By Simon Ebegbulem & Gabriel Enogholase
BENIN—THE Court of Appeal sitting in Benin City, Edo State, has reserved judgment in the appeal by the Peoples Democratic Party, PDP, and its candidate in the September 28, 2016 governorship election in Edo State, Pastor Osagie Ize-Iyamu, in which they are asking the court to nullify the judgment of the lower tribunal which upheld the election of Godwin Obaseki of All Progressives Congress, APC.
The five-man appeal panel headed by Justice M.B Dongban-Mensem, ealier dismissed an application by Ize-Iyamu pursuant to Order 6 Rule 1, Court of Appeal Rules, 2016, and Section 36(1) of the Cconstitution for the correction/amendment of the trial court’s record of his evidence-in-chief.
The appellate court also reserved ruling on the cross appeal filed by Obaseki and the APC, which faulted the lower tribunal for allowing the counting of ballot papers at all during the trial.
Ize-Iyamu, through his counsel, Mallam Yusuf Ali, SAN, prayed the court to rely on and use the evidence of the first appellant as recorded by Justice Gilbert Ngele (Member 1) of the lower tribunal instead of that of the tribunal’s chairman, Justice Ahmed Badamasi.
He also sought an order deeming the record of his evidence by Justice Ngele, made on January 30, as the correct record of his evidence-in-chief at the lower court, wherein he raised five grounds of appeal, including that the tribunal’s record compiled and transmitted to the appellate court contained an incorrect rendition of Ize-Iyamu’s evidence by Justice Badamasi.
But counsel to INEC, Onyechi Ikpeazu, SAN, that of Obaseki , Chief Wole Olanipekun, SAN and Chief Lateef Fagbemi, SAN, for the APC, described the applications as lacking in substance and academic exercise and urged the appellate court to dismiss them.
According to Olanipekun, Section 285 (4) of the constitution indicates that the quorum of the lower tribunal consists of the Chairman and one member, “therefore, one is wondering why the appellant wanted to substitute the recording of the Chairman. Is he saying that he is no longer a lawyer as was recorded for him by the chairman of the tribunal?”
Citing Section 41 (3) of the Electoral Act, Olanipekun said oral evidence were forbidden except in cases where a witness was adopting his written position, adding that the appellate court was bound by the proceedings written by Justice Badamasi and not that of Justice Ngele.
Simimlarly, Ikpeazu, SAN and Lateef Fagbemi concurred with Olanipekun after they cited the case of Ngige vs Obi.
Justice Dongban-Mensem in a short ruling, said “Having listened to all arguments canvassed by the lead counsel of all the appellants and respondents, I hold that no exceptional circumstance has been shown to warrant the amendment of the record of the tribunal as taken by the Chairman. I hereby, dismiss this application.”
In the substantive appeal filed by ize-Iyamu, the appellants argued that the decision of Justice Badamasi, Ngele and Kadi Usman of the tribunal which upheld Obaseki as governor lacked merit, as the lower court unjustifiably destroyed, discredited, disbelieved and dismissed their case before considering the case put forward by the respondents before it.
He raised 41 grounds for appeal and nine issues for determination, just as his counsel, Ali, SAN urged the court to determine whether the trial tribunal was correct in its approach in considering and dismissing their case considering the defence of the respondents.
He urged the court to further allow the appeal, upturn the judgment of the tribunal and grant the main reliefs sought pursuant to Section 15 of the Court of Appeal Act.
Adopting their briefs and written addresses, Olanipekun posited that the grounds of appeal was watery, noting that the crux of the petition, which was alleged non compliance, was abandoned at the trial by the appellants.