Ismail Omipidan
Barring any last minute change, the Supreme Court will tomorrow put an end to the about one year legal tussle over who truly won the Osun State governorship election between Mr. Gboyega Oyetola of All Progressives Congress (APC) and Senator Ademola Adeleke of the Peoples Democratic Party (PDP).
The Independent National Electoral Commission (INEC) had declared Oyetola and the APC the winner of the election on the basis of results of the September 22, 2018 main election and the September 27, 2018 supplementary election.
Dissatisfied with INEC’s verdict, the PDP and Adeleke approached the Osun State Governorship Election Petitions Tribunal for redress. In March, two of the three-man panel declared Senator Adeleke as winner of the September 2018 election in the state. The two justices are: Peter Obiorah and Adegboye Gbolagunte.
The tribunal also nullified the Certificate of Return issued to Oyetola and ordered INEC to issue a fresh one to Adeleke.
But the minority judgement, delivered by the tribunal’s Chairman, Justice Ibrahim Sirajo, upheld Oyetola’s election, insisting that he was validly elected.
Expectedly, Oyetola and APC appealed the judgement. Oyetola in his 39-ground notice of appeal, filed on March 26, 2019, by his lead counsel, Chief Wole Olanipekun (SAN), urged the Court of Appeal to nullify the majority judgment, which he argued was “perverse” and “replete with contradictions and not supported by evidence led by the petitioners.”
He however asked the court to uphold parts of the majority judgment where the tribunal held that it lacked jurisdiction to set aside INEC guidelines; that the allegations of over-voting were not proved; that the petitioners did not prove voided votes and other parts of the judgment, where the tribunal agreed with the appellant’s arguments.
Dismissing the majority judgment’s nullification of the September 27, 2018 supplementary election, the appellant stated, “having rightly held that it lacked the jurisdiction to strike out and nullify the approved Guidelines and Regulations for the conduct of the Osun State Governorship Election 2018, made by INEC, the tribunal misdirected itself in law and came to a perverse decision by going ahead to nullify the rerun election.”
He also opined that the majority judgment was a nullity on the basis that it was written by Justice Obiorah “who did not participate in all the proceedings of the tribunal and who was not present when all the witnesses gave evidence.”
By April, the Abuja Division of the Court of Appeal in a four-to-one split decision of its five-man panel, led by Justice Jummai Sankey, nullified the judgment of Osun State Governorship Election Petitions Tribunal, which gave Adeleke victory.
The other three members of panel in support of the majority judgement are: Abubakar Yahaya, Isaiah Akeju, and Bitrus Sanga.
But another member of the panel, Justice George Mbaba, disagreed with the other justices and instead upheld Adeleke’s victory.
Majority judgement, grounds of dismissal
The appeal court nullified Adeleke’s victory on three grounds; one of which was the absence of the author (Justice Obiorah) of the majority judgment of the tribunal at the February 6, 2019 proceedings of the tribunal. The justices held that his absence made the entire proceedings of the tribunal and its judgment, null and void.
It also ruled 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 necessitate the deduction of votes garnered by both the APC and the PDP in the units from the parties’ total scores, insisting that nullifying the September 27, 2018 supplementary election, which was the basis upon which Oyetola was declared winner, is wrong.
“I find and resolve the issue in favour of the appellant and against the 1st and 2nd respondents (Adeleke and PDP). I declare the entire proceedings and the judgment of the Osun State Governorship Election Tribunal a nullity.
“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,” Justice Sankey said.
Also, in her lead judgment in the appeal filed by INEC, Justice Sankey held that the absence of the ballot accounting in the Forms EC8A in the 17 polling units was not “substantial non-compliance and did not substantially affect the results of the election.”
She added that the only appropriate order was for a rerun as provided in Section 140(2) of the Electoral Act and 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,” the justice said.
On his part, Justice Abubakar Yahaya, who rendered the lead judgment on the APC’s appeal, also resolved the issues in favour of the party against the PDP and Adeleke.
The lone voice
Disagreeing with four of his colleagues, Justice George Mbaba held that the allegation that Justice Obiorah did not sit on February 6, 2019, was founded on speculation, insisting that it was at best a “well-articulated speculation by the appellant’s lawyers.”
He further said “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 declared.
Justice Mbaba was also at a loss as to why the governor’s lawyers did not raise the issue of Justice Obiorah’s alleged absence from the said February 6, 2019 proceedings at the tribunal, but chose to raise it for the first time at the appellate court. To this end, he dismissed the appeal and awarded a cost of N200, 000 against Oyetola and his party.
On the APC’s appeal, the justice further held that the appeal was “the same in spirit, content and fact” and that flowing from that there was no reason for him to deviate from the earlier position he held concerning Oyetola’s appeal.
Delivering his verdict on the electoral umpire’s appeal, Justice Mbaba said, “I am happy to be on my own with utmost respect to my Lords. I do not agree with the lead judgment. The tribunal was right to have rejected the doctored certified true copies of the election in 17 polling units as presented by INEC.
“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.
He also opined that the discrepancy in the certified true copies of Forms EC8A, the results of the election and the duplicate copies which were tendered and admitted by the tribunal in respect of the seven polling units (where the supplementary election held) “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,” the justice said.
Adeleke, Oyetola react
Governor Oyetola described the victory at the appellate court as “truth over falsehood.” He spoke through his Chief Press Secretary, Adeniyi Adesina.
“We give praise to Almighty God for today’s victory at the Court of Appeal sitting in Abuja. The victory has validated the mandate you freely gave to us on September 22 and 27, 2018. 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. 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,” the governor said.
On his part, Adeleke said the judgement relied on a “weak technical foundation.”
In a statement personally signed by him, the former representative of Osun West Senatorial District, said “I received with dissatisfaction the judgement of the Court of Appeal on the ruling of the election petition tribunal, which had duly returned me as the validly elected governor of Osun State. I have subsequently instructed my counsel to prepare for an appeal against today’s judgement at the Supreme Court immediately. Today’s judgement relied on weak technical foundation.
“The substantive issue which formed the basis of the lower tribunal judgement was relegated to the background. We are reviewing the full ruling and action has already commenced to appeal the judgement and ensure the eventual retrieval of the stolen mandate.
“We are taking the legal battle further to the topmost court in the land. I am confident the apex court will upturn today’s unsustainable ruling. To all members of PDP in Osun State and my campaign organisation, the struggle is now at the most critical stage. We cannot waiver nor slow down. We must forge ahead in high spirit until final victory is attained,” Adeleke said.
Likely scenario today
From all indications, the apex court will take any of the three options: Order a fresh election, uphold the appeal court’s verdict and insist Oyetola was duly elected or dismiss it and return Adeleke as governor. Whichever way the pendulum swings, the decision of the apex court tomorrow will be the final. But whoever is still not pleased with it, may have to appeal to God and wait till 2022 to test his popularity again.