Rauf Aregbesola
The Court of Appeal, sitting in Ibadan, Oyo State capital, on Friday nullified the election of Prince Olagunsoye Oyinlola as the governor of Osun State.
The five-man panel, led by Justice Clara Ogunbiyi, in a unanimous decision, declared the candidate of the Action Congress of Nigeria in the April 14, 2007 governorship election in the state, Mr. Rauf Aregbesola, as the duly elected governor.
The court arrived at the decision after annulling election results in 10 out of the 30 local government areas in the state, having held that the conduct of the election in the affected areas did not conform substantially to the provisions of the Electoral Act 2006.
The affected local government areas are Atakumosa, Ayedaade, Boluwaduro, Boripe, Ife Central, Ife East, Ife South, Ifedayo, Isokan and Odo-Otin. The panel said elections in the LGs were characterised by electoral malpractices and irregularities.
The total votes returned for Oyinlola and Aregbesola in the affected LGs were 253, 789 and 41, 923 respectively, while the total number of votes recorded for them in the state were 426, 669 and 240, 722 respectively.
Having deducted the annulled votes from the candidates’ total votes, Oyinlola was left with 172, 880 lawful votes, as against Aregbesola’s 198, 799 votes.
The court, therefore, ruled that having scored the simple majority of the lawful votes cast, the ACN candidate had fulfilled the constitutional requirement to be declared the winner of the poll.
It, therefore, ordered that Aregbesola and his running mate, Mrs. Titilayo Laoye-Tomori, be inaugurated as the state governor and deputy governor respectively.
The appellate court directed the Independent National Electoral Commission to withdraw the certificate of return earlier issued to Oyinlola and issue a fresh one to Aregbesola.
Earlier, Justice Ogunbiyi had dismissed the cross-appeal filed by Oyinlola, describing it as lacking in merit. The cross-appeal was in relation to the results of elections in Unit 1, Ward 9 of Atakumosa West LG and Unit 1, Ward 9 of Ifedayo LG earlier nullified by the election petitions tribunal.
In upholding the preliminary objection raised by Aregbesola, the appellate court ruled that the cancellation of results in the two units was attributable to irregularity and not over-voting as claimed by Oyinlola.
The cross-appeal was therefore dismissed without cost.
In the main appeal, Ogunbiyi, who read the lead judgement, resolved five issues in favour of Aregbesola, Laoye-Tomori and the ACN, who are the first, second and third appellants respectively.
The issues were: (i) Whether the election petitions tribunal was right by describing the allegation raised by Aregbesola in his petition as criminal in nature and hence, needed to be proved beyond reasonable doubt, (ii) whether the tribunal was right to treat evidence of the supervisors as a mere allegation that needed to be proved beyond reasonable doubt; (iii) whether the evidence of ward supervisors can be regarded as mere hearsay with no probative value as held by the tribunal, (iv) whether the failure by INEC to call evidence amount to abandonment of its case and the petition remains unchallenged, and (v) whether the tribunal properly evaluated the evidence of the petitioners’ witnesses before treating them (the evidence) as mere allegations.
In resolving the first issue, Ogunbiyi described as erroneous the decision of the tribunal to treat all the allegations as criminal in nature. She held that the allegation of crime could be severable from the civil allegation in the petition.
She, therefore, resolved the issue in the appellants’ favour against the defendants.
On the second issue, the justice said that the tribunal could not be said to have given a due consideration to the appellants’ witnesses, saying that the “fundamental error” was grievous and had led to a miscarriage of justice.
She explained that the tribunal made the blunder by lumping up criminal and civil allegations.
“Describing this slip as a minor error by senior counsel is not tenable. It is obvious that the tribunal’s position that the witnesses’ pieces of evidence were mere allegations has a far-reaching consequence on the petition,” she said.
The issue was resolved in the appellants’ favour against the defendants.
On the third issue, Ogunbiyi held that contrary to the position of the tribunal, the ward supervisors were lawfully present at polling units, as they were entitled to be there and their evidence could not be dismissed as a mere allegation.
She said, “The witnesses have rights to testify regarding what they saw at the polling units. “It is totally out of place for respondents to submit that ward supervisors were illegally admitted at the polling units.
“The tribunal was greatly in error for failing to attach weight to the evidence provided by the witnesses.”
Citing Buhari vs. Obasanjo, Famurewa vs. Onigbogi and Ojukwu vs. Governor of Lagos State among other decided cases, she resolved the issue in favour of the appellants against the defendants. On the fourth issue, Ogunbiyi said that the burden of proof was not static and could shift based on the circumstances of the case. She held that INEC abandoned its case by not calling evidence and also resolved the issue in the appellants’ favour.
On the fifth issue, she ruled that by treating the witnesses’ evidence as mere allegations, the tribunal merely summarised the pieces of evidence without evaluating them.
She added that the tribunal did “a shoddy job and glossed over many inconsistencies.”
She said that the tribunal erred by only concerning itself with survey of evidence, which could not be the same as an evaluation or appraisal, which is a more rigorous exercise.
She explained that all the pieces of evidence were supposed to be placed on an imaginary scale, leaving the tripod to decide which was weightier.
“The tribunal’s approach was clearly wrong. The tribunal was in error by claiming that the allegations were criminal, hence refusing to evaluate the evidence.
“It cannot be gainsaid that the tribunal refused the evidence on wrong assumption. The net effect is that since the tribunal did not place the evidence on an imaginary tripod, it could not appreciate the side the scale tilted to. “It is a travesty, caricature and mockery of evidence,” she added.
She resolved the issue in the appellants’ favour, saying that the tribunal did its job in a “jaundiced manner.”
In declaring Aregbesola as the governor, Ogunbiyi said that the traditional definition of democracy showed that it was the government of the people, by the people, for the people, which according to her, excludes all forms of imposition.
Other members of the panel, Justices M.L. Garba, P.A. Galinge, C.C. Nweze and A. Jauro, in their judgements, aligned themselves with the lead judgement.
Mr. Deji Sasegbon (SAN), who led other lawyers to appear for the appellants, thanked the justices for what he called their well-researched judgements, adding that the judgements would become a good precedent for election petitions in Nigeria.
Sasegbon demanded a cost in form of all salaries and allowances, including the security votes that had accrued to Oyinlola since 2007, which he said would have run into billions of naira.
The court, however, refused to award the cost.
Also, Mr. Adeniyi Adenipekun (SAN), who led others to represent the respondents, commended the justices for what he called their industry, describing the judgement as spectacular.
That was not the first time that the parties would appear before the same appellate court. Aregbesola had earlier dragged Oyinlola to the court over his dissatisfaction with the verdict of the first election petitions tribunal set up for the case.
The appellate court had at that time faulted the verdict of the tribunal, which was headed by Justice Thomas Naron, and had Justices S. Mohammed, J.N. Akpughunum, A.T. Bademasi and J.E. Ekanem as members.
It, therefore, ordered a retrial of the petition. As a fallout of the judgement, another tribunal was set up to hear the petition afresh.
The retrial tribunal had Justice Ali Garba as its chairman and Justices Benedict Agbattah, Ismaila Bashir, Muhammad Aliyu and Abimbola Obaseki as members.
The appeal arising from the verdict of that fresh tribunal, delivered on May 28, 2010, was what was resolved on Friday in favour of Aregbesola, his running mate and the ACN.
Source:http://www.punchng.com
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