Alex Enumah in Abuja
The Supreme Court by a split decision 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).
The apex court in a majority judgment of 5 to 2 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 in regards of numbers.
The majority decision which was delivered by Justice Bode Rhodes-Vivour, agreed with the lower court that the absence of Justice Peter Obiorah from the proceedings of February 6, who delivered the lead judgment was fatal to the case of the appellants.
Adeleke and the PDP had asked the Supreme Court to set aside the split judgment of the Court of Appeal which upheld the election of Oyetola on the same grounds.
The apex court in the majority decision agreed with the argument by Oyetola’s lawyer, Wole Olanipekun (SAN)that the entire of the majority judgment is a nullity, because it was written and delivered by Justice Obiorah,who was said not to have participated 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 siting on February 6, 2019, Justice Obiorah did not see the two witnesses and was unable to examine their demeanour, 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”, Justice Rhodes-Vivour held.
The Supreme Court said in arriving at its decison, the said that the main issue for consideration was whether Justice Obiorah participated in the February 6 proceedings, adding that it was clear from both parties that Obiorah did not sit on that day.
“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”.
The court also agreed with Olanipekun that the decision of Obiorah to write judgment in a proceedings he did not participate was irregular and inconsistent with the law and made the judgment to run contrary to the provisions of the law.
Apart from Bode Rhodes-Vivour, others who supported the majority judgment are Justices Tanko Mohammad, Kudirat Kekere-Ekun, Amir Sanusi and Uwani Aba-Aji.
However, in their minority judgment delivered by Justice Kummai Akaahs and supported by Justice Paul Galinje, they disagreed with the findings in the majority judgment that Obiorah was absent on February 6, adding that even if the issue was to be legally resolved, the respondents ought to file affidavit to challenge the record of proceedings of February 6.
They further said that the findings of the majority judgment was based on conjecture and a well articulated speculation by relying on certified true copy of the tribunal’s proceedings instead of the original record.
The minority judgment also held that cancelation of election in seven polling units of four local government area of Osun by a returning officer of INEC was illegal, unlawful and unconstitutional, adding that by section 179 of the 1999 constitution, Adeleke who scored highest votes in the main election and fulfilled the section ought to have been declared winner of the election.
“INEC is supposed to be an unbiased umpire, cancelling election by a returning officer is not allowed by law, just like using manual to cancel election is also illegal.”
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 that declared Adeleke as winner of the election of September 22, 2018 Governorship election.
Recall that the Independent National Electoral Commission had declared candidate of the APC, Oyetola winner of the Osun poll after the September 27 rerun.
The electoral umpire through its returning officer, citing hijacking of ballot boxes, malfunctioning of card reader machines and violence amongst others, cancelled election in seven polling units in four local government areas of Osun state and accordingly conducted a rerun wherein Oyetola emerged winner of the Governorship election.
Dissatisfied, Adeleke then approached the election petition tribunal, which also in a split decision of 2 to 1 declared him winner of the election.
However, Oyetola, APC and INEC then approached the appellate court to reverse the decision of the majority judgment of the tribunal on grounds of miscarriage of justice.