Osun State Governor Adegboyega Oyetola and the All Progressives Congress (APC) have appealed the Tribunal’s judgment which nullified their victory. ERIC IKHILAE examines the grounds.
It was a divided house on March 22 when the three-man panel of the Osun State Governorship Election Tribunal disagreed on how to resolve the dispute over the September 22, 2018 inconclusive election. The poll was concluded with a rerun on September 27, 2018 by the Independent National Electoral Commission (INEC).
Two members upheld the petition filed against the election; its chairman dismissed it for being unmeritorious.
The majority upheld the petition of the Peoples Democratic Party (PDP) and its candidate Senator Ademola Adeleke.
Justices Peter Obiorah and Adegboye Gbolagunte gave the majority decision, which replaced Oyetola and APC with Adeleke and PDP as winners of the election, on two main grounds.
The first, according to Justices Obiorah and Gbolagunte, was that the petitioners established irregularities to prove substantial non-compliance with Electoral Act in 17 out of the 3010 polling units in which election was conducted in the state.
They proceeded to cancel the results from the 17 polling units, deducted the cancelled results from the scores of the APC and PDP and declared Adeleke the eventual winner.
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The second reason for upholding the petition, both judges said, was that the petitioners proved that the Returning Officer, who cancelled the election in seven polling units (in four Local Governments where the rerun election held on September 27, 2018), lacked such powers to cancel election and order a rerun.
They proceeded to void the rerun election, deducted votes from the 17 polling units, which they had cancelled from both parties’ scores and declared Adeleke and PDP winners.
But in his dissenting judgment/minority decision, tribunal Chairman, Justice Muhammad Sirajo held otherwise.
He dismissed the petition by Adeleke and PDP on the grounds that the petitioners failed to prove their claims.
Oyetola and the APC, on March 26 and 27, lodged separate notices of appeal before the Court of Appeal in Abuja.
On March 26, Wole Olanipekun (SAN) led a team of lawyers to file Oyetola’s 39-ground notice of appeal, while Akin Olujinmi (SAN), on March 27, led the legal team of the APC to file the party’s notice of appeal of 25 grounds.
The appeal grounds
The appellants, in their notices of appeal, ripped the majority judgment apart, insisting that “it is perverse, replete with contradictions and against the weight of evidence.”
They are praying the Court of Appeal to uphold their appeals, set aside the majority judgment and dismiss the October 16, 2018 petition by Adeleke and the PDP.
Oyetola and the APC said they were contesting the entire majority judgment, except where it held that it lacked jurisdiction to set aside the INEC Guidelines used for the election; that the allegation of over voting was not proved; that the petitioners did not prove voided votes, and other parts of the judgment where it agreed with their arguments.
They queried the validity of the judgment, which was authored and delivered by Justice Obiorah, who they noted, did not participate in all the sittings of the tribunal during trial.
The appellants are of the view that the entire of the majority judgment is a nullity, because it was written and delivered by Justice Obiorah “who did not participate in all the proceedings of the tribunal and who was not present when all the witnesses gave evidence.”
They noted that Justice Obiorah 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 appellants are contending 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.
In the notice of appeal filed by Olanipekun, it was contended that: “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.”
Oyetola and the APC faulted the decision of the tribunal, in the majority judgment, to declare the rerun election unlawful and proceeded to set it aside.
They also faulted the tribunal’s finding that the respondents did not deny the claim by the petitions, through PW74, that the Returning Officer cancelled election in the seven polling units and ordered a rerun.
The appellants said: “The first and third respondents (INEC and APC), in their pleadings, did not admit that it was the Returning Officer that cancelled the result of the election in the seven polling units, but rather, that it was the 1st respondent that cancelled the election in the seven units as distinct from the units’ results.
“Indeed, as pleaded at paragraphs 24, 25, 27 and 29 of the petition, it was the 1st respondent that cancelled the election in the seven units for the reasons alleged by the petitioners.
“The tribunal ought to have held the petitioners bound by their pleadings that it was the 1st respondent that cancelled the election in the units and the fact that the 3rd respondent also pleaded that it was the 1sy respondent that cancelled the election in the units.”
They argued that even if it was any of the electoral officials that announced the cancellation and rerun election, in law, they acted as INEC’s agents of the fst respondent (INEC).
The appellants noted that the petitioners did not only fail to tender results from the seven polling units to support their claim that election actually held in the polling units and the results were cancelled; they also failed to exhibit the votes scored by the parties that participated in the election, if actually their was an election.
Oyetayo and APC argued that, rather than holding against the petitioners, for not supplying the necessary evidence, the tribunal wrongly relied on the evidence of PW74, which it had earlier expunged from the record for being hearsay.
They argued that, in the absence of vital evidence, “the tribunal ought to have held that the petitioners did not make out the case that there was any election in the seven polling units and that the Returning Officer cancelled the results of the election in the seven units.”
Appellants fault voiding of results
The appellants equally faulted the reason for which the tribunal voided the results in 17 polling units, in relation to the election held on September 22, 2018.
They argued that the tribunal did not only contradict itself, it exceeded its powers in engaging in the computation of votes by the disputing parties and proceeding to declare a winner based on its computed figures.
The appellants also faulted the finding of the tribunal in pages 193 and 196 of the majority judgment, where it said: “It is our considered opinion that the non-recording of the columns in the result sheets, which we regard as the check-list or control columns, is an act of non-compliance with the Electoral Act.
“The argument of the respondents that the non-compliance did not affect the result of the parties, because the petitioners’ witnesses testified that they have no quarrel with the scores credited to the parties, is not tenable. Thus is because a party does not have to quarrel with the scores of an election in order to establish electoral malpractices
“The effect of our finding on the non-recording of the necessary columns in the identified EC8C forms means that the votes from the affected 17 polling units are invalid. The votes are: APC 2,029 and PDP 1,246.”
To the appellants the tribunal, by the above quoted findings, did not only engage in doublespeak, but also betrayed the many contradictions inherent in its reasoning.
They argued that, as against the tribunal’s position, the essence of an election petition is to challenge the scores of the party that won.
Oyetola and the APC queried the merit of the tribunal’s finding that the non-filling of some portions of forms EC8A in 17 out of 3010 polling units, where election was held through out the state, amounted to substantial non-compliance.
They argued that since all the petitioners’ witnesses agreed that the non-filling of the forms EC8A did not affect the scores of parties at the election, it was wrong for the tribunal to have held otherwise.
According to them, “the tribunal erred in law and acted without or in excess of jurisdiction when it set up it own table to collate and deduct results of 17 polling units on alleged non-filling of columns of EC8A in spite of evidence of petitioners witnesses, all admitting that the non-filling of the columns did not affect the result of the election.”
They added that the tribunal’s decision to decide the petition in respect of an election held in over 3000 polling units on alleged non-filling of columns in 17 units is misconceived and amounted to a wrongful exercise of judicial power.
‘Tribunal acted outside powers’
The appellants argued that the tribunal acted ultra vires (outside) its powers when it held that the rerun election of September 27 was illegal, without taking into account the Supreme Court’s decision in Faleke v. INEC (2016) 18 NWLR part 1543 at page 61 as it relates to INEC’s powers to order a rerun election.
They noted that the tribunal contradicted itself in its conclusion, in page 191 of the majority judgment, when it said the information omitted in the Forms EC8A in relation to the 17 polling units, were essential to proving over-voting, when it earlier held that over voting could not be proved without voters’ register.
The appellants argued that, having earlier found that accreditation is not done on Form EC8A and that same (accreditation) cannot be proved without voters’ register, the tribunal was without jurisdiction to overrule itself.
They accused the tribunal of acting without jurisdiction when it “embarked on deducting the votes of parties and declaring its own winner in the name of imaginary non-compliance of failure to fill columns of forms EC8A which has no effect whatsoever, on the result of the election, thereby arriving at a decision that is null and void.
“The tribunal has no power to make deductions in votes and declare its owner winner not being a Collation or Returning Officer. The decision of the tribunal is not supported by law and evidence on record.”
The appellants also faulted the tribunal for allegedly amending the petitioners’ claims and proceeding to grant reliefs not sought by them.
For instance, they noted that the petitioners claimed to have won the September 22, 2018 election and sought to be declared so, but the tribunal based 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 September 22 governorship election.
The appellants equally noted that nowhere in the entire petition did Adeleke and the PDP complain about non-compliance with the provisions of the Electoral Act in relation to the September 22, 2018 election.
They added that the only ground, in the petition, alleging non-compliance with the provision of the Electoral Act was in relation to the rerun election held on September 27, 2018.
The appellants argued that the tribunal was wrong to have declared Adeleke winner of the election, held on September 22 and 27, 2018 on ground of non-compliance rather than ordering a rerun election.
They noted that, not only did the decision disenfranchise the electorate in the affected polling units, it breached the provision of Section 140(2) of the Electoral Act.
The appellants argued that having admitted to have benefited from INEC’s alleged non-compliance with the Electoral Act by not filling some portions of the Forms EC8A and asked that the results from those polling units be cancelled, the petitioners could not have asked the tribunal to declare them winners of the same elections.
Faulting the tribunal’s cancellation of election in the 17 poling units, the appellants added: “The lower tribunal wrongly disenfranchised the electorate in the said polling units after casting their votes and without any challenge to the scores generated from the voting exercise.”
The appellants contended that the tribunal was in error when it held that the petition was not statute barred having been filed outside the stipulated 21 days after the election was held.
The particulars of errors, the appellants noted, exist in the fact that while the petitioners’ claims were directed strictly at the election of September 22, 2018, they did not file their petition until October 16, 2018.
They noted that the petitioners’ contention was that the election had been concluded as at September 22, 2018 and that they ought to have been declared winner of the election.
The appellants further noted that Adeleke and the PDP “did not reckon with and in fact, denounced and rejected the rerun election held on 27th September 2018 and sought an order to invalidate the rerun election.
“Based on the foregoing, it was wrong for the tribunal to hold that the petition was not statute barred as at the time it was filed on 16th October 2018.”
The appellants are praying the Court of Appeal to dismiss the petition by Adeleke and PDP for being unmeritorious and set aside the majority decision of the tribunal, which they argued, “is against the weight of evidence.”