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Nairaland Forum / Nairaland / General / Politics / Osun Gov Dispute: Supreme Court Hears Adeleke’s Appeal, Monday (16277 Views)
Same Amadi: Adeleke's Appeal Of Tribunal's Decision Will Fail / Two S/court Justices Upheld Sen. Adeleke’s Appeal / "It's Not Over" - Atiku Reacts As Supreme Court Dismisses Adeleke's Appeal (2) (3) (4)
Re: Osun Gov Dispute: Supreme Court Hears Adeleke’s Appeal, Monday by Nobody: 6:37pm On Jun 16, 2019 |
Just like others Firefire: |
Re: Osun Gov Dispute: Supreme Court Hears Adeleke’s Appeal, Monday by Nobody: 6:41pm On Jun 16, 2019 |
A state where it was only a LADY judge who could confront a governor, says a lot about the mental and state of mind of the people in general. Land of the living dead superstar1: 1 Like |
Re: Osun Gov Dispute: Supreme Court Hears Adeleke’s Appeal, Monday by Nobody: 6:43pm On Jun 16, 2019 |
superstar1: |
Re: Osun Gov Dispute: Supreme Court Hears Adeleke’s Appeal, Monday by slivertongue: 6:45pm On Jun 16, 2019 |
I PRAY JUSTICE WILL BE GIVEN TO THE ELECTORATES |
Re: Osun Gov Dispute: Supreme Court Hears Adeleke’s Appeal, Monday by Nobody: 6:46pm On Jun 16, 2019 |
superstar1: Was petitions written before they burst yahoo boys ? Let’s be honest with ourself. This country no fit better 1 Like |
Re: Osun Gov Dispute: Supreme Court Hears Adeleke’s Appeal, Monday by superstar1(m): 6:49pm On Jun 16, 2019 |
Deathisfreee: Are you a Yahoo boy |
Re: Osun Gov Dispute: Supreme Court Hears Adeleke’s Appeal, Monday by Nobody: 6:53pm On Jun 16, 2019 |
superstar1: No. But you can contact me at deathisfree@yahoo.com 1 Like |
Re: Osun Gov Dispute: Supreme Court Hears Adeleke’s Appeal, Monday by 247Dior(m): 6:53pm On Jun 16, 2019 |
ThisCouldBeUs:he's a saint by default #Apc |
Re: Osun Gov Dispute: Supreme Court Hears Adeleke’s Appeal, Monday by hightempo(m): 7:16pm On Jun 16, 2019 |
capitalzero:oyetola not otedola |
Re: Osun Gov Dispute: Supreme Court Hears Adeleke’s Appeal, Monday by Glink2018(m): 7:18pm On Jun 16, 2019 |
carterguccy: PDP kill you |
Re: Osun Gov Dispute: Supreme Court Hears Adeleke’s Appeal, Monday by tophumble(m): 7:22pm On Jun 16, 2019 |
carterguccy: The only thing is that likes and share on Nairaland don't translate to court verdict |
Re: Osun Gov Dispute: Supreme Court Hears Adeleke’s Appeal, Monday by kally32(m): 7:44pm On Jun 16, 2019 |
superstar1: Who forwarded that of Ayo Fayose? By now sane people know that EFCC is a tool in the hand of FG to fight opposition. 1 Like |
Re: Osun Gov Dispute: Supreme Court Hears Adeleke’s Appeal, Monday by emptor(m): 8:01pm On Jun 16, 2019 |
dancing senator will soon be dancing governor of the state.that he can dance does not mean he can't rule |
Re: Osun Gov Dispute: Supreme Court Hears Adeleke’s Appeal, Monday by Johnnyessence(m): 9:37pm On Jun 16, 2019 |
Olorunoba agbe Omo osun nija ni ile ejo Supreme Court ni agbara Olorun oba. 1 Like |
Re: Osun Gov Dispute: Supreme Court Hears Adeleke’s Appeal, Monday by Alejobs: 10:41pm On Jun 16, 2019 |
Just before you do the do.... Think twice! |
Re: Osun Gov Dispute: Supreme Court Hears Adeleke’s Appeal, Monday by israelmao(m): 11:20pm On Jun 16, 2019 |
Oyetola on his last leg. 1 Like 1 Share |
Re: Osun Gov Dispute: Supreme Court Hears Adeleke’s Appeal, Monday by 9jahotblog: 5:57am On Jun 17, 2019 |
Can a Tribunal Cancel Some Votes Cast in an Election and
Still Declare a Candidate Winner of the Election based on the
Un-Cancelled Votes? A Brief Reflection on Section 140 &
Related Sections of the Electoral Act, 2010, as Amended
I have seen and read the following statement on more than
four different Social Media platforms within the last 24 hours:
“Meanwhile, section 140 (2) of the Electoral Act, 2010 (as
amended) does not permit the Tribunal to deduct votes and
declare a winner.”
With due respect, I am unable to agree with those who hold or
disseminate such an opinion. I do not think that statement
represents the true state of Nigeria’s electoral lawspertaining
to powers of an Election Tribunal. Meanwhile, beyond reports
in the newspapers, I have not read the detailed decision of the
Osun State Governorship Election Tribunal, as delivered on 22
March, 2019. So, I would restrict myself to commenting on just
the import of the provisions of section 140 (1), (2) and (3), as
well as on some other relevant sections, ofthe Act on powers
of an Election Tribunal to deduct/cancel votes cast in some
areas/portion in an election and still declare a candidate
winner of an election based on the un-cancelled votes/areas.
I first reproduce the entire section 140 (1), (2) and (3) of the
Electoral Act, 2010, as amended:
“(1) Subject to subsection (2) of this section, if the Tribunal or
the Court as the case may be, determines that a candidate who
was returned as elected was not validly elected on any ground,
the Tribunal or the Court shall nullify the election.
(2) Where an election tribunal or court nullifies an election on
the ground that the person who obtained the highest votes at the
election was not qualified to contest the election, or that the
election was marred by substantial irregularities or non-
compliance with the provisions of this Act, the election tribunal
or court shall not declare the person with the second highest
votes or any other person as elected, but shall order a fresh
election.
(3) If the Tribunal or the Court determines that a candidate who
was returned as elected was not validly elected on the ground
that he did not score the majority of valid votes cast at the
election, the Election Tribunal or the Court, as the case may be,
shall declare as elected the candidate who scored the highest
number of valid votes cast at the election and satisfied the
requirements of the Constitution and this Act.”
Irespectfully submit that section 140 (2) of the Electoral Act,
as amended is NO longer part of the Act, having been declared
null and void in 2011 for its inconsistency with the
Constitution of the Federal Republic of Nigeria, 1999, as
amended. In the case of LABOUR PARTY V. INEC & ORS , the
Federal High Court, sitting in Abuja had on Thursday, 21 July
2011, had declared that sections 140 (2) and 141 of the
Electoral Act, 2010, as amended, were null and void for being
inconsistent with sections 134 and 179 of the Constitution
which imbues the judiciary/court with powers to declare the
person with majority votes winner of an election process
Constitution. The court had thenordered that the two sections
of the Electoral Act should not be binding on any Election
Tribunal. Delivering judgment on the matter, the presiding trial
judge, Hon Justice Gabriel Kolawole , had held that the
National Assembly of the Federal Republic of Nigeria was
bereft of any legislative competence to dictate to the Court of
law decision the Court should take over a suit filed before it.
Describing sections 140(2) and 141 of the Electoral Act, 2010
as an affront on the concept of separation of powers, the
judge stated thatthe two sections smacked of legislative
tyranny, in the sense that they removed the constitutionally
guaranteed powers of the court to declare any candidate
winner of an election. Thejudge further stated that what the
National Assembly had done in this instance was
todeliberately interfere with judicial affairs. While noting further
that the two sections were nothing but legislative judgment,
the judge had concluded thus:
“Sections 140 (2) and 141 of the Electoral Act 2010 delimits
power of the court to adjudicate dispute between parties in an
Election Petition. It, therefore, derogates powers enshrined in
Sections 4 [8] and 6 (1) of the 1999 Constitution. The decision a
court can arrive at in any dispute is based on the peculiar
factsand evidences presented before it, it is not what any
parliament can technically determine. Once an Election Tribunal
is seised with a matter in line with provisions of section 239
and 385 of the constitution, it can no longer reside with the
legislature to curtail or abridge the powers of that court .I,
therefore, find Sections 140 (2) and 141 needless and an
unnecessary intrusion, it is my view that Election Tribunals can
operate effectively without these two provisions.Consequently, it
is hereby declared inconsistent with the provisions of the 1999
Constitution and, therefore, null and void. The various election
tribunals shall not be bound by the provisions of Sections 140
(2) and 141, it is thus accordingly struck-down, same being
unconstitutional.”
(See < http://www.vanguardngr.com/2011/07/court-rejects-
sections-of-2010-electoral-act/ > accessed on 23 March
2019); (< https://allafrica.com/stories/201107260828.html >
accessed on 23 March 2019)
There has not been any judgment on appeal in this case. It is
doubtful it was ever appealed against. So, the 2011 judgment
of the Federal High Court remains and represents the law on
the subject till today; the decision a court can arrive at in any
dispute is based on the peculiar facts and evidences presented
before it, the court having, as the Federal High court said, the
constitutionally guaranteed powers to declare any candidate
winner of an election in line with sections 134 and 179 of the
1999 Constitution.It must however be noted that in the case of
JEV v. IYORTYOM & 2 ORS (2014) 5-6 SC. PT III), the
attention of the Supreme court was drawn to the 2011
judgment of Kolawole, J. in Labour Party v. INEC and this is
what Fabiyi JSC had to say about the judgment:
“EXHIBIT 2, the judgment of the Federal High Court, delivered on
the 21st July 2011 is a ‘joker’ relied upon by the applicant to
initiate his application. I dare say that this court was unaware of
same. I do not agree with senior counsel to the applicant that
the court was ignorant of same. A Judge is not a robot. Once an
exhibit is placed before him, he must read and carefully consider
it. I took time to read Exhibit 2 very well. The learned trial Judge
did not touch on the non-joinder of the National Assembly as
well as the locus standi of Labour Party. Since the judgment is
not on appeal before this court, I maintain a stoic stance and
hereby keep my peace.”
I think the crucial part of this orbiter dictum by Fabiyi, JSC, in
this case is that “since the judgment is not on appeal before
this court, I maintain a stoic stance and hereby keep my
peace.” I therefore submit that the Supreme court in the case
of JEV v. IYORTYOM & 2 ORS did not upturn the 2011
judgment of Kolawole, J. The judgment still subsists, even if
one considers it bad law, until set aside or overruled. A slightly
similar scenario had played out in MAYAKI & OTHERS v.
REGISTRAR, YABA MAGISTRATE COURT, (1996) 2 NWLR (Pt
130) 43 where the Court on appeal had described the
judgment of the trial Magistrates’ Court as a “judicial
rascality ,” but nevertheless refused to set the judgment aside.
On the other hand, I submit that section 140(2) of the
Electoral Act, even if it is held to still be effective, is
IRRELEVANT to the majority decision in Osun. This is because,
in my humble opinion, section 140(2) can only be USED or be
applied in these three instances:
1. Where an election tribunal or court nullifies the ENTIRE
election on the ground that the person who obtained the
highest votes at the election was not qualified to contest
the election, or
2. Where an election tribunal or court nullifies the ENTIRE
election on the ground that election was marred by
substantial irregularities or
3. Where an election tribunal or court nullifies the ENTIRE
election on the ground that there was SUBSTANTIAL non-
compliance with the provisions of this Act.
Based, on that section, I think it is only where ANY ONE of the
above three options applies that the election tribunal or court
is mandated to not declare the person with the second highest
votes as elected, but to order a fresh election. In my humble
view, none of those three instances WAS PRESENT in the
OSUN State scenario. Accordingly, section 140(2) does not
apply. Reasons:
1. In Osun State, the Tribunal’s decision DID NOT nullify the
ENTIRE election as invalid. Only the rerun election was
canceled; so, section 140(2) is inapplicable;
2. In the Osun State case, the Tribunal’s decision did not
declare that the person earlier declared winner (Oyetola)
was not qualified to contest. So, Section 140(2) is
irrelevant here;
3. The Tribunal’s decision in Osun did not declare that there
was substantial non-compliance of the entire election,
with the Electoral Act. The Tribunal’s decision was only
that some part (namely THE RERUN ELECTION in 7
wards) did not comply with the Electoral Act. It was only
the seven (7) wards adversely affected, and NOT THE
ENTIRE GOVERNORSHIP ELECTION, that was canceled
and deducted So, section 140(2) has no relevance here.
Second, it is respectfully submitted that section 140 (1) of the
Act applies to only situations where the Tribunal determines
that the entire election has to be voided/nullified on grounds
that the candidate who was returned (by the electoral umpire)
as elected was not validly elected on any ground. Such
grounds that could give rise to a decision voiding/nullifying
the entire results of an election include the following, as set
out by section 138 (1)(a), (b),(d) & (e) of the Electoral Act:
1. that a person whose election is questioned was, at the time
of the election, not qualified to contest the election;
2. that the election was invalid by reason of corrupt practices
or noncompliance with the provisions of this Act; and
3. ….
4. that the petitioner or its candidate was validly nominated
but was unlawfully excluded from the election.
5. that the person whose election is questioned had submitted
to the commission affidavit containing false information of
a fundamental nature in aid of his qualification for the
election.
It must however be note that as provided by section 139 (1) of
the Act, “an election shall not be liable to be nullified/
invalidated by reason of non-compliance with the provisions of
this Act if it appears to the Election Tribunal or Court that the
election was conducted substantially in accordance with the
principles of this Act and that the non-compliance did not
affect substantially the result of the election.” A plain
interpretation of the actual import of section 39 (1) of the
Electoral Act (as amended) is, in my humble opinion, that an
Election Tribunal clearly possesses the power to decide that:
1. Although the conduct of an election is not wholly/entirely
in compliance with the Electoral Act, yet, the election is
sufficiently valid to produce a winner on grounds that the
conduct of the election has substantially complied with
the Act. In other words, the Tribunal is entitled to decide
that a portion of the election IS in compliance while the
other portion IS NOT. Accordingly, where the Tribunal
holds that the portion that is in compliance with the
Electoral Act is substantial to produce a winner, the
Tribunal can validly declare as winner, the personwith
majority of the votes cast in the portion in which the
Tribunal finds that the election was validly conducted. For
this purpose, where the Tribunal in exercise of its powers
under section 139(1) finds that a particular portion of the
election or its conduct IS NOT in compliance with the
Electoral Act, the Tribunal has the power to nullify the
affected portion and thereafter determine whether the
other portion, the SAVED, un-nullified portion, is
sufficiently substantial to ground a declaration that a
person has won the election. I think, respectfully, this is
what the Osun State Governorship Election Tribunal did
on 22 March 2019 when it foundin its wisdom (rightly or
wrongly) that a certain portion of the conduct of the
gubernatorial election in Osun State (specifically, the re-
run portion of the election) had violated the law and as
such was liable to be nullified with the consequence that
all votes cast in the affected portion/areas be deducted
from the total votes cast while the other portion (the
areas not adversely affected) was now relied upon to
determine the winner of the election. It is therefore clear,
I submit, that an Election Tribunal possesses the power to
cancel or deduct the votes cast in an election conducted
in any area in violation of the Electoral Act. However,
whether the Tribunal properly applied the powers to
deduct votes in a cancelled area and whether the
tribunal’s reasons for cancelling elections conducted in
the area it cancelled is now a matter which depends of
the facts of this case, and in respect of which the
appellate Courts are in the best position resolve.
2. Even though the tribunal found that a portion of the
areas/ conduct of the election did not comply with the
provisions of the Electoral Act, and was therefore
nullified, such nullified area and votes cast within the
area which were deducted from the total votes cast as a
result of such non-compliance “did not substantially
affect the result of the election.” Accordingly, where the
‘illegal” votes cancelled/deducted as a result of partial
non-compliance is not sufficient to “substantially
adversely affect the result of the election, the tribunal is
entitled to declare any person winner based on the un-
affected, the un-cancelled, votes. Please, note that
whenever the tribunal cancels and deducts the votes cast
in elections conducted in a portion of the State in breach
of the Act, the necessary implication is that the un-
canceled portion would now be deemed to be the only
valid votes for the purpose of application of section
140(3) of the Act.
Respectfully, therefore, I think section 139(1) impliedly gives
the Tribunal powers to cancel part of an election (found to be
against law) and to declare a person winner based on the un-
canceled part of the Tribunal finds that the votes secured in
the un-canceled part substantially complied with the Electoral
Act!
Further, section 140 (3) of the Act empowers the Election
Tribunal to declare as elected the candidate who scored the
highest number of valid votes cast at the election conducted
in the portion where no such cancellation as a result of
illegality happened if it finds that the votes cast in the portion
where conduct of electionsis held to have “satisfied the
requirements of the Constitution and of this Act” were
substantial enough to justify such a declaration.Besides,
section 138(1) (c) provides as a ground for an election petition
that the petitioner could be declared winner if the tribunal
finds “that the respondent was not duly elected by majority of
lawful votes cast at the election.” This is a clear indication that
the Tribunal could declare some votes unlawful and invalid,
and proceed to rely on the “lawful, valid votes” to determine
the winner.”
One may hence reasonably conclude that by combined effects
of section 138, 139 and 140 (1) and (3) of the electoral Act, as
amended, an election Tribunal possesses powers to cancel or
nullify a part of an election it find does not comply with the
provisions of the Act, and, may indeed declare any person
winner of an election based on the un-cancelled portion, if it
appears to the Election Tribunal or Court that the election was
conducted substantially in accordance with the principles of
this Act and that the cancellation of votes in some part as a
result of non-compliance did not substantially adversely affect
the overall result of the election. Accordingly, the statement
being circulated by my friends, to the effect that “section 140
(2) of the Electoral Act, 2010 (as amended) does not permit
the Tribunal to deduct votes and still declare a winner ” is
obviously unfounded, baseless, and, as the Court had held in
Labour Party v. INEC (supra), an Election Tribunal “ shall not be
bound by the provisions of Sections 140 (2) .”
However, speaking specifically of the Osun State case, the
Governorship Election Tribunal had on 22 March 2019 declared
as winner, the candidate of the People’s Democratic Party
(PDP), Senator AdemolaAdeleke, holding that the candidate of
the All Progressives Congress (APC), Mr. GboyegaOyetola,
was not validly returned. It would be recalled that in the first
ballot in the Osun State Governorship Election, the PDP
candidate had won majority valid votes(254,698) while
Mr.Oyetola of the APC had come a close second (with
254,345 votes). However, the INEC RetuningOfficer had
declared that Mr.Adeleke’s margin of lead (354 votes) was
lower than the total number of cancelled votes (which were
put at 3,498). This was what led to the Independent National
Electoral Commission’s (INEC’s) decision to conduct a re-run
election in the affected seven polling units. What the tribunal
did in its majority judgment of 22 March 2019 was to declare
that thererun election that was held on September 27, 2018
was illegal. The Tribunal consequently cancelled/deducted all
the votes scored by both the APC candidate and the PDP
Candidate at the areas affected by the rerun. With the
cancellation of the rerun election by the tribunal, the initial
ballot/result was recognized thus leading the Tribunal to
declare Mr.Adelekeof PDP the winner of the election. (see
https://www.premiumtimesng.com/news/headlines/321637-
breaking-tribunal-declares-pdps-adeleke-winner-of-osun-
governorship-election.html accessed on 23 March 2019).
Based on my explanation above and in view of the facts of the
case and the ratio decidenci for the judgment as reported in
the newspapers on 22 March 2019, I believe the main business
before the appellate courts in this case, if the APC Candidate
goes on appeal, as he is expected to, would be to
determinewhether the majority decision of Tribunal was right
in having decided that it hadfound sufficientevidence of non-
compliance with the Electoral Act to justify the cancellation of
the rerun elections and deduction of the votes scored therein.
I leave that question for the Supreme courts to decide. 1 Like |
Re: Osun Gov Dispute: Supreme Court Hears Adeleke’s Appeal, Monday by kayodebaba77(m): 7:54am On Jun 17, 2019 |
kally32:[/sup][sup] |
Re: Osun Gov Dispute: Supreme Court Hears Adeleke’s Appeal, Monday by Modphase: 8:41am On Jun 17, 2019 |
Right after EFCC investigate n question Ikpeazu on why the only project he did with 4 year allocation was sharing kerosene in just one tanker tonthe entire shithole called Abia. Why Umahi is building Greek olden day architecture in 21 century Ebonyi. Why Enugu is now in ruins by Ugwauyi All these need more speedy investigation by foolish PDP Igbo instead of worrying your dead head over a land your unborn generation will never step in far away across the border Osun. ThisCouldBeUs: 1 Like |
Re: Osun Gov Dispute: Supreme Court Hears Adeleke’s Appeal, Monday by success1smyn(m): 8:49am On Jun 17, 2019 |
We the good ppl of osun are anxiously waiting for this judgement.
ADELEKE ALL THE WAY 2 Likes 1 Share |
Re: Osun Gov Dispute: Supreme Court Hears Adeleke’s Appeal, Monday by success1smyn(m): 8:58am On Jun 17, 2019 |
fwesharumi:how if i may ask |
Re: Osun Gov Dispute: Supreme Court Hears Adeleke’s Appeal, Monday by Nobody: 9:20am On Jun 17, 2019 |
ThisCouldBeUs:Efcc suppose arrest aregbesola on the several months salaries he owed osun workers the way the commission did to ex gov fayose.Magu is too sentimental. |
Re: Osun Gov Dispute: Supreme Court Hears Adeleke’s Appeal, Monday by fwesharumi(m): 10:53am On Jun 17, 2019 |
how if i may ask[/quote] Ask gOOgle |
Re: Osun Gov Dispute: Supreme Court Hears Adeleke’s Appeal, Monday by fwesharumi(m): 10:53am On Jun 17, 2019 |
success1smyn:Ask GOOgle |
Re: Osun Gov Dispute: Supreme Court Hears Adeleke’s Appeal, Monday by success1smyn(m): 6:50pm On Jun 17, 2019 |
fwesharumi:weyrey ree ooo |
Re: Osun Gov Dispute: Supreme Court Hears Adeleke’s Appeal, Monday by fwesharumi(m): 11:07pm On Jun 17, 2019 |
success1smyn:Baba eh ni wherey |
Re: Osun Gov Dispute: Supreme Court Hears Adeleke’s Appeal, Monday by success1smyn(m): 11:23pm On Jun 17, 2019 |
fwesharumi:e pain am |
Re: Osun Gov Dispute: Supreme Court Hears Adeleke’s Appeal, Monday by Alejobs: 6:42pm On Jun 20, 2019 |
I dream of a time when I can say you are my friend! 1 Like 1 Share |
Re: Osun Gov Dispute: Supreme Court Hears Adeleke’s Appeal, Monday by Alejobs: 8:17pm On Jun 20, 2019 |
We are the change the world is waiting for.... |
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