By Ikechukwu Nnochiri
ABUJA – The governorship candidate of the Peoples Democratic Party, PDP, in Osun State, Senator Ademola Adeleke, on Thursday, vowed to approach the Supreme Court to re-validate the tribunal judgment that declared him the winner of the gubernatorial election that held in the state in September 2018.
Adeleke said he was dissatisfied with the majority decision of the Court of Appeal in Abuja, which upheld the election of Governor Adegboyega Oyetola of the All Progressives Congress, APC, after it nullified the judgment of the Osun State Governorship Election Tribunal.
The appellate court had in a four-to-one decision, held that the entire proceedings of the 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.
She upheld the submission of Oyetola’s lead counsel, Chief Wole Olanipekun, SAN, that Adeleke’s petition was incompetent ab-initio, saying it was the tribunal itself that amended it and granted reliefs that were not sought for by the petitioner.
Justice Sankey, having nullified the entire proceedings of the tribunal, however noted that the 180 days that section 285 of the 1999 constitution allowed for hearing of governorship election petition cases, had elapsed.
Consequently, though she declined to give full details of her judgment, in the final analysis, Justice Sankey held that the petition Adeleke’s lodged before the tribunal was incompetent, including all the 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.
However, the court disagreed with Oyetola’s contention that Adeleke’s petition against his election was statute barred.
Out of 12 issues that Justice Sankey highlighted from Oyetola’s appeal marked CA/A/EPT/246/2019, 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.
Meanwhile, though 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 gave Adeleke victory.
Justice Mbaba further awarded N200, 000 cost against Oyetola and the APC.
Giving his reasons, Justice Mbaba maintained that Oyetola and APC’s allegation that Justice Obiora was absent during the proceeding of the tribunal on February 6, was founded on mere speculation and inference.
He noted that from evidence before the court, whereas Justice Obiora’s name appeared on the heading of record of proceeding for that date, the appellants’ conclusion that he was absent was based on the fact that his name did not appear on the signature page.
Justice Mbaba agreed with Adeleke’s lawyer, Dr. Onyechi Ikpeazu, SAN, that such conflict could only be resolved through affidavit evidence.
More so, Justice Mbaba said there was also the possibility that the mix-up was an error from the Secretariat of the tribunal which compiled and transmitted the record of proceeding.
He said the appellate court could have called for the original file from the tribunal, noting that since “intrigues and mischievousness also reign in election related cases, one cannot rule out the unfortunate possibility that the record could have been tampered with”.
Justice Mbaba said he was satisfied that Adeleke and PDP proved all their allegations and that INEC failed to justify the conduct of the supplementary poll.
“In conclusion, I resolve the issues in favour of the 1st and 2nd Respondents. I dismiss the appeal with a cost of N200, 000”.
The same scenario also played out in a second appeal that was lodged by the INEC.
While the other four justices allowed the appeal, Justice Mbaba dismissed it, even as he descended heavily on the electoral body for its failure to live up to expectation in the conduct of the election.
Mbaba noted that INEC which did not call witness at the tribunal or tendered any document, surprising filed the appeal to contend that Adeleke, having participated in the September 27 re-run poll, waived his right to challenge its outcome.
He held that no serious party would boycott any rerun election when a final declaration had not been made, even as he accused INEC of acting dubiously in the rerun election.
“INEC acted dubiously in the way it handled the rerun election. INEC should not have been put in the dock if it had done the right thing at the rerun election and when INEC was in the dock it shied away without filing any argument”.
He noted that INEC deliberately cancelled results in 17 polling units, adding that such action was illegal since the State Returning Officer lacked the power to do so.
“It is the presiding Officer that has the power to cancel results if need be”, Justice Mbaba added.
The panel unanimously dismissed a cross-appeal Adeleke lodged against the minority judgment of the tribunal that gave Oyetola victory, saying it was unnecessary.
Meantime, after the judgment, Adeleke’s lawyer, Mr. Nathan Oke, SAN, said his client would appeal to the Supreme Court.
It will be recalled that the tribunal had in a two-to-one split judgment it delivered on March 22, upheld a petition that Adeleke and the PDP lodged against the declaration and return of Oyetola as winner, based on the outcome of the supplementary governorship election.
INEC had at the end of an initial election it conducted on September 22, cancelled results from seven polling units in four Local Government Areas in the state, and ordered a re-run poll.
However, in the lead verdict that was delivered by Justice Obiora, the tribunal, noted that none of the parties disputed the fact that it was the State Returning Officer that cancelled the initial election
The tribunal held that the State Returning Officer acted beyond the power that was allocated to him under the Electoral Act when he voided results and ordered supplementary election in the affected areas.
“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.
Moreover, the tribunal said the onus was on Presiding Officers in polling units where alleged electoral infractions took place, 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.
The tribunal held that in the absence of evidence that it was Presiding Officers of the seven Polling Units that cancelled the results, the action of the State Returning Officer amounted to an act of illegality.
Maintaining that the petitioners successfully established a case of non compliance in 17 polling units during the initial election of September 22, 2018, the the tribunal, went ahead and deducted votes that were credited to both PDP and APC in those units.
The tribunal went ahead and nullified the Certificate of Return that was issued to Oyetola by INEC, and ordered the issuance of a fresh one to Adeleke.
Though a third member of the panel, Justice Ayinla Gbolagunte concurred with the lead judgment and also declared Adeleke winner of the Osun governorship election, however, Chairman of the tribunal, Justice Ibrahim Sirajo, said he disagreed with the verdict, insisting that the petition lacked merit and ought to be dismissed.
Justice Sirajo held that the tribunal lacked the powers to subtract votes that were declared invalid.
He held that under section 140 of the Electoral Act, the tribunal was only empowered to order a re-run or fresh election where it was established that there was substantial non compliance to the Electoral Act.
Dissatisfied with the majority decision, Oyetola and the APC lodged separate appeals, while Adeleke filed a cross-appeal to challenge the minority verdict.