By Bankole Adewale
he Court of Appeal in Abuja Thursday which set aside the March 22 majority judgment of the Osun State Governorship Election Tribunal, which sacked Governor Adegboyega Oyetola, sparked a huge carnival in Osogbo, the state capital.
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 Oyetola’s lawyer, Wole Olanipekun (SAN) in the appeal he filed for the governor.
As it was the case at the Court of Appeal, the three-man panel of the 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. They lost in the four judgments delivered.
Justice Sankey read the lead judgments in the appeals by Oyetola and INEC, with which Justices Abubakar Yahaya, Isaiah Akeju and Bitrus Sanga agreed. 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 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 Justice Obiorah’s absence 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 fisrt 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 the 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 had lapsed.
Justice Saankey said a re-hearing could not be ordered because Section 285(c) of the Constitution 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.
Justice Sankey also upheld the submission of the appellant to the effect that the petition was incompetent as per the reliefs sought there in, 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, the tribunal 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.
“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 order 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 disenfrachisement of the voters in the seven polling units.”
In his dissenting decision, Mbaba dismissed Oyetola’s appeal with N200,000 cost in favour of the PDP and Adeleke.
He disagreed with the majority position that the appellant justified its claim that Justice 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 tribunal’s 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 6th of 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,” Justice Mbaba said.
In dissenting in the appeal by INEC, Justice Mbaba came down heavily on the electoral body, who he said conducted itself in a manner that suggested its intention was dubious.
“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,” Justice Mbaba said in upholding the tribunal’s voiding of the rerun election.
However, excited with the Court of Appeal which affirmed his election as Osun State Governor, Adegboyega Oyetola, said truth has prevailed over falsehood.
The governor said he was convinced by the judgment that “the road to ultimate victory is smooth and unshakable”.
In a statement on his victory, the governor described the appellate tribunal’s ruling as a validation of the mandate freely given to him and the All Progressives Congress (APC) on September 22 and 27, last year.
The statement, signed by his Chief Press Secretary (CPS), Adeniyi Adesina, said: “We give praise to Almighty God for today’s victory at the Court of Appeal sitting in Abuja.
“You spoke with conviction; your voice and choice are clear to the world, and the judiciary, the last hope of the people and arbiter of the truth, has proved to the world that it is always on the side of justice.
“After months of uncertainty and wait in judicial wilderness, truth has finally prevailed over falsehood and the voice of the majority has ultimately gained dominance over the phoney manipulation of an unscrupulous minority.
“This victory has proved to all and sundry that there is a limit to the extent falsehood and propaganda can thrive over truth and the will of the people.
“I would like to thank you all, the good people of The State of Osun, for your robust support and steadfastness throughout the needless periods of political travail and tribulation.
“I am persuaded by your indisputable mandate and the sound judgment of the Court of Appeal that the road to ultimate victory is smooth and unshakable.
“My administration took off on a note of equitable and quality service delivery to you the people. That resolve is on course.
“I urge you all to be peaceful and to go about your legitimate businesses as we revel in this well-deserved victory.”