The Court of Appeal in Abuja on Thursday set aside the majority decision of the Osun State Election Petition Tribunal, which nullified the election of Osun State Governor, Alhaji Adegboyega Oyetola, and returned candidate of the Peoples Democratic Party (PDP), Senator Ademola Adeleke, as lawful winner of the September 2018 governorship election in Osun State.
But Adeleke and the PDP yesterday said they would test the appellate court’s verdict at the Supreme Court, assuring their supporters that victory would be retrieved at the apex court.
The appellate court in a majority judgment of four to one, nullified the majority judgment of the tribunal delivered by Justice Peter Obiorah on the grounds that he (Obiorah) in his judgment relied on the evidence of two witnesses, which he did not observe.
The appellate court in the majority judgment delivered by the presiding judge, Justice Jummai Sankey, declared the decision of the tribunal, which sacked Oyetola as governor, a nullity and consequently set aside the entire proceedings of the tribunal.
The tribunal upheld the submission of Chief Wole Olanipekun (SAN) that the petition was incompetent from the beginning and that it was the tribunal itself that amended it and granted the reliefs not sought by Adeleke.
Justice Sankey noted that the Court of Appeal ordinarily having set aside the entire proceedings of the tribunal ought to order a retrial of the case, however, the appellate court could not order a retrial because the 180 days provided by the law for election petition has elapsed.
However, the 5th member of the panel, Justice George Mbaba, in a dissenting judgment dismissed the appeal and upheld the decision of the tribunal.
Justice Mbaba, held that the submission of the appellant that Justice Obiorah did not participate in the proceedings of February 6, 2019 remains speculative, contentious and one that can only be resolved by means of an affidavit and calling of witnesses.
He argued that if the records of the proceedings of February 6, opened with the statement that the full panel sat, the fact that he did not sign the proceedings cannot be enough to conclude that he did not participate in the day’s proceedings.
Mbaba further noted that the issue of sabotage cannot be ruled out as the records were transmitted by court’s registrar.
He consequently, dismissed the appeal and upheld the majority decision of the tribunal, which sacked Oyetola and returned Adeleke as governor. Mbaba further awarded cost of N200, 000 against Oyetola.
In another appeal filed by the Independent National Electoral Commission, which was upheld by a majority of four to one, Justice Mbaba, who delivered the dissenting judgment came down heavily on the electoral umpire for its failure to leave up to expectations in the conduct of the election.
Mbaba held that INEC, which did not call witness at the tribunal or tendered any document surprisingly came to the Appeal Court to file an appeal and even went ahead to claim that Adeleke and PDP cannot challenge the September 27, rerun election on the grounds that they have waived their rights by participating in the said election.
According to him no serious party would boycott any rerun election, when a final declaration had not been made, adding that INEC acted dubiously in the rerun election.
He said: “INEC acted dubiously in the way it handled the rerun election. INEC should not have been put in the dock if it has done the right thing at the rerun election and when INEC was in the dock it shied away without filing any argument.
On the cancellation of results in 17 polling units, Justice Mbaba held that the cancellation was deliberate because INEC returning Officer has no power to do the cancellation. “It is the presiding Officer that has the power to cancel results if need be.”
Other members of the panel include justices Abubakar Yahaya, Isaiah Akeju and Bitrus Sanga.
Meanwhile, counsel to Adeleke and the PDP, Chief Nathaniel Oke (SAN) said his clients would appeal the majority judgment of the Court of Appeal.
Oke, who spoke to journalists outside the court, said the judgment of the Court of Appeal is not final and that they will definitely go to the highest court in the country to get justice.
The Court of Appeal had on April 24 reserved judgment in the four appeals filed against the judgment of the Osun State Election Petition Tribunal.
The five-man panel of justices of the Court of Appeal, led by Justice Jummai Sankey, had reserved judgment shortly after counsel to the parties adopted and argued their briefs of argument in the various suits.
The first suit with number CA/A/EPT/246/2019, which was filed by Osun State Governor, Oyetola, has candidate of the PDP in the Osun governorship election, Senator Adeleke, the PDP, the INEC and the APC as 1st to 4th respondents respectively.
The second with number CA/A/EPT/256/2019, filed by the APC has Adeleke, PDP, INEC and Oyetola as 1st to 4th respondents.
While the third appeal filed by INEC and marked: CA/A/EPT/259/2019, has Adeleke, PDP, Oyetola and APC as respondents, the fourth marked: CA/A/EPT/295/2019, filed by Adeleke has Oyetola, APC and INEC as respondents.
The first three appeals challenged the majority judgment of the tribunal, while the fourth which is a cross appeal sought to upturn the dissenting and minority judgment of the tribunal.
Meanwhile, the PDP has assured its candidate in the Osun state governorship election, Adeleke, that it will retrieve the stolen governorship mandate at the Supreme court.
The party insisted that there is no way the will of the people, which they openly expressed in voting for Adeleke would be allowed to be lost.
The party in a statement Thursday by its National Publicity Secretary, Mr. Kola Ologbondiyan, said the fact that the Court of Appeal had a split judgment indicates that justice was not fully served at the appellate court.
He stated: “The party says it is not in any way shaken by the judgment of the Court of Appeal, but stands with Nigerians in the confidence that justice and respect for the will of the people of Osun State will definitely prevail at the Supreme Court.
“It is instructive to state that the Court of Appeal did not contest or invalidate the fact that Senator Adeleke won the election but only cited technicalities and speculations to arrive at its decision.”
The party also noted that the Court of Appeal failed to act on the full and substantial import of the failure of the INEC to produce the ballot papers and record of accreditation to disprove the party’s position that INEC altered results and subverted the will of the people of Osun State.
“Our party and candidate are, therefore, confident that the Supreme Court will look at the merit of the matter and ensure that justice is served by recognising Senator Ademola Adeleke as Osun State Governor,” he added.
Meanwhile the PDP Thursday asked the Chairman of the five-member Presidential Election Petition Tribunal, Justice Zainab Bulkachuwa, to recuse herself from hearing its petition and that of its presidential candidate, Atiku Abubakar, against the outcome of the 2019 presidential election.
The PDP’s protest against the involvement of Justice Bulkachuwa, who doubles as the President of the Court of Appeal, is coming barely 24 hours after the panel led by Justice bulkachuwa, held its inuagural session on Wednesday.
The party in a letter to the Court of Appeal President dated May 9 and signed by the National Chairman of the PDP, Chief Uche Secondus, and the party’s National Secretary, Senator Umar Ibrahim Tsauri, said going by the utterances of Justice Bulkachuwa at the inaugural session on Wednesday, the party is certain that justice would not be served at the end of the day, if Justice Bulkachuwa remains a member of the panel.
According to the PDP, Justice Bulkachuwa in her opening speech had said that no matter how well an election was conducted, there are bound to be complaints, a statement the main opposition party was a signal that Justice Bulkachuwa had already formed her opinion of the trial even before it commenced.
“My Lord, in your address at the opening of the pre-hearing today (Wednesday), you made some remarks that are both frightening and heartwarming. For instance in your opening paragraph you said: Elections are held in Nigeria every four years into elective positions. No matter how well the election is conducted there are bound to be complaints.
“This remark rocked our confidence in a panel led by Your Lordship to determine our fate in an election, which could be one of the ones that were very well “conducted’ in Your Lordship’s opinion.
“The question then is how can three petitioners convince Your Lordship otherwise over an election, which in Your Lordship’s opinion, was very well conducted?”
The party further submitted that Justice Bulkachuwa ought not to have been a member of the panel at all knowing fully well that members of her family, including her husband are all member of the All Progressives Congress (APC), a party in the petition.
“On March 7, 2019, when our ex parte application in suite No. CA/A/P/EPT/1/2019, seeking the leave and the order of this Honorable Court for us to inspect polling materials in the custody of the lst Respondent (INEC) used for the election of March 23, 2019, came up, it was heard by a panel of this Honorable Court led by His Lordship, Hon Justice Abdul Aboki. We did not complain as there was no reason for us to do so.
“However, we were totally nonplussed, jolted and extremely surprised today, May 8, 2019, when Your Lordship sat and presided over the five-man panel of the court, which conducted the opening of the pre-hearing session in our petition. We were surprised that Your Lordship, could choose to be part of the panel talk less of presiding over the petition, which is between our party, the PDP and the APC, a party which members of your family, especially, your dear husband, are very active members,” the letter read.
According to the PDP, it is a known fact that Justice Bulkachuwa’s husband, Hon. Adamu Mohammed Bulkachuwa, contested the February 23, 2019 election for the position of a Senator in Bauchi North senatorial district and won same on the platform of the All Progressives Congress (APC).
The party said the information was not just in the public domain but has dominated both the public and private discussions to the extent that it has become a sore source of worry not just to members of the PDP but to the generality of Nigerians.
The party said the worry arose from the very unique and critical position of the office of the President of the Court of Appeal, which is saddled with the sacred responsibility of hearing petition arising from the presidential election.
“This fear was palpable enough just with you as the President of the Court of Appeal but has now been worsened and compounded by the discovery that you have decided to appoint yourself as the Chairman of the Panel to hear the petition,” the PDP added.
The PDP however, reminded Justice Bulkachuwa to be guided by her own words when she said, “Justice demands that judges who will sit in the panel of a tribunal be divested from all forms of bias,” and accordingly do the needful.
“We are reasoning that armed with this golden rule of justice and fair hearing and given your direct intimacy through your dear husband, with the APC, one of the parties in this election petition, Your Lordship would have exercised your constitutional right and powers guardedly, judiciously and judicially, by excluding yourself from the panel of this Honourable Court sitting over this particular petition.
“This is the only way you could have divested yourself from all forms of bias and be seen to be fair, both to yourself, our party that is contesting against your husband’s party in this petition, and indeed, all Nigerians, who are keenly interested in the just, transparently impartial and unbiased determination of this petition over an election, which outcome obviously did not respect their wishes as expressed through their votes.
“It is based on the above premises, therefore, that we are constrained to respectfully request Your Lordship to recuse yourself from presiding over and/or sitting as a member of the panel hearing the instant petition as it would be impossible for Your Lordship to convince any reasonable man that your dear husband never discussed this petition, which he is patently interested in its outcome with you, throughout the trial.
“This is so because Justice must not only be done but it must be manifestly seen to be done,” PDP added.
Source: https://www.thisdaylive.com/index.php/2019/05/10/adeleke-pdp-head-to-scourt-as-oyetola-wins-appeal/
