The Supreme Court of Nigeria delivered the final judgment on Friday, July 5, in the matter of the September 22 Gubernatorial election, and the September 27 re-run in Osun State. On September 22, 2018, the collation of results indicated that the candidate of the Peoples Democratic Party (PDP), Senator Ademola Adeleke had won the election by a margin of 354 votes, but rather than announce the results, the Returning Officer, relying on the INEC Manual, declared the election inconclusive. INEC subsequently ordered a re-run scheduled for September 27 in seven polling units in four local councils. Ahead of the said re-run, there was so much tension in Osun state and anxiety in other places. It was feared that INEC had colluded with the ruling All Peoples Congress (APC) to rig the election and deny the PDP victory. Members of the APC reached out to Senator Iyiola Omisore whose political stronghold was one of the contested polling units, and whereas he was a member of the PDP, it was assumed that his shift of loyalty to the APC could determine the outcome of the re-run in APC’s favour. 

There were suggestions of court cases to stop the re-run as planned and suggestions that the PDP should boycott and seek an order of court to compel INEC to release the full results of the already conducted election and declare Adeleke as the validly elected winner of the election. As it happened, the re-run took place as scheduled on September 27, 2018. There were allegations of voter intimidation, vote buying, violence at polling units, particularly in PDP strongholds.  Arrests were purportedly made. Local and international elections monitors and observers expressed disappointment. They were of the view that the election fell far short of international best practices. 

INEC didn’t declare the September 27 election inconclusive or flawed. It announced that Gboyega Oyetola of the ruling APC won the election. In less than a week, APC was able to turn the table. Both the PDP and its Gubernatorial candidate in Osun State protested that this was a case of electoral theft aided and abetted by the National Electoral Commission. They immediately went to the State Election Petition Tribunal to seek justice. The Osun election was particularly considered significant, held as it was, just a few months to Nigeria’s general election in Feb/March 2019. It was meant to provide Nigerians with a sense, if not a sign, of what was to come. It was a test of the government’s sincerity and INEC’s level of preparedness for the general elections. 

On March 22, 2019, the Osun State Election Petition Tribunal ruled 2 to 1 that the conduct of the Gubernatorial election did not fulfil the test of substantial compliance with the law and due process, and hence declared Ademola Adeleke as the rightful and valid winner of the election and further nullified the re-run of Sept. 27, 2018. The tribunal also berated INEC for the role that it played in the election. The APC and Gboyega Oyetola, now the incumbent Governor of Osun State promptly appealed the ruling. In May 2019, the Court of Appeal ruled 4-1 against the PDP and Senator Ademola Adeleke. This ruling was based on a technical argument: that the judge who gave the lead judgment at the Tribunal had been absent at the proceedings of the Tribunal on February 6, 2019, when issues of non-compliance were tabled, and could therefore not have been privy to the facts and details of the case. The dissenting Justice, Ita Mbaba, JCA dismissed this as unproven. He argued that to all intents and purposes, Justice Obiora’s name not appearing in the record for that day may have been an omission on the part of the registry. Justice Obiora himself was reported as having claimed that he was indeed present but that he forgot to sign the register. The victory awarded to the appellant by the Court of Appeal was of course unpleasant to the original petitioner. Hence, PDP and its Osun candidate took the matter to the court of final resort, the Supreme Court of Nigeria. 

On July 5, their Lordships gave their ruling, in a split decision, 5 to 2, in favour of the APC gubernatorial candidate, Gboyega Oyetola. This is one ruling of the Supreme Court in recent times that has been received with considerable shock. Judges are men and women of immense wisdom and dignity; it is their responsibility to deliver such judgments that are in keeping with the letter and spirit of the law in a manner that reinforces the value of the law as a tool of social justice, control and modulation. The apex court of the land in particular is not just a court of record, it is a policy court, and hence it is expected that whatever comes from that court carries all the weight of the law.  

Every judgment at whatever level is also necessarily of interest to many groups: the winning litigant, the loser, their lawyers, families, associates, supporters, other lawyers, law students, researchers, the media, government and other stakeholders. This probably explains why the Osun case has generated so much interest. One other reason is the technical excuse that the Court of Appeal gave for awarding the election to Gboyega Oyetola of the APC. It is not the duty of judges to rely on public sentiments for determining cases – their primary focus is the merit of the case, the evidence before them and the objectives of justice. But while this is the principle, judges cannot also pursue justice for its own sake alone. Justice must be done; it must be seen to have been done. The ruling in the Osun case may eventually become a cause celebre for the clear reason that it seems to fail this test. Has justice been done in the eyes of the ordinary man? What does the ordinary man think? 

It seems to me that the ordinary man in this case considers the ruling of the Supreme Court, an anti-climax. To the consternation of many, the Supreme Court Justices, 5-2, affirmed the ruling of the Appeal Court. Appellate judges may be reluctant to upturn the rulings of lower courts especially at the Appeal level except something is demonstrably wrong. But reliance on technicalities has often been seen by both laymen and the learned alike as a way of avoiding justice. A mechanistic application of the law, often disguised strictly as strict adherence to the law, often subverts the objectives of justice, equity and fairness, or limits the scope of the court. This is perhaps why there has been consistent protest over reliance on technicalities even from the Bench itself.  At the 2017 National Energy Workshop for Judges, Walter Onnoghen CJN (as he then was) warned judges against relying too heavily on technicalities, because doing so will affect “public confidence in the judiciary.” In March 2019, President of the Court of Appeal, Justice Zainab Bulkachuwa at the induction programme for Justices of the Appellate court, chairmen and members of election petition tribunals also warned election petition judges against the “practice of employing undue technicalities”. She even added that any judge found so guilty would be “dealt with”.    

When in the Osun case, the Court of Appeal came up with the technicality of the absence of a judge as the basis for nullifying the decision of the state election petition tribunal, many felt this was case of, to borrow a phrase from Lord Denning, “technicalities beyond belief.” (Lord Denning, What Next In The Law, Oxford, 2011). They looked up to the Supreme Court to correct “the wrong” that Adeleke’s supporters had protested about. More so as questions had been raised about this in the dissenting judgment at the Court of Appeal in the matter. Did the lower court investigate and establish the truth about whether or not Justice Peter Obiora was part of the sitting on February 6, 2019?  Should a litigant bear the burden of punishment for an omission by a judge at the lower court? These questions are pertinent because laws are significantly judge-made. “Judge-craft” is not an easy task but where judges establish precedence that could have implications for similar cases in the future, it may be correct to raise questions and demand clarifications. We may simply have before us in the Osun state case, a situation whereby the dissenting rulings throughout the duration of the matter may be of greater usefulness even if dissenting judgments do not prevail. 

Nonetheless, this is not the first time that the appellate courts of Nigeria will offer a ruling that leaves the ordinary man confused. Judges may insist on legal positivism and their discretionary powers, but there are limits to positivism, I so argue advisedly, as there have been instances where a policy court goes beyond “technicalities” to embrace the option of judicial activism. This was the trend during the golden years of the Supreme Court of Nigeria (with Justices Ayo Irikefe, Chukwudifu Oputa, Kayode Eso, Anthony Anyagolu, Otutu Obaseki, Babatunde Craig, Lawal Uwais, Augustine Nnamani, Adolphus Karibi-Whyte, Modibbo Belgore Nnaemeka-Agu,…).  This was the era of statesmanship, truth-telling and courage on the Bench. It is worrisome that the Supreme Court in reviewing the Osun state case limited itself and leaves the stakeholders no less confused than they are. What is the truth about the September 2018 Gubernatorial election in Osun state? Nobody knows. Even the winners can only rely on technicality as the basis for their victory. The losers also insist that the Supreme Court has not told anybody that Ademola Adeleke did not win. Was INEC right to have declared the election inconclusive? And did the Returning Officer act ultra-vires? Their Lordships are not on record as having addressed this in the lead judgment, not even obiter. 

In a country where there is so much disbelief and mistrust, alienation even, the judiciary cannot afford to lose the people’s trust and respect, or confuse them about its will to act as a force for progress and stability. The judiciary is unequivocally, the last hope of the Nigerian common man. But with regard to the Osun governorship case, what stands out is not that hope but the maturity and sportsmanship of the parties involved. The APC and Governor Gboyega Oyetola have been cautious not to over-jubilate. The PDP has also called for calm. Senator Ademola Adeleke has accepted his fate. This should be the spirit of Nigerian politics, with or without the courts.