The Supreme Court will deliver judgement on four different appeals PDP Candidate, Senator Adeleke lodged to challenge the Court of Appeal verdict that affirmed Governor Oyetola’s victory.
A seven-man panel of justices of the court, led by the Acting Chief Justice of Nigeria, CJN, Justice Ibrahim Muhammad, heard the appeals marked: SC/553/2019; SC/554/2019; SC/555/2019 and SC/556/2019. Adeleke, through his team of lawyers led by Dr. Onyechi Ikpeazu, SAN, is urging the apex court to set-aside the majority judgement the Court of Appeal delivered against him on May 9, and re-validate the tribunal verdict that declared him the winner of the gubernatorial contest that held in Osun state in September 2018.
However, Governor Oyetola, his party, the All Progressives Congress, 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. Olanipekun, however, urged the court to disregard Ikpeazu’s contention that the supplementary election was unnecessary. He argued that Paragraph 44 of INEC Guidelines was not in conflict with the Constitution.
Olanipekun noted that Section 178(4) of the Constitution described the entire state as a constituency for governorship election. “Where elections have not held in the entire state, the appellant cannot contend that he won the election, as against the 2nd respondent (Oyetola), who won the election as conducted across the whole of the state”, Olanipekun added. He urged the court to dismiss the appeals for lacking in merit. Other members of the apex court panel that heard and adjourned the matter for Judgement were Justices Olabode Rhodes-Vivour, Kumai Aka’ahs, Kudirat Kekere-Ekun, Amiru Sanusi, Paul Galunmje and Uwani Abbah-Aji.
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 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 INEC to produce the ballot papers and record of accreditation to disprove allegations in the petition, did not substantially affect result of the election. 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 said he was satisfied that Adeleke and PDP proved all their allegations and that INEC failed to justify the conduct of the supplementary poll. It will be recalled that the tribunal had also in a two-to-one split judgment it delivered on March 22, upheld the petition Adeleke and PDP lodged against the declaration and return of Oyetola as winner. 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.
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. Related