In a unanimous decision in Akure on Thursday, the Court of Appeal, presided over by Justice A.G. Mshelia, dismissed the appeal filed by the Peoples Democratic Party and its candidate, Senator Iyiola Omisore, in the August 9, 2014 gubernatorial election in Osun State.
The Court of Appeal also upheld the cross-appeal by Governor Rauf Aregbesola that Omisore’s petition ought to have been dismissed before hearing as an abandoned petition.
In determining the appeal, the court adopted the seven issues formulated by the Appellants – Omisore and PDP.
However, before considering the main appeal, the court upheld the preliminary objections by Aregbesola and APC’s counsel challenging Ground 13 of the Notice of Appeal.
The complaint of Omisore and PDP in that ground 13 of appeal is that the tribunal failed to act on admission made by Aregbesola’s counsel in a chart contained in their written addresses before the lower tribunal.
The Court of Appeal, which held that the ground of appeal is incompetent, stated that the ground does not arise from the judgment of the tribunal.
The Court of Appeal held that the decision of the tribunal was that Aregbesola’s counsel did not make any admission.
Therefore, having failed to appeal this specific decision of the tribunal, the Court of Appeal held that Ground 13 is incompetent and consequently struck it out together with issue 5 formulated from the ground.
On the remaining issues for determination, the court resolved all the issues against Omisore and the PDP.
On issue 1, the Court of Appeal held that the tribunal did not depart from the procedure on standard of proof for civil and criminal allegations and that the tribunal having evaluated the evidence called by the appellants, applied the required standard of proof in respect of allegations of non- compliance on one hand and corrupt practices on the other hand.
The Court of Appeal further held that the evidential burden on the appellant to prove his case will only shift to the respondent if the Appellant has put forward cogent, credible and reliable evidence of non-compliance which the appellant have failed to do in this case.
The Court of Appeal further held that contrary to the complaint of the Appellants, the tribunal applied standard of proof on preponderance of evidence in relation to allegation of non-compliance and malpractices.
In resolving the issue 2 against the Appellants, the Court of Appeal upheld the decision of the tribunal that the Appellants have not established their case to “any degree or magnitude”.
On the complaint in issue 3 by the appellants that the judgment is against the weight of evidence, the Court of Appeal held that the complaint is of no consequence.
According to the Court of Appeal, the judgment of the tribunal is supported by both oral and documentary evidence on record.
It was further held that the evidence called by the Appellants were thoroughly discredited under cross-examination.
Issue 4 considered by the Court of Appeal relates to the complaint of the Appellants that the tribunal did not properly evaluate the evidence of PW 15 and PW 38 who were called as experts by the Appellants.
The Court of Appeal also resolved this issue against the appellant as it upheld the decision of the tribunal that by the nature of evidence given by PW15 and PW38, their evidence cannot be said to be expert evidence.
Notwithstanding, the Court of Appeal copiously referred to the evidence of these witnesses both in their evidence-in-chief and under cross-examination and held that their evidence were thoroughly discredited under cross-examination and that the tribunal rightly held that their evidence is unreliable and lacks probative value.
Issue 5 had earlier been struck out because ground 13 upon which it was predicated had earlier been struck out for being incompetent.
The Court of Appeal also resolved Issue 6 against the Appellants when it held that the replies filed by the Appellants to the Respondent’s reply at the tribunal were filed out of time.
According to the Court of Appeal, the provision of Interpretation Act heavily relied on by the Appellants does not apply to the interpretation of paragraph 16(1) and (2) of 1st Schedule to the Electoral 2010 as amended.
The final issue formulated by the Appellant was Issue 7 and this was also resolved against the Appellants as the Court of Appeal upheld the decision of the tribunal that the Appellants failed to prove allegations of corrupt practices and non-compliance.
According to the Court of Appeal, after reviewing the totality of the evidence called by the appellant on local government by local government basis, the evidence called by the appellants fell short of the required standard for the allegation made in the petition.
In its concurring judgment, Justice Saulawa held that he has no option than to concur with the “most inevitable conclusion that the main appeal is unmeritorious and consequentially dismissed”.
The Court of Appeal also upheld the cross-appeal filed by Aregbesola when he dismissed PDP and Omisore’s petition as having been abandoned for failure to comply with the requirement of filing pre-hearing notice within stipulated time under paragraph 18 of 1st Schedule to the Electoral Act, 2010 as amended.
The Court of Appeal held that the tribunal was wrong to have saved the petition relying on paragraph 53(1) of 1st Schedule to the Electoral Act because Paragraph 53(1) only applies where the 1st Schedule to the Electoral Act does not provide for the consequences of non-compliance with the rules.
The Court of Appeal held that paragraph 18(4) expressly provided for consequences of failure to issue application for pre-hearing notice and that is the dismissal of the petition as having been abandoned.
Our earlier story: The Court of Appeal has thrown out a petition filed by the candidate of the Peoples Democratic Party in the 2014 governorship election in Osun State, Senator Iyiola Omisore, against the victory of Governor Rauf Aregbesola.
The court, sitting in Akure, the Ondo State capital, threw out Omisore’s petition on Thursday.
It went on to affirm the election of Aregbesola.
It said Aregbesola, the candidate of the All Progressives Congress, remains the validly elected governor of Osun State.
Details soon.