By Sylvester Thompson/ Aderogba George
The Court of appeal sitting in Abuja has set aside the Governorship Election Petition Tribunal’s judgment which nullified Governor Gboyega Oyetola’s victory in the Osun governorship election.
In three separate appeals filed by Oyetola, the All Progressives Congress and the Independent National Electoral Commission, the appellate court was asked to set aside the 22 March, 2019 judgement of the tribunal which declared Senator Ademola Adeleke as winner.
The Appeal court has now affirmed Oyetola’s election as declared by the Independent National Electoral Commission.
The tribunal in a split judgment on 22 March declared Adeleke as winner of the September 2018 election and ordered the Independent National Electoral Commission to issue him with the certificate of return.
Two of the judges, Justices Obiora and Ayinla Gbolagunte. upheld the petitions filed by the candidate of the Peoples Democratic Party (PDP), Ademola Adeleke and the PDP. However, the Chairman of the tribunal differed from the two and upheld Oyetola’s election.
The tribunal’s majority verdict held that the supplementary election by INEC in seven cancelled units on Sept. 22,2018, was null and void.
The tribunal ruled that the Returning Officer who cancelled the results had no power to do so.
The appeal court judgment also has a dissenter, Justice George Mbaba.
In the majority judgment of four-to-one, delivered by the Chairman of the five-man panel, Justice Jumai Hannatu-Sankey the judges declared that the decision of the tribunal which sacked Oyetola as governor was not valid and consequently set aside the entire proceedings of the tribunal.
The appellate court nullified the majority judgment of the tribunal delivered by Peter Obiora, on the grounds that he relied on the evidence of two witnesses which he did not observe.
Justice Sankey noted that the Court of Appeal ordinarily having set aside the entire proceedings of the tribunal, ought to order a re-trial of the case.
However, she said, the appellate court could not order a re-trial because the 180 days provided by the law for election petition had elapsed.
Justice George Mbaba in a dissenting judgment, dismissed the appeal and upheld the decision of the tribunal.
Justice Mbaba held that Justice Obiora who did not participate in the proceedings of February 6, 2019 was contentious and enough reason to nullify the appeal.
He added that all the members of the panel ought to have been on seat to sign the proceedings of Feb.6, 2019 and subsequently disagreed with the judgment of the other four members.
Mbaba further noted that the issue of sabotage cannot be ruled out as the records were transmitted by court’s registrar.
He consequently dismissed the appeal and upheld the majority decision of the tribunal which sacked Oyetola and returned Adeleke as Governor.
Mbaba however awarded cost of N200,000 against Oyetola.
Another appeal filed by the Independent National Electoral Commission (INEC) was also upheld by the majority of four to one.
In his dissenting judgment, Mbaba came down heavily on the electoral umpire,INEC for its failure to live up to expectation in the conduct of the election.
He held that INEC which did not call any witness at the tribunal or tendered any document surprisingly came to the Appeal Court to file an appeal.
He said the electoral umpire was wrong for saying that Adeleke and PDP cannot challenge the September 27 rerun election on the grounds that they had waived their rights by participating in the said election.
According to Mbaba, no serious party would boycott any rerun election when a final declaration had not been made.
He said INEC acted 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 has done the right thing at the rerun election.
“ When INEC was in the dock, it shied away without filing any argument”, Mbaba said.
On the cancellation of results in 17 polling units, Justice Mbaba held that the cancellation was deliberate because INEC returning Officer has no power to do the cancellation.
“It is the presiding Officer that has the power to cancel results if need be,’’ he said.
Other members of the panel were Justices Abubakar Yahaya, Isaiah Akeju and Bitrus Sanga.
Governor Oyetola, who contested the last governorship election on the platform of the APC, faulted the majority judgment delivered by the tribunal.
The governor in his 39-ground Notice of Appeal filed on March 26, by his team of lawyers, led by Wole Olanipekun, SAN, claimed that the judgment was “perverse, replete with contradictions and not supported by evidence led by the petitioners”.
He therefore asked the appellate court to uphold his appeal, set aside the majority judgment and dismiss the Oct. 16, 2018 petition by PDP and Adeleke.
The governor said his complaint, in the appeal, was against the entire majority judgment, except where the tribunal held that it lacked jurisdiction to set aside INEC Guidelines; that the allegation of over voting was not proved; that the petitioners did not prove voided votes and other parts of the judgment where the tribunal agreed with their arguments.
Oyetola is contending, in his first ground of appeal, that the entire majority judgment was a nullity, because it was written and delivered by Justice Obiora “who did not participate in all the proceedings of the tribunal and who was not present when all the witnesses gave evidence.”
He noted that Justice Obiora was absent on Feb. 6, when the respondents witnesses Ayoola Soji and Oladejo Kazeem – testified and tendered exhibits, which the tribunal admitted in evidence.
The appellant argued that, having not attended the tribunal’s siting on Feb. 6, Justice Obiora could not have seen the two witnesses and was unable to examine their demeanour, as required, and therefore, unlawful for the judge to have authored a judgment in which he reviewed the evidence given by the witnesses.
He said: “The writing of and or the participation of the honourable justice P. C. Obiora in the writing of the judgment of the lower tribunal of March 22, and delivery of same, vitiates the entire judgment.”
Oyetola also argued that the tribunal, in its majority judgment, erred in law and acted without jurisdiction when it accepted the petitioners’ complained of non compliance with the provisions of Electoral Act in relation to the Sept. 22, 2018 governorship election in Osun and on that basis proceeded to nullify the victory of Oyetola and APC.
It was equally the appellant’s contention that the tribunal acted without jurisdiction by basing its decision to uphold the petition and set aside the return of the appellants on the basis of allegation of non-compliance with the Electoral Act, in relation to the Sept. 22 governorship election