The court is expected to communicate the judgment date to the parties accordingly.
Aregbesola is appealing against the verdict of the Election Petitions Tribunal sitting in Osun State that upheld the Independent National Electoral Commission’s declaration of Governor Olagunsoye Oyinlola as the winner of the April 14, 2007 governorship poll in the state.
The five-man panel headed by Justice Clara Ogunbiyi reserved judgment on the appeal after the lawyers to the parties adopted their briefs of argument.
Other members of the panel are Justices M.L. Garba, Paul Galinge, C.C. Nweze and Adamu Jauro.
In adopting his brief, one of the lead lawyers to Aregbesola, his running mate and the ACN, Chief Akin Olujinmi (SAN), drew the attention of the appellate court to the fact that even though the INEC filed a reply denying allegation of irregularities during the election, the electoral body elected not to call any witness to challenge any aspect of the evidence tendered.
Olujinmi, a former Attorney-General of the Federation and Minister of Justice, said such situation amounted to the fact that the INEC abandoned its case, claiming that the case of the petitioners was not challenged in any way whatsoever.
He argued that if the deductions his clients sought were made from the lawful votes cast in the disputed 10 local government areas, the petitioners would have more votes than the respondents and would have fulfilled the constitutional requirements to be declared winners of the election.
He faulted the lower tribunal’s verdict on his clients’ position on the alleged non-counting and non-releasing of results by INEC officials and their failure to produce voter register used in the conduct of the election.
Olujinmi said the tribunal claimed that it was a mere allegation because his clients did not call evidence in spite of the fact that they called 75 witnesses including supervisors whose evidence the court had in the case of Lasun v. Awoyemi had been declared as competent and reliable.
He also disagreed with the position of the tribunal that the allegations of non-counting of poll were criminal, saying that failure of the INEC to carry out its job could not be criminal but civil.
Citing Fayemi v. Oni and Agagu v. Mimiko, the former AGF claimed that the criminal allegations of ballot stuffing and thuggery raised in the petition were separable.
Others issues raised were alleged discrepancies in the number of ballot papers produced by the INEC and results declared as well as the production of voter register for only four wards out of 11 in Boripe Local Government Area despite the fact that such register was germane to a valid election.
He also drew the attention of the appellate court to Alhaji S.O. Nofiu, who was said to have served as agents of the Peoples Democratic Party in nine out of 11 wards, saying that was impossible considering the facts that the exercise was done simultaneously in the different places.
He also claimed that Exhibit 217 tendered by the appellants and Exhibit R18, although certified by INEC, tendered by respondents were all blank with some not signed or stamped contrary to the provisions of the election manual.
Olujinmi urged the court to void the results of the elections in the disputed 10 councils and declare Aregbesola as the governor of the state on the grounds that he had lawful majority votes after the results of the disputed 10 councils must have been deducted.
But adopting his brief, lead lawyer to Oyinlola, his deputy and the PDP, Mallam Yusuf Ali(SAN), faulted the testimony of the supervisors referred to by Olujinmi, saying that the court had in Amosun v. Daniel declared that supervisors had no roles in the Electoral Act.
In the case of Boripe LG, Ali insisted that there was no place in the appellants petition where over voting was pleaded and they could not be allowed at this stage to change the rule when the game was almost over.
He said that the totality of the evidence called were not enough to entitle the appellants to reliefs being sought.
He further stated that since the reliefs being sought were declaratory in nature, for a party to be granted such reliefs, evidence must be led and proved to the satisfaction of the court.
“This appeal deserves only one thing: a dismissal and I pray your lordships to do so,” he added.
INEC’s lawyer, Mr. Ayodeji Bobaderin, said that the commission elected not to call witnesses because the appellants did not prove their case.
“There is a difference between not calling witnesses and not adducing evidence. The burden of proof will only shift to us if the appellants have been able to prove their case,” he said.
He urged the court to dismiss the appeal.
Lead lawyer to the Nigeria Police, Mr. Niyi Owolade, aligned himself with the submissions of Ali and Bobaderin.
He said that rather confirming allegation of police’s connivance on alleged violence in the election, witnesses confirmed police presence in various polling stations.
Owolade added that appellants alleged existence of a police report but failed to tender the said document thereby abandoning the claim.
The court also heard a cross-appeal by Oyinlola and a preliminary objection by Aregbesola’s lawyer.
Aregbesola was present at the Monday proceedings.
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