The Abuja Division of the Court of Appeal has fixed Thursday for judgment on the dispute arising from the September 2018 governorship election in Osun State.
The court, on Wednesday, issued hearing notices for the judgment and had them served on all the parties to the four pending appeals relating to the disputed poll.
A five-man panel led by Justice Jummai Sankey had, on April 24, heard three appeals and a cross-appeal filed in relation to the Osun State governorship election and reserved its judgments on the appeal.
With Justice Sankey presiding, other members of the appeal panel which heard the four appeals were Justices Abubakar Yahaya, George Mbaba, Isaiah Akeju and Bitrus Sanga.
At the hearing on April 24, Governor Adegboyega Oyetola of Osun State, his party, the All Progressives Congress, and the Independent National Electoral Commission urged the court to upturn the March 22, 2019 majority judgment of the state Governorship Election Petition Tribunal, which nullified the governor’s victory at the September 2018 poll.
But the Peoples Democratic Party and its candidate, Senator Ademola Adeleke, who were declared the winner of the election by the tribunal, urged the Court of Appeal to affirm the tribunal’s judgment.
INEC had declared Oyetola and the APC the winner of the Osun State governorship election on the basis of the cumulative results of the September 22, 2018 main election and the September 27, 2018 supplementary poll.
Dissatisfied with the result declared by INEC, the PDP and Adeleke had filed their petition before the three-man Osun State Governorship Election Petition Tribunal, contending that they were the true winner of the election as they had already won after the September 22, 2018 poll and that there was no need for the supplementary election held on September 27, 2018.
The tribunal, in its March 22, 2019 split judgment of two-to-one, nullified Oyetola’s victory and declared Adeleke and the PDP the winner of the election.
The tribunal’s chairman, Justice Ibrahim Sirajo, in his minority judgment, dissented from the majority judgment credited to Justices Peter Obiorah and Adegboye Gbolagunte.
The trio of Oyetola, APC and INEC had filed separate appeals challenging the majority judgment.
Although, in the overall, the majority judgment of the tribunal was in their favour, both Adeleke and PDP had filed a cross-appeal to challenge the aspect of the verdict which held that they failed to prove allegation of over-voting raised in their petition.
At the April 24 hearing, Oyetola’s lawyer, Chief Wole Olanipekun (SAN), urged the Court of Appeal to uphold his client’s case and nullify the majority judgment of the tribunal.
He argued that Justice Obiorah, who wrote the lead majority judgment, was absent from the tribunal’s proceedings of February 6, 2019.
The senior lawyer maintained that Justice Obiorah’s non-signing of the day’s proceedings was sufficient evidence that he was absent from the proceedings.
Citing various Supreme Court judgments to back his argument, Olanipekun said Justice Obiorah’s presence or otherwise “goes to the root of fair hearing.”
He added that contrary to the claim by the counsel for Adeleke and the PDP, there was no conflict in the tribunal’s record, as it was clear from the record that Jusitce Obiorah was absent from the proceedings of February 6, 2019.
He also maintained that the deduction of results said to have been afflicted by non-compliance and the declaration of Adeleke as the winner by the tribunal clearly violated the provision of section 140(2) of the Electoral Act, which, according to him, only empowers an election tribunal to order a re-run when allegation of substantial non-compliance of the Electoral Act is proved.
Responding, the lawyer representing both the PDP and Adeleke, Dr. Onyechi Ikpeazu (SAN), urged the tribunal to dismiss the appeal and uphold the majority judgment of the tribunal.
On the issue of the absence of Justice Obiorah on the February 6, 2019 proceedings of the tribunal, Ikpeazu said there was a conflict in the record of the tribunal given the fact that the list of judges who sat that day contained Justice Obiorah’s name, but only that the judge did not sign the proceedings.
He noted that the appellant ought to have filed an affidavit alleging that the judge was absent from the proceedings and have the same affidavit served on the judge so that he could respond to the allegation.
He said for the Court of Appeal to come to a conclusion that the judge was absent, the judge must be heard first.
He added that in the event that the judge was truly absent at the proceedings during which only two witnesses testified compared to the over 100 witnesses that testified during the entire proceedings, that alone could not amount to a nullification of the totality of the judgment read by the judge.
He also defended the majority judgment’s deduction of the afflicted votes and the tribunal’s declaration of Adeleke the winner on the grounds that the section 140(2) of the Electoral Act cited by Olanipekun had been struck down by Justice Gabriel Kolawole (now of the Court of Appeal) who was then sitting as a judge of the Federal High Court in Abuja.
Arguing the APC’s appeal, the party’s lawyer, Chief Akin Olujinmi (SAN), said the majority judgment was wrong.
He said the petition filed before the tribunal was incompetent as it only sought an order declaring the petitioners winner based on the September 22, 2018 poll with the exclusion of the supplementary poll.
He also faulted the cancellation of results of the September 22, 2018 election in 17 polling units on the grounds of non-compliance with the Electoral Act.
INEC’s lawyer, Yusuf Ali (SAN), also urged the Court of Appeal to set aside the majority judgment on among other grounds that the judgment, in one breath, held that the petitioners failed to prove their allegations of over-voting and non-accreditation of voters, yet in another breath, went on to nullify the election in 17 polling units on the basis of “non-compliance”.
Ali said the petitioners’ witnesses admitted during trial that the non-compliance in the form of failure of the electoral officers to fill some columns on results sheets accounting for accreditation of voters and ballot paper usage in the 17 polling units did not affect the votes recorded for the various parties in the polling units.
In his responses to Olujinmi and Ali, Ikpeazu maintained that his clients, having “satisfied the constitutional threshold after the September 22, 2018 election, there was no reason why INEC should not have declared them the winner”.
Mr. Kehinde Ogunwumiju (SAN), argued Adeleke and PDP’s cross-appeal, which was also opposed by the individual lawyers representing Oyetola, APC and INEC.