DRAMA AS CURTAIN DROPS ON CASE

By Lasisi Olagunju

 Dateline was Thursday 26th June, 2008 and the event was for the hearing of a Motion and the Adoption of final addresses of parties in a case that took nine whole months to hear. Adoption of final addresses in any case should ordinarily be like a denouement in a drama. But it was not so in this case.

 There should not be anything unusual in the event beyond adoption of addresses and fixing or reservation of the judgement date. But the case is not an ordinary one. It is a case that should perhaps go into the records as one of the most sensational election petitions in the nation’s electoral history. The sensation was not really as a result of any spectacular legal presentation by the Petitioners counsel. The media noise was from the petitioners themselves who freely commented on the case and the judges as if the media is the tribunal that would pass the de facto judgement in the matter.

  Indications that legal fireworks in the case had not ended with the closure of the cases of all the parties late last month emerged when it was discovered that the AC candidate, Rauf Aregbesola had filed a motion seeking to re-open his case so that he could tender result forms of the election otherwise called Forms EC8D and EC8E. His lawyers, for reasons best known to them, had elected not to tender the forms throughout the eight months they spent presenting the case of the AC candidate.

 Aregbesola opened his case on 3rd September, 2007 and closed it voluntarily on 15th May,2008. Governor Olagunsoye Oyinlola opened and closed his case within a week thereafter while it took INEC and the police a day each to make their case. In fact, the INEC and the police did not call any witness declaring that it was not necessary to do so after they had reviewed the evidence adduced by Aregbesola in support of his allegations against them. The tribunal subsequently adjourned the case for adoption of final addresses of the counsel to all the parties which was held on Thursday 26th June. 

 Roll call of lawyers at the sitting last Thursday day showed Kola Awodein,SAN –leading AC lawyers, while Yusuf Alli, SAN,and Kunle Kalejaye, SAN led over 20 others for the PDP. Joe  Gadzama, SAN led Dayo Famakin Johnson for INEC while Niyi Owolade led four others for the Police.

 Mallam Yusuf Alli took the floor first suggesting that since the case was adjourned for  adoption of final addresses and a motion was brought for argument, the normal thing to do was taking the motion before the adoption while “an all inclusive judgement could be made thereafter”. All INEC, Police and AC counsel agreed to this suggestion which meant that there would be no separate ruling on the motion before the final judgement.

 Action Congress counsel, Mr. Awodein SAN, then took the floor that there was a motion dated and filed 5th June, 2008 seeking leave of the tribunal to re-open the case and tender documents. He added that another paper was filed on 9th June, 2008. It was his contention that there was no dispute that the two documents for which he had filed the motion “seeking the intervention of the tribunal to make them part of the evidences in the case-i.e Forms EC8D,EC8E the Certified True Copies of which have been attached to the application, parties had agreed to their tendering by consent.” He revealed that it was while the petitioner’s final address was being prepared that it was discovered that the documents were not tendered.

 While admitting that the motion to reopen the case for the purpose of tendering the documents was filed on 5th June, the same day the final addresses of Prince Oyinlola and the other respondents were filed, he argued that he filed the motion  first that day. He begged the tribunal not to let Aregbesola suffer because of the mistakes of his lawyers

 He submitted that “It should therefore not be difficult to appreciate that the fact that the documents were not tendered before the close of the case was a mistake that was inadvertent. This has not been controverted by the respondents. Everything points to the fact that the documents were not tendered for mistaken view of counsel. I therefore urge the tribunal to believe that these were the general reasons why these documents were not tendered as at the time the case was closed. Form EC8D is very germane to our case. We urge the tribunal to allow it in the interest of justice.

 Awodein took one hour, twenty minutes to do what he called “elucidation” on his written submission on the motion after which counsel to Prince Oyinlola, Mallam Yusuf Alli SAN, took the floor promising not to take more than 15 minutes. He started by asking the tribunal to dismiss what he described as “ the time wasting motion.”

 Yusuf said: “ It is true we agreed to a list of documents on 6th  November, 2007 but it was subject to inspection and there has been no submission from the petitioners that we have inspected the documents-other  CTCs they tendered were inspected before they were tendered. The CTCs of these Forms EC8D and EC8E were got on 4th June, 2008, three weeks after the case was closed. Others earlier tendered were obtained several months earlier. It was a deliberate act of the counsel not to tender them.”

 He added that the prayer of Aregbesola in the motion was to re-open the case, not to tender documents. He declared that there were three conditions that had to be met before reopening a case, none of which had been fulfilled by the petitioners.

 “We filed our final address on 5th of June,2008.  This  motion was served on us on 17th June, 2008. So, the argument that the motion is intent on overreaching us is in order. We have  made the point in our final addresses that the failure to tender these documents was fatal to the case of the petitioners, “ Yusuf submitted.

 INEC counsel, Gadzama SAN, who said he was served the motion papers that morning in the tribunal premises, promised not to “act as a cog in the wheel of the proceedings” and thereby adopted processes filed by Oyinlola and PDP counsel .He then made additional oral “elucidations” urging the tribunal to dismiss the application.  He called the tribunal’s attention to the following facts which he said were not in dispute:

 1.      Petitioners (Aregbesola & the AC) closed their case on May 15,2008.

2.      The two documents were certified on 4th June,2008

3.      INEC closed its case on 27th of May,2008.

      4. The documents inspected by counsel in this case did not include those sought to be tendered.

 “The non-tendering of documents could have been due to one or two reasons (1) Omission on the part of the applicants (2) Deliberate decision on the part of the applicants. The applicants counsel is claiming omission without cogent reasons advanced in support of this even in the supporting affidavit. Where a client exercises his right to choose a counsel, the client and the counsel swim and sink together. Delay defeats equity, equity aids the vigilant and not the indolent.

 “The applicants have not put sufficient materials before the court to exercise its discretion in their favour. The Non-tendering of the documents before now was a strategic decision of the petitioners so that respondents would have no opportunity to call  witnesses having closed their cases and filed final addresses, Gadzama concluded.

 Police counsel, Niyi Owolade associated himself with the submissions of Yusuf and Gazama. He added that “there had been no averment by the AC side that they requested for the results but were denied by INEC. The affidavit is at variance with the reliefs now being claimed. They have failed to show any exceptional reason for their failure to tender the forms during trial.”  He  urged the tribunal to dismiss the application.

 A legal practitioner likened the non- tendering of the result sheets in an election petition by the lawyers to a surgeon forgetting to put the heart back in its place after a surgical operation.

 With the conclusion of the arguments on the motion for reopening the case, fireworks shifted to the adoption of parties’ final addresses.

 Perhaps because Awodein spent almost 90 minutes adopting the processes filed on the motion, counsel to the other parties sought the tribunal’s order to allocate time to each of them. They suggested ten minutes each but Awodein asked for twenty. The tribunal gave others ten minutes each but gave the AC counsel fifteen minutes. He still protested saying he had to respond to the submissions of three sets of respondents. Yusuf however countered that even the supreme court allocates time on the basis of equality of parties “not on whether  you are responding to one thousand respondents.” Tribunal chairman, Justice Thomas Naron, reminded the counsel that if they were to strictly follow the rules, they would only be allowed to adopt their written addresses and no more.

 Niyi Owolade, Police counsel thereafter adopted and relied on the 70 -page final address of his client declaring that because of the glaring failure of the petitioners to prove their case, “their petition naturally gravitates towards the grave and should be buried by the tribunal.”

 Gadzama , citing Section 77 of the Evidence Act- declared all evidence adduced by Aregbesola as hearsay. He added that  the petitioners had failed to prove the allegation of non-compliance with the Electoral Act, 2006 and urged the tribunal to  dismiss the petition. 

 Yusuf Alli adopted Oyinlola’s final address and reply to the petitioners address. He also urged the tribunal to dismiss the petition on the various grounds of facts and law canvassed in the reply. He cited the Supreme Court’s decision on Ogun State in the case of Buhari v Obasanjo, 2005 13 NWLR Pt 941 page 1 at 176-177 per Uwais CJN to prove that ward Supervisors used by Aregbesola as witnesses instead of the legally recognized polling agents were inadmissible under the nation’s laws. The counsel went further to cite the consolidated petitions against Umaru Musa Yar’Adua and INEC by Muhammadu Buhari and Atiku (2008 4 NWLR pt1078 546-particluarly at pp660 B-H, 661-662 B-D, 664B-D,665B-D) where the court of Appeal held that minor complaints are inconsequential complaints which, even if proved, would not lead to the nullification of the selection.

  He also said “The petition gravitates towards the grave and its funeral must be performed –dust to dust” urging the tribunal to dismiss the petition without costs because  “Our clients are father and mother of this state and would not ask for costs from their subjects”

 AC counsel, Awodein,  adopted and relied on his clients final addresses. His words: ” We have established our case and have shown that votes said to have been scored in the 10 local governments we are contesting are invalid. Buhari v Obasanjo  not applicable because the facts are not the same . He said his client’s Ward supervisors witnessed the events themselves.

 After all these, the tribunal chairman announced that “Judgement is reserved, notices will be issued to counsel to parties.” Thus ended months of verbal darts in the court room. The next meeting day is the judgement day.