‘The Appeal is incompetent because proper parties are not before the Court.- Aregbesola’.
Judgment adjourned to 27th May 2015.
By Ibrahim Lawal Esq
The Supreme Court today heard an appeal filed by Iyiola Omisore against the Judgment of the Court of Appeal sitting in Akure which affirmed the victory of Ogbeni Rauf Adesoji Aregbesola in the August 9th gubernatorial election held in the State of Osun.
At the hearing of the appeal which was presided over by Hon.Justice Fabiyi JSC who led 6 other justices of the Supreme Court thereby making it a full court called on the Appellants Counsel led by Dr. Alex Iziyon SAN to identify all the processes he filed. Having identified all the process and in an attempt to go ahead with the adoption of all the processes, Chief Charles Akinlolu Olujinmi, the lead Counsel for the 1st Respondent (Ogbeni Rauf Aregbesola) informed the court of a fundamental observation regarding the processes filed by the Appellants.
According to him, the normal procedure in this court is for an Appellant who filed more than one Notice of Appeal to rely on one Notice of Appeal on which a brief of argument will be written. In this case, the Appellants prepared two Notices of Appeal as well as two briefs of arguments and wishes to rely on the two. Chief Olujinmi submit that such approach is alien to the established rules of court regarding the number of pages of brief that must be filed by the Appellant, moreso when the Appeal emanates from a single judgment. Oluwarotimi Akeredolu SAN while supporting the observation raised by Chief Olujinmi argued that the fact that the lower court gave a judgment on a substantive appeal and cross-appeal is not a licence for the Appellants to file two Notices of appeal and two briefs in support. For Chief Awomola SAN, the lead Counsel for the 3rd Respondent, he countered that the Notices of appeal filed are mere repetition of what was contained in the first Notice of appeal. He was of the view that the first notice of appeal could adequately cater for the other notice ditto the brief. All the 3 counsel unanimously urge the court to strike out one of the notice of appeal and the corresponding briefs of arguments.
Dr. Iziyon while responding argued that the Notices of Appeal are in respect of two judgments. One is the main appeal and the other is the judgment in the cross-appeal. It was at this stage that one of the justices asked him whether the date of delivery of both judgment was not the same or not delivered by the same justices. The 7man panel thereafter rose for 5minutes and directed that he should adopt all the briefs and their position will be reflected on the judgment.
Having done with the observation, Chief Akin Olujinmi SAN rose again while Dr.Alex Iziyon was trying to adopt his briefs of arguments and inform the court that on page 6 of his own reply brief, he indicated his intention to raise preliminary objection to the competence of the appeal. According to him, the appeal as constituted is incompetent because a stranger has been introduced as the 2nd Respondent. He stated that on the two Notices of Appeal, the Appellants included as the 2nd Respondent All People’s Progressive Congress instead of All Progressive Congress. Chief Olujinmi argued that the law is settled that an appellant must maintain the same party at lower court on appeal and can only change the parties with the leave of court. He argued that what the Appellants did runs counter to the decision of the Supreme Court in APP v INEC 2012 where the supreme court unequivocally dismissed an appeal for failure of the appellant to bring proper party before the court.
While responding to the objection, Dr. ALEX Iziyon SAN submitted that the fact that there was a typographical error in the process does not render it incompetent. According to him, what happened was an error which can still be accommodated by the court so that substantial justice is not defeated.
In adopting the Brief of Arguments, the Learned Counsel for the 1st Respondent concedes that though this court seldom disturb concurrent findings of the lower court, he however submitted that where such concurrent findings had no bearings on the record, the Supreme Court is bound to do away with such findings. He also argued that the Lower Court clearly admit there was irregularities but that such irregularities are not substantial enough to warrant the cancellation of the results of such election. He also pointed out that the lower court failed to clearly reason with the Appellants that the tribunal lumped the issue of irregularities and substantial compliance and failed to make specific findings on both. He finally submit that failure of the 3rd respondent(INEC) to call witnesses is clearly fatal to their case and such dhould have been counted as substantial proof of allegations contained in their petition. He therefore urged the Panel to allow the appeal.
In adopting the Respondent briefs of argument, Chief Olujinmi SAN on behalf of the 1st Respondent submit that this appeal is unmeritorious and should be dismissed without much ado. According to him, the Appellants challenged 930 polling units spanning 17 Local Governments and called 43 witnesses. Out of the 43 witnesses, only 7 were polling agents, the other witnesses are supervisors who admitted on record that the evidence they came to give are given to them by the agents on the field. He stated that their evidence were clearly hearsay. The 7 witnesses who testified to what they saw were badly discredited. As for the supposed “expert witnesses” PW15 and PW 38 their evidence was badly discredited to the extent that on record they admitted that their reports were false. At this stage, the Justices of the Supreme Court directed Chief Olujinmi to read the portion of the record where it was so admitted and it was read clearly to their hearing. He therefore submit that with all these facts, there is no reasonable tribunal that can give judgment to the Appellants in the circumstance. He therefore urged the Court to dismiss the petition.
Akeredolu SAN while adopting his briefs on behalf of the 2nd respondent submit that the findings of the lower court is supported by the record and cannot be faulted by any stretch of imagination. He also maintained that there is nowhere in the record where the tribunal admitted there were irregularities and challenge the Appellants to show the court the portion of that judgment.
Chief Awomolo on his own for the 3rd respondent argued that the contention of the Appellants that failure of the 3rd respondent to call witnesses is fatal to their case has no basis in law especially when the appellant has failed to lead cogent and reliable evidence.
The Supreme Court having listened to the arguments of Counsel adjourned for judgment which is slated for 27th May, 2015.