The Court of Appeal in Abuja on Thursday set aside the March 22, 2019 majority judgment given by the Osun State Governorship Election Tribunal, sacking Governor Adegboyega Oyetola of Osun State.
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The appellate court held, in three judgements delivered on three appeals filed by Oyetola, the All Progressives Congress (APC) and the Independent National Electoral Commission (INEC), that the trial tribunal erred in its majority judgment.
Although one member of the court’s five-man panel dissented on the judgments in the three appeals by Oyetola, APC and INEC, the panel was, however, unanimous in dismissing the cross-appeal by Peoples Democratic Party (PDP) and its candidate in the election held on September 22 and 27, 2018, Senator Ademola Adeleke.
The panel led by Justice Jummai Sankey decided the three appeals (which were substantially similar) mainly on issues raised and argued by lawyer to Oyetola, Wole Olanipekun (SAN) in the appeal he filed for the Governor.
As it was the case at the Court of Appeal on Thursday, the three-man panel of trial tribunal was also divided in two-to-one in its judgment of March 22, 2019, with the majority judgment upholding the petition by the PDP and Adeleke.
It was a harvest of losses for the PDP and Adeleke at the conclusion of proceedings as they lost in the four judgments delivered on Thursday.
Justice Sankey read the lead judgments in the appeals by Oyetola and INEC, with which Justices Abubakar Yahaya, Isaiah Akeju and Bitrus Sanga agreed, while Justice Ita Mbaba dissented.
Justice Yahaya read the lead judgment in the appeal by the APC, with which other members of the panel agreed, except Justice Mbaba, who also dissented.
The last judgment was on the cross-appeal by the PDP and Adeleke, which was read by Justice Akeju, with other members agreeing that the cross-appeal was unmeritorious and deserved to be dismissed.
In upholding the appeal by Oyetola, Justice Sankey, in the lead judgment, resolved 10 of the 12 issues raised for determination, in favour of the Governor.
Justice Sankey, in resolving the first issue, upheld Olanipekun’s argument that the absence of Justice Peter Obiorah (who authored and read the lead majority judgment at the trial tribunal) at the tribunal’s sitting on February 6, 2019, rendered the proceedings of the tribunal and its majority decision a nullity.
She held that Obiorah’s absence on that day implied that the tribunal was not properly constituted to conduct proceedings, which, the judge analysed and relied on in the majority judgment he authored and read.
“I find and resolve the first issue in favour of the appellant and against the 1st and 2nd respondents (PDP and Adeleke)
“I declare the entire proceedings and the judgment of the Osun State Governorship Election Tribunal a nullity. I hereby set aside the entire proceedings including the judgment,” Justice Sankey said.
She noted that having nullified that proceedings of the tribunal and set its judgment aside, the court would have ordered that the petition be re-heard, but for the fact that the 180 days provided in the Constitution, for the hearing of election petition, has lapsed.
Justice Saankey said a re-hearing could not be ordered, because Section 285(c) of the Constitution which provides that an election petition must be heard and determined within 180days from the day of its filing.
She noted that the petition, having been filed before the tribunal on October 16, 2018, the 180 days had lapsed on April 15, 2019.
Justice Sankey also upheld the submission of the appellant to the effect that the petition was incompetent as per the reliefs sought therein, which the appellant had argued, were contradictory and ungrantable.
She faulted the trial tribunal for declaring the rerun election held on September 27, 2018 illegal.
Justice Sankey equally faulted the trial tribunal for holding that the petitioners established substantial non-compliance in 17 polling units in which the tribunal voided election results.
She noted that, having found that the petitioners did not prove over-voting, it ought not to have voided the results from the 17 polling units on the grounds that some portions of the results sheets were not recorded.
Justice Sankey said: “The absence of proper ballot accounting in the Forms EC8A in the 17 polling units is not a substantial non-compliance and did not substantially affect the results of the election.
“The only appropriate other is for a rerun election as provided under section 140(2) of the Electoral Act but not to recompute the results of the election and 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 the voters in the seven polling units.”
In his dissenting decision, Mbaba dismissed the appeal by Oyetola with N200,000 cost in favour of the PDP and Adeleke.
He disagreed with the majority position that the appellant justified its claim that Obiorah was absent from the tribunal’s proceedings of February 6.
Mbaba said: “I think the allegation that Justice Obiorah did not sit on the 6th of February was founded on speculation and a well articulated speculation.”
He said it was curious that, while the record of proceedings at the tribunal showed that he signed after the tribunals’ sitting on February 5 and 7, he did not sign on the 6th.
“It is curious that the record of the day showed that he did not sign on the 6thof February, but he signed on the 5th and the 7th, but curiously did not sign on 6th.
“There are very many inferences to be drawn, one is that the secretariat deliberately did not show that he signed. One cannot rule out the possibility of sabotage in the secretariat of the tribunal,” Mbaba said.
In dissenting in the appeal by INEC, Mbaba came down heavily on the electoral body, who he said conducted itself in manner that suggest its intention was dubious.
He said: “I am happy to be on my own with utmost respect to my Lords. I do not agree with the lead judgment.
“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.
“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,” he said, in upholding the tribunal’s position in voiding the rerun election.
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