The Abuja Division of the Court of Appeal on Thursday nullified the judgment of Osun State Governorship Election Petitions Tribunal, which upturned Governor Adegboyega Oyetola’s victory at the September 2018 poll.
By a split decision of two-to-one, the Osun three-man tribunal had in its verdict delivered on March 22, 2019 nullified the election of Oyetola and his party, the All Progressives Congress (APC) and declared Senator Ademola Adeleke as the winner of the poll.
But on Thursday, the Court of Appeal, in a four-to-one split decision of its five-man panel, led by Justice Jummai Sankey, nullified the majority verdict of the tribunal, which gave victory to Adeleke.
The Court of Appeal upheld Oyetola’s victory at the poll in three judgments delivered on separate appeals filed by the governor; his party (the APC); and the Independent National Electoral Commission (INEC), challenging the tribunal’s verdict.
Justice Sankey, along with three other members of the panel, Justices Abubakar Yahaya, Isaiah Akeju, and Bitrus Sanga, adopted the majority judgments on the three appeals, which went in favour of the APC and its candidate.
But a member of the panel, Justice George Mbaba, dissented from the majority judgments on the three appeals.
Justice Mbaba dismissed the three appeals and upheld the majority judgment of the tribunal which declared Adeleke the winner of the Osun State governorship election.
INEC had declared Oyetola and the APC the winner of the Osun State governorship election on the basis of the cumulative results of the September 22, 2018 main election and the September 27, 2018 supplementary poll.
But the PDP and Adeleke filed their petition before the three-man Osun State Governorship Election Petitions Tribunal, contending that they were the true winners of the election.
The tribunal, in its March 22, 2019 split judgment of two-to-one, nullified Oyetola’s victory and declared Adeleke the winner of the election.
The tribunal’s Chairman, Justice Ibrahim Sirajo, in his minority judgment, dissented from the majority judgment credited to Justices Peter Obiorah and Adegboye Gbolagunte.
But the Court of Appeal in its majority judgments on Thursday upturned the majority judgment of the tribunal on three major grounds.
It held that the absence of the author of the majority judgment of the tribunal, Justice Obiorah, during the February 6, 2019 proceedings of the tribunal had rendered the entire proceedings of the tribunal, including its judgment, a nullity.
It also held that the absence of the records of usage of ballot papers and other details on Form EC8A, the result sheets in 17 polling units where the polls were cancelled by the tribunal was not an issue of non-compliance that should warrant the deduction of votes polled by both the APC and the PDP in the units from the parties’ overall scores.
It also held that the tribunal’s decision nullifying the September 27, 2018 rerun was wrong.
Delivering the lead judgment on Oyetola’s appeal, Justice Sankey agreed with Oyetola’s lawyer, Chief Wole Olanipekun (SAN) that due to his non-participation in the February 6, 2019 proceedings, Justice Obiorah, who turned out to be the one who wrote the lead majority judgment, could not have validly reviewed the evidence given during the said proceeding.
She ruled, “I find and resolve the issue in favour of the appellant and against the 1st and 2nd respondents (Oyetola and PDP).
“I declare the entire proceedings and the judgment of the Osun State Governorship Election Tribunal a nullity.”
She went on to resolve 10 out of the 12 issues raised in the appeal in favour of Oyetola and the rest in favour of the PDP and Adeleke.
She ruled, “The appeal of the appellant is allowed. The appeal succeeds. Accordingly, I set aside the judgment of the Osun State Governorship Election Petitions Tribunal in the petition EPT/OS/GOV/1/2018 delivered on March 22, 2019.”
In his dissenting opinion, Justice George Mbaba ruled, “The allegation that Justice Obiorah did not sit on February 6, 2019 is founded on speculation. The allegation is at best a well-articulated speculation by the appellant’s lawyers.
“Certainly, there is something amiss. There are very many inferences to be drawn; one is that the secretariat deliberately did not show he signed.
“One cannot rule out the possibility of sabotage in the secretariat of the tribunal.”
He wondered why Oyetola’s lawyer failed to raise the issue of Justice Obiorah’s alleged absence from the said February 6, 2018 proceedings at the tribunal, but chose to raise it for the first time at the Court of Appeal.
He dismissed the appeal and awarded the cost of N200,000 against Oyetola and his party.
In her lead judgment in the appeal filed by INEC, Justice Sankey ruled, “The absence of the ballot accounting in the Forms EC8A in 17 polling units is not substantial non-compliance and did not substantially affect the results of the election.”
On the allegation of “non-compliance” on which the tribunal anchored its decision, Justice Sankey ruled, “The only appropriate order is for a rerun as provided under Section 140(2) of the Electoral Act but not to re-compute the results of the election and to proceed to declare the 1st respondent or any other person the winner of the election.
“The tribunal was in patent error when it set aside the rerun election. especially when it found that the conduct of the rerun was not marred by malpractices and non-compliance with the Electoral Act, leading to the unwarranted disenfranchisement of voters in the seven polling units.”
Justice Yahaya who read the lead judgment on the APC’s appeal also resolved similar issues in favour of the party and against the PDP and its candidate.
But dissenting, Mbaba said the APC’s appeal was “the same in spirit, content and fact” and as such he had no cause to deviate from the dissenting opinion he offered in respect of Oyetola’s appeal.
On INEC’s appeal, he said, “I am happy to be on my own with utmost respect to my Lords. I do not agree with the lead judgment.”
He held that the tribunal was right to have rejected the doctored certified true copies of the election in 17 polling units as presented by INEC.
He added, “When INEC was called to defend what it did, it refused to show up. INEC shied away and was not forthcoming; but INEC is here appealing against the judgment of the lower tribunal.”
He said the disparity in the certified true copies of Forms EC8A, the results of the election and the duplicate copies tendered and admitted by the tribunal in respect of the seven polling units, “goes to the root of something dangerous INEC was doing.”
He added, “In my view, the cancellation of the results in the 17 polling units was a prelude to declaring the election inclusive. The INEC’s returning officer has no power to cancel the result of the election in a polling unit. It is the presiding officer of the polling unit who has the power to cancel the result in the polling unit and will now send a report to the returning officer for affirmation.” – Punch.
