Updated: Appeal Court says Oyetola is Osun State Governor; dissenting justice slams INEC

The Court of Appeal sitting in Abuja has affirmed Governor Gboyega Oyetola as the Governor of Osun Stste.
Recall that the Osun Election Petition Tribunal had earlier overturned Oyetola’s victory and named opposition Peoples Democratic Party (PDP) candidate, Senator Ademola Adeleke as winner.
Oyetola subsequently approached the Court of Appeal.
The Court of Appeal on Thursday set aside the majority decision of the Osun State Election Petition Tribunal, which nullified the election of Osun State Governor, Adegboyega Oyetola and returned candidate of the Peoples Democratic Party (PDP), Senator Ademola Adeleke as lawful winner of the September 2018 governorship election in Osun State.
The appellate court in a majority judgment of four to one, nullified the majority judgment of the tribunal delivered by Peter Obiorah on the grounds he (Obiorah) in his judgment relied on the evidence of two witnesses which he did not observe.
The appellate court in the majority judgment delivered by the presiding judge, Justice Jummai Sankey, declared the decision of the tribunal which sacked Oyetola as governor a nullity and consequently set aside the entire proceedings of the tribunal.
The tribunal upheld the submission of Wole Olanipekun SAN that the petition was incompetent from the beginning and that it was the tribunal itself that amended it and granted the reliefs not sought by Adeleke.
Justice Sankey noted that the Court of Appeal ordinarily having set aside the entire proceedings of the tribunal ought to order a retrial of the case, however, the appellate court could not order a retrial because the 180 days provided by the law for election petition has elapsed.
Meanwhile, the 5th member of the panel, Justice George Mbaba in a dissenting judgment dismissed the appeal and upheld the decision of the tribunal.
Justice Mbaba, held that the submission of the appellant that Justice Obiorah did not participate in the proceedings of February 6, 2019 remains speculative, contentious and one that can only be resolved by means of an affidavit and calling of witnesses.
He argued that if the records of the proceedings of February 6, opened with the statement that the full panel sat, the fact that he did not sign the proceedings cannot be enough to conclude that he did not participate in the day’s proceedings.
Mbamba further noted that the issue of sabotage cannot be ruled out as the records were transmitted by court’s registrar.
He consequently, dismissed the appeal and upheld the majority decision of the tribunal which sacked Oyetola and returned Adeleke as Governor.
Mbaba further awarded cost of N200k against Oyetola.
In another appeal filed by the Independent National Electoral Commission, which was upheld by a majority of four to one, Justice Mbaba who delivered the dissenting judgment came down heavily on the electoral umpire for its failure to leave up to expectations in the conduct of the election.
Mbaba held that INEC which did not call any witness at the tribunal or tendered any document, surprisingly came to the Appeal Court to file an appeal and even went ahead to claim that Adeleke and PDP cannot challenge the September 27, rerun election on the grounds that they have waived their rights by participating in the said election.
According to him no serious party would boycott any rerun election when a final declaration had not been made, adding that INEC acted dubiously in the rerun election. “INEC acted dubiously in the way it handled the rerun election. INEC should not have been put in the dock if it has done the right thing at the rerun election, and when INEC was in the dock, it shied away without filing any argument”.
On the cancellation of results in 17 polling units, Justice Mbaba held that the cancellation was deliberate because INEC returning Officer had no power to do the cancellation. “It is the presiding Officer that has the power to cancel results if need be”.
Other members of the panel were Justices Abubakar Yahaya, Isaiah Akeju and Bitrus Sanga.