Barring any last minute change, the Abuja Division of the Court of Appeal will today commence hearing of the appeal filed by the Osun State Governor, Mr. Gboyega Oyetola and the All Progressives Congress (APC). Daily Sun gathered that April 24 had been fixed by the Court of Appeal for the hearing of the appeal. The parties are challenging the judgment of the state’s Governorship Election Petitions Tribunal which nullified their election on March 22, 2019. Two of the three-man panel declared Senator Ademola Adeleke of the Peoples Democratic Party (PDP) as winner of the September 2018 election in the state. The two justices are: Peter Obiorah and Adegboye Gbolagunte. The tribunal also nullified the Certificate of Return issued to Oyetola and ordered the Independent National Electoral Commission (INEC) to issue a fresh one to Adeleke. But the minority judgement, delivered by the tribunal’s Chairman, Justice Ibrahim Sirajo, upheld Oyetola’s election, insisting that he was validly elected. Oyetola in his 39-ground notice of appeal, filed on March 26, 2019, by his lead counsel, Chief Wole Olanipekun (SAN), urged the Court of Appeal to nullify the majority judgment, which he argued was “perverse” and “replete with contradictions and not supported by evidence led by the petitioners.” To this end, he asked the Court of Appeal to uphold his appeal, set aside the tribunal’s majority judgment and to also dismiss the October 16, 2018 petition by the PDP and Adeleke. He however asked the court to uphold parts of the majority judgment where the tribunal held that it lacked jurisdiction to set aside INEC guidelines; that the allegations of over-voting were not proved; that the petitioners did not prove voided votes and other parts of the judgment, where the tribunal agreed with the appellant’s arguments. Dismissing the majority judgment’s nullification of the September 27, 2018 supplementary election, the appellant stated, “having rightly held that it lacked the jurisdiction to strike out and nullify the approved Guidelines and Regulations for the conduct of the Osun State Governorship Election 2018, made by INEC, the tribunal misdirected itself in law and came to a perverse decision by going ahead to nullify the rerun election.” He also opined that the majority judgment was a nullity on the basis that it was written 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.” The appellant also argued that the tribunal acted without jurisdiction by anchoring its decision to grant the petitioners’ prayers and set aside his return on the basis of allegations of non-compliance with the Electoral Act, in relation to the September 22 governorship contest. He noted that there was nowhere in the entire petition, where Adeleke and the PDP complained about non-compliance with the provisions of the Electoral Act in relation to the September 22, 2018 election. He faulted the decision of the tribunal to declare Adeleke and the PDP winner when the petitioners had admitted to have benefited from INEC’s alleged non-compliance with Electoral Act by the electoral body’s alleged failure to fill in some portions of the Forms EC8A, insisting that if the tribunal had rightly upheld the allegations of non-compliance, it only should have ordered a rerun. Earlier, while reacting to the tribunal’s verdict, Kolapo Alimi, a lawyer and a former Commissioner for Local Government and Chieftaincy Matters in Osun State, said he believes that the election was credible, and as such should never have been nullified by the tribunal. Alimi served in the APC administration of Ogbeni Rauf Aregbesola. Alimi said “the beauty of the law is that there is hierarchy of courts. The tribunal is the court of first instance where in this instance; the case will still go as far as the Court of Appeal and the Supreme Court. Without giving my opinion, I want us to dissect the judgment. When you are talking about non-compliance, it must be specific. In this case, the election that was cancelled in the seven polling units were because of the fact that the petitioners alleged that the column in those pink copies, which is the form EC8A, were not filled. There are about eight columns and one of them is meant for the number of accredited voters. They brought witnesses who are their party agents to come and give evidence. “All the witnesses that came forward said the process was free and fair. That accreditation, voting and collation were done. There were two judgments from the tribunal, one minority and the other majority. Even though the majority judgment carried the day, we cannot close our eyes to the fact that there was a minority judgment that was delivered by the chairman of the tribunal. The majority judgment ruled that INEC has the power to declare an election inconclusive, whereby the margin of lead between the winner and the runner up is less than the number of accredited voters in the area where elections were cancelled. But in this instance, the judgment now said that the power to cancel that election resides with the presiding officers and not with the returning officers. “My opinion is that the only reason why the returning officer would not have the power to cancel an election is when there is evidence that election was actually held. That law is made to prevent arbitrariness in situations where elections will be concluded in polling units and someone somewhere will just sit and cancel it. But in this instance, both the petitioner and the respondent agreed that election did not take place in those seven polling units so there was nothing to be cancelled. That was why the chairman of the tribunal said based on the evidence and facts before the courts, that there was no election in those areas, so the issue of who has the power to cancel or not to cancel does not arise. He now said that the onus of proof that the elections were held in those polling units lies on the petitioners. A petitioner who wants to claim that election was held in a particular polling unit will come with the results. In all the authorities cited in those cases, the results were tendered before the tribunal that these were the results of the election in our unit. That is why the court said that when an election has been cancelled in a polling unit, the presiding officer cannot stay somewhere and cancel it, “he said. He further argued that “the questions which the appellate court will ask is if there were results from those seven units and if elections actually held there, so the issue of who cancelled it or who has the power to cancel does not arise. The petitioners presented the case as if elections were held in those polling units and were now cancelled by the returning officer instead of the presiding officer.” But another lawyer, Niyi Owolade countered. Owolade is a former Attorney General of Osun State. He served in the PDP administration of Olagunsoye Oyinlola. He said the outcome of the tribunal ruling shows that the law is supreme and the judiciary remains the last hope of Nigerians. He said he believes that the PDP governorship candidate, Adeleke will win even at the Supreme Court. He further said that “the majority judgment is a landmark judgment and I must commend the two judges who were courageous enough to make that decision. The average Nigerian is intelligent and knows when an election is okay or is not okay. We all know that most people refer to the June 12, 1993 election as the most credible that we have had. But I can tell you with all sense of sincerity and responsibility that the rerun that was held in Osun in September 2018 was the worst that ever happened. Contrary to what the APC is saying, there is a process and a manual for the conduct or cancellations of elections. In the Electoral Act, there are 16 steps to be followed by the returning officer in the declaration of results and none of those steps indicate that the returning officer can cancel elections because he does not have the power to do that. You cannot execute powers that you do not have. It is the presiding officer of the polling units that has the power to cancel elections and to do that, he has to sign the EC40 form. “There was a subtraction but if you recall that the September 22 election, Adeleke won the election by 353 votes but because of the substantial non-compliance whereby something unbelievable happened which Nigerians should know and we must say enough is enough, the three judges even made reference to this whereby some INEC officials would tamper with the results. We have form EC8A where the results are filed from the polling units, and we asked for the Certified True Copy (CTC) from INEC. The PDP agents came to court with their form EC8A and when compared with the CTC from INEC, there were discrepancies. It was discovered that some juggling had been done and it was INEC staff that did the juggling whereby figures which were not in the pink copy which the agents are given were found in the CTC. It was then obvious that the INEC staff had tampered with the figures. Figures that were not originally in the CTC were put there. So there were obvious manipulations, what do you then want the judges to do? INEC is supposed to be an impartial party. The point is that when you have substantial non compliance and manipulation and the results sheets are tampered with, what are the judges there for? Actually the judges were courageous enough to say that what happened is not right. Part of the problems we have in Nigeria is that there are no sanctions for such criminal behaviour like tampering with votes.” Asked if the party was confident of victory at the Appeal Court, Owolade further said “I am confident that it will hold. If you recall the landmark judgment of Justice Kolawole which he delivered in the case between Labour Party versus INEC, he said the powers of a judge should not be limited. He went further to say that every election case is considered on the peculiarity of the facts on ground. If the judges found serious irregularities and even pointed out that figures were manipulated, what should they have done? Should they have closed their eyes? There was substantial non compliance of the dictates of the Electoral Act during the election and the evidence was clear; what should the judges have done?”
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