in Ayeni‟s case did not testify, the Judge was

perfectly justified in attaching much weight to their evidence.

42.10 We urge the Honourable Tribunal to be guided by this

authoritative pronouncement of the Supreme Court and attach

weight to the newspaper reports exhibits 93(1-2) admitted

without objection.

TIME ISSUE

43.1 It is also submitted that considering the number of votes

allegedly posted in most of the polling units being challenged by

the Petitioners having regard to the period of the voting and the

average it will take a voter to go through the process of voting,

the results posted in most of the units could not have been

product of legitimate voting.

43.2 INEC manual for election regulation and guidelines stipulates a

voting period starting not earli er than 8 a.m. and terminating not

later than 3 p.m. thus, the maximum voting period of any voting

booth is 7 hours (= 420 minutes.) However, real life constraints

such as the late arrival of election materials, absence of security

personnel, the verificat ion processes for pooling agents and

voters, rowdiness at polling booths and other practical/logistical

limitations make it impossible to vote continuously for 420

minutes without interruptions.

299

43.4 The total number of votes for polling stations was recor ded on

INEC‟s form EC8A (or form EC8B where form EC8A was not

available.) Thus, the average time spent by each voter at a polling

station can easily be calculated by the application of elementary

mathematics – that is to divide 420 minutes by the total num ber

of votes recorded on form EC8A or EC8B. This gives the average

time taken by each voter to cast his/her vote (i.e. time that

elapsed during identification, verification, ballot receipt,

application of indelible ink, ballot thumb -printing and actual

casting of ballot.)

43.5 A careful examination of the total votes cast in many polling

units reveals an average voting time that defies practical

possibility in any election. Five examples are highlighted here to

illustrate that the votes posted could not hav e been products of

lawful votes and a full annexure is attached:

43.6 Example 1: Polling Unit OS02501-006 located at Oyekunle D.C.

Primary School in Oba Ojomu Ward, Okuku, in Odo -Otin Local

Government was where Governor Olagunsoye Oyinlola, the 1 s t

respondent, voted (See item 1 of Exhibit 381(c) , voters register

for the unit). There, a total of 491 votes were recorded as valid on

the form EC8B (Exhibit 216(1)) for the polling unit. With a voting

period of 7 hours (i .e. 420 minutes), the average time for the

voting process by a voter in the unit equals 420 minutes divided

by 491 votes. This amounts to 0.86 minute per voter. In other

words, the average voter in this unit spent 51.32 seconds to

transact the entire voting process! This is existentially

impossible.

43.7 Example 2: Polling Unit OS02501-005 located at the Owode

Market Square, Okuku in Odo-Otin Local Government. Here, the

total number of votes recorded on form EC8 B (Exhibit 216(1))

was 886. Thus, the average time taken per voter at this unit was:

420 minutes divided by 886 voters. This gives 0.47 minute (or

28.44 seconds) per voter.

300

43.8 Example 3: Polling Unit OS0204-002 located in Temidire Model

Primary School, in Ibodi Ward of Atakumosa West Local

Government where Erelu Olusola Obada, the deputy G overnor

and the 2nd Respondent voted (see item 1 of 2 nd pack of Exhibit

366(B). Total voting period =420 minutes (7 hours X 60 minutes).

Total votes recorded on the form EC8A (Exh 129(2) is 961;

average time taken by each voter at this unit is 420 minutes

divided by 959 voters equals 0.44 minute or 26.28 seconds.

43.9 Example 4: Polling Unit OS01101-005 located at the Staff

Quarters, Obafemi Awolowo University, I le -Ife. The total vote

recorded on Exh 98(5) at this unit is 2,371. The average time taken

by each voter at this polling station is 420 minutes divided by

2,371 voters, which equals 0.177 minutes or 10.63 seconds!

43.10 Example 5: Polling Unit OS01303-006 located at the Ooni Girls

Grammar School, Oke-Ogbo, Ilode, in Ife East Local Government.

Here, 1,400 was recorded on the form EC8A as the total valid

votes cast. The average time taken by each voter in this unit is

420 minutes divided by 1,400 voters would be about 0.31 minute

or 18.57 seconds!

43.11 See Annexure TA showing that the average voting t ime in most of

the units turned out to be less than two minutes!

Specific Reference to the Final Written Address of the 4 th to 1364 th

Respondents and 1365 th -1365 t h Respondents

43.12 The Petitioners adopt all the arguments herein in reply to the

final address of the 4 th to 1364 t h Respondents and 1365 th -1365 th

Respondents.

43.13 It is submitted that the issues formulated and addressed by the

4 th to 1364 t h Respondents ought to be discountenanced as being

outside the purview of issues formulated by the Tribu nal.

43.14 On the contention by 1365 th -1365 th Respondents that they are not

necessary parties, we submit that for the 1365 th -1365 th

Respondents to have taken a fresh step into the trial of this

matter, they have by that their action waive their right to

301

complain. More importantly, this is a re -trial of the matter. We

refer to paragraph 49 First Schedule to Electoral Act, 2006 and the

case of Agagu v. Mimiko, (2009) 7 NWLR pt 1140, 342 at page 390

– 393.

43.14 Further, there is evidence on the records link ing them to the

allegations.

ENTITLEMENT OF THE 1ST PETITIONER TO BE DECLARED AS

HAVING BEEN VALIDLY ELECTED AND RETURNED

44.1 What option is open to an election tribunal where a petitioner has

put before it unrebutted evidence of non-compliance?

44.2 The answer to this all important question has been answered by

the Court of Appeal in Ajadi v Ajibola (supra) in the following

words:

“Once an election tribunal finds that there is non -

compliance with the law in respect of election in

certain areas, votes cast in such areas are to be

cancelled” (Emphasis supplied)”

44.3 We submit that from the totality of the evidence before the

Tribunal, 1s t Respondent ought not to have been declared as

having been elected. Thus, it remains to be considered whether

the 1s t Petitioner ought to be declared by the Honourable

Tribunal as having been validly elected.

44.4 It is submitted that the 1 s t Petitioner was elected and ought to

have been returned as having scored the highest number of valid

votes cast on April 14, 2007 gubernatorial election in Osun State

and having satisfied the requirement of the constitution of the

Federal Republic of Nigeria and the Electoral Act.

44.5 The Constitution of the Federal Republic of Nigeria, 1999 in

section 179 stipulates the condition to be met by a candidate

vying for the office of Governor before he can be declared duly

elected as follows:

302

179(2) A candidate for an election to the office of Governor of a

state shall be deemed to have been duly elected where, there

being two or more candidates-

He has the highest number of votes cast at the election and He

has not less than one quarter of all the votes cast in each of at

least two- thirds of all the local government areas in the state.

44.6 In this instant case, it would mean that for the P etitioner to

satisfy this requirement, he must, in addition to scoring the

majority of lawful votes cast also have at least ¼ of the votes cast

in 20 local government areas.

44.7 We will il lustrate the fact that if the returns from these affected

local government areas are cancelled and subtracted from the total

score of each candidate in the election, the 1 s t Petitioner will

emerge as the candidate with the highest number of lawful votes

cast in the election held on April 14, 2007.

44.8 Besides he also scored 1/4 of all the votes cast in each nonetheless

at least 2/3 of the 30 local government areas in Osun state. He

ought therefore to be returned as having been duly elected and

winner of the said election.

44.9 The 1s t to 3 rd Respondents had argued in paragraph 6.10 of their

written address that the prayer of the Petitioners for a

declaration that the 1 s t Petitioner be declared validly elected or

returned is bound to fail because the Petitioner had pleaded

irregularities in Twelve Local Governments out of t he Thirty

Local Governments in the State .

44.10 It is submitted that there is no merit in this submission in view of

the fact that the 1 s t to 3 rd Respondents had admitted in paragraph

3.20 of their written address that even though the petitioners

complained in the petition against conduct of election in 12 Local

Government Areas of Osun State no evidence was adduced in

respect of “the whole of Ede North Local Government” and the

whole of Olaoluwa Local Government”.

303

44.11 The 1 s t to 3 rd Respondents had also rightly argued in paragraph

3.19 of their written address that where no evidence is adduced

in support of averments by a party in its pleadings, petition

inclusive, “such averments are deemed abandoned and

accordingly ought to be discountenanced or struc k out even

without prompting of the parties”. For this proposition, the 1 s t to

3 rd Respondents had relied on the cases of INEC v Action

Congress [2009] 2 NWLR (pt 1126) 524 at 604 and INEC v Action

Congress [2009] All FWLR (pt 480) 732 at 803.

44.12 In view of this submission by the 1 s t to 3 rd Respondents

themselves, it is submitted that it is only ten local governments

that was contested by the Petitioners on the state of evidence

presented by the Petitioners. Thus, the issue of entitlement of the

1s t Petitioner to be declared as validly elected or returned will

have to be determined in the context of nullification of the

unlawful votes in the following ten local governments in respect

of which evidence were led , that is, Atakumosa West Local

Government, Ayadaade Local Government, Boluwaduro Local

Government, Boripe Local Government, Ife Central Local

Government, Ife East Local Government, Ife South Local

Government, Ifedayo Local Government, Isokan Local

Government, and Odo - Otin Local Government.

44.13 In paragraph 17 of the Petition, the Petitioners had pleaded the

particulars of the unlawful votes. Based on this paragraph and in

light of the fact that evidence was led only in respect of ten local

governments, the votes as announced by the 4 t h and 5 th

Respondents as having been scored by the 1 s t Petitioner and the

1s t Respondent in the following ten Local Government Areas as

can be seen from Exhibit 92(1-2) are;

304

S/N on

Exh

92(1)

Local Governments Votes recorded

for the 1 s t

Petitioner

Votes recorded

for the 1s t

Respondent

2 Atakumosa

West

2,489 15,471

3 Aiyedaade 3,096 33,805

5 Boluwaduro 1,784 7,902

6 Boripe 328 14,497

11 Ife Central 4,866 62,257

12 Ife East 13,746 35,574

14 Ife South 5226 16,312

15 Ifedayo 2041 8122

22 Isokan 3249 16,243

25 Odo Otin 5098 43606

Total for the 10 LGs 41,923 253,789

44.14 Thus in the ten local governments in respect of which the

Petitioners led oral and documentary evidence in respect of the

allegations in the Petition, by Exhibit 92(1) , the 1 s t Respondent

was announced as having scored 253,789 votes, while the 1st

Petitioner was announced as having scored 41,923 votes.

44.15 We submit that it is in respect of the said 253,789 votes

announced as having been scored by the 1 s t Respondent and

41,923 votes announced as having been scored by the 1 s t

Petitioner in the ten Local Governments that the Petitioners had

led evidence th at they are not lawful votes and when these

unlawful votes are deducted from the total number of votes

announced as having been scored by the 1 s t Respondent and the

1s t Petitioner on Exhibit 91; that is, the Form EC8E for the

Governorship Election held in Osun State on April 14, 2007, the

position will be as follows:

305

1 s t

Petitioner

1 s t

Respondent

Total Score of Parties

on EC8D (Exhibit

92(1-2)) and EC8E

(Exhibit 91

240,722 426,669

Total Score of Parties

In the Ten Local

Government affected

by evidence of

unlawful votes

41,923 253,789

Difference on

Deduction

198,799 172,880

44.16 Therefore, it is the 1 s t Petitioner and not the 1 s t Respondent that will

have majority of highest lawful votes. Also, as can be seen from (see

pages 306(a) and 306(b) of this Address) , the 1 s t Respondent will only

have ¼ of total votes cast in each of the remaining 20 Local

Government Areas. Therefore the 1 s t Respondent is not qualified to be

returned at all . Rather, it is the 1 s t Petitioner that has ¼ of total votes

cast in each of the remaining 20 Local Government Areas (see pages

306(a) and 306(b) of this Address) which satisfies the requirement

under the Constitution.

44.17 Even where what is cancelled is on the basis of results of all the

affected polling units as recorded on Forms EC8A or EC8B supplied by

the 4 t h Respondent, the 1 s t Petitioner will still have highest lawful

votes as fully set out in Annexure PU1 (which is incorporated into

this Address) nothwithstanding that no Forms EC8A or EC8B were

supplied for many polling units by the 4 t h Respondent and yet Form

EC8D reflected that results were posted for those polling units.

44.18 Aside scoring highest or majority of lawful votes, the position of

the parties in relation to percentages of total votes scored by the

1s t Respondent and the 1 s t Petitioner in the remaining Twenty

306

Local Government based on computation from Exhibit 92(1 -2) is

as follows:

SEE THE NEXT PAGE FOR THE TABLE SHOWING THE

PERCENTAGES OF THE 1ST RESPONDENT AND THE 1ST

PETITIONERS IN THE REMAINING TWENTY LOCAL

GOVERNMENTS

44.19 From this table, it can be seen that the Petitioners have met th e

condition set out in Section 179 of the Constitution.

44.20 It is submitted that your Lordship can rightly rely on the above

chats which contains figures brought out from electoral materials

prepared by INEC and tendered as Exhibits before the Tribunal:

INEC v Oshiomole [2009] 4 NWLR (pt 1132) 6 07 at 684-5; Ngige v

Obi [2006] 14 NWLR (pt 999) 1, 161 and 192.

44.21 Having scored the highest number of the lawful votes cast at the

election and having also scored at least one quarter of the votes

cast in more than 20 out of the 30 local government ar eas, the 1 s t

Petitioner has fulfilled the requirement of section 179(2) of the

constitution and he is entitled to be returned as elected. We

therefore urge the Honourable Tribunal to resolve this issue in

the affirmative and grant the main reliefs of the Petitioners.

Issue 2

Whether from the facts before the Tribunal the Governorship election

held in Osun State on the 14 th day of April, 2007 was vitiated by any

form of irregularities and/or corrupt practices and in the

circumstances warranting ordering a f resh election.

45.1 It is submitted that this issue arises in respect of the alternative

ground of the Petition and the alternative prayer of the

Petitioners. It is further submitted that your Lordships will not

have to determine this issue where Your Lord ships find in favour

of the Petitioners on issue 1 and grant the main prayers of the

Petitioners.

307

45.2 In addressing this issue, the Petitioners adopt the submissions and

evaluation of oral and documentary evidence hereinbefore made

in this written address.

45.3 Petitioners concede that a party who seeks to upturn the return in

election must show that the act complained of affected the results

or that the return would not be the same if the act complained of

did not exist. Be that as it may, it is submitted in view of the

evidence of substantial non-compliance with the provisions of

Electoral Act, 2006, non-counting, non-announcement and non-

recording of results at polling units, wards and local government,

absence of result forms, discrepancies in the quant ity of ballot

papers, widespread irregularities, widespread disruption of

elections, multiple thumb-printing, ballot snatching, the

Petitioners have shown that the non -compliance has substantially

affected the election and substantial enough to invalidate the

elections: See Omoworare v Omisore [2010] 3 NWLR (pt 1180) 58.

45.4 It is further submitted that the Petitioners by the evidence

presented have also showed how the results of the elections have

been affected in ten of the 30 Local Governments of Osun S tate.

45.5 In the very recent case of Omoworare v Omisore [2010] 3 NWLR

(pt 1180) 58, the Court of Appeal considered this issue,

particularly in the context of the decision of the Supreme Court in

Buhari v. Obasanjo (2005) All FWLR (Pt. 273) 1; [2005] 13 NWLR

(pt 941) at 308-309, per Akintan JSC. In Omoworare v Omisore

(supra), the Petitioners had alleged and proved widespread

irregularities, non-compliance with the provisions of Electoral

Act, not stamping of results, disruption of election as has been

done by the Petitioners herein but the Tribunal had held that the

Petitioner had not shown that the results of the election was

substantially affected. In reversing the decision of the Tribunal,

the Court of Appeal held that the Tribunal “ regrettably

misapplied the principle in the case of Buhari v. Obasanjo ”.

45.6 The Court of Appeal held at pages 131-132, per Ogunbiyi JCA :

308

“It is needless to restate but obviously clear that the

principle in Buhari v. Obasanjo (supra) has totally been

misconstrued and wrongfully applied to the case at hand.

In the case under reference for instance, their Lordships

of the apex court clearly and emphatically related to a

situation where there is a mere failure to comply with

minor provisions of the Electoral Act which have no effect

of substantially affect the outcome of the election. The

case at hand with all respect to the learned tribunal

judges, is totally outside the case in reference which had

to do with presidential election and therefore nationwide

and covering a very wide geographical area of application

unlike the case in issue. The considering factor was rather

predicated on the widespread nature of non -compliance,

as well as its effect as to whether it substantially affects

the outcome of the entire election.

By the tribunal relating the case at hand with that of

Buhari v. Obasanjo (supra) is a total misconception of the

interpretation and the understanding of the principle

enunciated in that case. The consequential effect is, it is

ironical, irreconcilable and also incomprehensible

especially having regard to the very fundamental

principle of our legal system predicated on justice and

fairness. This I say because despite the prevalent findings

by the Hon. Tribunal that the nature of malpractices and

non-compliance, with the Electoral Act are numerous, it

could nevertheless shut its eyes only to decide in favour

of all the serious anomalies. This I hold is very

unfortunate. The learned tribunal took and evaluated the

evidence. The findings on the evidence were well within

its powers as court of evidence which this court is neither

seized of nor could question. The tribunal seriously

somersaulted by the decision it took regardless of its

findings.

309

With reference to section 146(1) of the Electoral Act

therefore reproduced supra, can it be said that the election

at hand, in the light of the findings by Hon. Tribunal,

“was conducted substantially in accordance with

principles of the Act and that the non-compliance did not

affect substantially the result of the election?” This

certainly cannot be said of the election in question and

which answer is in the negative”.

45.7 It is thus submitted that there is no substance in the contention of

the Respondents that the Electoral Act has not been substantially

breached in an election in which there is widespread

irregularities, non-compliance with Electoral Act, violence and

mayhem which frustrated the holding of a fair election in at least

10 local government areas.

Conclusion

46.1 It is humbly submitted that from the total law ful votes scored by

the candidates, the 1 s t Petitioner was elected and ought to have

been returned as having scored the highest number of votes cast

in the April 14, 2007 Governorship election in Osun State and

having satisfied the requirements of section 179 of the

Constitution of the Federal Republic of Nigeria and the Electoral

Act, 2006.

46.2 It is without doubt that from the above, this substantial non -

compliance with the mandatory statutory requirement in the 10 of

the Local Governments Areas challenged and proved by the

Petitioners has substantially and adversely affected the conduct

of the election. For this proposition of the law, we refer Your

Lordships to the cases of Oyegun v. Igbinedion [1992] 2 NWLR

(pt. 226) 747; Ebebe v. Ezenduka [1998] 7 NWL R (pt.556) 74;

Ayua v. Adasu [1992] 3 NWLR (pt. 231) 598; Azudibia v.

Ogunewe [2004] FWLR (pt. 205) 289.

310

46.3 It is finally submitted that the Petitioners‟ prayer that the 1 s t

Petitioner was elected and ought to have been returned, having

scored the highest number of votes cast in the Osun State

Governorship Election held on April 14, 2007, and satisfied the

requirements of the Section 179 Constitution of the Federal

Republic of Nigeria, 1999 and the Electoral Act, 2006 be granted

for scoring the majority of lawful votes cast at the April 14, 2007

election and having satisfied the requirements of the Constitution

of the Federal Republic of Nigeria.

46.4 We urge Your Lordships to grant the Petitioners prayer as

follows:

46.4.1 that votes recorded and/or returned in the following

Local Government Areas, namely, Atakumosa West

Local Government, Ayedaade Local Government,

Boluwaduro Local Government, Boripe Local

Government, Ife Central Local Government, Ife East

Local Government, Ife South Local Government,

Ifedayo Local Government, Isokan Local

Government, Odo - Otin Local Government and do

not represent lawful votes cast in the said Local

Government Areas in the Osun State Governorship

election held on 14 April, 2007 and as having been

obtained in vitiating circumstances of substantial non-

compliance with mandatory provisions of Electoral

Act, 2006, violence and malpractices which

substantially affected the validity of the said elections

that none of the candidates in the said elections can

be validly returned as having validly won in the said

affected Local Government Areas.

46.4.2 That the said Prince Olagunsoye Oyinlola was not

duly elected by majority of lawful votes cast in the

Osun State Governorship election held on April 14,

2007 and that his election is void.

311

46.4.3 That Rauf Adesoji Aregbesola was elected and ought

to have been returned having scored the highest

number of votes cast in the Osun State Governorship

Election held on April 14, 2007, and satisfied the

requirements of the Section 179 Constitu tion of the

Federal Republic of Nigeria, 1999 and the Electoral

Act, 2006.

46.4.4 That the 1 s t petitioner be declared validly elected or

returned.

SUMMARY

The summary of the arguments of the petitioners are as follows:

(1) The election in the disputed ten local governments of Osun State

was vitiated by two vices, viz:

(i) non-compliance with various mandatory provisions of the

Electoral Act, 2006 which non-compliance substant ially

affected the results of the election in the ten local

governments

(ii) widespread electoral malpractices manifesting in violence,

ballot snatching, ballot stuffing, hooliganism etc.

(2) The petitioners led satisfactory evidence on a balance of

probabilit ies in respect of the alleged non-compliance while

proof beyond reasonable doubt was established by the

petitioners in regard to the alleged electoral malpractices.

(3) The contention of the respondents that the petition has no valid

ground in support is misconceived and in any case, the

respondents have waived the right to raise any such

contention not having done so as a preliminary issue at the

beginning of the petition before the respondents took any fresh

step in the proceedings.

(4) The failure of the 1 s t respondent to plead in his reply the number

of the petitioners votes he objects to as required by paragraphs

312

12(2) and 15 of the First Schedule to the Electoral Act means that

the results tendered by the petitioners for the election is

unchallenged and uncontroverted.

(5) The failure of the 4 th to 1365 th respondents to give evidence in

support of their pleadings means they have accepted all

allegations of the petitioners touching on non-compliance with

mandatory provisions of the Electoral Act which is the first vice

vitiating the election in the disputed ten local governments and

this without more entitles the petitioners to judgment.

(6) In regard to the second vice having to do with widespread

electoral malpractices raising criminal allegations again st the

respondents, the scanty evidence given by the `1 s t to 3 rd

respondents has not diminished the proof beyond reasonable

doubt established by the witnesses of the petitioners and this also

entitles the petitioners to judgment against all the respondents.

(7) Contrary to the arguments of the respondents, there was no

dumping of documents on the tribunal as the petitioners related

the documents tendered to their case through the witnesses.

Submit further that even if documents were dumped on the

court, which is not conceded, it is now settled by the Supreme

Court that in election petition which is sui generis, it is in order

to tender documents in bulk to facilitate speedy trial. It is the

tribunal that will have to carefully look at such document s to

determine their probative value.

(8) It is now settled by the authority of the Court of Appeal that

ward supervisors are competent witnesses within Section 77 of

the Evidence Act to testify in respect of what they observed

during election.

313

(9) On the whole, with the nullification of the elec tion in the

disputed ten local governments as prayed, the 1 s t petitioner

should be declared winner of the 2007 Gubernatorial election in

Osun State on the ground that in the remaining undisputed

twenty local governments he has the highest number of lawful

votes and satisfies the provision of Section 179(2) of th e 1999

Constitution and ought to have been declared elected and

returned.

(10) In the unlikely event that the tribunal finds agains t the

petitioners on the first issue, then the need to consider and grant

the alternative prayer covered by issue two becomes necessary.

Dated this 12 t h day of April, 2009

______________________

Ebun Sofunde, SAN

Chief Akin Olujinmi, SAN,

Oluwarotimi Akeredolu, SAN

Kola Awodein, SAN

Charles Uwensuyi-Edosomwan, SAN

Professor ‘Yemi Osinbajo, SAN

Deji Sasegbon, SAN

Mutiu B. Ganiyu Esq

Ajibola Basiru Esq

Petitioners’/Applicants’ Counsel,

Address within Jurisdiction:

C/o Wale Afolabi & Co.

20C Ajegunle Street, Osogbo.

314

For Service on:

1 s t – 3 r d Respondents Counsel,

Yusuff Alli, SAN

C/o Kehinde Adesiyan Esq.,

Ola-Ore Shopping Complex,

Opp. Christ African Church Pry. School,

Gbongan Road, Osogbo, Osun State.

The 4 t h to 1365 t h Respondents

C/o Independent National Electoral Commission Headquarters

Osun State, Gbongan/Ibadan Road, Osogbo.

The 1366 t h & 1367 t h Respondents

C/o Ministry of Justice, Osun State,

Osogbo.