Re: Makinde’s date with history

I write in response to legal opinion of Mr Lanre  Adewole published by Tribune Online  regarding the recent judgment of the  court of Appeal between  (1) Adelabu Adekola  (2) APC v  (1) INEC (2) Seyi Makinde (3) PDP. The decision has generated controversy amongst lawyers, journalists , academics, non academics and even Illiterates. I have read  Mr  Lanre Adewole’s legal position very well, I have considered the analysis and  I do not subscribe to it. The only thing that I am afraid of is that the decision may have been made from above to reverse the sound Judgment of the Court of Appeal  and to impose Adelabu not in accordance with the law  and the wish of the electorates. In that regard, the relative peace that is currently being enjoyed  in Oyo State  may be reversed and the  twilight of democracy  in Oyo State may go into darkness should the Supreme Court reverse the sound  decision of the Court of Appeal and nullify the election .

The judgment  of the Court of Appeal is clear and succinct. I have considered their Lordship’s findings and application of the law to the facts presented  by the parties in the matter. I therefore propose to deal with the appeals and the ratio of the judgment that has been misunderstood by many and the  misleading and misguided analysis by some people. The appellants raised three grounds in their petition (i) that the 2nd respondent was not duly elected by the Majority of lawful votes cast at the election (ii) that the election of the 2nd respondent was invalid by reason of non-compliance with the provisions of Electoral Act 2010 ( as amended) (iii) that the Election of the 2nd respondent was invalid by reason of corrupt practices. The Appellants /Petitioners therefore asked for the following relief (i) That it  may be determined that the 2nd respondent was not duly elected or returned by the majority of lawful votes cast at the Oyo State governorship election held on 9th day of March 2019 (ii) That it may be determined that the 1st petitioner who was the candidate of 2nd Petitioner, scored the highest number of lawful votes cast at the election and satisfied the requirements of the constitution of the Republic of Nigeria 1999 (as amended) and the Electoral Act 2010 (as amended) (iii) That the first Petitioner be declared validly elected or returned, having scored the highest number of lawful votes cast at the  Governorship Election held on 9th of March 2019 or in the alternative (iv) That it may be determined that the Oyo State Governorship Election held on 9 March 2019 be nullified for substantial  non- compliance with the provisions of the Electoral Act which non-compliance substantially affected the result of the election and in its place, make an order for a fresh election to be conducted.

Consult Embassy before business venture in Dubai ― Ambassador

The lordships in the Court of Appeal did not say Makinde did not win; they did not say INEC rigged the election. What they have said was that prima facie, the Tribunal failed to consider all materials and evidence before them  and failure to consider evidence amounts to an error of law so as to justify the setting aside of the judgment of the Tribunal dated 16 September 2019. The lordships made it clear in the judgment that they have considered the evidence as they are entitled to do and re-evaluate the evidence and re make the decision which in effect replaced the judgment of the Tribunal that was set aside.  The Lordships found that the evidence relied on by the petitioners was not dumped on the Tribunal and should have been considered and that in any event, the evidence was not challenged by the Respondents . The Lordships  also found that the Tribunal was not entitled to speculate in respect of the accredited Numbers of voters and the numbers of total votes cast . It must be based on the assessment of evidence and findings.

The Lordships then considered the non-compliance of the total number of accredited voters and the total number of votes  cast have not tallied as required by the INEC Regulations and Guidelines for the conduct of elections, but that this is only an infringement against INEC regulations, not with the Electoral Act itself which gave the power to make regulations and guidelines to the INEC. The Lordships distinguished the difference between the Electoral Act and the INEC Regulations and Guidelines. They  relied on the current position of law   as established by the Supreme Court in Nyemson Vs.Peterside (2016) ALL FWLR (Pt. 842) 1573 at 1660; it was held that in Section 138 (2) of the Electoral Act 2010 as amended  that as long an act (commission) or omission in relation to guidelines and regulations is not contrary to the provisions of the act, it shall not in itself be a ground for questioning an election in itself . They also relied on the Supreme Court decision in IKPEAZU VS. OTTI SUPRA where INEC Regulations and Guidelines are put on Spotlight, it was held that “ More importantly whichever angle both exhibits PWC2 and PWD are viewed, they cannot ground nullification of the election of the appellant.

In summary, their Lordships made two important decisions: 1. The decision of the Tribunal was set aside in that it was perverse and unfair. 2. They re-made a new decision which  can be found at the last paragraph of page 51 . It was stated that their lordships had evaluated the evidence which was not considered by the Tribunal vis-a’viz the current position of the law and  that they cannot nullify the election. They maintained that they had re-evaluated  the evidence and have come to the conclusion that they could not nullify the election and that the issue of re- ordering a re- hearing of the petition does not arise,  even if there is still time to do that ( of course there is no time under the law for the Tribunal to re hear the matter, they are statue-barred). In a layman’s word, Makinde is validly elected. That is the final decision of the Court of Appeal.

The 2nd decision appeared to be salient to people and they failed to grab the reality of that vital decision. They have concentrated their energy on the fact that the Trubunal decision was set aside and ignored the remaking of the decision.  However, the 2nd decision was very clearly written in the judgment .In my submission, the judgment of the Court of Appeal is sound and succinct; it upheld  and affirmed Seyi Makinde as the validly elected governor of Oyo State. Should the Court of Appeal order a retrial, it is not synonymous to a declaration that Adelabu won or there should be a fresh election; it simply means the matter will  be remitted to the Tribunal for proper consideration by the Tribunal. If the Court of Appeal nullified the appeal, it could have ordered for a fresh election. But that was not so and no confusion about that. The Supreme court cannot order a fresh election in my opinion because it is not a fact finder or a primary decision maker. The best it can do is to order a retrial but it is subject to limitation of time under the Electoral Act 2010 as amended. In other words, it is statue-barred from doing that. The 180-day limitation period has passed. I have stated my legal opinion above but in Nigeria, anything  can happen. Justice therefore may not be served though it is the apex court. It will not be in the best interest of the people of Oyo State and a morally unjust law does not have a status of law.

• Aborisade, president of the National Movement For Positive Change (NMPC), is a UK-based legal practitioner.Nigerian Tribune