The Court of Appeal, Ibadan has fixed February 2, 2009 form ruling in the application filed by the Governorship candidate of the Action COngress (AC) in Osun State, Engineer Rauf Aregbesola seeking the admission of the MTN logs of calls allegedly made by Otunba Kunle Kalejaye (SAN) and members of Justice Thomas Naron-led Tribunal as evidence.
The controversy surrounding alleged illegal commining between Counsel to Osun State Governor Olagunsoye Oyinlola , Otunba Kunle Kalejaye and members of Justice Thomas Naron-led Election Petitions Tribunal re-echoed at the Court of Appeal, Ibadan, Oyo State yesterday as the Governorship Candidate of the Action Congress, Engineer Rauf Aregbesola applied that the call logs obtained from MTN be admitted as evidence.
Aregbesola’s Leading counsel, Chief Kola Awodein (SAN) while arguing the motion to adduce further evidence in maintenance of the appeal yesterday submitted that his was a proper case in which the court should admit the call logs as further evidence.
Awodein maintained that Aregbesola had satisfied the three recognised principles of law which governs the excercise of the court’s powers .
According to him, the position of the law stipulates that such evidence to be adduced should be the one that could not have been obtained for use within the reasonable diligencve of time.
Citing paragraphs six to 15 of the affidavit, the SAN urged the five-man panel presided over by Justice Victor Omagie to see that the appelant/applicant sought the order of the Tribunal to compel the MTN to produce the call log and give evidence on it.
In addition, Awodein posited that the call logs have an important bearing to the determination of the appeal just as he pointed out that the respondents did not deny paragraphs one to twenty of the affidavit in their replies to it.
“We have attached certified true copies of orders of the court which reflects the fact that MTN itself forwarded the call logs and that these call logs showed the evidence of the communication we complained about”, the SAN told the panel.
He explained the pages wherein the series of originating and terminating calls could be found on the call logs and cited Asaboro versus Aruwaji (1974), Akanbi versus Ala (1989), Nwanezie versus Idris (1993) and Skone versus Skone (1971) to support his argument that the MTN call logs should be admitted in evidence.
Awodein maintained further that the authorities he cited confirmed that there is a compelling need for the appelant to adduce further evidence.
Responding, Mr. N.O.O. Oke (SAN leading counsel for Governor Oyinlola opposed the application on the groungs that the call logs did not show a proper case where the court could grant the appelant /applicant the indulgence of adducing further evidence on appeal.
According to Oke,there was no nexus or bearing between the the evidence which the appl;kicant was attempting to adducon appeal before the Tribunal which decided the petition.
“My Lords, issues must be properly raised beforbefore consideration could be given to such an application”, Oke argued further.
He cited Amechi versus INEC and Ehinlanwo versus Oke (2008) and submitted that the evidence was not relevant to the determination of the appeal.
He argued further that no submission has been made of a special circumstance which could compel the court to allow the appelant to adduce further evidence on appeal adding that the issues raised in the affidavit were mere allegation that Otunba Kunle Kalejaye (SAN) communicated with members of the First Panel of the Osun State Election Petitions Tribunal.
Referring to the counter affidavit filed by Oyinlola, Oke urged the court to take strong cognisance of the fact that it was possible for a stranger to use one’s GSM line to sent text messages without one’s knowledge.
Though he did not file a counter affidavit, counsel representing the Independent Natrional Electoral Commission (INEC), Mr. Adeolu Akande alligned with the submissions of Oke and urged the court to dismiss the application.
Attorney-General of Osun State, Mr. Niyi Owolade who held the brief for the Police also asked that the court should dismiss the application based on the fact that the date on the letter from MTN was October 15, 2008 while the date on the affidavit was October 14, 2008 suggesting that the affidavit had known what was in the MTN’s letter.
Asked by Justice Omagie and his colleagues to respond on the points of law, Oolade had to be prevailed upon by counsel on the respondents side to take his seat over his obvious inability to marshall his points clearly before the panel.
Justice Omagie at a stage had to ask Owolade to make direct submission but the Osun AG went ahead and cited the case of the Attorney-General of Anambra State which he could not marshal strongly before he submitted that the court should dismiss the application by Aregbesola.
Awodein then replied on the point of mlaw insisting that ithe case of Umanah versus Attah, there was an allegation of bias against the Tribunal adding that the position of the Supreme Court on the matter was enough for the court to disregard the argument pursued by the respondents and allow the application to succeed in the imterest of natural justice.
Justice Omagie then fixed ruling on the application for February 2, 2009