Osun guber: Supreme Court upholds Gov Oyetola’s election

Godwin Tsa, Abuja

The Supreme Court in a split judgment of five to two on Friday dismissed the appeal filed by candidate of the Peoples Democratic Party (PDP) in the 2018 Osun governorship election, Ademola Adeleke against the election of Adegboyega Oyetola of the All Progressives Congress (APC).

Five Justices of the apex court in their majority judgment upheld the decision of the Court of Appeal, Abuja which nullified the judgment of the Osun State governorship election petition tribunal on the grounds that the tribunal was not properly constituted with regards to its composition as provided for in section 285 (3) of the 1999 constitution (as altered).

The Acting Chief Justice of Nigeria (ACJN), Justice Tanko Mohammed, Justice Olubode Rhodes-Vivour, Justice Kudirat Kekere-Ekun, Justice Amir Sanusi and Justice Uwani Aba-Aji supported the majority judgment of the court. But Justices ‎Kumai Akaahs and  ‎Paul Galinje dissented by declaring Adeleke as the true winner of the September 2018 poll.

They held that the conclusion that Justice Obiora did not participate in the February 6, 2019 proceedings of the tribunal “was based on conjecture” or at best “a well-articulated speculation”. 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.

They therefore set aside the judgment of the Court of Appeal and declared Adeleke as winner of the election of September 22, 2018 governorship election.

Meanwhile, Justice Olubode Rhodes- Vivour who read the majority judgment of the court agreed with lead counsel to Oyetola, Wole Olanikpekun (SAN) that the absence of Justice Peter Obiorah from the proceedings of February 6, 2019 of the governorship election petition tribunal, but who delivered the lead judgment was fatal to the case of the appellants.

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

In addition, the court held that the entire majority judgment of the tribunal was a nullity, because it was written and delivered by Justice Obiorah, who did not participate in the February 6 proceedings of the tribunal where vital documents relating to the election were tendered and when vital witnesses gave evidence.

Justice Obiorah, according to the Court’s record, they said was absent on February 6, 2019  when the respondents witnesses (RWs) 12 and 13 – Ayoola Soji and Oladejo Kazeem – testified and tendered exhibits, which the tribunal admitted in evidence.

The Supreme Court held that, having not attended the tribunal’s sitting on February 6, 2019, Justice Obiorah did not see the two witnesses and  was unable to examine their demeanor, as required, and therefore, it was unlawful for the judge to have authored a judgment in which he reviewed the evidence given by the witnesses.

“The writing of and or the participation of the Honourable Justice P. C. Obiorah in the writing of the judgment of the lower tribunal of 22nd March 2019 and delivery of same, vitiates the entire judgment. Failure to sit rendered the proceedings a nullity and the judgment suffers a fundamental error and irredeemably affected the competence of the judgment of the tribunal”.

Adeleke, through his team of lawyers led by Dr. Onyechi Ikpeazu, SAN, had urged the apex court to set aside the majority judgement the Court of Appeal delivered against him on May 9, and re-validate the tribunal’s verdict that declared him the winner of the gubernatorial contest that held in Osun state in September 2018.

However, Governor Oyetola, his party, the APC, and the Independent National Electoral Commission, INEC, prayed the apex court to dismiss the four appeals for want of merit.

Oyetola, through his team of lawyers led by Chief Wole Olanipekun, SAN, argued that the appellate court properly evaluated facts and evidence that were adduced by the parties, before it arrived at its majority decision that he was the valid winner of the governorship election.

Counsel to the APC, Chief Akin Olunjimi, SAN, and that of INEC, Yusuf Ali, SAN, equally prayed the apex court to uphold the decision of the Court of Appeal and dismiss Adeleke’s four appeals.

Meantime, Adeleke, in one of his appeals, challenged refusal of the appellate court to void the September 27, 2018, supplementary election that led to Oyetola’s victory, after INEC declared the first election as inconclusive.

Ikpeazu said his client’s contention was that INEC lacked the powers to cancel elections in some polling units and order a re-run, without recourse to provisions of the Electoral Act.

He argued that the supplementary election was unnecessary since his client had clearly won the election and met the constitutional requirement to be declared winner. Ikpeazu therefore prayed the court to set aside paragraph 44 of INEC’s guideline that it relied upon to organise the supplementary poll, saying it was in conflict with the Constitution.