By Simon Ebegbulem, Benin-City
Legal fireworks dominated the appeal filed by the Peoples Democratic Party (PDP) candidate in the September 28, 2016 governorship election in Edo State, Ize-Iyamu, at the Appeal Court in Benin-City, last week. The five-man panel of judges was led by Justice M.B Dongban-Mensem. Other members are Justices S. Tom Yakub, M.O. Bolaji-Yusuf, U.A. Ogakwu and Mohammed Mustapha. Ize-Iyamu is asking the appellate court to upturn the ruling of the Edo State Election Petition Tribunal, which, on Friday April 14, 2017, upheld the election of Governor Godwin Obaseki of the All Progressives Congress (APC).
The court was jam packed with senior lawyers leading the onslaught from both sides. Wole Olanipekun (SAN) led the Obaseki team, Onyechi Ikpeazu (SAN) led that of the INEC while Lateef Fagbemi (SAN) and Yusuf Ali led the teams of the APC and Ize-Iyamu/PDP respectively. Obaseki and his deputy, Comrade Philip Shaibu, were in court optimistic that they have the mandate of the people, while Ize-Iyamu and his running mate, John Yakubu, were hoping for a judicial miracle.
The appellate court commenced proceedings by first dealing with the notice by Ize-Iyamu pursuant to Order 6 Rule 1, Court of Appeal Rules, 2016, and Section 36(1) of the Constitution for the correction/amendment of the lower court’s record of his evidence-in-chief.
He prayed for a leave of court to rely and use the evidence of the first appellant as recorded by Justice Gilbert Ngele (Member 1) of the trial tribunal instead of that of the tribunal’s Chairman, Justice Ahmed Badamasi. The appellant also sought an order affirming the record of his evidence by Ngele, made on January 30, as the correct record of his evidence-in-chief at the lower court.
Raising five grounds for the application to the appellate court contained an incorrect rendition of Ize-Iyamu’s evidence by Badamasi, the appellant prayed for a leave of court to correct the said record of appeal and use the supplementary record of appeal they transmitted to the court. But that motion drew the ire of Olanipekun, Fagbemi and Ikpeazu, counsel to Obaseki, APC and INEC respectively. Olanipekun said the motion was academic and lacked substance, adding that what Ize-Iyamu wanted the court to allow was not comprehensible. According to him, Section 285 (4) of the Constitution indicates that the quorum of the lower tribunal consisted of the Chairman and one member, wondering why the appellant wanted to substitute the recording of the Chairman. Citing Section 41 (3) of the Electoral Act, he said oral evidence was forbidden except in cases where a witness was adopting his written position.
The counsel averred that it was trite law for the appellant to request a substitution of the record of the Chairman of the Tribunal with that of Ngele, adding that the appellate court was bound by the proceedings written by Badamasi.
His words: “The appellant has not moved any application and it is a misconception to submit the motions have been served on the respective judges. The justices, having delivered their judgements, how were they served? Where and when? With due respect to my Lordships, this court does not have jurisdiction to countenance or grant the applicants their request that the record of the evidence-in-chief of the first appellant be amended. Section 41 (3) of the Electoral Act forbids oral evidence…The appellants themselves, submitted in their main brief (page 35, paragraph 10.40) that no oral evidence is allowed after adoption of witnesses statements on oath. Briefs have been presented, notices argued. There was no grounds of appeal challenging the record. So, where would his Lordships situate the motion if granted? I submit that the application is academic and lacking in substance. The appeal is empty and of no legal value. What they want the record for is not stated. It is hanging in the air”. INEC Counsel, Ikpeazu, took his turn, citing the case of Ngige vs Obi, which held that there was no way the record of proceeding by the Chairman would be substituted with that of a member, arguing that the members jottings were side notes. Counsel to APC, Fagbemi, concurred with the arguments of both counsel, urging the court to dismiss the application.
Having heard the arguments, the five-man panel called for an hour break before ruling on the matter. On resumption of proceedings, Justice Dongban-Mensem held: “Having listened to the arguments canvassed by the lead counsel of 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”. The ruling elicited jubilation from supporters of the APC inside the court.
The court now entered into the substantive appeal filed by Ize-Iyamu. The appellant, in his appeal, argued that the decision of the Badamasi-led tribunal, which upheld Obaseki as governor lacked merit. Raising 41 grounds for appeal and nine issues for determination, he prayed 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. Ize-Iyamu prayed the court to 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.
The appellant posited that the lower court unjustifiably destroyed, discredited, disbelieved and dismissed their case before considering the case put forward by the respondents before it. According to him, the tribunal wrongly discredited and disbelieved the testimonies of prosecution witnesses but believed and acted on the testimony of the respondents’ witnesses, adding that the lower court did not properly evaluate the oral and documentary evidence placed at its disposal, which led to its erroneous conclusion to dismiss the petition. “The decision of the trial court was perverse, having erroneously ignored necessary materials while taking irrelevant and extraneous matters into consideration to reach its decision. It is in the interest of justice to allow this appeal.”
Olanipekun punctured the argument, urging the court to dismiss the appeal on the grounds that it lacked merit, noting that the crux of the petition, which was alleged non-compliance, was abandoned at the trial by the petitioner. He recalled that the petitioners raised three issues for determination viz: whether the lower court did not come to the right decision in holding that the orchestrated complaints mounted against Obaseki’s return on the issue of how the voters’ register were ticked was of no moment.
“Whether the painstaking manner the lower court reviewed the presentation of the parties and came to its conclusion and findings can rightly be faulted, and whether the findings and conclusions of the lower court can be assailed”, the counsel said.
He said: “Therefore, the point being made is that the appellants have claimed before this court and the lower Tribunal that their case on non-compliance with the Electoral Act was made to ground the return of the first appellant (Ize-Iyamu).
The entire case of the appellant is that there was irregularities and non compliance in certain polling units and wards complained of in the petition and when the elections in those areas are annulled, the computation based on the remainder of results for valid election would show that they are winners. Can this court nullify election in the affected areas complained of to ground the return of first appellant as having majority of lawful votes in the unaffected areas without a relief for nullification of the election being sought by the appellants in their notice of appeal? The obvious answer to this question is no, since this honourable court would lack jurisdiction to tamper with the results of the election without a relief for nullification of the election being sought and having not sought that relief, this court would also be without jurisdiction to grant the main relief in the notice of appeal for the return of the first appellant.”
The counsel to the respondent continued: “With respect to the appellants, their presentation both at the lower Tribunal and at the Court of Appeal is confusing and convulated. They have only central relief before this honourable court which is also ungrantable for diverse reasons including but not limited to the fact that: “Declaration of a petitioner as being validly elected in an election is not made as a matter of course, but is subject to constitutional, stator abs evidential imperatives, including evidence that the mandatory provision of Section 179 (2) of the Constitution regarding the number of votes scored in each local government area and that the prescribed geographical spread has been met and satisfied.
There is no scintilla of evidence supplied by the appellants as to their meeting these constitutional requirements, and in the entire gamut of their brief, there is also no percentage the votes represent.
From the pleadings of the appellants in their petition, which the respondent admitted, respondent polled 319,483 votes as against 253,173 voted polled by the first appellant. Thus, it would be illegal and illogical for the appellants to seek for the return of the first appellant as having been validly elected as governor.
The client is not making any case for the return of the first appellant based on their having polled majority of lawful votes cast at the election, but basically, according to them, because the trial Tribunal unjustifiably destroyed, discredited, disbelieved and dismissed the appellants’ case… The appellants made a half-hearted attempt to draw a table based on an abandoned/inconclusive ballot recount exercise falsely claiming that they own majority of lawful votes case.
They have abandoned that line of presentation, finding fault with the Tribunal’s judgment as the basis for trot return, rather than victory at the polls. Appellants have abandoned their brief altogether. On the premise of the foregoing, we urge the court to resolve this issue in favour of the respondents and against the appellants. Your Lordships are urged to uphold the preliminary objection, and on it alone, strike out this appeal; in the alternative, dismiss the appeal in its entirety.”
After hearing the arguments, Dongban-Mensem reserved judgment indefinitely.
The 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 during the trial. Asked if his client will head to the Supreme Court to contest the motion that was dismissed by the Appeal Court, Ali said: “We will wait for our clients. Lawyers just don’t act on their own. We work based on instructions and we have not had time to have meeting with our clients, may be after these proceedings. As a lawyer you win some you lose some. My attitude is that we have done our best, the court has done its own side. The ultimate of what happens lies with our client. I have no need to doubt the good faith of the court”. On his part, Olanipekun said: “The ruling speaks for itself; a motion was brought, the Court of Appeal dismissed it, we went into the main appeal and it has been argued. The court has adjourned for judgment, let us await the judgment of the court”. The appellate court is expected to deliver its judgment on the matter before the end of June 2017.