Oyetola, APC, INEC urge Appeal Court to uphold Osun election – TheNigerialawyer

OSUN State Governor Adegboyega Oyetola, his party, the All
Progressives Congress (APC) and the Independent National Electoral
Commission (INEC) have asked the Court of Appeal in Abuja 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 yesterday, 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.

In the appeal by Oyetola, his 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 Olujinmi (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.

Olujinmi 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, Olujinmi and Ali argued that the cross-appeal was
incompetent on several grounds and urged the tribunal to reject
it.

At the conclusion of proceedings that lasted over eight hours,
the presiding judge, Justice Sankey, said judgments 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.