By Ola Ajayi
THE governorship seats in South-West states have been dogged by a gale of uncertainties.
It started when the judiciary removed the baton of leadership from Olusegun Agagu and gave it to Olusegun Mimiko.
Just recently, the Appeal Court in Ilorin also ruled in favour of Dr. Kayode Fayemi of Ekiti, even as the tenure of the administration of Engineer Segun Oni still had months to run.
With these developments, Governor Olagunsoye Oyinlola of Osun State and Engr. Rauf Aregbesola, the Action Congress of Nigeria, ACN, candidate in the 2007 polls November 17, 2010must be anxious to know their fate.
The answer to their anxiety is may come sooner than expected as the Appellate Court sitting in Ibadan will deliver the judgment today.
While the Peoples Democratic Party controversially claimed some states in the South West during the tenure of the former President, Chief Olusegun Obasanjo, some opposition parties described the victory as a temporary one.
True to their words, the judiciary removed the baton of leadership from Olusegun Agagu and gave it to Olusegun Mimiko.
Just recently, the Appeal Court in Ilorin also ruled in favour of Dr. Kayode Fayemi of Ekiti, even though the tenure of the administration of Engineer Segun Oni remained some months to end, the last hope of common man, judiciary, again struck and healed the wounds of some people in the state.
When this happened, Governor Olagunsoye Oyinlola and Engr. Rauf Areegbesola became more eager to know their fate today.
Would the ruling PDP lose the third state in the South West?
The legal tussle between the 2007governorship candidate of the Action Congress of Nigeria in Osun State, Engr. Rauf Aregbesola and Governor Olagunsoye Oyinlola started shortly after the confirmation of the latter by the Independent National Electoral Commission, INEC, as the elected governor of the state.
The legal firework was so intense that an Appeal Court sitting In Ibadan had to order a retrial of the petition and ordered the constitution of a new panel. The court held that the lower tribunal led by Honourable Justice Thomas Naron erred by not giving the ACN candidate fair hearing.
The new five man panel that heard the retrial of the case in Osun State included Justices Ali Garba, Benedict E. Agbattah, Ismaila H. Bashir, Muhammad T.M. Aliyu and Abimbola O. Obaseki. It confirmed the election of Oyinlola in the judgment that was delivered on 28th May, 2010.
But dissatisfied with the judgment, Aregbesola filed an appeal against the judgment insisting the votes recorded in Atakumosa West, Ayedaade, Boluwaduro, Boripe, Ede North, Ife Central, Ifedayo, Isokan, Odo-Otin and Ola Oluwa Local Government areas did not represent lawful votes cast in the said Local Government Areas in the Osun State Governorship election held on14th April, 2007.
He is also clamouring that Prince Oyinlola was not duly elected by majority of lawful votes cast in the election and that he (Aregbesola) should have been returned having scored the highest number of votes cast and that the election in the said local government areas were vitiated by substantial non-compliance with the mandatory requirements of the Electoral Act, 2006.
He also alleged that no election was conducted in several polling stations and wards in the said local government areas and that in few areas where elections were held, the exercise was marred by violence.
When he filed the appeal on 14th June, 2010, he asked the appellate court to determine 28 issues. Among the issues are;
*Whether the treatment of the evidence of the petitioners’ witnesses,–PW1 – PW65 and PW71 – PW79, as mere allegations was not erroneous and did not occasion a miscarriage of justice;
*Whether the decision of the tribunal that the evidence of P.W.10 required corroboration was not erroneous and did not occasion a miscarriage of justice, whether the decision of the tribunal that the allegation that INEC building was burnt in Boripe Local Government Area was not established was not erroneous and did not occasion a miscarriage of justice and whether the decision of the tribunal that all the allegations of the petitioners related to criminal offences the proof of which must be beyond reasonable doubt was not erroneous and did not occasion a miscarriage of justice.
Other issues that the ACN candidate is asking the court to determine are;
*Whether the Tribunal was right when it held that the issue of non-counting of votes, non-recording of votes are required to be proved beyond reasonable doubt rather than on the balance of probabilities,
*Whether the decision of the tribunal that the evidence of non-counting of votes, non-announcement of results and what happened at the various polling units could only have come from polling agents was not erroneous, whether the Tribunal was right in holding that the Petitioners failed to lead evidence on such issues as non-counting, non-recording of votes and non-announcement of results at the polling units,
*whether the decision of the tribunal that the allegations of the petitioners of the non-availability of voters’ registers and the non_accreditation of voters in the Boripe Local Government Area were not proved was not erroneous and did not occasion a miscarriage of justice, whether the failure of the tribunal to consider the various documents tendered in evidence in support of the petitioners’ case was not erroneous and did not occasion a miscarriage of justice and;
*whether the decision of the tribunal that the petitioners failed to prove their case with regard to Atakumosa West Local Government Area was not erroneous and did not occasion a miscarriage of justice.
He is asking the court to hold that it was erroneous for the Tribunal to hold that the evidence of non-counting of votes, non-announcement of results and what happened at the various polling units could only have come from polling agents.
It is further submitted that it was because of this erroneous holding by the Tribunal that the Tribunal discountenance the evidence led by the Petitioners through PW1-PW66 AND PW71-PW79, that elections were not concluded, votes were not counted and results were not recorded and announced at the polling units in the ten local governments and this erroneous holding has resulted in substantial miscarriage of justice.
While reserving judgment after both parties had adopted their briefs, the Presiding Justice, Honourable Justice Clara Ogunbiyi and other members of the panel—Justices M.L. Garba, P.A. Galinge,C.C Nweze, and A. Jauro said the date of the judgment would be communicated to them.
Counsel to both parties in the case were given about 30 minutes to argue their briefs. Aregbesola’s legal team was led by Ebun Sofunde. But Chief Akin Olujimi(SAN) was the one that argued the case. Other lawyers of the ACN candidate were Mr. Rotimi Akeredolu(SAN), Mr. Kola Awodein(SAN), Mr. Deji Sasegbon and Professor Yemi Osibajo among others.
Oyinlola was represented by more than 70 lawyers led by Mr. Yussuf Alli(SAN), Tayo Oyetibo(SAN), Kunle Kalejaye(SAN), Bolaji Ayorinde(SAN), Nathaniel Oke(SAN) among others.
Olujimi asked the court to declare Aregbesola the winner of the election after nullifying the results of the election in 10 local government areas of the state.
He said there were massive irregularities in the conduct of the election adding that INEC failed to reply to all the alllegations of irregularities and non-compliance with the provisions of the Electoral Act 2006.
According to Olujimi, their alleged failure to challenge any aspect of the evidence tendered by the petitioner was tantamount to abandonment of their case. Again, he argued that in exhibit 92 which relates to Boripe Local Government, the 14,497 votes declared by INEC were more than the 12,631 voters that were registered and yet the lower tribunal which delivered its judgment on 28th May, 2010 did not consider it.
The INEC, he alleged failed to announce and count the results of the affected place and also failed to produce voters register which is important in any election.
He told the court saying “there are 10 local governments that the appellants are complaining about and if your lordships agree with the issues raised, you would see that the petitioner has more votes than the respondent. And you would see that he (Aregbesola) should be declared winner of the election.
He prayed the court to allow the appeal and declare his client as the winner of the election.
Replying him, Alli said the appellant failed to plead the issue of over voting and that Aregbesola should not be allowed at this stage to change the rule of the game. He said the evidence they adduced had not proved the case brought before the tribunal.
Alli said, “on the issue of Boripe, your lordship would see on pages 62-71 of the petition that the issue of over voting was never pleaded. The appellant should not be allowed at this stage to change the rule when the game is almost over”.
He faulted the cases of Kayode Fayemi and Segun Oni which Olujimi cited saying the case was based on peculiar facts and circumstances.
On the analysis of finger printing, the counsel argued that the analyst only did 10 per cent and could not be taken to be a conclusive work.
But, Alli in a counter argument said that all the analyses of the ballot papers had been done before the death of Adrian Forty and that it was only the review that he could not conclude.
To him, the alleged uniformity in the evidence adduced by all the witnesses was suggestive adding that it looked as if they had been tutored somewhere on what they would say arguing that since they were said to be in different places at that time, it was not possible for them to give a uniform evidence.