Adebayo Adelabu & Ors Vs Seyi Makinde & Ors: a review of the decision of the court of appeal  

The media (as now styled; the traditional and new media) has been inundated with commentaries over the recent judgment of the Court of Appeal in respect of an appeal by the All Progressives Congress and Mr. Adebayo Adelabu against the judgment of the Election Petition Tribunal of Oyo State, which declared Seyi Makinde as the winner of the gubernatorial election. In its judgment, the Court of Appeal granted (albeit substantially) the prayers of the appellants, but in the same breath, reportedly ordered parties to maintain the status quo ostensibly because it notes that it (the court) was caught by time to order a retrial. It is noteworthy that the judgment in the ratio of the lead judgment to dissenting judgment, was four to one. The lead judgment indeed raises interesting issues of law, which are now hereunder considered.

I must say that, having not read the full text of the judgment (as same has not been made public), my views are somewhat restricted to various reportage and as such this opinion, at least for now, is only preliminary and subject to a further review when the judgment of the Court is made public. This discourse is therefore limited in scope and only to matters which is already made public (by witnesses of the proceedings). This notwithstanding, the Court of Appeal’s judgment was reported to have come to its conclusion to wit:

1. a) That the Tribunal’s decision was perverse because the Tribunal did not properly evaluate some exhibits/documents before it;
2. b) That the Court is unable to order a retrial because the Tribunal had exhausted its 180 days’ period; and
3. c) That rather than upturn the Tribunal’s decision, the Court of Appeal ordered parties to maintain status quo.

These three issues will be discussed seriatim.

The judgment of a Court can only be held to be perverse by a higher Court after the evaluation of the evidence upon which the trial Court or Tribunal based its findings. What then constitutes a perverse decision and what should an appellate court do when faced with a similar situation? In the case of Atolagbe v Shorun (1985) 2 (Pt 2) 360, the Supreme Court held, per Oputa JSC, that ‘a decision may be perverse where the trial court took into account or where the judge shuts his eyes against the obvious.’ Whilst some reports have it that some documentary evidence tendered before the Tribunal were not properly evaluated, it may just have been the case, if indeed this is true, there may have been an oversight of a very fundamental evidence. A plethora of case laws speaks to the role of an appellate Court on evaluation of evidence.

In the case of Otu & Ors. v Otu & Ors. (2018) LPELR 45169(CA), the Court of Appeal restated its role, to the effect that ‘the appellate Court such as ours, cannot be at large over the decision of the lower Court. The role of the appellate Court is to scrutinize to see if in the case at hand, the Court below gave a proper assessment and evaluation of the evidence placed before it and properly apply the necessary laws to excavate from the rubbles of evidence the justice of the matter…this Court will not disturb or unsettle the findings of the Court of probative value to such evidence as this is the primary function of the trial Court…It is only when the trial Court failed to evaluate such evidence properly that an appellate Court can re-evaluate evidence.’

The incursion of the appellate Court into re-evaluation of evidence of the trial Court is usually largely dependent on whether the evidence is viva voce or documentary. When documentary evidence is improperly evaluated by the trial Court, the appellate Courts have the vires to re-evaluate the evidence since it is permitted to take judicial notice of every document before it in the record of appeal. See Garuba v Omokhodion (2011) LPELR 1309 SC. However, where the evidence is one of oral evidence, then an appellate Court will be handicapped to re-evaluate the evidence since it does not have the opportunity to observe the demeanour of the witness(es) who gave the evidence. It is not absolutely clear whether the evidence which the Court of Appeal in Ibadan held to have been wrongly evaluated as to occasion the perversity of the

judgment of the Tribunal is purely oral, documentary or both. Until that is resolved when the judgment is made public, the issue is best left hanging.

On the second issue of the Court’s refusal to order a retrial because the Tribunal has exhausted its 180 days. The Court must be right in its decision not to order a retrial. In the case of ANPP v Goni (2012) 7 NWLR (Pt 298) 147, the Supreme Court held that ‘the time fixed by the Constitution is like the rock of Gibraltar or Mount Zion which cannot be moved.’ It follows that the Court of Appeal cannot extend time to rehear the case before the Tribunal. It is self-evident that the time bar has foisted a fiat accompli on the Court of Appeal since the Tribunal’s time had elapsed. The Supreme Court had also cautioned the Court of Appeal against ordering retrials where the time of the Tribunal has elapsed. It did so in the case of ANPP v Goni (supra) where it noted that: “It is my considered opinion that by the lower Court ordering a retrial by a tribunal which had ceased to have jurisdiction in a matter, it attempts to create jurisdiction in the said tribunal by operation of a court order which is not only very erroneous but unacceptable.”

The pertinent question therefore is, whether the Tribunal having run out of statutory time allowed, the Court of Appeal may have rectified what now appears to be a manifest injury. It is my view that the Court of Appeal is imbued with the jurisdiction to invoke its original jurisdiction to seat as the Court of first instance to admit evidence which were not properly tendered or evaluated by the trial Court. Section 16 of the Court of Appeal Act grants the Court general powers, including the power to sit as a Court of first instance. Whilst this is hardly invoked in practice, I take the firm view that the interest of justice in the case of the appeal under examination should have been one of such rare occasions where the Court of Appeal should have bent over backwards to invoke its powers under this section.

The third issue is whether the Court of Appeal can make a judgment antithetical to its findings. It is my view that this is most unlikely. Bowen LJ, in the case of Cropper v Smith (1884) 26 Ch. D 700, echoed that it is the primary duty of the Court to decide the rights of parties. If the findings of the Court were that the judgment of the Tribunal is perverse, it will similarly appear perverse for an appellate court to endorse such a judgment as that will become a judicial endorsement of what was found to be perverse. An appellate Court cannot perpetuate itself in what it perceives as the error of the lower Court by sitting on the fence and ordering parties to maintain ‘the status quo’.

Be that as it may, the Court of Appeal has delivered its judgment, and the judgment is to the effect that status quo be maintained. Status quo has been interpreted by the Supreme Court in Ojukwu v Military Governor of Lagos State (1986) 2 SC 277 to be the state of affairs before the institution of the suit. The state of affairs to be maintained is therefore the declaration of Mr. Seyi Makinde as the democratically elected governor of Oyo State. Whilst APC and Mr. Adebayo Adelabu has a right to appeal to the Supreme Court, the state of affairs until the Supreme Court holds otherwise, is that Mr, Seyi Makinde remains the governor of Oyo State.

It is therefore apposite to congratulate His Excellency, Engineer Seyi Makinde and his deputy, Engineer Rauf Olaniyan on this victory.

TOLULOPE ADEREMI