The Supreme Court by a split decision has dismissed the appeal filed by the candidate of the Peoples Democratic Party in the 2018 Osun Governorship Election, Senator Ademola Adeleke against the election of Adegboyega Oyetola of the All Progressives Congress (APC).
The apex court in a majority judgment of five to two upheld the decision of the court of appeal which nullified the judgment of the Osun State Governorship Election petition tribunal on the grounds that the tribunal was not properly constituted in regard to numbers.
The majority decision which was delivered by Justice Bode Rhodes-Vivour, agreed with the lower court that the absence of Justice Peter Obiora from the proceedings of February 6th 2019, who delivered the lead judgment was fatal to the case of the appellants and renders the entire sitting and judgment of the tribunal a nullity.
It agreed with the appeal court that the absence of Justice Obiora when a key witness in the petition was heard has rendered the judgment of the trial tribunal a nullity. And that the failure of Mr Obiora to be present on that day meant that the tribunal lacked the authorities to have given any judgment on the matter.
Justice Bode Rhodes- Vivour who delivered the majority judgment supported by five of the seven-justice of the Apex court panel held that it is settled law that when the rightly constituted panel of a court does not seat the activities carried out by that panel is a nullity.
Justice Rhodes-Vivour agreed with the argument by counsel to Governor Oyetola, Mr Wole Olanipekun that the majority judgment of the tribunal is a nullity, because it was written and delivered by Justice Obiora, who did not participate in the February 6 proceedings of the tribunal where vital documents relating to the election were tendered and when a vital witnesses gave evidence.
Justice Obiora, according to the court’s record they said was absent on February 6, 2019 when the respondents witnesses 12 and 13 – Ayoola Soji and Oladejo Kazeem – testified and tendered exhibits, which the tribunal admitted in evidence.
The supreme court held that, having not attended the tribunal’s sitting on February 6, 2019, Justice Obiora 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.
“Failure to sit rendered the proceedings a nullity and the judgment suffers a fundamental error and irredeemably affected the competence of the judgment of the tribunal,” the court added.
Apart from Justice Bode Rhodes-Vivour, others who supported the majority judgment are Justices Tanko Mohammad, Kudirat Kekere-Ekun, Amir Sanusi and Uwani Aba-Aji.
However, in a minority judgment delivered by Justice Kummai Akaahs and supported by Justice Paul Galinje, both justices disagreed with the findings in the majority judgment on the absence of Justice Obiora on February 6, as a reason for dismissing the application.
They further said that the findings of the majority judgment was based on conjecture and well-articulated speculation by relying on a certified true copy of the tribunal’s proceedings instead of the original record.
The minority judgment also held that cancellation of election in seven polling units of four local government area of Osun by a returning officer of INEC was illegal, unlawful and unconstitutional, adding that by section 179 of the 1999 constitution, Senator Adeleke who scored highest votes in the main election and fulfilled the section ought to have been declared winner of the election.
The minority judgment further accused INEC of using inconclusiveness in the election to perpetrate fraud and to do what it wants to do even when it is illegal.
They, therefore, set aside the judgment of the court of appeal and declare Adeleke as the winner of the election of September 22, 2018 governorship election.