A major chapter closed on Tuesday in the bitter feud over the governorship of Osun state as the election petition tribunal dismissed the petition filed by the Action Congress candidate, Rauf Aregbesola against the election of Prince Olagunsoye Oyinlola.
The Petitioner, Rauf Aregbesola of the Action Congress filed his petition at the Osun State election petition tribunal on the 11th of May,2007 while Oyinlola and the PDP filed their joint reply on the 8th of June 2007 and hearing commenced on the 3rd of October, 2007 .
Various applications were filed by the petitioners and the respondents and determined by the tribunal. An application, for instance, filed by Governor Oyinlola?s counsel to have the petition dismissed for incompetence over an alleged non payment of security deposit by Aregbesola was dismissed by the tribunal.
Aregbesola also brought a motion to call an additional witness, Adrian Forty, who was described as a forensic expert. The motion was also dismissed by the tribunal on 18th February, 2008 .
The tribunal, in throwing out the application, said Aregbesola did not come with clean hands in the matter as he made false claims in his affidavit that the man, Adrian Forty conducted a forensic examination of election materials as ordered by the tribunal.
The five-man panel, in its unanimous decision read by its chairman, Justice Thomas Naron, declared that from available evidence before it, it was clear that the man never participated in the examination of the materials.
It noted that although counsel to Governor Olagunsoye Oyinlola and that of INEC tendered signed lists of those who conducted the examination of the materials, Aregbesola?s lawyer never provided any contrary documentary evidence even when he replied to the statement of the other counsel.
The tribunal said that its order given on 14th August,2007 specifically asked Aregbesola to conduct the inspection in the premises of INEC with counsel to other parties in attendance contrary to the AC candidate?s claim that the inspection and analysis was done in the United Kingdom.
It also noted that though the petitioner listed Adrian Forty as one of his witnesses but he failed to file his written statement along with the petition in flagrant abuse of the court rules. It added that after calling eighty witnesses, the AC candidate could not introduce additional witnesses which it held would not be in the interest of justice.
According to the tribunal, Aregbesola did not inform the court during the pre-trial session that he would want to file an additional witness? statement although he had the opportunity to do so.
It held that the petitioner had not given sufficient reason for it to exercise its discretion to extend the time for the petitioner to file the witness statement and thus dismissed the application.
Counsel to Aregbesola, Mr Charles Edosowon, SAN in his reaction said the ruling was expected while that of Prince Oyinlola commended the tribunal ?for the well considered ruling and especially its depth.?
Following the rejection, Aregbesola filed an interlocutory appeal at the Court of Appeal in Ibadan and followed it with another motion in Osogbo for the tribunal to stay proceedings pending the determination of the interlocutory appeal at the Court of Appeal in Ibadan . The tribunal rejected the motion to stay proceedings while the Action Congress filed another appeal on the ruling. The Court of Appeal on the 16th of April dismissed the interlocutory appeal saying election petitions are to be heard expeditiously because the people deserved to know who their real Chief Executive is on time while those in government also should sleep with their two eyes closed and concentrate on the business of the state.
The case continued on April 17 with Rauf Aregbesola tendering ballot papers and other electoral materials. As at the time the Petitioner closed his case on the 15th of May 2008 after about nine months of trial, he called 102 witnesses from eleven Local Governments, tendered 171 exhibits. Governor Olagunsoye Oyinlola opened his defence on the 19th May called a total of 28 witnesses, tendered no exhibit and closed his case a week after.
INEC and the police closed their cases two days after, no witnesses was called.
However, a month after the case was closed, Aregbesola brought another motion, thorough his Counsel, Kola Awodein, SAN seeking to reopen his case so that he could tender election results which he said he forgot to tender in the course of trial but were very important to his case. He also brought another motion asking the tribunal to disqualify itself from further proceeding.
The curtain was drawn by the Election petition tribunal sitting in Osogbo on Tuesday on the long drawn legal battle over the governorship election as it upheld the election of Osun State Governor, Prince Olagunsoye Oyinlola .
Delivering judgement in the petition filed by the Action Congress Governorship candidate in the last election, Mr Rauif Aregbesola, the tribunal held that the petitioner had failed to prove his case with credible evidence.
The tribunal held that Aregbesola did not call as witness a single voter, polling agent, accredited election monitor of any other person lawfully entitled to witness election.
According to the tribunal chairman, Justice Thomas Naron, who read the judgement, all 102 witnesses called by the petitioner who dubbed themselves as ward supervisors were not known to the nation?s electoral law.
Justice Naron noted that allegations of violence, stuffing of ballot boxes, snatching of election materials were criminal in nature which made the standard of proof to be that of beyond all reasonable doubts.
“After a careful perusal of the evidence of PW1-102. evaluated above, and having attached no weight or probative value to the said pieces of evidence, we hold that the petitioners have not discharged this heavy burden placed on them by law.
“Even if that burden had been discharged, which was not, it is our view that there has been no nexus between the alleged offences and the first respondent. The law is trite that a respondent cannot be held responsible for what other people did in the form of unsolicited help or assistance of which he or his agents are ignorant of.
” On the issue of unlawfulness of votes, it is the law that the only way one can question the lawfulness of votes cast at an election is to tender in evidence all the forms used and call witnesses to testify as to the misapplication of the votes scored by the individuals.
” In the instant case the petitioners tendered certified true copies of ballot papers and form EC8A as exhibits to show alleged irregularities in the election. However, they failed to lead evidence to establish the misapplication of the votes recorded therein,” the tribunal held.
On documents tendered by the petitioners, the tribunal held that they were tendered in bundles without any effort to lead evidence as to the use to be made of them. No oral evidence was thus led on them. There is no doubt that the court of appeal case of TerabVs Lawan is to the effect that the forms can be considered in that circumstance. In the latter Court of Appeal cases of Awuse Vs Odili and ONmeje Vs Otokpa, it was held that the documents cannot be examined in the circumstance set out above.
” We shall follow the latter cases as the law is that where there are conflicting decisions of superior courts of coordinate jurisdiction, the latter in time wil prevail,” the tribunal declared.
It stressed that it would not be drawn into scrutinizing the said exhibits and the tabulations set out thereon by counsel for the petitioners in his address.
On the non-calling of witnesses by the police and the INEC the tribunal said “it has been held by the supreme court that “an opposing party should not be expected to challenge evidence that is hollow, empty or bereft of any substance as that would amount to chasing shadows.”
” Having stated all these we hold that the petitioners have not established by credible evidence the acts of violence, non compliance with the Electoral Act 2006, widespread irregularities which substantially affected the results of the elections for the office of the Governor of Osun state,” the tribunal declared and cosequently dismissed the petition in its entirety as lacking in merit
The tribunal had earlier dismissed two applications brought by Aregbesola to reopen his case and also to get the tribunal to disqualify itself from further presiding over the case because of publications by TheNEWS magazine.
Justice Naron said that the tribunal is a court of law and a court of record and would not base its decisions on frivolous publications.
In his reaction, Prince Oyinlola whose office was stormed by jubilant civil servants later went to the government house where he told the press that he was dedicating the victory to God, the people of Osun state, and the PDP.
On why he was not ruffled by the propaganda and vicious campaign by the opposition against him declared that “as a war tested General nothing could ruffle him.” He, however,
He described as silly statements credited to Aregbesola to the effect that win or lose, he would not accept the judgement of the tribunal declaring that the matter is “an issue of law not propaganda”
The National Vice Chairman of the PDP, Alhaji Tajudeen Oladipo, in his reaction described the victory of Oyinlola as victory of truth over falsehood.
However, the case will probably go down in the nation?s electoral history as the most contentious. What with a publication by TheNEWS magazine in its 14th July, 2008 edition accusing Oyinlola?s counsel, Kunle Kalejaye, SAN of having telephone contacts with some members of the tribunal. Kalejaye and the Governor?s side have reacted describing the report as a fabrication pointing out obvious discrepancies in the story.
Those who were libeled in the publications will definitely go to court. You should ask TheNEWS why it has not answered the questions asked by Otunba Kunle Kalejaye, SAN on the first report. Ask them why they have not apologised to Justice Joe Ekanem for viciously ascribing to him a telephone line which belonged to Ekerenam Ekpo, a legal practitioner. Why have they not begged for forgiveness from the lawyer too for exposing his line to abuse? Ask them why the so called line of Justice Naron was not in any of the logs in their first report. Ask them how their second logs contained names of callers as if MTN has the names of its subscribers in its sysem? Ask them why they are making Kalejaye?s phone line look like a contract line when I know that it is not? Why are they telling lies to cover up their inaccuracies,? Lasisi Olagunju, spokesman of Governor Oyinlola said in an interview with newsmen.
On comments on the matter by some eminent Nigerians, he has this to say: ?It is a pity that respected people like Prof Itse Sagay would allow himself to go all out to make comments quite unbecoming of someone of his stature on a case he knows absolutely nothing about. Has he read the petition of Aregbesola? Would he as a Senior Advocate draft an election petition without listing a single polling agent as a witness? Would he as a legal luminary overlook perjury in an affidavit as was the case in Aregbesola?s application for Adrian Forty to be brought in? Would Prof Sagay argue a case, an election petition for eight months, close his case only to come back on the day of adoption of parties? final addresses to say ? sorry I forgot to tender election results?? It is a pity.?
Meanwhile, Aregbesola, who had before the judgement declared that win or lose, he would reject the verdict, has expressed his resolve to contest the judgement at the Court of Appeal. Again, Olagunju said this was a volte face as by Appealing the judgement, he (Aregbesola) had ?not rejected the judgement, he has merely disagreed with it.?
The theatre of war will in the next few weeks move to Ibadan, venue of the Appeal court.
Lasisi Olagunju, Special Adviser on Media to the Governor. Osun State