He called on 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.
Adegboyega Oyetola, Governor of Osun State, his party, the All Progressives Congress (APC), have called on the Court of Appeal in Abuja to reverse the March 22, 2019 judgement of the state Governorship Election Petitions Tribunal that cancelled Oyetola's victory in the governorship election held in September 2018.
However, the Peoples Democratic Party (PDP) and its candidate, Ademola Adeleke, who were declared the winner of the election by the tribunal, requested the Court of Appeal to uphold the tribunal’s judgment.
A five-man panel led by Justice Jummai Sankey, on Wednesday, listened to all the three appeals and a cross-appeal filed in regards to the election and judgments.
In his appeal on Wednesday, Oyetola, the APC and INEC urged the five-man panel of the Court of Appeal led by Justice Jummai Sankey, alongside Justices Abubakar Yahaya, George Mbaba, Isaiah Akeju and Bitrus Sanga, to set aside the majority decision of the tribunal, uphold their appeals and dismiss the October 16, 2018 petition by Adeleke and the PDP.
In his appeal, Oyetola's lawyer, Wole Olanipekun (SAN), picked holes in the reasons given by the tribunal in arriving at the judgment appealed against, arguing that the decision was not supported by the evidence led by the petitioners.
He called on 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 observed 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.
In his response, the lawyer representing both the PDP and Adeleke, Dr Onyechi Ikpeazu (SAN), urged the tribunal to dismiss the appeal and uphold the majority judgment of the tribunal.
On the issue of the absence of Justice Obiorah on the February 6, 2019 proceedings of the tribunal, Ikpeazu said there was a conflict in the record of the tribunal given the fact that the list of judges who sat that day contained Justice Obiorah’s name, but only that the judge did not sign the proceedings.
Ikpeazu said: “Looking at the totality of the record, there is a conflict and it can only be settled through an affidavit.”
Akin Olujinmi (SAN), counsel to the APC, 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,” he 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.”
INEC’s lawyer, Yusuf Ali (SAN), also urged the Court of Appeal to set aside the majority judgment on the grounds that in one breath, the petitioners failed to prove their allegations of over-voting and non-accreditation of voters, yet in another breath, went on to nullify the election in 17 polling units on the basis of “non-compliance".
Ali said the petitioners’ witnesses admitted during trial that the non-compliance in the form of failure of the electoral officers to fill some columns on result sheets accounting for accreditation of voters and ballot paper usage in the 17 polling units did not affect the votes recorded for the various parties in the polling units.
In his responses to Olujinmi and Ali, Ikpeazu maintained that his clients, having “satisfied the constitutional threshold after the September 22, 2018 election, there was no reason why INEC should not have declared them the winner.”
The date of the judgments will be communicated to the parties through hearing notices that will be served on their lawyers whenever the judgments are ready.
Oyetola and Adeleke were present at the Wednesday’s proceedings which lasted over five hours.