EKITI GUBER: APPEAL COURT RESERVES JUDGEMENT

The Court of Appeal sitting in Ilorin has reserved judgement on the case filed by the 2007 candidate of the Action Congress of Nigeria (ACN), Dr. Kayode Fayemi challenging the election of Governor Segun Oni of the ruling Peoples Democratic Party (PDP) in Ekiti State.

The presiding judge, Justice Isa A. Salami announced this in Ilorin, the Kwara State capital on Thursday shortly after listening to the final addresses of counsel to both the appellants and respondents. Justice Salami who is the president of the Court of Appeal led other four justices in the appeal.

Dr. Fayemi is challenging the split decision of three against two of the trial tribunal, thus giving victory to the governorship candidate. In his prayers, the lead counsel to Dr. Fayemi (appellant), Mallam Yusuf O. Ali (SAN) urged the court to grant the appellant's appeal.

He also prayed the court to dismiss the respondents' cross appeals and uphold 'our preliminary objection to the cross appeals with substantial cost.' The lawyer submitted that 'their lordships at the trial tribunal failed to evaluate properly the documentary evident tendered before the court.

'What happened at the lower tribunal where we had split decision of three against two had simplified our appeal. Our averment now is for your lordships to decide which is the correct judgment between the majority and minority.

'It is our humble submission based on the evidence at the trial tribunal that the majority judgement of their lordships failed to take advantage of the respondents' witnesses. The appellant served subpoena on INEC to produce electoral materials from Ido-Osi Local Government Area but they failed claiming that the materials had got burnt. We therefore submit that the trial tribunal ought to have invoked Section 149 B of the Evidence Act.'

Lead Counsel to Governor Segun Oni (1st respondent), Chief Adebayo Adenipekun (SAN), urged the court to allow the cross appeals by discountenancing the appellant's appeal. He averred that 'but for the submission on burden of proof in the appellant brief the entire brief is devoted to urging your lordships to review the facts made by the lower court. The question is were the appellants alleging no election at all or challenging the accuracy or correctness of the election itself?

'I submit that in this case what the appellants did was to allege irregularities and malpractices.'

Lawyer to PDP, Obafemi Adewale, aligned and adopted the brief of argument of the first respondent, saying he had formulated two issues for the court to determine. Said he: 'The tribunal was right in declaring Oni as the winner of the election as the appellant in both oral and documentary evidence failed to prove non-compliance at all and substantially enough to have substantially affected the result of the election.

'The appellant failed woefully to prove allegation of crime beyond reasonable doubt and the tribunal so found. It is our submission that the findings of the trial tribunal be held. We urge your lordships to uphold the principle of substantial non-compliance as contained in Section 146, Subsection 1 of the Electoral Act 2006 in dismissing this appeal and upholding the judgement of the tribunal.'