Osun Guber: Waiting for the final decision

By Abiodun Lukman

All eyes are on the Supreme Court on the 5th of July, 2019 when the Petition challenging the victory of the Governor of Osun, Alhaji Isiaka Oyetola will be finally laid to rest.

It will be recalled that the Election Petition Tribunal in their judgment declared the PDP candidate, Adeleke as the winner of the said election which on appeal to the court of appeal, Abuja, the said judgment was upturned and the petition dismissed.

The interesting aspect of the judgment is that for the first time in the history of the election petition, the chairman disagreed with the other two members and elect to write the minority judgment while the lot fell on the second most senior judge in the panel to write the majority judgment, which gave victory to Adeleke of the PDP.

Oyetola and APC while appealing against the judgment raised as their first ground the proprietary of a judge who did not participate in all the stages of the proceedings, writing a majority judgment. It was their contention that Justice Obiorah who wrote the majority judgment was absent on the 6th February, 2019 when two vital witnesses were called and in his judgment, despite his absence made findings of facts regarding those witnesses.

In arguing that ground, the appellant (Oyetola) called in aid the decision of the Supreme Court in Kalejaye v LPDC & Anor (2019) LPELR-47035(SC) to support their contention.

They also cited the case of Nyemson v Peterside (2016) 5SCM stated as follows:
“In the instant case, Pindiga, J as chairman with Leha, J and Taiwo J heard the application.

The ruling delivered by Ambrusa J as chairman and Leha and Taiwo, as members, reviewed the submissions of learned counsel made at the hearing of the application before dismissing same.

There is no doubt that Ambrusa, J could not have formed an opinion on the submissions of learned counsel, which he did not hear. In the eyes of the law, only Leha, J and Taiwo, J delivered the ruling. The signature of Ambrusa J on the ruling is invalid.

In the case of Sokoto State Govt vs Kamdex Nig. Ltd a similar situation arose where Justice of the court of appeal who did not participate in the hearing of the appeal wrote and delivered a judgment therein. The judgment so delivered was declared a nullity”

In overruling the judgment of the Tribunal, the court of appeal stated as follows :
” Obiorah J, a member of the Election Petition Tribunal was absent on the 6th February, 2019 when RW 12 and RW 13 testified and the same Obiorah J went ahead in his lead judgment to consider and pronounce on his evidence. Obiorah J. did form an opinion from the evidence of RW12 and RW13 and ascribed probative value to them and proceeded to discountenance the Respondent’s argument premised on these events not witnessed by the trial judge who also wrote the majority judgment of the Tribunal.

This a vice that made the judgment a nullity and I therefore hold”.

The Court of Appeal went further to state that had it been they were final court that lone issue would have determined the appeal without going into issues formulated by the appellants.

The immediate reaction of the PDP and their candidate when the judgment was handed down was that the judgment was delivered on technicality and not on the merit.

However, the Appellants on the other hand insist that the issue as canvassed before the Court of Appeal bothers on jurisdiction of the court and not technicalities. These contention formed the basis upon which Adeleke /PDP appealed to the Supreme Court.

However, a latest decision of the Supreme court delivered on 17th May, 2019 between Okwara Agwu & Ors v Julius Berger Nig PLC (2019) LPER-47625 appears to have settled this contention in the following way:

“Where a ground of appeal question the jurisdiction of the court, it does not matter whether the issue of jurisdiction constituted the ratio of that decision or not, such a ground of appeal could not be said to be incompetent by reason that it does not arise from the decision and constitute a challenge to its ratio decidendi.

In kalejaye v LPDC &1or (No SC. 429/2015) delivered on the 15th March, 2019 the issue of change in the quorum of the LPDC was not the ratio of the decision of the LPDC, yet it was the only ground upon which the appeal was determined by this court.”

All things been equal the Supreme Court will no doubt depart from this latest judgment. We however wait for their final decision on the 5th July, 2019.

Mr Abiodun Lukman is a social commentator, writes from Ejigbo