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Waiting for Osun tribunal verdict

By Taofeek Oguntoye

With the pronouncement  of the Court of Appeal in Ibadan a year ago ordering a retrial of the case of the Action Congress governorship candidate in Osun State, Rauf Aregbesola and the further order that he should be allowed to tender from the bar, a document called “Final Police Report on April 14, 2007 Election in Osun State”, it was expected that the petitioner would briskly tender the document, call a few witnesses and close his case.

However, it took Aregbesola six months to call 82 witnesses and tender several documents. When he closed his case in January 2010, his lawyers did not tender the police report which he had informed the Court of Appeal was “very vital to his case.” Police authorities had earlier last year arrested Aregbesola for forgery of the report and are trying him for the offence at the Federal Capital Territory High Court, Abuja.

All the parties adopted their final addresses on April 19, 2010 with Oyinlola and the other respondents asking the tribunal to dismiss the petition because Aregbesola had failed to prove his case with credible evidence. Aregbesola on the other hand, asked the tribunal to declare him as the winner of the election.

As the judgement of the election tribunal is being awaited, the usual media fireworks that have been the hallmarks of electoral and judicial contests in the South West have started. The first salvo, predictably was fired from the camp of the Action Congress candidate, who has inundated the media with write –ups containing some figures with which it wants the tribunal to give it  judgment.

Aregbesola is challenging the election of Oyinlola on the grounds of violence, ballot box snatching, stuffing and thuggery which he said marred the polls in 12 out of 30 local governments.

At the end of the pre-trial conference, the tribunal asked parties to the case to formulate issues for determination which they did. At the end of the exercise, the tribunal in its final pre-trial report issued pursuant to paragraph 3(10) of the election tribunal and court practice directions 2007 and signed by all its members distilled two issues for determination.

The first was whether Oyinlola was validly elected or not by majority of lawful votes cast in the April 14, 2007 governorship election in Osun State having regard to the totality of the evidence, oral and documentary before it. The second issue the tribunal distilled was whether the election was vitiated by corrupt practices substantially enough to cancel it and order a fresh election.

From the two issues distilled by the tribunal, it is clear that awarding the governorship to Aregbesola was not considered at all. However, despite the fact that copies of this report were given to all parties, Aregbesola inclusive, his camp has continued to feign ignorance of these issues while trying to draw parallels with cases in other states.

At the end of the trial of the case which started about a year ago, Aregbesola called 82 witnesses while Oyinlola called 62. both tendered several documents to support their case. The police and INEC did not call witnesses basing their decision on what they described as Aregbesola’s battered evidence which did not support his case. Basing its media judgement on reports of persons called as experts by him, Aregbesola has made an elaborate presentation of votes he called lawful and unlawful. However, Oyinlola through his lawyers in his final address, have stressed that it does not lie in the mouth of Aregbesola to declare some votes lawful or unlawful. That is the exclusive preserve of the tribunal, they said.

“The Petitioners also alleged that election results were based on fictitious figures. Indeed if the evidence proffered by the totality of the witnesses called by the Petitioners were not to be hearsay (which in reality and law they were) the Petitioners still have another burden. And that is, the burden of producing both the fictitious figures and the authentic figures/result.

“Throughout the proceedings, which lasted a solid eight months, the Petitioners did not produce any result either as declared by INEC or the “other result” as computed by the Petitioners. It is therefore submitted that the allegation of forgery/writing of fictitious results (which in any case must be proved beyond reasonable doubt) has not been proved:We refer to Ezazodosiako Vs. Okeke (2005) 16 NWLR ( Pt. 952) 612 at 628 where it was held that “It is well established that to prove falsification, there should be in existence at least two results, one of which ought to be stigmatised as genuine and the other result false”. Also in Buhari Vs. INEC, (2008) 4 NWLR (Pt 1078) 546 at 665; it was held that: “It is my considered view that since the 6th Respondent declared results despite the objection raised by the agents of the parties ………….there is a rebuttable presumption that the result declared is correct.

The burden lies on any party who disputes the correctness to lead rebuttal evidence. It is for the Petitioners to call their agents….. to give evidence in rebuttal by the production of their copies of Form EC8D to rebut the declared results. This they have failed to do,” Oyinlola’s lawyers told the tribunal.

On the allegation of ballot box stuffing, Oyinlola contended that the ballot boxes alleged to have been stuffed with ballot papers were not tendered by the Petitioners as demanded by law.

*Oguntoye wrote from Osogbo


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