Oyetola v Adeleke: Appeal court reserves judgment
http://www.hrlnews.com/2019/04/oyetola-v-adeleke-appeal-court-reserves.html
The Appeal court in Abuja has reserved judgment in a three-legged
appeal filed by Governor Gboyega Oyetola, his party and the Independent
National Electoral Commission over the nullification of his election by
the election tribunal.
After listening for eight hours to the submissions of three senior
lawyers for Oyetola and the lawyers for Senator Ademola Adeleke, Justice
Jummai Sankey, said judgment would be reserved till a later date.
She told the parties that the date of the judgment would be communicated to them by the court’s Registry.
Other members of the court’s five-man panel are: Justices Abubakar
Datti Yahaya, Ita George Mbaba, Isaiah Olufemi Akeju and Bitrus Sanga.
Oyetola, his party, the All Progressives Congress (APC) and the
Independent National Electoral Commission (INEC) had asked the court to
uphold the governor’s victory in the governorship election held on
September 22 and 27, 2018.
Their request was contained in three separate appeals they filed
against the majority judgment given by the Osun State Governorship
Election Tribunal on March 22, 2019.
The tribunal had, in the majority judgment, given by two of its three
members upheld the petition by the People’s Democratic Party (PDP) and
its candidate in the election, Senator Ademola Adeleke and voided
Oyetola and APC’s victory.
In their appeals, argued Wednesday, Oyetola, the APC and INEC prayed
the five-man panel of the Court of Appeal, led by Justice Jummai Sankey,
to set aside the majority decision of the tribunal, uphold their
appeals and dismiss the October 16, 2018 petition by Adeleke and the
PDP.
They equally urged the court to dismiss the cross-appeal filed by Adeleke, on the grounds that it is unmeritorious.
Oyetola’s lawyer, Wole Olanipekun (SAN), faulted the reasons given
by the tribunal in reaching the judgment appealed against, arguing that
the decision was not supported by the evidence led by the petitioners.
He urged the court to void the judgment because the judge, Justice
Peter Obiorah, who wrote and delivered it, did not participate in all
the proceedings of the tribunal.
Olanipekun noted that “the judge, who did not sit, came to write the
lead judgment and reviewed the evidence of February 6, 2019 proceedings,
where he was absent”.
“Adjudication is like video watching. It cannot be done by proxy. The
judge cannot analyse the evidence of a witness, whose demeanour he did
not observe. The judgment should be declared a nullity on this ground
alone,” he said.
Olanipekun, who said he and some named senior lawyers were at the
tribunal on February 6, 2019, faulted the argument by lawyer to Adeleke
and the PDP that it was not clear from the record of proceedings,
whether or not Justice Obiorah was absent on the particular day.
He argued that the judge’s failure to sign at the end of the
proceedings on February 6, 2019, was enough evidence to justify the
appellant’s claim that Justice Obiorah was absent on the day in
question.
Olanipekun also faulted the tribunal’s cancellation of results in 17
polling units in the state, and noted that the petitioners did not
tender any result of the election before the tribunal.
He argued that the tribunal went beyond its powers by annulling
results in the 17 polling units to justify the judgment it gave in
favour of the petitioners.
Lawyer to the APC, Akin Olujimi (SAN), while arguing the party’s
appeal, contended that the tribunal was wrong to have allowed the
petition, which was incurably incompetent.
“The 1st and 2nd respondents sought to be declared winner of the
election, held on September 22, 2018, which was declared inconclusive.
They also asked the tribunal to void the rerun election held on
September 27, 2018, because they believed it was unlawful.
“You cannot say you should be declared a winner on the election that you said was unlawful and void,” the senior lawyer said.
Olujimi accused the tribunal of exceeding its jurisdiction when it
engaged in amending the petitioners’ reliefs to make them grantable.
“No tribunal has the jurisdiction to reframe, amend or formulate reliefs for the petitioners.
“On realising that the reliefs could not be granted, they (members of
the tribunal) amended the reliefs and granted it by themselves.
“We are saying the tribunal has no power to amend a petitioner’s
reliefs. The much they ought to do, on realising that the reliefs could
not be granted, was to have dismissed the petition.”
He faulted the tribunal for holding that the petitioners proved its
case of non-compliance in respect of the polling units where it voided
results.
Lawyer to INEC Yusuf Ali (SAN), who argued in a similar manner,
contended that the tribunal erred in its majority judgment, particularly
as regards the issue of non-compliance.
He noted that the tribunal, having found that accreditation was
properly done and that all witnesses agreed that the votes scored were
not affected by the omissions noted in some result sheets, ought not to
have voided any results.
Citing Section 134 (b) of the Electoral Act, Ali argued that
non-compliance means not compliance with the provision of the Act, not
an act of omission on the part of INEC officials, which are not
contrary to the provision of the Act.
Ali also argued that since the tribunal held that the petitioners did
not prove over-voting and non-compliance, it ought not to have turned
around to void votes in some polling units.
On the question of why INEC did not call it witnesses at the
tribunal, Ali said it was unnecessary because the petitioners did not
discharge the burden of proof placed on them by the law to warrant INEC
to call fresh witnesses.
Lawyer to Adeleke and the PDP, Onyechi Ikpeazu (SAN), faulted the
three appeals and the arguments proffered by Olanipekun, Olujinmi and
Ali.
Ikpeazu argued that the tribunal was right in its decision to have declared Adeleke and his party as the winner of the election.
He faulted the argument that Justice Obiorah did not participate in
all the proceedings of the tribunal, arguing that there was no
sufficient evidence to that effect.
Ikpeazu urged the court to dismiss the three appeals and uphold the judgment of the tribunal.
Kehinde Ogunwumiju (SAN), who argued Adeleke’s cross-appeal, urged
the court to allow his client’s appeal and reverse the portion of the
judgment, where the tribunal rejected the evidence the petitioners lead
in relation to six polling units.
Ogunwumiju argued that the tribunal wrongly excluded some of its
evidence, because while it called 23 witnesses to prove it’s allegation
of non-compliance in 23 polling units, the tribunal only upheld 17 where
it voided elections.
Olanipekun, Olujimi and Ali argued that the cross-appeal was incompetent on several grounds and urged the tribunal to reject it.