The appeals by Adeleke and his party were against the May 9, 2019 judgments of the Court of Appeal, Abuja, which voided the majority judgment of the election tribunal and affirmed the election of Adegboyega Oyetola of the All Progressives Congress (APC) as the governor of Osun State.
The four appeals were marked: SC/553/2019; SC/554/2019; SC/555/2019 and SC/556/2019.
The Supreme Court, in a majority decision of five-to-two, read by Justice Olabode Rodes-Vivour, held that the majority judgment given by the election tribunal, in favour of Adeleke and the PDP, was a nullity.
Justice Rhodes-Vivour held that the tribunal was not properly constituted when it gave its decision in view of the non-participation of one of the tribunal members in one of the sittings where trial was conducted and vital documents admitted in evidence.
The judge, in the lead majority judgment, agreed with lawyer to Oyetola, Wole Olanipekun (SAN) that the failure of a member of the election tribunal, Justice Peter Obiora to sit on February 6, 2019 rendered the entire proceedings and the judgment given by the tribunal a nullity.
The judgment by Rhodes-Vivour was on the appeal marked: SC/553/2019 which was directed at the Court of Appeal’s judgment in the appeal filed by Oyetola against the majority decision of the election tribunal.
The court noted that Justice Obiora was absent on February 6, 2019 when the respondents witnesses (RWs) 12 and 13 – Ayoola Soji and Oladejo Kazeem – testified and tendered exhibits, which the tribunal admitted in evidence.
The apex held that, having not attended the tribunal’s siting 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 wrong for the judge to have authored a judgment in which he reviewed the evidence given by the witnesses.
Justice Rhodes-Vivour added: “As rightly pointed out by the learned senior counsel for the first respondent, Chief Wole Olenipekun (SAN), learned counsel for the appellant, O. Ikpeazu (SAN) also held the view that Obiora J did not sit. on the 6th of February 2019.
“At no time did Ikpeazu dispute the proceedings of the 6th of February2019. It was observed that, at the election tribunal, Obiora J signed the record of proceedings at the end of every proceeding, except on the 6th of February 2019 when he did not sign at the end of the proceedings.”
Justice Rhodes-Vivour said, after examining the submissions of counsel and the record of appeal, “I hold the position that Obiora J did not sit on the said day. What then is the implication of that on the proceedings conducted and the judgment delivered by the tribunal?
“The Supreme Court has always set aside the judgments of the trial courts where the panels have been irregular and inconsistent.
“An examination of the record of appeal reveals that well over 90 persons gave evidence, and at the end of each day’s proceedings, three judges, which included Obiora J, signed. It was only the proceedings of the 6th of February 2009 that was not signed by Obiora J
“That was the day when the testimonies of RW12 and RW13 were taken. They were crossed examined and vital documents admitted in evidence, which counsel agreed, at the Court of Appeal, that Obiora J did not sit on the 6th of February 2019 and so, he could not have signed the proceedings of that day.
“The failure. of Oboira J to sit on the 6th of February 2019 renders the proceedings of that day worthless and the entire judgment a nullity.
“The correct order to make in this circumstance is to declare the entire judgment of the tribunal a nullity as a result of the fact that one of the members of the panel did not sit on a day proceedings were held.
“The learned counsel to the appellants ought to have advised his clients that the failure of Obiora J to sit on the 6th of 6ebruary 2019, but prepared the majority judgment, is a fundamental flaw.
“The tribunal was not properly constituted as regard, the number of its members, on the 6th of February 2019. The absence of Obiora J from the proceedings of the 6th of February 2019 affected the competence of the tribunal to deliver the judgement in any form,” he said.
Justice Rhodes-Vivour proceeded to set aside the entire proceedings of the tribunal and it’s judgement delivered in favour of Adeleke and the PDP.
He upheld the majority judgement of the Court of Appeal, which earlier voided the tribunal’s judgement and affirmed the victory of Gov. Oyetola of the APC
Justice Rhodes-Vivour added: “I affirm the majority judgment of the Court of Appeal. The majority judgment of the tribunal is a nullity. The preliminary objection is overruled. The appeal is dismissed.”
The judge also dismissed two other similar appeals filed by Adeleke,marked: SC/554/2019 and SC/555/2019.
Both appeals were against the Court of Appeal judgments in the appeals by the Independent National Electoral Commission (INEC) and the APC against the majority judgment of the tribunal.
Justices Ibrahim Muhammad (Acting Chief Justice of Nigeria), Justices Kudirat Kekerere-Ekun, Amiru Sanusi and Uwani Abba-Aji agreed with the lead majority judgment as delivered by Justice Rhodes-Vivour.
Justice Abba-Aji read the lead majority judgment in the second appeal, marked: SC/556/2019, which challenged the legality of the supplementary election conducted in Osun after INEC declared the first election inconclusive.
Justice Abba-Aji said, in view of the court’s position in the earlier judgment, to the effect that the majority judgment of the tribunal was a nullity, it was unnecessary to consider other issues raised in the appeal.
Justices Kumai Akaahs and Paul Galumje gave the dissenting judgments in both cases in which they allowed the two appeals.
In his contribution, Akaahs said: “I wish to say that INEC is supposed to be an umpire and not an interested party.
“In this particular case, INEC used its manual to cancel an election in some polling units and declared the election inconclusive when the appellant had scored the highest number of votes and got the required spread of two-third of the votes in the 25 per cent of the Local Government Areas.
“They ought to have declared the appellant the winner. But, INEC had something up its sleeves and it was able to achieve that by the rerun, whereby the 2nd respondent (Oyetola) had 400 plus votes as against the 1st appellant (Adeleke), who had 300 plus.
“Whereas in the election of September 22, 2018, after the illegal cancellation of some results, the 1st appellant has scored the majority votes of 300,000 plus votes.
“INEC has always used the rerun election to do what it likes. This should not continue.
“On that basis, I hold that the 1st appellant, having scored the highest number of lawful votes and had the spread, he ought to be declared the winner and I so declare.”