Was It Dooms Day For Mimiko The Labour Party?

{A lawyer’s Professional Account of proceedings at the court of Appeal Benin-city on the 19/1/2009.}

At last the long awaited date, 19th January, 2009 slated for the hearing of the Appeals filed by aggrieved parties to the Justice Nabaruma led Ondo State Election Petition Tribunal which annulled the election of the incumbent State Governor, Dr. Agagu and declared Dr. Mimmiko as Governor of the State. The Aggrieved parties are Dr. Agagu. The Peoples Democratic Party, The Independent National Electoral Commission and The Inspector General of Police.

The legal team of Dr. Agagu was led by chief Lateef Fagbemi (SAN) assisted by Chief Adeniyi Akintola (SAN), Dr. Alex Iziyon (SAN) , Mr. Damain Dodo (SAN) and I. A. Adedippe (SAN) among other lawyers. The legal team of PDP was led by Alhaji Abdullahi Ibrahim (SAN), assisted Mrs…(SAN) and other notable lawyers.

The INEC team was led by a very prolific senior counsel Mr. Joseph Daudu who was assisted by Mr. Obi Okwusogu (SAN) and others.
The Police were represented by Mr., J.C.A. Idachaba who led one other lawyer.

As was expected, the court room was filled to the brim as early as 7.30am by lawyers and supporters of the PDP and the Labour Party.

However when the case was called, it was only the PDP that was represented by the Ondo State PDP chairman, Dr. Dairo Tayo. The court rose for about 30 minutes to reconstitute the panel that would hear the appeal as one of them would soon be leaving. When the court eventually reconvened it was time for the proper hearing which unlike the tribunal and as the custom, only legal arguments were to be made and not evidence which had already been led at the trial stage.

Chief Lateef Fagbemi took the stage with his sound legal arguments. He raised about 6 (six) Key points viz:

1. The tribunal use of the words: ‘used, unused and purportedly used ballot papers’ in its judgment. He argued that when ballot papers were tendered at the trial stage, they were tendered in 67 bags and were never sorted out into used, unused and purportedly used ones, therefore where the tribunal get the above words to use remains a misery.

2. The sorting out of the ballot papers/documents into units, wards and local government. Fagbemi argued that no witness came to say that he sorted out these exhibits into units, wards and local governments. He said, the tribunal on his own behind the back of the parties sorted out these documents into units, wards and Local governments. He argued that how these documents were sorted out and to know which particular result was given to any of the parties remains a misery. He reiterated that PW6 who was an INEC official that tendered these documents under subpoena Ducest Cum did not do any sorting of the documents. He argued that a major sunk of the appellants (Dr. Agagu’s) votes were as a result of the unilateral and illegal sorting out of these documents denied.

Chief Fagbemi thereafter added another thriller that the tribunal did the sorting out of these documents against its own ruling. He referred to pages 4806 – 4810 of volume 10 of the appeal records. He submitted that the tribunal cannot in law do what it did to the detriment of the appellant.

3. Unused voters card:- Chief Fagbemi argued that these were tendered emblock. He said owners of these voters cards were agreed to be alive but were not called to testify- He referred to pages 4822, 4825, 4850, 4868, 4874, 4907, 4911 and 4931 in vol. 10 of the Appeal records. He submitted that the tribunal made use of these voters’ cards which origin and ownership is shrouded in misery to the detriment of the appellant.

4. The SSS Report:- Chief Fagbemi argued that at the trial, an SSS report was tendered by Mimiko and the tribunal relied heavily on this report. He said, when an SSS official was subpoenaed to tender this report, the official denied its existence. He referred to pages 4943-5544 of vol. 10 of the appeal records. He added that ‘what is very funny enough is the fact that it was the original report that was tendered against all known legal norms and principle that only a certified true copy of a Public document can be tendered’. He submitted that the court should not and cannot allow that to happen as it remains a misery.

5. Chief Fagbemi also simply distinguished the Osunbor vs. Oshiomole’s case recently decided by the court of Appeal and stated that they are two (2) different cases. He said, in Osunbors case, PW47 gave evidence and sorted out all the document admitted in evidence. PW47 in Osunbor’s case was an INEC official who explicitly gave accurate accounts of valid votes and those already cancelled by INEC. However Chief Fagbemi opined that in Mimiko vs. Agagu, PW 47 was a Labour Party man who gave evidence but never sorted out any of these disputed documents. He submitted that the tribunal’s reliance on such tainted evidence was wrong and cannot be allowed to stand in law, therefore he stressed that the court cannot and must not come to the same conclusion.

6. Chief Fagbemi finally argued that where all the above salient, critical and intriguing points fails he said, the tribunal based on its findings on page 7418 of vol. 10 of the appeal records finds that the ‘election was substantially vitiated by malpractices, thugery and violence’, yet it went ahead to declare the 1st respondent (Mimiko) as winner of the election. He said the law is that where an election is vitiated by substantial non-compliance with the electoral Act, the election should be annulled and a re-run will be allowed. He submitted that the court of appeal should set aside the judgment of the lower tribunal and allow the appeal in accordance with the law.

On the part of the PDP, Alhaji Abdullahi Ibrahim who led other lawyers raised the following issues:

1. He said the whole Mimiko’s petition at the tribunal is full of allegations of criminal permutations. The whole petition alleged violence, hijacking of electoral materials, thugery, falsification of results etc. The petition (i.e. Mimiko’s petition) alleged that as a result of these criminal activities the PDP and Dr. Agagu were returned. Alhaji Ibrahim submitted that the whole Mimiko’s petition is shrouded substantially on the criminality of certain people – He said, if this is accepted then, I urged your lordship to raise this question, Has the petitioner proved his case beyond reasonable doubt? Alhaji Ibrahim then referred to the case of Nwobodo – vs. Onu. He said (quote) “ I urge your lordship to hold that crime is the main ground of the petition and that the petitioner based on the records before your lordship has not proved his case beyond reasonable doubts”. He then referred the court to page 7059 of vol. 4 of the appeal records where the tribunal held that the petitioner (Mimiko) never proved his case on the standard required.

2. On the issue of sorting out of documents by the tribunal, Alhaji Ibrahim adopted all the arguments of Chief Fagbemi as his own arguments as they were brilliantly and expository argued.

3. The issue of whether the tribunal abdicated its duty to properly evaluate the evidence before it. Alhaji Ibrahim argued that the tribunal never evaluated the evidence before it and on occasions when it attempted to evaluate, it came to the legally wrong and unfounded conclusion. He referred to pages 441 – 443 of vol. 4 of the appeal records. Alhaji Ibrahim submitted that the tribunal failed woefully to apply the correct principle of law in nullifying election. He cited the example of where there is a conflict between INEC forms E.C.8A and E.C 8B, the court should have relied on E.C. 8A which is the result from the wards but the tribunal missed the point by relying

on form E.C 8B against established norms and principle.

Alhaji Ibrahim concluded his legal argued succinctly in this manner: “the sorting out of documents by the tribunal at the back of the parties is illegal, null and void and cannot stand. The tribunal cannot sit in the comfort of its air-conditioned chambers and allocate votes to parties in the absence of the parties, the parameters of which is shrouded in misery. I urge your lordship to allow the appeal and dismiss the petition for want of evidence”.

On the part of INEC which had about 5 (five) appeals which borders on

a. refusal of the tribunal to extend time for INEC to
file an answer to the petition (Mimiko’s petition)

b. refusal of the tribunal to set aside its ruling of
striking out INEC answer to the petition

c. refusal of the tribunal to allow INEC to defend the petition by filing an answer to the petition.

d. Appeal against the tribunals ruling of having no jurisdiction to allow INEC to be involved in the petition.

e. The main appeal which is a totality of the tribunal’s actions/inactions which finally culminated into the tribunals judgment of July 25, 2008.

Mr. Joseph Daudu [SAN] who led other senior counsel in arguing the appeals submitted that INEC appeal bothers on the fundamental principle of fair hearing when INEC on whose documents the tribunal purportedly determined the petition without hearing INEC. He argued that “the tribunals refusal to allow INEC to file an answer to the petition (Mimiko’s petition) has an unwholesome effect on the judgment as the tribunal refused failed and / or neglected to hear all parties to the dispute before given its judgment.

Mr. Daudu (SAN) also and importantly submitted that the effect of not given INEC fair hearing is to order a retrial but in this case he refused to ask for a retrial as closely looking at the petition (Mimiko’s petition) the petition is incompetent and the court lacked jurisdiction to determine/adjudicate on the petition. He argued that paragraph 20 of the petition which is the prayers of the Petitioner contains no known ground upon which an election is to be challenged under S.149 (a – d) of the Electoral Act 2007. He said whereas S.149 (d) of the Electoral Act talks about “corrupt practices” as a basis for challenging an election, the petitioner (Mimiko) in this case challenged malpractices which is unknown to the Electoral Act. He argued and submitted that as regards the grounds a petitioner can use to challenge an election, it is strict compliance and therefore the whole petition (Mimiko’s petition) is incompetent and must be struck out and he urged the court of Appeal to either struck it out or dismiss same.

On the issue of the tribunals sorting of documents before it unilaterally behind the parties, Mr. Daudu (SAN) has this to say:
“The documents were radioactively toxic therefore the tribunal has no basis in sorting out these documents into used, unused, purportedly used and units, wards and local governments”. He said the tribunal has dipped its hands in the fire hence must be burned.
He finally urged the court to allow the appeal and dismiss the petition.

On the part of the Police, Mr. Idachaba leading another lawyer adopted his brief of argument and opined that the law of agency does not apply in criminality/criminal activities. That in the petition, and in evidence before the tribunal, it was alleged that policemen were involved in ballot snatching, violence and ballot boxes stuffing. He said, Policemen by their custom/law wear name tags and number tags and that throughout the trial, no one was able to name and /or identify any policeman to have perpetrated the said allegations. Yet the tribunal found the police culpable in its judgment. He urged the court to hold that the allegations against the police were never proved and set the judgment of the tribunal aside for want of evidence. On the sorting of documents by the tribunal behind the parties, Mr. Idachaba adopted all the arguments of chief Fagbemi and urged the court to allow the appeal and set aside the judgment of the tribunal.

After all these arguments, it was the turn of Mimiko’s counsel to defend the judgment of the tribunal. Chief Wole Olanipekun in his usual character stood up and told the court that all the arguments of all the counsel that have argued their cases (appellants) “have no evidential substratum” as according to him, at the trial stage none of the parties questioned the evidence nor called witnesses to rebut the petitioners witnesses. He then referred to page 5378 of vol. 10 of the appeals.

Olanipekun (SAN) stressed that on the sorting out of documents, he defended the tribunal that the documents were admitted and marked appropriately and that the ballot papers were counted in the open court.

On the SSS report, chief Olanipekun (SAN) said that both parties (i.e. the PDP and Mimiko) pleaded the report and in fact he loves the way the PDP pleaded it with finality. He referred to pages 1073 paragraph 1 – 3 and exhibit 1172 (1 – 9) of the vol. 10 of the appeal. He then read out the PDP’s pleading of the purported SSS report. Again on the sorting of ballot papers, he referred the court to pages 5379 -5380 of vol. 10 of the records of appeal and that in page 5089 of vol. 10, the tribunal ordered physical counting of the ballot papers. Chief Olanipekun (SAN) then referred to the evidence of PW 47 as contained in vol. 5 pages 1891 -2185 of the records of appeal and stressed that it was a testimony that was not questioned at all and that the tribunal was right in relying substantially on that evidence. On INEC appeals, chief Olanipekun argued that it was not true that the Tribunal had no jurisdiction to grant an extension of time for INEC to file an answer to the petition but that cogent and verifiable reasons were not given by INEC to necessitate the granting of the application and that the tribunal was right. Chief Olanipekun (SAN) then submitted and concluded with this statement:

“I was involved in Osunbor’s case and this case form the beginning. I have never seen a better judgment than these. The evidence in this case was even stronger than that of Oshiomhole on the grounds that it was more compelling considering the effort put into it and forensic application of it” . He finally urge the court to dismiss the appeals and uphold the judgment and even commend the industry of the tribunal as in Ngige – vs. Obi’s case.

In reply, chief Fagbemi (SAN) applied that all the objections raised in Mimiko’s brief of argument be struck out as chief Olanipekun failed, refused and neglected to raise the objections in his address. He cited a recent supreme court decision in part 1114 NWLR as authority for his arguments. Chief Fagbemi then replied further that the SSS report was a public document which existence the SSS denied but the original copy was admitted in error. He urge the court to expunge the said report and allow the appeal.

In his reply, Alhaji Abdullahi Ibrahim said that the petition cannot stand as the criminal allegations in it were never proved against the standard set by law. He argue the court to allow the appeal. In his reply, Mr. Joseph Daudu, argued that it was not the correct position of law when chief Olanipekun argued that since INEC has appealed against the main judgment, all its interlocutory appeals becomes octus. He argued that all the appeals are alive and the practice is even encouraged by the Supreme court. He urge the court to allow the appeals and dismiss the petition.

Mr. J.C.A Idachaba, in his own reply stressed that “it was a misapprehension of law” for chief Olanipekun to argue that because the police did not call any witness, they cannot complain about the judgment of the tribunal which is against all known legal pri

nciples and norms. He finally urged the court to allow the appeal. The court then thanked the industry of the lawyers and reserved judgment to a later date yet to be announced.

THE IMPLICATION OF THE VARIOUS ARGUMENTS
According to Professor Akin Oyebode (1993) “Law is ninety percent (90%) common sense and the remaining ten (10) percent is what lawyers use to put food in their table”. As can be seen from the above arguments one does not need a prophet to see where the pendulum is swinging as most of the critical and Germaine reasons of Dr. Olusegun Agagu, the PDP, the INEC and the Police, Dr Mimiko had no answer to them.

First, consider the rocket of not proving criminal allegations beyond reasonable doubt, no answer from Dr Mimiko’s lawyers.

Second, the petition was ab initio incompetent and the tribunal lacked jurisdiction to determine it as it did not comply strictly with the provisions of the Electoral Act, no answer from Dr. Mimiko’s lawyers. Third, INEC was denied fair hearing during the trial as INEC was prevented from filling its answer to the petition, again, no answer from Dr. Mimiko’s lawyers.

Fourth, the tribunal meddling with documents that were dumped on it which were called (using Mr. Joseph Daudu (SAN) language) were “radioactively toxic”, still no answer/explanations from Mimiko’s Counsel.

Fifth, the sorting out of documents into used, unused, purportedly used and again into units, wards and local government, please no answer but rhetoric’s.

Sixth, the admission of the SSS report which the SSS denied its existence and which original was with the labour party/Dr Mimiko and was tendered in its originality, no concrete reply but sentiments which had no place in law.

Indeed, it was a dooms day for Dr Mimiko and the labour party as the end of lies, sentiments and propaganda has come. I am very sure that the lawyers of labour party would have read the lines from the various arguments and would not bother to go to the court of Appeal any time the judgment would be ready for delivery.

As you will notice since that day, there have been unusual silence of the labour party (I mean Dr. Mimiko’s) propagandist. In fact, the herbalist have stopped telling him that he would be sworn in by December, 2008. oh what a pity!