Alex Enumah in Abuja
A five-member panel of justices of the Supreme Court would today decide who between incumbent Governor of Osun State, Senator Ademola Adeleke and immediate past Governor, Isiaka Oyetola, ought to be in the helms of the government in Osun State.
This is following the decision of the apex court to deliver its judgment in the appeal by Oyetola against the judgment of the Court of Appeal, which affirmed Adeleke as winner of the July 16, 2022, governorship on May 9.
The five-member panel led by Justice John Okoro, fixed the date for judgment after listening to arguments of counsel for and against the appeal.
Besides the appeal by Oyetola, the apex court would also deliver its judgment in a cross appeal by the Independent National Electoral Commission (INEC) against part of the decision of the Court of Appeal.
At yesterday’s proceedings, Mr. Lateef Fagbemi, represented Oyetola and the All Progressives Congress (APC), while Paul Ananaba, represented INEC, Adeleke and the Peoples Democratic Party (PDP) were represented by Chief Onyechi Ikpeazu.
Specifically, Oyetola in his appeal is praying the apex court to set aside the decision of the Abuja Division of the Court of Appeal, which voided the judgment of the Osun State Election Petition Tribunal, which returned him as winner of the November July 16, 2022 governorship election.
INEC had last year declared Adeleke as winner of the election having scored majority of the votes cast in the election, however the tribunal in its split judgment of two-to-one delivered in January, held that Oyetola and not Adeleke won majority of the lawful votes in the election.
According to the chairman of the tribunal, Justice Tertsea Kume, there were incidents of over voting in favour of Adeleke, which when deducted revealed that Oyetola polled 314,921 votes as against the incumbent’s 290,266.
The tribunal accordingly ordered the withdrawal of Certificate of Return issued to Adeleke while a fresh one be issued Oyetola as the duly elected governor.
However, following Adeleke’s appeal in February, the appellate court’s three-man panel in its own judgment by Justice Mohammed Shuaibu voided and set aside the decision of the tribunal on the grounds that the tribunal erred in holding that a case of over voting was established, consequent upon which Adeleke’s votes were deducted.
The judgment of the Court of Appeal setting aside the judgment of the tribunal and affirming Adeleke’s election as governor, prompted the current appeal before the Supreme Court.
The appeal filed on their behalf by their lead counsel, Fagbemi, was marked: SC/ CV/510/2023 and SC/ CV/511/2023.
While the first appeal was in respect of the judgment in Adeleke’s appeal, the second was in respect of their own cross appeal which was dismissed by the appellate court for lacking in merit.
Oyetola and APC in the first appeal dated and filed on April 5, and predicated on 15 grounds amongst others was praying the court to determine whether the appellate court was right, “in declaring as nullity the judgment of the tribunal delivered on January 27 notwithstanding the earlier resolution of the same court that Section 294(1) of the Constitution is inapplicable to a tribunal.”
They also want the court to decide whether the lower court was right in concluding that they did not prove the allegation of over voting in favour of Adeleke.
In the second appeal, the appellants specifically want the apex court to declare that contrary to the judgment of the appellate court, Adeleke was not qualified to contest the governorship election due to alleged certificate forgery; Adeleke was not duly elected by majority of the lawful votes cast at the election; and that Adeleke’s election was invalid by reason of non-compliance with the provisions of the Electoral Act, 2022.
Fagbemi, accordingly urged the Supreme Court to allow the appeal and set aside the judgment of the appellate court which had recognised Adeleke as lawful winner of the July 16, 2022 governorship election in Osun State.
However, INEC in its own cross appeal dated April 19, but filed April 20, is challenging the decision of the appellate court for failing to declare the judgment of the tribunal a nullity on the grounds that the second member of the majority judgment of the tribunal, Chief Magistrate Rabi Bashir failed to “separately express her opinion in writing or deliver any opinion in open court in compliance with the provisions of Section 294 (2) and (3) of the Constitution”.
While Justice B. A. Ogbuli had in the minority judgment dismissed Oyetola’s petition for lacking in evidence on the grounds that the petitioners by documentary and oral evidences failed to prove their allegations against Adeleke’s election, both Kume and Bashir allowed the petition with Bashir signing on the same page of the judgment; a ground which INEC claimed rendered the majority judgment a nullity.
According to INEC’s lead counsel, Prof. Paul Ananaba, a court or tribunal which heard a matter has a constitutional duty to deliver or render a decision in writing after the close of trial and adoption of written addresses of parties.
“We submit that an ex-facie examination of the judgment of the lower tribunal being challenged will reveal that the judgment was not captioned: Judgment delivered by Tertsea Kume and Rabi Bashir but was captioned Judgment delivered by Justice Tertsea Kume and was then merely signed by Bashir, who did not express any opinion either orally or in writing.
“We submit that the judgment of the lower tribunal as constituted, shows that the said judgment is the opinion of the chairman of the tribunal in writing and cannot be a joint judgment as erroneously held by the court below”, INEC stated, adding that the law does not envisage a co-owner judgment because it cannot be known what opinion each member of the tribunal held.
It is therefore INEC’s submission that “the judgment of the trial tribunal amounts to a nullity and where a judgment is a nullity, it cannot be salvaged or be labeled a majority opinion as nothing legal can come from illegality”.
Another issue raised by the electoral umpire upon which it is asking the apex court to dismiss the case of Oyetola is that the Court of Appeal was wrong to have upheld the decision of the tribunal which failed to reject some exhibits tendered in evidence by Oyetola and APC.
The documents included Certified True Copies of Forms EC8As, EC8Bs, EC8Cs, EC8D, EC8E and EC9 of the 3rd cross respondent along with other electoral documents.
