OPINION: Why Aregbesola Cannot Loose The Osun 2014 Gubernatorial Case

Rauf-AregbesolaAfter the August 9, 2014 gubernatorial election which was convincingly won by Ogbeni Rauf Aregbesola, the All Progressive Party (APC) candidate, the Returning Officer, Professor Bamitale Omole, in returning Ogbeni Aregbesola, said Aregbesola got 394,684 votes to win the election. His closest contestant was People’s Democratic Party (PDP) candidate, Senator Iyiola Omisore, who polled 292,747 votes to emerge second. The candidate in the third position was Alhaji Fatai Akinbade with 8,898 votes.

Professor Omole said “Ogbeni Rauf Aregbesola of APC, having satisfied the requirements of the law, and scored the highest votes, is hereby declared the winner and is returned elected. After the election results were declared, the PDP candidate petitioned the Osun Election Tribunal claiming there were irregularities in the election and its conduct. By Section 285 (6) of the Constitution of Nigeria 1999, as amended in 2011, the original judicial responsibility of handling and disposing within 180 days (6 months) from the date of filing of the petitions (within twenty-one (21) days after the announcement of the final result), of gubernatorial election is rested on the Election Petition Tribunal (equivalent of High Court).

By Section 285 (7), an appeal from the decision of an Election Tribunal or Court of Appeal in an election matter must be heard and disposed of within 60 days (2 months) from the date of the delivery of judgment of the Tribunal or Court of Appeal. Of all the poll petitions’ cases, the governorship poll cases have the longest duration of ten (10) months; that is to say six (6) months at the tribunal, two (2) months at the appeal court and two months at the Supreme Court.

From the above declarations of the 1999 constitution (as amended in 2011), two cases emerged at the Osun Gubernatorial Election Tribunal. One, is the case filed by the PDP and its candidate, Iyiola Omisore, on the alleged irregularities in the conduct of the election; and two, the case brought by APC and its candidate on the lateness of the PDP and its candidate to file their petitions legally. Legal filing must conform to the twenty-one (21) days stipulated by the constitution. No match organizer wants the contest to be won through ‘work over’. PDP and its candidate were not responsive enough to file their petitions within the stipulated time of twenty (21) days but the tribunal gave them the chance to air the views on the conduct of the election, anyway.

In the process of proving that there were irregularities in the conduct of the August 9, 2014 gubernatorial election, PDP and its candidate in the election were only able to show that there should be higher penalty for “abuse of court process” and not the N50,000.00 (fifty thousand naira) only fined the Labour Party candidate, Niyi Owoade. The Osun Gubernatorial Election Tribunal dismissed Accord Party’s petition in the August 9, 2014 election and a fine of N50,000.00. This fine may be brought up to forestall future abuse of court process.

In the Osun Gubernatorial Election Tribunal that took place in the Osogbo High Court premises, the legal team of PDP and Iyiola Omisore turned the court into a cinema theatre and freely entertained the tribunal judges and the whole court with their comedy most of the times that the tribunal sat. In the beginning of the petition, PDP and its candidate (the petitioners) claimed that there were irregularities in all the wards in the state and wanted to inspect the ballot papers to establish irregularities. The tribunal struck out the application of PDP and its candidate to take the entire petition together so as to fast track pre-hearing.

The petitioners claimed they had 1200 witnesses at the beginning of the tribunal sitting. This was later reduced to 500 out of which they were only able to invite 43. The witnesses invited were not coherent in their submissions. The comedy of the one-sided case was in the presentation of experts, evidences and witnesses. The forensic expert procured by the petitioners in the petition, Mr Pius Bakare, could not prove how he became an expert in fingerprint analysis. This can only be done through certificate or work-experience.

The witnesses were in court during the morning session of one of the sittings, but in the afternoon session, when they were expected to give evidence before the tribunal, none of them was seen. When tribunal members resumed from the break at exactly 2:30 pm, the PDP legal team discovered that the witnesses have left the court premises. Some members of the PDP legal team, including Otunba Ojo Williams, quickly rushed out of the court to call the witnesses back to the court. The lead counsel of the petitioner, Mr Chris Uche (SAN), appealed profusely to the court for the delay, as the witnesses were not on ground, admitting that “this is not good for us at all”.

When the delay was becoming unbearable, the tribunal Chairman, Elizabeth Ikpejeme, stood down the case, rose and asked the petitioners’ counsel to inform them when they were ready with their witness. It took about 15 minutes before the legal team could get the witnesses back to court after several appeals and assurances. After the witnesses were gotten back to court, the tribunal resumed sitting and the petitioners resumed calling of their witnesses. The witnesses intentionally varnished because they were scared of what they would face from the Aregbesola’s counsel having heard from witnesses who had earlier given evidence.

In cross-examining the witnesses in the morning session on the day the witnesses disappeared, a PDP witness from Oriade Local Government Mr Oluwaseun Fapohunda, stunned the tribunal, when during cross-examination said that Ogbeni Rauf Aregbesola voted at his polling unit in Oriade Local Government whereas Aregbesola voted in Ilesa in Ilesa East Local Government Area. Mr Fapohunda who claimed he voted in Unit 14, Ward 3, of Oriade Local Government was asked to show the tribunal his allegation of over-voting which he claimed was apparent in his witness statement on oath, failed to do so even when he was obliged a reading glasses by the petitioner’s counsel, Kunle Adegoke Esq. He also stated that he did not have any pictures of canopies erected in each of the polling units where APC members were winning and dinning.

For Mr. Adejare Moshood, he confessed during cross-examination that he cannot see any super-imposition of any result in Exhibit 192 and 207 which is the result tendered for all the units and ward, contrary to paragraph 5 of his statement on oath. When asked what he meant by super-imposition, he said ”when you see something bad and you complain about it and nobody attends to it”.

Habeeb Trimisiyu Oluwafemi, supervisor in ward 4 Ayedaade Local Government claimed he voted in unit 4. He claimed in his witness statement on oath that agents of APC were busy awarding votes arbitrarily to the Respondents. When he was asked to mention the name of those agents, he said he does not know them. He was further asked to point out the genuine votes and the inflated votes as claimed in his witness statement on oath which he said he cannot identify. He also testified to the effect that when votes were counted in his unit or anywhere in his ward he was not present and when it was being recorded he was not in any unit.

It was also a bad day for an old man Rasaki Olawuni who claimed to be a party agent in Unit 1, Ward 3, Ayedaade Local Government. He stated in his witness statement on oath that unregistered voters were allowed to vote, that PDP supporters were chased away from the polling unit and others were intimidated. During cross examination, he claimed he can neither read nor write, but can see his name on the voters register and no other. He also confirmed that he did not have the voters card of those PDP members that were prevented from voting neither did he have the names of PDP members that were intimidated and harassed contrary to his affidavit sworn to.

He further stated that he was not allowed to sign the result sheet and was not given a copy either. Chief Akin Olujinmi, SAN then asked him that since he did not signed the result and copy not given to him, he will not know the result contained therein form EC8A. He answered in the affirmative. Chief Olujinmi further confronted him with paragraph 4 which alleged over-voting in his statement on oath which he could not find answer to. The last straw was the revelation by chief Akin Olujinmi SAN that he was not the party agent at that unit; that it was Bolarinwa Ebenezer whose name was sent by PDP and he was the one that signed form EC8A. Contrary to his claim that he did not collect copy of the result in his unit, he was shown the duplicate of the result signed by Bolarinwa Ebenezer tendered by PDP counsel.

It is rather too absurd and inconceivable that a peti­tioner would claim irregularities in 85 poll­ing units of the 105 of a local government area will call only 3 witnesses whose only evidence is, in most cases, by proxy, or hear­say. These are clearly inadmissible in law. As a Petitioner’s witness, by defini­tion, you ought to be the first-hand witness to the event in contention. You are not supposed to present third party information. And even then, calling 3 witnesses representing only 3 polling units of the alleged 85 units Ikire in Irewole Local government, for example, is nothing but ridicule and abuse of court process. The picture painted above also represents what the Peti­tioner was claiming in virtually all the other local governments contested.

From the above analysis done on a local government by local government basis, it is crystal clear that out of 965 Polling Units be­ing challenged by the Petitioners, they only called evidence in support of their petition in only 239 Polling Units with the abandonment of 726 Polling Units pleaded in their petition. Assuming, without conceding, that the Peti­tioners have led credible evidence in all the 239 polling units (which is not the case here), is that enough to sway the judgment in their favour?

239 Polling Units represent 7.94 per cent of the 3,010 polling units contained in the State. This is definitely too insignificant to upturn the result of the gubernatorial elec­tion held on August 9, 2014. To make matters worse, the Petitioners tendered Form EC8A in respect of only 230 units which mean that even if their claim suc­ceeds in respect of the 239 Polling Units in which evidence was led, the Tribunal can only rule in their favour in respect of the said 230 Polling Units in which Form EC8A was tendered. But they failed to prove allegations of wrongdoings in all.

In his final submission on Friday, January 23, 2014, Chief Akin Olujinmi, the lead counsel to the petitioner, proved that the exercise was an effort in futility and urged the court to strike out this case. He opined that even where the results of the 965 polls being challenged by the petitioners were cancelled, Ogbeni Rauf Aregbesola will still win in two-third of the local governments in the state and still lead the petitioner by simple majority. This means that Aregbesola will still ‘satisfy the requirements of the law’ to be declared winner. The results of all the 965 polls were not addressed in the court as only 230 units were addressed and evidenced even wrongly. These are the premise to say that Ogbeni Aregbesola cannot lose this case.

Olufemi Oyedele sent this in from Osogbo, State of Osun.