Ogun State Gubernatorial Election Petition and the joy of good justices

On Friday 24 November 2023, a special panel of the Court of Appeal delivered judgment in the appeal filed by Ladi Adebutu and PDP against the reelection of Governor Dapo Abiodun as Governor of Ogun State in March 2023. The court dismissed PDP’s appeal and affirmed the judgment of the Election Petition Tribunal which upheld Governor Abiodun’s declaration as Governor. Three Justices heard and judged the appeal – Justice Ikyegh, Justice Mustapha, and Justice Inyang. Ikyegh and Mustapha dismissed the appeal, while Justice Inyang upheld the appeal.
PDP and Adebutu have since gone to town saying that they won the appeal, based on Justice Inyang’s decision. By simple logic, Justice Inyang’s judgment cannot be the judgment to follow – she was only one of three justices. The other two justices dismissed the appeal – their collective decision outweighs hers. This is a simple fact that commonsense dictates, and is the practice of the courts. What Justice Inyang wrote was a dissenting judgment, which Oxford online dictionary defines as “one delivered by a Justice who disagrees with the majority as to the final order resolving the litigants’ dispute.”
Nigeria has many cases in which courts have declared that no matter how forensic or eloquent a dissenting opinion is, it is not the decision of the court on the case. The decision remains the judgment of the majority. If PDP is so sure that it won the appeal stage of the gubernatorial petition against Governor Abiodun, then PDP should not appeal against the decision. PDP and Adebutu should accept the judgment and wait for the supplementary election that Justice Inyang mentioned.

Ordinarily, that should end the matter, but there is more. The dissenting opinion of Justice Inyang is so shocking because it completely departs from what Nigerian lawyers have known to be the law and what the courts have consistently expressed as correct – even up until this year in other petition appeals, like the Presidential Election Petition case.
For instance, an elementary legal principle says that witnesses must not give hearsay evidence. This means that a witness can only testify about things they did or saw. They cannot testify about information that was told to them. PDP’s case in the petition was that the number of voters with PVCs in the polling units where elections were cancelled was more than the number of votes in the margin of lead between Governor Abiodun and Adebutu.

However, the individual witnesses who testified about the number of PVCs collected in their polling units all said that they did not have personal knowledge of the number of PVCs collected. Each person testified that the figures in their witness statements were told to them by third parties on Election Day. So, what witness evidence did Justice Inyang use to come the conclusion that the margin of lead was slimmer than the number of disenfranchised voters?

And even on disenfranchised voters, Nigerian law is clear – the voters who were disenfranchised must come to court themselves, show that they had PVCs to vote and that they attended the polling units to vote on Election Day. While PDP alleged that over 40,000 voters were disenfranchised in Ogun State, they brought only about 40 acclaimed voters to court – a mere 0.10% of the number of witnesses needed. So, again, what did Justice Inyang use?