Drama As INEC Counsel Indicts Oyinlola, Police
•Says: We Are Birds Of A Feather
•Election, Not Perfect
IT was a mild drama at the Court of Appeal, Ibadan, Oyo State capital, as the Independent National Electoral Commission, (INEC’s) lawyer, Mr. Joe Gadzama (SAN), has expressly indicted the embattled Osun State Governor Olagunsoye Oyinlola, and the Police over the electoral heist of April 14, 2007 governorship election in Osun State, confirming before Justice Victor Omage-led five-man panel that all of them (Oyinlola, PDP,and the police) were birds of a feather.
The INEC counsel boasted before the judges that, he aligned with the embattled governor and the police counsel’s submission because they were pursing the same goal together, as they were respondents’ altogether, and as well, were holding common grounds on the issue at stake.
Gadzama also submitted that there could never be a perfect election anywhere in the country, as he insisted that he identify completely with Oyinlola and the police counsel.
Besides, after over a year of legal battle to wrestle the controversial power from Oyinlola, the Court of Appeal, sitting in Ibadan, Oyo State capital on Wednesday reserved judgment in the appeal filed by the Action Congress (AC) governorship candidate in the state, Engineer Rauf Aregbesola against the judgment of the Justice Thomas Naron-led Election Petitions tribunal that sat in the state.
The reservation of the judgment was in pursuant to the adoption of brief of argument, arguments and counter-argumentss of the counsel to Aregbesola, Oyinlola, Independent National Electoral Commission (INEC) and the police.
Meanwhile, before the adoption of the brief and arguments from counsel to the parties in the case, the court had granted the application to consolidate all the interlocutory appeals with the main appeal before the court.
Among the interlocutory appeals consolidated were the evidence of the forensic expert, Adrian Forty, whose finding on the forensic inspections ordered by the lower tribunal were rejected; the report of the physical counting ordered but rejected by the tribunal, and the security report of the governorship election, which indicated that there was violence during the election and indicted some of the Peoples Democratic Party’s (PDP) leaders as masterminds of the violence during the election.
Before the application for consolidation was granted counsel to Oyinlola, Mallam Yusuff Alli (SAN), Gadzama (SAN) and counsel to the police, Mr Niyi Owolade, the Attorney-General of the state, had denied having any knowledge of the appeal filed by Aregbesola’s counsel, Chief Kola Awodein (SAN) over the evidence of the forensic expert, which was rejected by the lower tribunal and subsequently appeal against it.
Oyinlola’s counsel raised the issue and to the chagrin of Aregbesola’s counsel, he flared up and expressed disappointment over the issue raised by the counsel.
Awodein fumed: “My lords, this is the least I expect from my learned friend. I wonder why he could have denied having knowledge of such appeal. My learned friend knows that what he is saying is not true at all. We came here together to argue this appeal and the panel which sat on the matter then ordered that we should go and include it in the main appeal when the lower court might have delivered its judgment.
“It was that same panel that ordered us to go and consolidate all the appeals because there are many interlocutory appeals in this matter. With respect my lords, all the counsel to the respondents in this matter filed their responses to the brief and in fact, counsel to the INEC filed an application for an extension of time to file his brief of argument over the appeal”.
Awodein then produced the application filed by the INEC counsel over the appeal for the extension of time to file their briefs.
Despite his argument, Oyinlola’s counsel and other respondents’ counsel insisted that they were unaware of the appeal.
Subsequently, the court asked for a copy of the ruling from Aregbesola’s counsel, which gave the order for the consolidation of all the appeals to clear the air over the issue.
In his response, Awodein said that he was not aware that Oyinlola’s counsel could make unnecessary issue out of the matter, saying that he neither has the application nor the copy of the ruling in court, but the records on the application would surely settle the whole show, a situation that forced him to ask for a stand down of the matter for a short time to get the record from the registrar of the court.
The court granted Awodein’s request saying: “We cannot cut off Mr. Awodein at this stage and as such, we will rise for five minutes to get the records for the benefit of doubt”.
During the process of finding the records, it was discovered that all the claims of the Aregbesola’s counsel were in order, as the ruling on the appeal, its records and the real appeal were found in the file records of the court.
When the court resumed about 30 minutes after, Oyinlola’s counsel quickly made a u-turn and submitted that the appeal in question existed and truly he and other counsel to other respondents filed cross-appeal to the appeal. Other respondents counsel also made u-turn and agreed that the appeal existed.
Subsequently, Aregbesola’s counsel moved the application for consolidation of all the appeals and none of the respondents counsel raised objection to the consolidation.
The court then granted the application, saying that “the appeals are hereby consolidated as prayed”.
After the application was granted, Awodein took the floor again to adopt his brief of argument and he urged the court to allow the appeal and declare Aregbesola the winner of the election having scored the highest number of votes in the election.
He said: “I respectfully adopt the said amended brief of argument and by way of emphasis, I want to focus on the relief we sought that our client ought to have been declared winner in the election and we urge you to do so. I submit with respect that the tribunal was patiently wrong in rejecting the police security report and forms EC8D and E tendered before the tribunal.
“The tribunal was also wrong in not ascribing any value to the oral and documentary evidence before the tribunal. I submit that the argument in respect of the police report is important because it would have established the substantial non-compliance in nine of the ten local governments, which are identified on page 120 of the brief”.
The counsel then called the attention of the court to the case of Asubia Vs Ogunewe as cited in the brief, which indicated that security officers should be regarded as neutral people, saying that ordinarily, the report ought to have been ordinarily admitted. He told the court that the document has been reproduced and forwarded to the court in an envelope.
On the overall result of the election, which was tendered before the lower tribunal but rejected, Awodein said that the documents were rejected in error because all the counsel to the parties had agreed at the pre-hearing stage of the matter before the lower tribunal.
The counsel argued further that the INEC did not make available forms EC8As at the polling centres of Ife East Local Government and the failure of the INEC to make available the form for the election was sufficient proof of the appellants that there were no elections in the area.
Awodein further argued that the failure of the INEC to offer any evidence at the lower tribunal was fatal to their case and supported the appellants’ claim that there was no counting of votes or announcement of result in the 10 local governments being challenged as pleaded and established, saying that with the development, the proof required of the appellant was minimal.
The counsel referred to the case of Agagu Vs Mimiko and Oshiomhole Vs Osunbor, where he prayed the court to grant his prayers as contained in the appeal.
He further argued that if the court was to nullify the election in the 10 local governments being challenged and make deduction of the invalid votes from the valid ones, Aregbesola would satisfy the required percentage in the votes of the remaining local government areas of the state.
He then prayed that after the court might have made its deductions, the AC candidate should be declared the winner of the election for he would have won the election gallantly.
In his response to Awodein’s arguments, Oyinlola’a counsel adopted his brief of argument and prayed to dismiss all the interlocutory and the main appeals.
According to him, the facts in the cases of Agagu Vs Mimiko and Oshiomhole Vs Osunbor are different from the fact in the case at hand, saying that the authority is inapplicable.
In the two cases, he said that the lower tribunal made some findings and made use of the findings, noting that the lower tribunal in Osun did not make any findings neither did it attempt to make any during the trial.
Alli asked the court to expunge a portion of the arguments, arguing that it was wrong for the appellant’s counsel to have reproduced the document (security report) that had been rejected by the lower court.
But the judges descended on him and queried him whether the rejection of the document by the tribunal was binding on the appellate court, as one of the judges said that he could only make his submission to avoid telling the court what to do. “We are not the one that rejected the document, and how can you now tell us that we should expunge it. You can only make your submission”, one of the judges snapped.
Oyinlola’s counsel, after being queried by the court, then continued with his argument, saying having regard to the failure of the appellants to proof their case, “there is no justification for the relief sought to declare the appellant winner of the election”.
He then urged the court to dismiss each and every one of the appeals, saying “they are lacking in merit”.
In his submission, the INEC counsel submitted that his clients did not call any witness, but said that calling witness was not necessary as the onus of proof lies on the appellant, adding that the appellants have failed to prove their cases.
While addressing the court, the counsel said that the court interjected his submission, but the panel chairman warned him not to use such language again, saying, “courts don’t interject, it is lawyers that interject”, a situation that forced the counsel to withdraw the statement.
On the security report, the counsel said that if the report should be admitted at the appeal, it would have effect on INEC as it would not have an opportunity to cross-examine any witness on it or go back to call his witnesses.
But the court said that the claim of the counsel that he would be denied right to call witnesses again could not stand as the INEC, in its discretion, has decided not to call any witnesses for defence.
He said that though “there can never be a perfect election”, he claimed that there was substantial compliance with the provision of the law in the election being challenged.
Gadzama then insisted that the appellants have failed to prove their case and urged the court to dismiss the appeal.
The police counsel, Owolade in his own adopted his brief of argument and relied on them and prayed the court to dismiss the appeal.
After the adoption, Alli said “I sincerely thank you from the bottom of our hearts for the indulgence” but the presiding judge replied him saying, “Mr Alli, whether you thank us or not, we can not be moved because we will do our job as expected of us”.
The court then reserved its judgment in the case, saying that the date of judgment would later be communicated to the counsel to the parties in the matter at a later date.
By KAZEEM MOHAMMED