The legal tango over the Osun State gubernatorial election held on 22nd and 27th September 2018, would be determined by the Supreme Court if the Peoples Democratic Party (PDP) carriers out its threat to appeal the judgment of the Court of Appeal delivered last Thursday, setting aside the March 22nd judgment of the Osun State Governorship Election Tribunal, which sacked Governor Adegboyega Oyetola. While awaiting the apex court, let us examine some gravamen of the legal dispute.
Of particular interest to this column is the issue raised at the appeal by Wole Olanipekun SAN: whether the absence of learned Justice Peter Obiorah (who authored and read the lead judgment) at the tribunal sitting on February 6, has not rendered the majority decision of the tribunal a nullity. The learned Justice Obiorah was a member of the three-man panel that heard and determined the petition of Senator Ademola Adeleke and the PDP. On a majority of two-to-one, Adeleke carried the day at the tribunal.
That judgment has now been set aside on appeal, by a four-to-one majority panel, led by Justice Jummai Sankey. While Justices Abubakar Yahaya, Isaiah Akeju and Bitrus Sanga agreed with Justice Sankey, Justice Ita Mbaba dissented. Interestingly, there is a plethora of cases on the validity of a judgment delivered by a panel different from the one that heard a case. In Awolola v Governor Ekiti State (2019) All FWLR, (Pt. 971), 1-55, the Supreme Court was invited to overrule its decision in
Ubwa v Tiv Area Traditional Council (2004) 11 NWLR (Pt. 884) 427 as well as Sokoto State Government v Kamdex (Nig.) Limited (2007) 7 NWLR (Pt. 1034) 466.
In Ubwa v Tiv Area Traditional Council , Magaji JCA who did not participate in hearing the appeal wrote and delivered a concurring judgment, in the case heard by Akpabio, Umoren and Chukwuma-Eneh, JJCA; while in
Sokoto State Government v Kamdex (Nig) Ltd , Justices Ogebe, Aderemi and Chukwuma-Eneh heard an appeal, however Justice Galadima who did not hear the appeal, wrote and delivered a concurring judgment, instead of Ogeb JCA. In Ubwa’s case , the apex court had after considering sections 247(1), 294(2) ad (4) of the 1999 constitution declared the judgment a nullity and ordered a retrial.
Also in Sokoto State government’s case, the Supreme Court held that the judgment was not a complete judgment of the Court of Appeal ‘because one of the Justices who heard the appeal did not reduce his judgment or opinion in writing capable of being delivered … as required by section 294(2) of the 1999 constitution.’ However in Awolola v Governor Ekiti State , the Supreme Court reversed its earlier decisions, including Shuaibu v N.A.B. Ltd (1998) 5 NWLR (Pt. 551) 582, (1998) 4 SCNJ 109.
The learned Justices referring to section 258(1), (2) and (3) of the 1979 Constitution held: “Sub-section (3) (supra) clearly provides a solution like the one at hand in this case, as it stated that where the decision of the court consists of more than one judge, the concurring opinion expressed by the majority justices shall be the binding.” They further held: “The sudden appearance of the name of Adio JCA as delivering a concurring judgement must be without doubt a genuine mistake made in the course of compiling the record.”
Interestingly, in Awolola v Governor Ekiti State , if the judgment of the judge who is not a member of the original panel is discountenanced, the judgment still stood as judgment of the majority. However, in Oyetola v Adeleke’s case at the tribunal, the panel is made up of three members. So should the Supreme Court find the judgment of Justice Peter Obiorah, one of the panellist invalid, because he did not sit with the other two members on February 6, as shown by the records of appeal, there will be no majority judgment left to stand, since the tribunal was made up of only three judges.
The surviving judgment, will become a minority judgment, just like the dissenting judgment of the chairman of the tribunal, and may therefore not meet the threshold established in Awolola v Governor Ekiti State and Shuaibu v N.A.B. Ltd,
or even the earlier case of Adeigbe v Kusimo (1965) NMLR 284, wherein the Supreme Court held: “We are therefore of the opinion that variations in the bench do not make the judgment a nullity; they may make unsatisfactory; and it may have to set aside for this reason, but whether they do or not depends on the particular circumstances of the case.”
The circumstance in Oyetola v Adeleke may be such that the sitting of only two members out of three at a stage of the proceedings, may render the judgment nugatory as held by the dissenting judgment of Mary Peter-Odili JSC in
Awolola v Governor Ekiti State. In her judgment, Justice Peter-Odili, quoted Justice Kutigi JSC in
Ubwa v Tiv Area Traditional Council , wherein he said: “The entire proceedings before the Court of Appeal were a nullity because all members who heard the appeal and those who wrote the judgments were not all present throughout the hearing of the appeal which includes delivery of judgment.”
Should the Supreme Court come to the conclusion that the absence of learned Justice Obiorah “throughout the hearing” of the petition (a position affirmed by section 285(4) of the 1999 constitution: which provides that the quorum of an election tribunal shall be the chairman and two members) affected the validity of judgement at the tribunal, and choose to order a retrial, Senator Adeleke and the Peoples Democratic Party may then face the challenge posed by the provision of section 285(6) of the 1999 constitution (as amended). That section provides that an election tribunal shall deliver its judgment within 180 days of the petition.
No doubt, should PDP and her candidate proceed on appeal, the coming days will be days of anxiety for Governor Oyetola and Senator Adeleke and their supporters. That is because section 285(7) of the constitution (as amended) provides that “an appeal from a decision of an election tribunal or court shall be heard and disposed of within 60 days from the date of delivery of judgment of the tribunal.” Clearly, the reversal of the judgment of the trial tribunal brought a lot of excitement to the people of Osun, and many of them look forward to a favourable judgment at the apex court.
Reacting to the victory at the appeal court, Adeniyi Adesina, the Chief Press Secretary to Governor Oyetola, on behalf of the governor wrote: “After months of uncertainty and wait in judicial wilderness, truth has finally prevailed over falsehood….” The next 60 days will determine who finally carries the day in the legal matter.

Hmmmmn