Osun: The Dissenting And Majority of Appeal Court Judgements That Keep Nigerians Talking
May 10, 2019
The Court of Appeal in Abuja, on Thursday, upheld the election of Governor Adegboyega Oyetola of Osun State, even as it nullified the tribunal judgment that declared Ademola Adeleke of the Peoples Democratic Party, PDP, as valid winner of governorship election that held in the state in September,
The appellate court, in a four-to-one decision, held that the entire proceedings of the Osun State Governorship Election Petition Tribunal, including its judgment, amounted to a nullity.
Justice Jummai Sankey who read the lead judgment of the appellate court, said it was wrong for a member of the tribunal panel, Justice Peter Obiora, who did not attend the entire proceedings of the tribunal, to deliver the majority judgment that sacked Oyetola from office.
The court noted that the 180 days allowed by the constitution for hearing of governorship election petition cases had elapsed.
Consequently, though Justice Sankey declined to give full details of her judgment, in her final analysis, she held that the petition Adeleke’s lodged before the tribunal was incompetent, including reliefs he sought therein.
She held that both PDP and its candidate failed to prove their allegation that the September 27 re-run election that led to Oyetola’s emergence, was characterized by irregularities and over-voting.
The court further held that the 1st and 2nd Respondents, Adeleke and PDP, also failed to prove that the re-run election was conducted with substantial noncompliance to the Electoral Act.
It held that the failure of the Independent National Electoral Commission, INEC, to produce the ballot papers and record of accreditation to disprove allegations in the petition, did not substantially affect result of the election.
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.”
However, the court disagreed with Oyetola’s contention that Adeleke’s petition against his election was statues barred.
Out of 12 issues Justice Sankey highlighted, she only resolved two in Adeleke’s favour.
“The appeal succeeds, accordingly, I allow the appeal and set-aside the decision of the Osun State Governorship Election Petition Tribunal.
” I make no order as to cost “, Justice Sankey held.
Three other Justices on the panel, Abubakar Yahaya, , Isaiah Akeju and Bitrus Sanga, agreed with the lead verdict, a fourth member of the panel, Justice Ita Mbaba, disagreed and upheld the tribunal verdict that declared Adeleke as duly elected governor of Osun State in the last Governorship election conducted by INEC.
Read Below the dissenting verdict by Justice Mbaba:
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.
Justice Mbaba thereafter disagreed with the majority judgement of her colleagues by upholding the lower tribunal’s verdict which gave the victory to Mr Adeleke as the authentic winner of last Osun State Governorship election.
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