SHOULD A JUDGE WHO DID NOT PARTICIPATE FULLY IN ALL THE PROCEEDINGS OF A CASE OR PETITION WRITE AND DELIVER A JUDGMENT IN THE PETITION?

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CASE TITLE: OYETOLA v. ADELEKE & ORS (2019) LPELR-47529(CA)

JUDGMENT DATE: 9^TH MAY, 2019

PRACTICE AREA: ELECTION PETITION

LEAD JUDGMENT: JUMMAI HANNATU SANKEY, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION

This appeal borders on Election Petition.

FACTS

This Appeal is against the Judgment of the Osun State Governorship Election Petition Tribunal sitting in Abuja in Petition No: EPT/OS/GOV/2/2018 wherein by the majority Judgment of the Tribunal, Coram: P.C. Obiorah, J. and A.A. Gbolagunte, J., it was resolved in favour of the 1st (SENATOR ADEMOLA NURUDEEN ADELEKE) and 2nd (PEOPLES DEMOCRATIC PARTY (PDP))Respondents herein. The Chairman of the Tribunal, M.I. Sirajo, J., dissented with the majority Judgment and delivered his minority Judgment in favour of the Appellant (ADEGBOYEGA ISIAKA OYETOLA).

The Appellant, along the 1st Respondent and 46 others, contested election into the office of Governor of Osun State conducted by the 3rd Respondent (INEC) on 22nd September 2018. At the close of polls, the 3rd Respondent declared the election inconclusive and subsequently scheduled a re-run election in 7 Polling Units. The re-run election took place on 27th September 2018, and the Appellant (ADEGBOYEGA ISIAKA OYETOLA) was returned as the winner of the election and the duly elected Governor of Osun State by the 3rd Respondent (INEC), who declared that the Appellant had garnered a cumulative score of 255, 505 votes, being the highest votes scored amongst the contestants at the election, and having satisfied all other constitutional prerequisites.

Dissatisfied with the declared results, the 1st and 2nd Respondents filed a Petition dated 16th October 2018 at the Osun State Governorship Election Petition Tribunal on the following 3 grounds:

“i. That the 2nd Respondent was not duly elected by a majority of the lawful votes cast at the Governorship election in Osun State held on September 22, 2018, and the Rerun election held on September 27, 2018.

ii. That the declaration and return of the 2nd Respondent as the elected Governor of Osun State is invalid by reason of substantial non-compliance with the provisions of the Electoral Act 2010 (as amended) during the Governorship Rerun election in Osun State of September 2018.

iii. That the declaration and return of the 2nd Respondent as Governor-elect of Osun State is invalid by reason of corrupt practice, during the Governorship Rerun election in Osun State of September 27, 2018.”

The reliefs sought by the Petitioners against the Respondents jointly and severally inter alia includes:

1. That it may be determined and thus declared that the 2nd Respondent Adegboyega Isiaka Oyetola was not duly elected and/or returned by a majority of lawful votes cast in the Osun State Governorship election held on Saturday 22nd September and the Rerun election of Thursday, 27th September 2018 and therefore his declaration and return as the governor-elect of Osun State is null, void and of no effect whatsoever;
2. That it may be determined and thus declared that the 1st Petitioner having fulfilled the requirements of Section 179(2) (a) and (b) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, in respect of the Osun State Governorship Election held on 22nd September, 2018, is the winner by 353 votes margin in the said Election having scored a total votes of 254,698 while 2nd Respondent scored 254,345 votes;
3. That it may be determined and thus declared that the 1st Petitioner having satisfied the provisions of the Constitution of the Federal Republic of Nigeria, 1999, as amended, and the Electoral Act, 2010, as amended, in respect of the election of 22nd September 2018, the act of the Respondents in ordering a Rerun election of 27th September 2018 is invalid, void and of no effect whatsoever howsoever.
4. That it may be determined and thus declared that the rerun election of 27th September, 2018 and the return of the 1st Respondent are voided by acts which clearly violate and are in breach of the provisions of the Electoral Act, 2010 (as amended), including but not limited to rigging and manipulation of election results, unprecedented acts of violence, unlawful allocation of votes, thuggery and coercion of voters, committed at towns, villages and other communities, wards and Polling Units aforementioned in Osun State as well as unlawful interference in the electoral process by the Respondents.
5. A declaration that Your Petitioners scored the majority of lawful votes cast at the election to the seat of the governor of Osun State held on 22nd September 2018 and the 1st Petitioner Senator Ademola Nurudeen Adeleke is therefore entitled to be returned as the duly elected governor of Osun State.
6. An Order directing the 1st Respondent to issue your 1st Petitioner Senator Ademola Nurudeen Adeleke with the Certificate of Return forthwith.

Upon service of the Petition, the Appellant filed his Reply to the Petition on 9th November 2018, wherein he raised an objection to the competence of the Petition and the Tribunal’s lack of jurisdiction to entertain it. Furthermore, in reply to the Petition, the Appellant denied the various allegations in the Petition, putting the Petitioners to very strict proof of the allegations. In addition, he filed a motion on notice dated 24th November 2018 which was argued on 5th December 2018. The Ruling on the objection was delivered alongside the final Judgment on 22nd September 2018, whereat the objection was dismissed and the Petition was found meritorious.

Dissatisfied with the decision of the Election Tribunal, the Appellant filed this Appeal to the Court of Appeal.

ISSUES FOR DETERMINATION

The appeal was determined on the Appellant’s issues viz:

i. Having regard to the fact that the majority Judgment of the lower Tribunal was written and/or delivered by the Honourable Justice P.C. Obiorah, who did not participate in all the proceedings of the lower Tribunal, to listen, see, watch the witnesses and assess their demeanour, but who, in his judgment, reviewed, assessed and applied the evidence of witnesses who testified in his absence, to give judgment against the appellant, whether the Judgment of the lower Tribunal is not altogether a nullity.

ii. Considering the grounds of the Petition before the lower Tribunal, whether the said Tribunal had the jurisdiction to entertain complaints of substantial non-compliance with the Electoral Act in respect of the election of 22nd September 2018 and to make the final Orders it so made with regards to the said allegations of non-compliance.

iii. Did the lower Tribunal correctly resolve the issue of waiver raised before it?

iv. Did the Grounds and Reliefs sought in the Petition confer jurisdiction on the lower Tribunal

v. Considering the pleadings and reliefs sought in the petition, whether the lower Tribunal was not wrong to have returned the petitioners before it as duly elected with a score of 253, 452 (based on the election of 22nd September, 2018) or 253, 777 (based on the election of 22nd September, 2018 and 27th September, 2018) after voiding votes.

vi. Was the lower Tribunal right in its decision invalidating and voiding the 27th September 2018 rerun election in Osun State?

vii. Considering the decision of the lower Tribunal that Petitioners before it failed to prove over voting and voiding of valid votes, whether the said Tribunal was not wrong to have nullified elections in 17 Polling Units as it did on the ground of entries (separate from scores of candidates) in Form EC8A.

viii. Was the lower Tribunal correct when it came to a finding that there was substantial non-compliance which substantially affected the results of the election?

ix. Considering the pleadings and evidence led at the lower Tribunal, whether the Tribunal was right and did not breach the Appellant’s right to a fair hearing to have given the final orders made by it.

x. Whether the lower Tribunal was correct in its decision in respect of the various information in the certified true copies of Forms EC8A and the pink copies of the said Forms, which were both tendered by the Petitioners before it?

xi. Considering the pleadings and reliefs in the Petition before the lower Tribunal, whether the Petitioner’s case based solely on the election of 22nd September 2018, was statute-barred.

xii. Whether the lower Tribunal was correct in its refusal to uphold the Appellant’s objection to the votes of the 1st and 2nd respondents.

DECISION/HELD

In a majority decision, (Ita George Mbaba, J.C.A.DISSENTING) the Court of appeal allowed the appeal. The majority decision of the Osun State Governorship Election Petition Tribunal (M.I. Sirajo, J. DISSENTING) was set aside.

RATIOS:

• ELECTION PETITION- DECISION OF ELECTION PETITION TRIBUNAL: Whether the absence of the signature of a judge on the record of proceedings is conclusive proof that he did not participate in all the proceedings of a Petition and thus cannot write and deliver a judgment in the Petition
• ELECTION PETITION- DECISION OF ELECTION PETITION TRIBUNAL: Whether a Judge who did not participate in full in all the proceedings of a case or Petition can write and deliver a judgment in the Petition
• ELECTION PETITION- RE-RUN ELECTION: Whether a party who participated in a re-run election will be allowed to challenge the validity of the re-run election
• ELECTION PETITION- ALLEGATION OF NON-COMPLIANCE WITH THE ELECTORAL ACT: When non-compliance with the Electoral Act will be said to have been validly established
• ELECTION PETITION- ELECTION RESULT: Who has the power to cancel an election result
• ELECTORAL MATTERS- CERTIFICATE OF RETURN: Whether a certificate of return must be produced/placed before a Tribunal in an election petition