OPINION: The Osun Election and Matters arising! —by Kenneth Ikonne SAN

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Sen. Adeleke(m)
24 September 2018 
The legality of the declaration by the State Returning Officer of the Osun State Governorship election as inconclusive, on the ground of the purported cancellation of results of some polling units, will depend on the particular INEC official that cancelled the results. If the cancellation was done by the Returning Officer himself, or even the Resident Electoral Officer, sitting in Osogbo, the State capital, then the cancellation is void, and cannot stand. For neither the Returning Officer, nor the Resident Electoral Officer, has the power to cancel the result of a polling unit.
The power of cancellation has been donated exclusively by the Electoral Act to the Presiding Officer of the Polling Unit. That much has been clear in our electoral jurisprudence since 2008. The LOCUS CLASSICUS on the point is SENATOR DAVID MARK V. ALHAJI ABUBAKAR USMAN (2008) 1 LRECN 435 at 530. In VICTOR NWOKOLO V. HON. DORIS UBOH (2012) LPELR 8019(CA), the Court of Appeal said as follows, relying on MARK V. ABUBAKAR:
“The election having been held in Ika North – East L.G.A. as borne out of the evidence led, it was for the Returning Officer to have declared the result of the election by deciding on the scores of the candidates under section 68(1) of the Electoral Act leaving an aggrieved party with his options under the Act AND NOT FOR HIM TO DECLARE THE ELECTION INCONCLUSIVE. HE HAD NO POWER TO DO SO. His action was therefore ultra vires and void.”
In the recent case of IKPEAZU V. OTTI (2016) LPELR – 40055(SC), the Supreme Court upheld the principle in MARK V. ABUBAKAR  and said as follows:
“…the law has been fairly settled on whose responsibility it is to cancel an election result….the collation officer purported to have cancelled the result of the election…as against…the Presiding Officer at the Polling Unit. This Court did not only hold that the State Returning Officer has no power in law to cancel election results but deprecated his guts to have done so….”
If therefore, as is being suggested, it was the State Returning Officer, acting in concert with the Osun State Resident Electoral Commissioner, that cancelled the results, the cancellation cannot stand, being a nullity,  and thus void. 
However, if the cancellation was done by the respective Presiding Officers of the affected polling units, that would of course be an unimpeachable exercise of the administrative discretion duly donated to Presiding Officers by Law. They are the Chief Executive Officers of their respective polling units, and have been vested by Law with authority to uphold the result in their units, or to cancel them. The only caveat in this regard being that once the Presiding Officer has upheld a result by filling in the Form EC8A and signing same, he becomes FUNCTUS OFFICIO, and can no longer reverse himself through cancellation. In that event, only an Election Petitions Tribunal can order the cancellation of that result. That is the purport of the provisions of sections 63 – 68 of the Electoral Act.
Assuming it was the Presiding Officers of the affected units that cancelled the results, the practical effect of the cancellation would depend on the total number of registered voters in the affected units, and the margin of lead between the score  of the leading candidate, and that of the candidate who came second. The law will in that situation assume that all the registered voters in the affected units would have cast their votes for the trailing candidate. It’s a legal fiction to be executed by the Returning Officer. If after notionally adding the total number of registered voters to the score of the trailing candidate, the trailing candidate is still not able to offset the lead posted by the leading candidate, then the Returning Officer must immediately declare and return the winner, provided that, if it’s a gubernatorial election, the leading candidate has also satisfied the requirements of spread, as is required by section 179 of the Constitution. In that situation, a supplementary or by – election will be a mere academic exercise, without any potentially practical effect on the final result, and will thus not be ordered.
If on the other hand, the total number of registered voters is capable of offsetting the lead when added to the scores of the trailing candidate, no return in that election can be made, and a by – election must be ordered to determine the winner. This is a basic principle of electoral jurisprudence upheld by the courts through the cases. It has now been codified and incorporated into the INEC MANUAL.
In the just concluded Osun State Governorship election, the PDP candidate, Senator Adeleke, led by about 365 votes, whereas the total number of registered voters in the purportedly cancelled units is said to be above 3000, and thus capable of offsetting Adeleke’s lead. But, as I have earlier shown, it would all depend on which official it was that cancelled the results. If the results were cancelled by the Presiding Officers BEFORE declaring them at the Polling units, then the cancellation will stand, and the principle espoused above will apply, and a by – election will inevitably ensue. If however the results were cancelled by the Resident Electoral Commissioner or the Returning Officer, or even by the Presiding Officers after declaring them, then, the cancellation will be void and of no effect, being invalid.
It has been difficult to get clarity from Osogbo as to the true facts. But I’ve done an exposition of the law based on the assumptions I have heretofore outlined.