The Dancing Senator, Senator Ademola Adeleke has been declared the winner of the Osun State Gubernatorial election, courtesy the judgment delivered by the Tribunal today. This makes him the Governor-Elect of the State, until an appellate court says otherwise.
Ordinarily, the occupant of the seat, Mr Adegboyega Oyetola should vacate the Executive seat immediately after the pronouncement of the Tribunal, while the dancing senator is issued the Certificate of Return and proceeds to assume office forthwith.
However, the law has not left Mr Oyetola without a lifeline, where he thinks the Tribunal has misdirected itself in law or reached the decision in error. That lifeline is to appeal the judgment of the Tribunal at the Appellate Courts.
Mr Oyetola has elected to take that option.
Nevertheless, an appeal simplicita does not generally operate as a stay of execution of a judgment, save for some numbered exceptions. In other words, that Mr Oyetola has elected to appeal the verdict of the Tribunal should not ordinarily preclude the dancing senator from being sworn in as Governor.
But again, the aggrieved party has yet another legal weapon that he can elect to wield: it is called “stay of execution” of the judgment of court. In other words, he is saying “I have reasonable grounds to appeal this case, and it would be unfair and unjust to yank me off my seat till the appellate courts reach a verdict” He should however prove some salient facts to sway the court, as a finding on such applications is at the discretion of the Court.
The implication of a grant of stay of execution is that the judgment of the lower court is put in abbeyance until a final verdict is reached by the appellate court. Thus, parties are to maintain the status quo ante bellum (as they were prior to the initiation of the suit.)
It is however important to note that S. 143 of the Electoral Act 2010 (as amended) has dispensed with the need to file a separate application for stay of execution. By the Section, once notice of appeal against the decision is given within 21 days from the date of the decision, the appellant remains in office pending the determination of the appeal. In other words, an election petition appeal now operates as a stay of execution of judgment, making it an exception to the general rule.
One must also point out that the Court of Appeal under the former electoral law was the final court to determine a Gubernatorial appeal. But that has since changed. The Supreme Court is now the final arbiter, after the Court of Appeal might have had a bite at the cherry.
Since in this clime, an appellant who is permitted by law to appeal a case up to the Supreme Court hardly stops at the Court of Appeal, one can reasonably predict that the Supreme Court will be the final stop on this journey of deciding the winner of the Osun elections. Moreso that election matters in this clime are often a “fight to finish” matter.
If the Dancing Senator is again declared winner by the Court of Appeal, Mr Oyetola would again have to file an appeal within the prescribed time which would double as a stay of execution to keep him on seat.
By S. 134 of the Electoral Act, 2010 (as amended) while an election tribunal shall deliver its judgment within 180 days from the date of filing of the petition, an appeal shall be heard and disposed of within 90 days of the delivery of judgment. Since there would probably be two appellate courts in this instance (the Court of Appeal and the Supreme Court), we are still 180 days away from finding out who is the duly elected Governor of the State of the Livingspring.
It is worth stating that as much as the verdict of the Tribunal aligns with the public sentiments and opinion as to who won the election, Courts are constrained to reach a verdict based on evidence adduced, arguments canvassed and the objective reasoning of the Court on the facts and applicable laws.
It is not therefore yet uhuru for the dancing senator.