Governor of the state of Osun, Mr Gboyega Oyetola appear in person at the court of appeal proceeding in abuja today 24 April 2019. The court was to commence sitting by 10:00am but Oyetola was in the court room as early as 8:00am.
Chief Wole Olanipekun representing Gov Oyetola submitted that the majority judgment of the Tribunal should be nullified, the petition by Adeleke and PDP should be dismissed for being unmeritorious and the majority decision of the tribunal should be set aside as he argued it “is against the weight of evidence"
Chief Olujinmi also appearing for the All Progressives Congress (APC) submitted that it was erroneous for the Tribunal to rely on certified true copies of Forms EC8A having held that the documents were dumped on the Tribunal.
Chief Olujinmi further submitted that the ground of the Petition stated by the Petitioner on non-compliance was restricted to 27 Sept 2018 election whereas the 17 units cancelled by the Tribunal relates to Sept. 22, 2018 election outside the purview of the ground of the Petition.
Chief Olujinmi submitted on behalf the judgment should be nullified because the Tribunal went out on its own to grant reliefs not sought by the Petitioners whereas it has no jurisdiction to do so.
Furthermore, Chief Wole Olanipekun submitted that it is clear from the record that Justice Obiora did not sign the record on the day he was absent but signed on all other days. He then argued that the majority judgment of the Tribunal should be nullified because Justice Obiora that did not sit throughout the proceedings wrote the judgment and reviewed evidence of witnesses he did not see.
Yusuf Alli SAN representing INEC held that INEC led evidence by way of cross-examination in line with pleadings and that INEC is not bound to cal a particular witness. That the Petitioners have not discharge the onus to show non-compliance was substantial.
Recall that in a notice appeal filed on March 26, by team of lawyers led by Wole Olanipekun (SAN), Oyetola urged the appellate court to nullify the tribunal judgment given by Justices Peter Obiora and Anyinla Gbolagunte.
Oyetola faulted the majority judgment on the grounds that it was perverse, replete with contradictions and not supported by evidence led by the petitioners.
The Osun governor, therefore, prayed the Court of Appeal to uphold his appeal, set aside the majority judgment and dismiss Adeleke’s petition at the tribunal.
The governor said his complaint in the appeal was against the entire majority judgment, except where the tribunal held that it lacked jurisdiction to set aside INEC Guidelines.
Oyetola contended that the majority judgment was a nullity because it was written and delivered by Justice Obiora, who did not participate in all the proceedings of the tribunal and who was not present when all the witnesses gave evidence.
He noted that Justice Obiora was absent on Feb. 6 this year when the respondents witnesses (RWs) 12 and 13 – Ayoola Soji and Oladejo Kazeem – testified and tendered exhibits, which the tribunal admitted in evidence.
The appellant argued that, Justice Obiora could not have seen the two witnesses and was unable to examine their demeanour, as required, and therefore, unlawful for the judge to have authored a judgment to review the evidence given by the witnesses.
Oyetola also argued that the tribunal, in its majority judgment, erred in law and acted without jurisdiction when it accepted the petitioners’ complaint of non compliance with the provisions of Electoral Act in relation to the September 22, 2018 governorship election and on that basis proceeded to nullify the victory of Oyetola and APC.
The appellant noted that, no where in the entire petition, did Adeleke and the PDP complain about non-compliance with the provisions of the Electoral Act in relation to the September 22, 2018 election.
He added that the only ground, in the petition, alleging non-compliance with the provisions of the Electoral Act was in relation to the re-run election held on September 27, 2018.
Oyetola noted that the tribunal contradicted itself in its conclusion, in page 191 of the majority judgment, to the effect that the information omitted by the election officers in the Forms EC8A in the 17 polling units, where the tribunal voided results, were essential to proving over-voting.
Oyetola said: “All petitioners’ witnesses testified and admitted that petitioners were not short-changed regarding the scores recorded for them in each Form EC8A tendered, and that no addition of votes was reflected in favour of the appellants.
“By cancelling of elections in 17 poling units, the lower tribunal acted without jurisdiction. By deciding as aforesaid, the lower tribunal discountenanced Section 139(1) of the Electoral Act.”
Oyetola also faulted the tribunal’s decision to void the re-run election when the petitioners did prove that there were elections in the seven polling units where the re-run election took place and that the results were wrongly cancelled.
He noted that the petitioners did not plead nor adduce evidence that the presiding officers of the affected seven polling units had ab initio (on his own/without any prompting) approved of the elections at the polling units.
He added that the petitioners did not tender the results from the seven polling units.
The appellant also noted that the petitioners did not call in their agents from the affected polling units as witnesses; did not tender documentary evidence to show that it was the returning officer that unilaterally cancelled the elections.
Oyetola also argued that the tribunal acted outside its jurisdiction, erred in law and arrived at a perverse decision when it engaged in calculating and subtracting from election results to arrive at proclaiming Adeleke and PDP as being victorious.
The appellant noted that, while the petitioners, in their relief, put the total votes of parties, after the deduction of the cancelled votes, at : APC 241,335 and PDP:246,634, the tribunal, in its judgment, after making its computation and deduction, allocated the parties: APC 253,452 and PDP 253, 777.
Oyetola argued that, where the petitioners failed to tender the press release they claimed INEC issued in respect of the cancelled elections, and also failed to tender results from the seven polling units, the tribunal was in error to have acceded to the petitioners’ prayer to void the said press release.
The appellant also argued that the tribunal contradicted itself when, on the one hand, it nullified the re-run election of September 27, 2018, but on the other hand, went ahead to void the election of the appellant on the same election.
He further argued: “Having rightly held that it lacks the jurisdiction to strike down and nullify the approved guidelines and regulations for the conduct of the Osun governorship election 2018, made by INEC, the tribunal mis-directed itself in law and came to a perverse decision by going ahead to nullify the re-run election.”
Oyetola also argued that the tribunal was wrong to have declared Adeleke winner of the election, held on September 22 and 27, 2018 on grounds of non-compliance rather than ordering a re-run election.
He noted that, not only did the decision disenfranchise the electorate in the affected polling units, it violated the provisions of Section 140(2) of the Electoral Act.
Oyetola argued that, since elections were concluded in the polling units; results counted and recorded in the appropriate forms, and no one contested the quantum of votes scored by the parties, the reasons given by the tribunal to void the votes did not affect the result of the election.
He added: “The lower tribunal wrongly disenfranchised the electorate in the said polling units after casting their votes and without any challenge to the scores generated from the voting exercise.”
Judgment in the appeal of Governor Gboyega Oyetola is reserved and date will be communicated.
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