Osun Governorship Election And The Burden Of Proof

By ADEBIYI ADEDAPO

In this report, ADEBIYI ADEDAPO looks at the judgement that uphelld the election of Governor Adegboyega Oyetola of Osun State.

Candidate of the People’s Democratic Party (PDP) in the September 2018 governorship election in Osun state, Senator Ademola Adeleke in October 2018 filed a petition against the declaration and return of candidate of the All Progressives Congress (APC) Isiaka Adegboyega Oyetola at the Governorship Election Petition Tribunal, to challenge outcome of the supplementary election held on 27th September 2018.

The supplementary election followed the cancellation of election results from 17 polling units spread across four Local Government Areas of the State during 22nd September governorship election.

A major grouse of the PDP and Adeleke ventilated at the tribunal was that elections in the 17 polling units were cancelled by the State Returning officer instead of the Returning Officers of each of the respective Poling Units, an action the petition claimed was fatal being in contravention of the Electoral Act and thereby rendered its outcome invalid.

The Osun State Governorship Election Petition Tribunal, in a two-to-one split judgment it delivered on March 22, upheld Adeleke’s petition

The Tribunal held that the only presiding officers in polling units where alleged electoral infractions took place, were required by law to cancel the result and report same to ward collation officers.

It held that upon receipt of the complaints, the Collation Officer was mandated by the law to fill Form EC40G and submit to the Local Government Collation Officer who will in turn transfer the information in the Form EC40GI and hand same over to the State Collation Returning Officer.

“We hold that the cancellation was unlawful and ultra-vires of his powers. The cancellation cannot stand, being a product of illegality”, the tribunal held.

Consequently, the Tribunal deducted a total of 2029 votes that was credited to APC in the 17 polling units, as well as a total of 1246 votes that was recorded in favour of the PDP. Sequel to the deductions of the ‘illegal votes’ from both political parties, the panel held that PDP’s Adeleke got a total of 253,777 valid votes, ahead of APC’s Oyetola who it said got 253,476 valid votes in the September 22, poll.

Two of three-member Tribunal, Justice Adeboye Ayinla Gbolagunte and Justice Peter Obiora in their decision nullified the Certificate of Return that was issued to Oyetola by INEC, and ordered INEC to issue a fresh one to Adeleke of the PDP.

Meanwhile, the Chairman of the Tribunal Justice Ibrahim Sirajo dissented on the ground that such a consequential order was not within the powers of the Tribunal.

Justice Sirajo’s sole judgment held that the Tribunal lacked the powers to subtract votes that were declared invalid.

According to Sirajo, the provisions of section 140 of the Electoral Act, only empowered the Tribunal to order a re-run or fresh election where it was established that there was substantial non compliance to the Electoral Act.

Court of Appeal

In a 39-ground notice of appeal filed by their team of lawyers, the APC and Oyetola faulted the judgment delivered by Justices Peter Obiora and Anyinla Gbolagunte on the grounds that it was perverse, replete with contradictions and not supported by evidence led by the petitioners.

APC and Oyetola urged the Court of Appeal to uphold their appeal, set aside the tribunal’s judgment and dismiss the 16th October 2018 petition filed by PDP and Adeleke.

In the lead judgment delivered by Justice Jummai Sankey, the Court of Appeal based its decision on several issues including: that the petition had become incompetent having outlasted the 180 days window allowed by the Constitution for resolving same; failure on the part of the PDP to prove its assertion that the September 27 re-run election in some parts of the State was characterised by irregularities and over-voting or that it was conducted in substantial non-compliance with the Electoral Act; that a member of the Election Petition, Justice Obiora referenced evidence of the proceedings of the tribunal in his lead judgment where he was not physically present to observe the demeanour of the witnesses as required of a trial court; that by cancelling the result the re-run elections in 17 poling units the lower tribunal acted without jurisdiction and in contravention of Section 139(1) of the Electoral Act.

Based on the above, the Court of Appeal, overturned the judgment of the Osun State Governorship Election Tribunal which declared the candidate of the Peoples’ Democratic Party, PDP, Ademola Adeleke as the Governor-Elect of the September 2018 Osun State elections in the place of the candidate declared by the Independent National Electoral Commission, INEC as the winner of the elections: Adegboyega Oyetola of the All Progressives Congress, APC.

In a four to one majority decision, the Court of Appeal resolved twelve of the issues joined with ten in favour of the APC and only two for the PDP to dispose of the appeals cross-appeal marked CA/A/EPT/246/2019, CA/A/EPT/259/19 and CA/A/EPT/295/19.

The Court of Appeal held that the burden was on the petitioners to prove that the State Returning Officer unilaterally cancelled the elections in the 17 polling units without recourse to the Returning Officers of the polling units – a burden that could only be discharged by calling evidence which they failed to do.

Three other justices of the Court of Appeal, Abubakar Yahaya, Isaiah Akeju and Bitrus Sanga agreed with the lead judgment.

But in a dissenting voice, Justice Ita Mbaba, in a minority judgment dismissed the petition and awarded a cost of N200, 000 against Oyetola and APC.

Supreme Court

Dissatisfied with the decision of the Court of Appeal, Adeleke, approached the Supreme Court, seeking a reversal of the decision of the appellate court.

The Supreme Court on 5th July however dismissed the appeal.

A seven-member panel of the Apex Court, led by the acting Chief Justice of Nigeria (CJN) Ibrahim Tanko Muhammad resolved all the appeals in favour of candidate of the All Progressives Congress (APC) Adegboyega Isiaka Oyetola.

The Supreme Court in a majority judgement by five justices as against minority judgment of two justices upheld the decision of the Court of Appeal, Abuja division, which nullified the proceeding of the Tribunal .

According to the lead judgment delivered by Justice Olabode Rhodes-Vivour, Counsel to Adeleke, Onyeachi Ikpeazu (SAN) agreed at the Court of Appeal that Justice Obiora was absent at the proceedings of 6th February, but contradicted himself before the Supreme Court, by saying there was an error on the records of the Court of Appeal.

“Counsel to the appellant, Dr. Onyeachi Ikpeazu (SAN) also held the view that Obiora did not sit, it is in the Supreme Court that Dr. Ikpeazu appeared to be taken the stand that there was conflicts in the record of the Court of Appeal, a counsel should be consistent in stating its case, and should not take one stand at the lower court and summersault during trial, Justice is much more than a game of hide and seek,” Justice Rhodes-Vivour said.

According to him, records before the Court showed that Obiora was not present on the said date, as he signed all the proceedings of the Tribunal, except on 6th February.

“Justice Obiora was not present at the proceedings of 6th February, when testimonies of RW12 and RW13 were taken, it is a fundamental error that is irredeemable for all time.

“Counsel for the appellant ought to have advised his client that failure of Obiora to appear in court on the 6th February and then return to court to give judgment, was a fundamental error which affect the competence of the Tribunal to deliver a judgment. I affirm the majority decision of the Court of Appeal, the majority decision of the Tribunal is a nullity, preliminary objection is overruled and the appeal is dismissed,” Rhodes-Vivour added.

Other justices who agreed with majority decision include the acting CJN, Justice Tanko Mohammad, Justice Kudirat Kekere-Ekun, Justice Amir Sanusi and Justice Uwani Aba-Aji.

However, two members of the panel, Justice Kumai Akkas and Justice Paul Adamu Galinje however disagreed with the judgment.

Both Galinje and Akkas disagreed with the findings in the majority judgment that Obiora was absent on February 6, adding that even if the issue was to be legally resolved, the respondents ought to file affidavit to challenge the record of proceedings of February 6.

Akkas who delivered the minority judgment said that the findings of the majority judgment was based on conjecture and a well articulated speculation by relying on certified true copy of the tribunal’s proceedings instead of the original record.

The minority judgment also held that cancelation of election in seven polling units of four local government area of Osun by a returning officer of INEC was illegal, unlawful and unconstitutional, adding that by section 179 of the 1999 constitution (as amended), Adeleke who scored highest votes in the main election and fulfilled the section ought to have been declared winner of the election.

Akkas said ;”INEC is supposed to be an unbiased umpire, cancelling election by a returning officer is not allowed by law, just like using manual to cancel election is also illegal.

The minority judgment further accused INEC of using inconclusiveness in election to perpetrate fraud and to do what it wants to do even when it is illegal.

Irrespective of the minority judgment, the Apex Court agreed with the argument by Oyetola’s lawyer, Wole Olanipekun (SAN) who argued that the entire of the majority judgment is a nullity, because it was written and delivered by Justice Obiorah,who was said not to have participated in the February 6 proceedings of the tribunal where vital documents relating to the election were tendered and when vital witnesses gave evidence.

Justice Obiora, according to the Court’s record was absent on February 6, 2019 when the respondents witnesses RW 12 and RW 13, Ayoola Soji and Oladejo Kazeem, respectively testified and tendered exhibits, which the tribunal admitted in evidence.

The court also agreed with Olanipekun that the decision of Obiora to write judgment in a proceedings he did not participate was irregular and inconsistent with the law and made the judgment to run contrary to the provisions of the law.