Appeal Court reserves judgement on Ogun guber election

,,,,,,The Court of Appeal in Lagos today reserved ruling in the appeal filed by the Peoples Democratic party (PDP) against the re-election of Governor Dapo Abiodun

The Peoples Democratic Party candidate, Ladi Adebutu , popularly known as LADO of the PDP, is challenging the 4 October ruling of the election tribunal which upheld the Prince Dapo Abiodun’s victory at the 18 March governorship election.

At the hearing of the appeal on Tuesday, the Court of Appeal panel reserved judgement after listening to the argument of the parties.

The court said the date for judgement would be communicated to the parties.

Earlier, Peoples Democratic Party counsel, Chief Uche SAN, urged the court to grant his clients’ appeal and set aside the decision of the tribunal.

Chief Uche SAN confirms that the appeal is ripe for hearing

He starts by outlining the live processes in the appeal

Firstly, he confirms that the application for substituted service was granted on 23 October 2023 and is now spent

……He identifies another application which is pending dated 6 November 2023 attacking the brief filed by 3rd Respondent. He argues that the index of cases and list of authorities filed by 3rd Respondent are an extension of the 25-page limit for Broefs of Argument and thus, render the Brief incompetent. He says the brief was filed in defiance of the Practice Directions. He urges the court to strike out the 3rd Respondent’s Brief of Argument

In response, Dr Ikpeazu SAN identifies 3rd Respondent’s Counter-Affidavit and Written Address filed on 8 November 2023 in opposition to the motion. He prays the Court to dismiss the application

He points out that Chief Uche SAN misstated the prayer in the motion because the prayer is to strike out the List of authorities, Chief Uche SAN disagrees

Chief Uche SAN identifies his Brief of Argument dated 24 November 2023 filed on 25 November 2023, as well as List of Authorities filed on 25 November 2023

He also identifies three Reply Briefs filed on 1 November 2023 in response to the 1st, 2nd, and 3rd Respondents’ respective briefs

He also identifies the Additional List of Authorities filed on 13 November 2023

Chief Uche SAN adopts all the identified processes and relies on them in urging the Court to set aside the judgment of the Trial Tribunal and grant all the reliefs sought in the Notice of Appeal filed on 13 October 2023

In respect of the issue of 49,000 disenfranchised voters which Chief Uche SAN raised, Mr Owonikoko SAN refers to Para 4.37 to 4.40 at pages 18 and 19 of his Broef to point out that Appellants only called 48 witnesses and that the authorities are that of the case is disenfranchisement, all the disenfranchised voters whose disenfranchisement is to be proved must be called as witnesses. He adds that the Court cannot amplify 48 witness to 49,000 witnesses, as Appellants want

He urges the Court to dismiss the appeal

For emphasis, Chief Uche SAN urges the Court:

1. To hold that there is a distinction between the facts in the recent Supreme Court decision in Atiku v. INEC & 2 Ors and this appeal, cited by 2nd Respondent in support of First and Second Issues. In response to the court’s enquiry about the availability of that judgment, Chief Uche mentions that the judgment is not available and on that premise even, the court should ignore the authorities as cited by 2nd Respondent. Notwithstanding, Chief Uche SAN adds that Appellants spectacularly called 94 witnesses, half of which were Polling Unit Agents

2. To hold that on the issue of margin of lead, Appellants proved there was agreement of all parties that elections did not hold in 99 Polling Units based on which about 41,000 votes were excluded (he refers to Pages 15-19 of his Brief)

3. Note that they demonstrated up to 37,000 ballot papers that were utilised by INEC but not thumbprinted or multiply thumbprinted (referring to pages 20-21 of his Brief)

4. Conclude that when the 41,000 and 37,000 votes are utilised

5. Hold that the Tribunal was wrong to have struck out the grounds of the petition in the manner it did, without forst treating the matter on the merits

He urges the Court to allow the appeal

For 2nd Respondent, Chief Olanipekun identifies and adopts his brief

As a preliminary point, Chief Olanipekun SAN states that contrary to the position set out by Chief Uche SAN, the decision in Atiku’s case completely encapsulates the issues in this appeal. He argues that in that appeal, the Supreme Court simply adopted in toto the decision of the Court of Appeal delivered by this court

He adds that incidentally, the same Samuel Oduntan who was rejected as a witness by the Court of Appeal in Atiku’s case metamorphosed as PW 93 in this appeal

In response to the Court, he undertakes to provide the court with a copy of the judgment

In response, Mr Owonikoko SAN identifies 1st Respondent’s Brief of Argument and List of Authorities filed on 21 October 2023

He urges the Court to dismiss the appeal for lacking merit.

In addition, Chief Olanipekun SAN emphasises

1. Pages 3-5 of his Brief where he identified about 8 key findings of the Trial Tribunal that Appellants did not challenge

2. Paras 4.3 of the Brief arguing that Appellants have abandoned about 5 Grounds of Appeal

3. Issue 3 at page 17 of 2nd Respondent’s Brief where Tribunal rightly struck out

4. On the margin of lead, his argument that there is nothing to even consider on margin of lead

He urges the Court to dismiss the appeal for lacking merit

For 3rd Respondent, Dr Ikpeazu SAN identifies his Brief of Argument filed on 28 October 2023 and a List of Authorities. He also identifies a List of Additional Authorities filed on 2 November 2023

He adopts all processes and relies on them in urging the Court to dismiss the appeal

Court confers with counsel as the the last date of the appeal. Chief Uche SAN volunteers 28 November 2023 as the deadline. He also pleads for at least 3 days’ notice before judgment, for the sake of counsel coming from Abuja

No objection and court is not disinclined

Court appreciates the Silks and Counsel. Chief Olanipekun SAN responds on behalf of the Bar.

Judgment reserved. Court rises

In emphasis, Dr Ikpeazu SAN states that Exhibit PT609 is not a proper document to use (He refers to 71-72 of the Brief)

On the Atiku appeal, he adds that the Courts did not do anything novel. That the Court of Appeal as PEPC relied on settled Constitutional positions already espoused in Ararume v INEC and in Oke v. Mimiko to the effect that all witness statements must accompany the Petition.

Finally and relatedly, he argues that all the witnesses who could be said to have given substantial evidence did so on subpoenas and thus were rightly discountenanced (He refers to 80-84 of his Brief)

Based on all the above, he urges the Court to dismiss the appeal.

Parties would be given three days notice