By Dayo Benson
Friday victory of Action Congress of Nigeria ACN candidate in 2007 governorship election in Osun State was indeed a long road for Engr.Rauf Aregbesola who comes across as a dogged fighter and political long distant runner.
At the last hearing November 1st before the appealate tribunal, counsel on both sides had adopted their written submissions while the court fix date for judgment. Counsel to Aregbesola asked the court to nullify results of the 2007 governorship election in 10 local governments and declared his client winner of the poll having scored lawful majority votes in the remaining 20 local governments.
Which constitute two-third required by law. However, counsel to former governor Olagunsoye Oyinlola insisted that his client victory should be upheld as Aregbesola could not prove his case.
Before the court of appeal sitting in Ilorin declared Governor Kayode Fayemi winner of Ekiti State governorship poll, some observers were of the opinion that Dr. Fayemi should have concentrated his energy and resources on the 2011 race rather than pursuing the appeal. His eventual victory had however vindicated him on the genuiness of his case.
It was Fayemi’s victory that has given fillip to Aregbesola and his lawyers. The two cases shared some similarities. At the tribunal of first instance, both cases were dismissed and they proceeded on appeal. In Ekiti, the Appeal Court ordered re-run election in 10 local governments comprising of 63 wards. In Osun however, the Appeal Court ordered fresh trial of the case because the trial tribunal failed to consider some vital pieces of evidence. Another major similarity is that the two cases went before the tribunal of first instance and court of appeal the second time.
Allegations and counter allegations have been traded by parties to the case. That was why the members of the appeal panel that sat in Ibadan November 1st was unknown until the sitting day. They were drawn from different parts of the country in order to guarantee the sanctity of their judgment.
The preliminary issues in the appeal was handled by different panel of judges.
The legal tussle between the Aregbesola and Oyinlola 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 after the 2007 election as the elected governor of the state.
So intense was the legal firework that the 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 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 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 Local Government Areas in the State Governorship election.
He also claimed 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 which 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 asked 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 was further submitted that it was because of this erroneous holding by the Tribunal that the Tribunal discountenanced 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 had resulted in substantial miscarriage of justice.
However the court of appeal has reverse the miscarriage of justice in favour of Aregbesola. For him, it was indeed a long road to victory