2018 OSUN STATE GUBERNATORIAL ELECTION: COURT OF APPEAL OVERTURNS JUDGMENT OF ELECTION PETITION

Thursday, 09th May, 2019

The Court of Appeal, sitting in Abuja, Nigeria’s Federal Capital Territory, has overturned the judgment of the Osun State Governorship Election Tribunal which declared the candidate of the Peoples’ Democratic Party, PDP, Ademola Adeleke as the Governor-Elect of the September 2018 Osun State elections in the place of the candidate declared by the Independent National Electoral Commission, INEC as the winner of the elections: Adegboyega Oyetola of the All Progressives Congress, APC.

In a four to one majority decision, the Court of Appeal resolved twelve of the issues joined with ten in favour of the APC and only two for the PDP to dispose of the appeals cross-appeal marked CA/A/EPT/246/2019, CA/A/EPT/259/19 and CA/A/EPT/295/19.

In the lead judgment delivered by Justice Jummai Sankey, the Court of Appeal based its decision on several issues including: that the petition had become incompetent having outlasted the 180 days window allowed by the Constitution for resolving same; failure on the part of the PDP to prove its assertion that the September 27 re-run election in some parts of the State was characterised by irregularities and over-voting or that it was conducted in  substantial non-compliance with the Electoral Act; that a member of the Election Petition, Justice Obiora referenced evidence of the proceedings of the tribunal in his lead judgment where he was not physically present to observe the demeanour of the witnesses as required of a trial court; that by cancelling the result the re-run elections in 17 poling units the lower tribunal acted without jurisdiction and in contravention of Section 139(1) of the Electoral Act.

Additionally, the Court of Appeal found that the burden was on the petitioners to prove that the State Returning Officer unilaterally cancelled the elections in the 17 polling units without recourse to the Returning Officers of the polling units – a burden that could only be discharged by calling evidence which they failed to do.

Three other justices of the Court of Appeal, Abubakar Yahaya, Isaiah Akeju and Bitrus Sanga agreed with the lead judgment while Justice Ita Mbaba, dissented and penned a minority judgment.

It will be recalled that the Osun State Gubernatorial Election tribunal had, in a two-to-one split judgment it delivered on March 22, upheld a petition that Adeleke and the PDP lodged against the declaration and return of Oyetola of the APC as ultimate winner of the election, based on the outcome of the supplementary re-run election even though he had been behind the PDP candidate before the re-run election was conducted.

The supplementary election followed the cancellation, by INEC, of election results from seventeen polling units spread across four Local Government Areas of the State during the keenly contested September 22, General Elections. A re-run election was subsequently ordered for those 17 polling units with the PDP candidate in the lead.  The petition was subsequently brought when its results showed that the APC candidate had overturned the PDP candidate’s lead to become the Governor-Elect of Osun State.

A major grouse of the PDP and Adeleke ventilated at the tribunal was that elections in the 17 polling units were cancelled by the State Returning officer instead of the Returning Officers of each of the respective Poling Units, an action the petition claimed was fatal being in contravention of the Electoral Act and thereby rendered its outcome invalid. That contention was upheld by two members of the three member panel of the Election Petition.

Consequently, the tribunal deducted a total of 2029 votes that was credited to APC in the 17 polling units, as well as a total of 1246 votes that was recorded in favour of the PDP. After it had deducted the illegal votes from both sides, the panel held that PDP’s Adeleke got a total of 253,777 valid votes, ahead of APC’s Oyetola who it said got 253,476 valid votes in the September 22, poll. The majority two members of the tribunal (including Justice Ayinla Gbola and Justice Obiora who read the lead judgement) therefore nullified the Certificate of Return that was issued to Oyetola by INEC, and ordered INEC to issuea fresh one to Adeleke of the PDP.

One of the Election Tribunal’s  three members (and indeed its Chairman, Justice Ibrahim Sirajo)  however dissented on the ground that such a consequential order was not within the powers of the Tribunal. 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.

The People’s Democratic Party and the Campaign of the Adeleke, its candidate has indicated its intention to appeal the matter further to the Supreme Court for a final review.