26th November, 2010
The Appeal Court sitting in Ibadan, Oyo StateÂ has declared Engr. Rauf Aregbesola of the Action Congress of Nigeria (ACN) winnerÂ of the 2007 governorshipÂ election in the state, awarding him 198,799 votes, against the ousted incumbentâ€™s 172,880.
Delivering judgment, the head of the five-member appeal panel, Justice ClaraÂ Ogunbiyi declared Aregbesola the winner and ordered that he should be sworn in immediately. It was a unanimous judgement.
Aregbesola had in his petition prayed the court to cancel the elections in 10 local government areas of the state where violence and electoral
malpractices marred the elections. There were spontaneous jubilations in Ilesha, Ekiti, Ibadan and Lagos byÂ supporters of Aregbesola who trooped to the streets celebratingÂ Aregbesolaâ€™s victory. And violence was reported in Ikirun, between supporters of Aregbesola and the deposed governor, Oyinlola.
In the judgment, read for about five hours by Justice Clara Bata Ogunbiyi, the court affirmed, â€œINEC did not conduct election in accordance to the constitution of the Federal Republic of Nigeria and in accordance with the Electoral Actâ€. It thusÂ annulled the election held in 10 local governments in dispute saying that the allegationsÂ against the election in the 10 disputed local government areas were valid and genuine.
Having nullified the electionÂ held in Boripe, Atakumosa, Ayedaade, Boluwaduro, Ife Central, Ife East, Ife South, Ifedayo, Isokan, Odo Otin, local governments Areas, the court resolved that Aregbesola won the election by 198,799 votes against 172,880 lawfully ascribed to Oyinlola.
Justice Ogunbiyi declaredÂ Aregbesola the winner of the election in line with section 197 constitution and 147 Electoral Act.
â€œThis court hereby orders that the election in 10 local government is null and void. The court also declares that the declaration of Olagunsoye Oyinlola Of Peoples Democratic Party, (PDP)as a governor of Osun State is null and void. We hold that because the first Appellant, Rauf Aregbesola had satisfied section 179 of the Nigeria Constitution and section 147 sub-section 2 of the Electoral Act be declared as the valid governor of Osun State. We order for the cancellation of the Certificate of Return earlier issued to Oyinlola and ordered that INEC should immediately issue a Certificate of Return to Aregbesola. We also resolved that Aregbesola is duly elected as the governor of Osun Stateâ€.
Prior to the judgment, the court in succession resolved all the five issues for determination in favour of Aregbesola and against Oyinlola.
The first was whether the lower tribunal wasÂ right in ruling that all allegations in the petition were criminal in nature, the court applied the Principle of Severance saying that all the allegations were not criminal. It affirmed that though, the allegation of violence, thuggery are criminal,Â the allegation against INEC is not criminal but civil.
It stated that infractions such as the non-compliance withÂ the electoral Act, non collation of result, diversion of sensitive materials, no -record of election result at the polling units, and non announcement of the result were civil in nature andÂ only needed to be provenÂ with preponderance of evidence and balance of probability.
The court said that these allegations were well proven.
The second issue was whether the tribunal was right onÂ the way it treated the evidences of the petitionerÂ as mere allegations.Â The court ruled that the tribunal was completely wrong in ignoring the evidence tendered.
In the courtâ€™s opinion,Â there was a miscarriage of justice at the lower court. The Appeal court justices said the court was not pleased with the dismissal of theÂ â€˜â€™quantum of materials tendered as evidence by the petitioner.
As regards issue number three which has to do with whether an electoral supervisor is competent to give evidence, the court stated that inasmuch as the supervisor was a field officer who goes from a polling unit to another polling unit to observe election as well as rely on the report of the agent, the supervisor is competent to give evidence in the court and the evidence should beÂ examined on the merit.
The court also dismissed the cross appeal by Oyinlola for lack of merit.
The other members of the panel wereÂ M. I. Garba, Paul A. Galinje, C.Â C. Nweze and Adamu Jauro.
Reacting counsel toÂ Aregbesola asked the court to order Oyinlola to pay N10 billion which will cover the salaries he had receieved illegally and other things he had used the office to benefit. He said that he believed that Oyinlola would have packed his load and left government house before the arrival of the new governor.
Counsel to Oyinlola, N.O.O. Oke said that the judgment is okay to them.
Alhaji Olawale Moshood Adeoti, the Osun State Chairman of Action Congress of Nigeria, CAN, urged the judiciary to continue with the spirit of saving Nigeria from illegality.
Engr. Rauf Aregbesolaâ€™sÂ challenge ofÂ Olagunsoye Oyinlolaâ€™s electionÂ victory began in 2007 when he filed a 1004-page petition contending that INECÂ and the police colluded with the PDP to rig the election in favour ofÂ Oyinlola. He challenged the results in 10 local government areas of the state,Â saying that they were marred with violence and irregularities.
In its judgment, the Justice Thomas Naron-led five member tribunal thatÂ initially heard the case threw it out for lack of diligent prosecution.
Dissatisfied with the judgment, Aregbesola took his case to the Appeal CourtÂ sitting in Ibadan, where the Justice Victor Omagie-led panel condemned the judgment of the lower tribunal by branding it as perverse.
The Appeal Court panel ordered a retrial of the case after ruling that all theÂ evidence rejected by the lower tribunal must be admitted by a new tribunal to be constituted. Part of the evidence the Omagie panel ordered the new tribunal to readmit wasÂ the controversial police report Aregbesola submitted with his petition. When the case was before the Naron tribunal, Oyinlolaâ€™s counsel, Mr. Yussuf Alli, andÂ the police did not comment on it and it was also not admitted as evidence byÂ the panel.
The police report later became a subject of contention before the retrial panelÂ headed by Justice Garba Ali. The Oyinlola camp alleged that the report was forged while the Aregbesola camp insisted that it was not. Counsel to Oyinlola, Mr. Yusuf Alli, on many occasions challenged Aregbesola toÂ present the police report before the new tribunal if it was not fake. He assured that the originators of the police report would be jailed and accusedÂ the Action Congress of Nigeria (ACN) and its leaders of adroitness atÂ falsehood and mischief. Osun State Commissioner for Justice, Mr. Niyi Owolade,Â said the inability of the ACN to present the police report indicated thatÂ the report was forged.
The ACN replied that it did not present the report before the Justice Ali-ledÂ tribunal because it is a catalogue of killings, violence and rigging in more than 10 local government councils. If we present it, the tribunal may be tempted to order a rerun. We only contested results of elections in 10 local government councils and notÂ all the councils, which the police report encapsulates. The police reportÂ detailed violence and killings in Ikirun, Ilesa, Ila and Ede communities, whichÂ we did not list in our petition. Twelve members of our party were killed acrossÂ Osun during the 14 April 2007 governorship election, ACN alleged.
Just before the Naron tribunal awarded a unanimous judgment to Oyinlola, ourÂ sister publication TheNEWS published a report that disclosed the cosyÂ relationship between one of Oyinlolaâ€™s lawyers, Chief Kunle Kalejaiye andÂ members of the Naron tribunal. The report contained telephone call logs ofÂ discreet interactions between Kalejaiye and Naron. But KalejaiyeÂ however denied the charge.
In his final submission to the Appeal Court on 1 November, counsel toÂ Aregbesola, Chief Akin Olujinmi urged the panel of judges to examine only fourÂ issues and quash the judgment of the Justice Alli Garba-led election petitionÂ retrial tribunal which had in May 2010 dismissed Aregbesolaâ€™s petition.
Olujinmi said though INEC and its officials filed a reply to Aregbesolaâ€™sÂ petition, the commission failed to call any witness to defend the allegationsÂ of irregularities levelled against it by the petitioner.
According to him, INECâ€™s failure to call any witness or lead evidence to challenge the alleged irregularities in the election is tantamount to the
commission abandoning its case. He added that the claims of the petitioners were not challenged in any way.
Olujinmi reminded the panel of the fact that there were 10 local governmentÂ areas in respect of which the petitioners were complaining, adding that itÂ would eventually become clear that Aregbesola scored more votes than Oyinlola who was declared winner by INEC.
He listed the issues of non counting of votes, non announcement of results byÂ INEC officials as parts of irregularities in the conduct of the election, which the appellants complained about in their petition. Olujinmi disagreed with the position of the retrial tribunal that no evidence was led to prove the petitionerâ€™s allegation and recalled that the tribunal had forgotten that written deposition by the witnesses called by the petitioners formed the evidence led by Aregbesola to prove allegations of irregularities contained in the petition.
We called 75 witnesses who were going from one polling unit to another that day, he added. On the position of the tribunal that the allegations made by Aregbesola inÂ his petition were criminal in nature, Olujinmi said: The contention that INECÂ officials did not collate and announce the result are already separable fromÂ the criminal ones. To support his position, he cited the cases of FayemiÂ versus Oni recently decided and that of Agagu versus Mimiko.
He explained that the tribunal failed to consider several documents tenderedÂ by the petitioners. Olujinmi called the panelâ€™s attention to Boripe Local Government Area whereÂ INEC awarded 14,497 votes to Oyinlola when the total number of registered votersÂ was 12,631.Â He stated thatÂ the tribunal ignored this anomalyÂ when dismissing his clientâ€™s petition.
He also called the attention of the panel to the case of INEC versus Oshiomhole to press his claim that if the total number of votes cast does not match the number of ballot papers available, the issue must be resolved in favour of the petitioners.
In his own final submission, counsel to Oyinlola, Mr. Yusuf Alli argued that the issues canvassed by Olujinmi were not joined at the trial stage and it would be unfair to let him change the rule while the matter is at the appeal stage. Alli drew the panelâ€™s attention to the case between Senator Ibikunle Amosun and Governor Gbenga Daniel in Ogun State in which the panel submitted that the evidence of roving supervisors could not be regarded as credible or admissible because supervisors had no place in the Electoral Act 2006.
Alli also referred to paragraphs 18, 21, 22 and 27 of the petition and concluded that Aregbesolaâ€™s case was built on the commission of a crime. He insisted that the Fayemi versus Oni case, cited by Olujinmi was not helpful to the appellants.
Everything taken together, the appellants have proved nothing. What the tribunal said was that the totality of the evidence called by the appellants have not proved anything, Alli said.