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Review Of Supreme Court Verdict on Osun Governorship Election

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The Supreme Court on Friday dismissed the appeal filed by candidate of the Peoples Democratic Party (PDP) in the 2018 Osun governorship election, Ademola Adeleke, against the election of Adegboyega Oyetola of the All Progressives Congress (APC).
The apex court in a majority judgment of 5 to 2 upheld the decision of the Court of Appeal, Abuja which nullified the judgment of the Osun State Governorship Election Petition Tribunal on the grounds that the tribunal was not properly constituted in regards to numbers.
The majority decision which was delivered by Justice Bode Rhodes-Vivour, agreed with the lower court that the absence of Justice Peter Obiorah from the proceedings of February 6, who delivered the lead judgment was fatal to the case of the appellants.

The apex court accordingly dismissed the appeal and affirmed the election of Oyetola as governor of Osun State.

A Governorship petition thrown out by Supreme Court because a judge at the tribunal did not sign attendance register. Kai Nigeria!

Reading the verdict of the apex court, it is clear the majority based their decision on technical breach of procedure rather than on the substantive merit of the case against INEC.

Senator Ademola Adeleke

According to By Dr Charles Omole, a legal technicality is a small but ultimately important detail of the law. When a case is decided on “a technicality”, it means the plaintiff would have won but for some – though small – oversight or misinterpretation of a rule, or a procedural mistake he lost the case.

It is noteworthy that there is a split decision in the judgment that was given today.
Five stood for majority and two stood for minority. The five majority based their judgment on technicalities and on the facts as if the lower tribunal did not exist because of the fact that a judge, an employee of the same Supreme Court and not that of PDP, was absent for a day during the Tribunal proceedings. They therefore did not consider the facts of the constitutional matters of the case.
The minority judgment affirmed that PDP and Senator Nurudeen Ademola Adeleke fulfilled all the constitutional requirements and therefore declared him and PDP as the winners of the September 22nd, 2018 governorship election at the first ballot. – Osun PDP

The court said the judge who had read the majority judgement at the tribunal, Justice Peter Obiora, was “evidently absent” on February 6th, 2019, following the documents before the court.

In this case, the Supreme court says because the Lead judge in the Tribunal did not sign the attendance sheet on 6th February, it is assumed that he was not in attendance; hence cannot be a judge in a case he did not hear its facts and details.

Justice Bode Rhodes- Vivour who delivered the majority judgment supported by five of the seven-justices held that it is settled law that when “the rightly constituted panel of a court does not seat the activities carried out by that panel is a nullity.”

However, Justice Akaahs in his minority judgment held that INEC in an election ought to remain an unbiased umpire because even when it erred in law by relying on it’s manual to cancel some aspects of the election, the applicant still met the constitutional requirements of having the highest votes cast and spread. But the Election umpire went ahead to cancel the election and carried out a rerun showing that INEC had a plan up its sleeves.

It appears then that while the Majority based their verdict on a Procedural breach, the Minority based theirs on Substantive justice, ignoring the technicality relied upon by their majority colleagues.

Osun State governor, Agboyega Oyetola

So who made the right decision?

From publicly available facts, Justice Obiora stated he was in court on 6th February but forgot to sign the attendance register. APC in its appeal argued that the judge’s failure to sign at the end of the proceedings on February 6, 2019, was enough evidence to justify their claim that Justice Obiora was absent on the day.

Thus at the Appeal and Supreme Courts, the case was no longer about substantive discrepancies and illegalities alleged against INEC. It was hinged solely on legality of the Composition of the Tribunal on 6th Feb.

On one hand, I can see why procedural justice should be promoted as an aid to substantive justice, after all, the fruit from a poisonous tree is also equally poisonous, on the other hand, the court should have put more weight on what is at stake in this case.

Verdicts like this does not develop our jurisprudence as all the substantive matters about INEC’s conduct have not been addressed by either the Appeal or Supreme courts. They simply focused on the procedural irregularity and dismissed the case on that ground alone. So we are not better informed on whether INEC can do what it did in Osun in future elections or not as the courts turned willfully blind eyes on the substantive issues.

Justice Obiora, could have been deposed on oath to ascertain his attendance and the courts can then focus on the substantive issues that will help develop our law and polity. That is what is needed; not simply a technical judgement; especially when the technical irregularity was not the fault of all parties to the case.

A judicial irregularity of such pettiness, that could have been remedied as suggested above should not have been relied upon solely to vitiate a verdict such that the substantive allegations were not explored by the justices. The Supreme court should have ordered a retrial.

This is becoming a pattern.

In the case of former Supreme Court Justice Onnoghen, the court of appeal dismissed the case because, “it has been overtaken by events” because Onoghen has resigned.

In my opinion however, Onoghen’s resignation should not have affected a full verdict that would have developed our laws and set justiciable precedents to grow our jurisprudence.

As a result of their reluctance to address the substantive issue of whether the President has power to suspend a CJN, we are left non the wiser and so a President can therefore confidently suspend a CJN in future as the appeal court did not address that question at all.

Using mere technicalities to decide cases on certain magnitude is a disservice to justice and in certain cases can be  result of judicial corruption. It is almost certain that the current Presidential election petition could also be decided purely based on technicalities if these precedents hold.

This is not about APC or PDP. When a substantial wrong is alleged, the court should give their verdicts on the allegations and not simply dismiss such cases on mere technicalities. At the very least, the courts could dismiss a case based on technicalities and still give opinions on the substantive matters in ways that informs and grow our common law. That is what Lord Denning did in Central London Property Trust Ltd v High Trees Ltd, (Obiter) where although the case was dismissed, the judge nevertheless used its facts to re-establish the doctrine of Promissory Estoppel in modern English Law on Contract.

I am not a lawyer but if this case was decided based on technical breaches as listed here which is not the fault of any of the parties involved, then a very wrong precedence has been set by the Supreme court.

To simply dismiss cases on technicalities while failing to address alleged substantial illegalities perpetuates impunity and weakens the rule of law.

This must stop now!

“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. 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? ” Justice Rhodes-Vivour

Me: Order a retrial


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