Supporters of both the incumbent governor of Osun State, Ademola Adeleke and of his challenger, former governor, Isiaka Oyetola, are apprehensive over the possible outcome of the ruling as the Supreme Court delivers its judgement today.
The final decision will be made by a five-member panel of justices of the Supreme Court led by Justice John Okoro, on who between incumbent Governor Adeleke and immediate past Governor Oyetola is the authentic governor of Osun State.
The apex court is to deliver its judgment in the appeal by Oyetola against the March 24, 2023, judgment of the March 24, 202 Court of Appeal, which affirmed Adeleke as the winner of the July 16, 2022, governorship on May 9.
Tuesday, May 9, 2023, had been fixed by the panel of judges to make its judgment after listening to arguments of counsel for and against the appeal.
Similarly, the Supreme Court will also deliver its judgment in a cross-appeal by the Independent National Electoral Commission (INEC) against part of the decision of the Court of Appeal.
Earlier on Monday at the court proceedings, Prince Lateef Fagbemi, SAN represented Oyetola and the All Progressives Congress (APC), Paul Ananaba, SAN represented INEC, while Governor Adeleke and the People’s Democratic Party (PDP) were represented by Chief Onyechi Ikpeazu, SAN.
In his argument, Oyetola in his appeal, specifically prayed to the apex court to set aside the decision of the Abuja Division of the Court of Appeal, which voided the judgment of the Osun State Election Petition Tribunal, which returned him as the winner of the November July 16, 2022 governorship election.
Recalled INEC had in July 2022 declared Adeleke as the winner of the election after he scored the majority of the votes cast in the election, but later in the year, the tribunal in a split judgment of two-to-one delivered in January, held that Oyetola and not Adeleke won the majority of the lawful votes in the election.
Justice Tertsea Kume who was the chairman of the tribunal, said there were incidents of overvoting in favour of Adeleke, which when deducted revealed that Oyetola polled 314,921 votes as against the incumbent’s 290,266.
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Consequently, the tribunal ordered the withdrawal of the Certificate of Return issued to Adeleke and the issuance of a fresh one to Oyetola as the duly elected governor.
But, following Adeleke’s appeal in February 2023, the three-man panel of judges in the appellate court in a judgment led by Justice Mohammed Shuaibu voided and set aside the decision of the tribunal because the tribunal erred in holding that a case of overvoting was established, consequent upon which Adeleke’s votes were deducted.
It was the judgment of the Court of Appeal which set aside the judgment of the tribunal and affirmed Adeleke’s election as governor, that prompted the appeal before the Supreme Court which will be decided today.
The appeal filed on their behalf by their lead counsel, Prince Lateef Fagbemi, SAN, is marked: SC/ CV/510/2023 and SC/ CV/511/2023.
While the first appeal is in respect of the judgment in Adeleke’s appeal, the second was in respect of their cross-appeal which was dismissed by the appellate court for lacking in merit.
Oyetola and APC in the first appeal dated and filed on April 5 and predicated on 15 grounds amongst others are praying the court to determine whether the appellate court was right “in declaring as nullity the judgment of the tribunal delivered on January 27 notwithstanding the earlier resolution of the same court that Section 294(1) of the Constitution is inapplicable to a tribunal”.
They also want the court to decide whether the lower court was right in concluding that they did not prove the allegation of overvoting in favour of Adeleke.
In the second appeal, the appellants specifically want the apex court to declare that contrary to the judgment of the appellate court, Adeleke was not qualified to contest the governorship election due to alleged certificate forgery; Adeleke was not duly elected by the majority of the lawful votes cast at the election; and that Adeleke’s election was invalid because of non-compliance with the provisions of the Electoral Act, 2022.
Fagbemi accordingly urged the Supreme Court to allow the appeal and set aside the judgment of the appellate court which had recognized Adeleke as lawful winner of the July 16, 2022 governorship election in Osun State.
However, INEC in its cross-appeal dated April 19, but filed April 20, is challenging the decision of the appellate court for failing to declare the judgment of the tribunal a nullity because the second member of the majority judgment of the tribunal, Chief Magistrate Rabi Bashir failed to “separately express her opinion in writing or deliver any opinion in open court in compliance with the provisions of Section 294 (2) and (3) of the Constitution”.
While Justice B. A. Ogbuli had in the minority judgment dismissed Oyetola’s petition for lacking in evidence because the petitioners by documentary and oral evidences failed to prove their allegations against Adeleke’s election, both Kume and Bashir allowed the petition with Bashir signing on the same page of the judgment; a ground which INEC claimed rendered the majority judgment a nullity.
According to INEC’s lead counsel, Prof Paul Ananaba, SAN, a court or tribunal which heard a matter has a constitutional duty to deliver or render a decision in writing after the close of trial and adoption of written addresses of parties.
“We submit that an ex-facie examination of the judgment of the lower tribunal being challenged will reveal that the judgment was not captioned: Judgment delivered by Tertsea Kume and Rabi Bashir but was captioned Judgment delivered by Justice Tertsea Kume and was then merely signed by Bashir, who did not express any opinion either orally or in writing.
“We submit that the judgment of the lower tribunal as constituted, shows that the said judgment is the opinion of the chairman of the tribunal in writing and cannot be a joint judgment as erroneously held by the court below”, INEC stated, adding that the law does not envisage a co-owner judgment because it cannot be known what opinion each member of the tribunal held.
It is, therefore INEC’s submission that “the judgment of the trial tribunal amounts to a nullity and where a judgment is a nullity, it cannot be salvaged or be labelled a majority opinion as nothing legal can come from illegality”.
Another issue raised by the electoral umpire upon which it is asking the apex court to dismiss the case of Oyetola is that the Court of Appeal was wrong to have upheld the decision of the tribunal which failed to reject some exhibits tendered in evidence by Oyetola and APC.
The documents include Certified True Copies of Forms EC8As, EC8Bs, EC8Cs, EC8D, EC8E and EC9 of the 3rd cross respondent along with other electoral documents.
INEC contends that the two lower courts erred in law in admitting the said exhibits as evidence because some of the documents contained alterations and markings which distorted the said documents.
“First is that exhibit RC1 and RC2 do not have any nexus with the said exhibit BVR and the documents contained in exhibits SCH1, SCH2 and SCH3”, INEC said, while urging the apex court to reject the said exhibits admitted in evidence and expunge them from the record of the tribunal.
”We most respectfully urge your Lordships to allow the cross-appeal and also set aside the decision of the tribunal delivered on January 27 on the grounds that the judgment by Justice Tertsea Kume and signed by Rabi Bashir is not in compliance with the provisions of Section 294 of the Constitution and amounts to a nullity.
“We further urge your Lordships to reject the said exhibits RC1, RC2, BVR, PUBL 1-3 and CER in evidence and expunge them from the record of the tribunal.
INEC, therefore prayed the apex court to allow the appeal and set aside the concurrent decision of the tribunal and appellate court which held that the failure of the second member of the majority judgment of the tribunal, Chief Magistrate Rabi Bashir to “separately express her opinion in writing or deliver any opinion in open court in compliance with the law rendered the judgment a nullity.
On his party, Adeleke and the PDP urged the court to dismiss Oyetola and APC’s appeal for being incompetent and lacking in merit.
Ikpeazu also urged the apex court to uphold the judgment of the appellate court which declared Adeleke as the authentic winner of the Osun State governorship poll.
After taking submissions from counsel representing parties in the appeals, the court fixed today Tuesday, May 9, for Judgment.
