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The Court of Appeal sitting in Akure, Ondo State capital, has upheld the election of Honourable Nathaniel Agunbiade of the Action Congress of Nigeria (ACN), representing Obokun/Oriade Federal Constituency, affirming the judgment of the lower tribunal in the petition.
In a unanimous judgment delivered by Justice Kudrat Kekere-Ekun last Monday, the appellate court dismissed the petition filed by the Peoples Democratic Party (PDP) candidate in the election, Honourable Oluwole Oke, challenging the victory of Agunbiade.
The court in its judgment resolved all the four issues formulated in favour of the respondents in the matter.
On whether the tribunal erred in its decision that the appellant failed to join the officers of the Independent National Electoral Commission in the petition, the court held that it was not necessary for the appellant to join the officers, since it had joined the commission as respondent in the petition.
It however, stated that the lower court went ahead to examine the evidence of the witnesses, but stated that there was no relation between the persons that perpetrated the criminal acts and the first respondents.
The court maintained that in proving a criminal case, the appellant must be able to prove that the perpetrators of the act are agents of the respondents, saying that the appellant had failed to link the respondent with the scene of the crime.
According to the court, the counsel to the appellant was wrong to have claimed that the evidence of his client was not considered by the tribunal in delivering its judgment, as the findings of the tribunal showed that it clearly evaluated evidence of the appellant's witnesses.
On the issue of whether the trial judges erred in law by not attaching probative value to petitioner/appellants witnesses evidence, Kekere-Ekun held that it behoved on the appellant to prove his case on the balance of probabilities before the burden of proof shift to the respondent.
The learned judge maintained that the petitioner/appellant in trying to prove multiple voting, no evidence was led in the voters' register tendered by the appellant before the tribunal.
She stated that the petitioner/appellant also failed to lead evidence in support of his allegation that there was disenfranchisement of voters during the poll, as all the witnesses he called could not substantiate the allegations.
According to her, some of the witnesses called by the appellant claimed that some voters were not allowed to vote during the poll. However, none of the persons was called to testify before the court, saying he (petitioner) also failed to tie any irregularity found in the voters register to the evidence of any of his witnesses.
She maintained that it was not the duty of the tribunal to extract evidence from the document before it, but that of the petitioner to show the tribunal what it should extract for use, saying the petitioner did not only fail to do so, but also failed to tie the document to its witnesses' evidence.
The court further upheld the stance of the tribunal over the failure of the petitioner witness 12, that he was forced to sign form EC8A, but failed to mention who forced him to do so.
Furthermore, the court asserted that not only did the lower tribunal evaluate the petitioner's witnesses evidence, but also that of its forensic expert, Dr. Ebenezer Ajayi, adding that the variance in the findings of the expert did not only trivialise it but rendered it unreliable.
"The claim of the expert under cross-examination that his findings were full of errors, either due to human error or assistant errors, as well as his inability to show how he arrived at the figures he claimed gave the trial judges adequate reasons not to attach probative value on the document", the judge added.
She disclosed further that the expert further worsen the situation when he presented to the tribunal three different results and thereby confusing the trial judges on which one to rely on, before pleading with the trial judges to rely on the last one.
The court held that the discrepancies in the result and findings of the expert as presented before the tribunal was enough for the trial judges to discountenance it and refuse to attach probative value on it and resolve the issue against the appellant.
"Having resolved all the issues against the appellant, the court held that the tribunal judges were right in affirming the election of the respondent and this court hereby upheld the decision of the tribunal, as the appellant failed to prove his case beyond reasonable doubt", the court added.
In his response to the judgment, Agunbiade said it was a triumph of truth over falsehood.
His words: "This judgment is triumph of truth over falsehood. I dedicate the victory to God, the governor, Ogbeni Rauf Aregbesola, and the good people of Oriade/Obokun Federal Constituency of Osun State".
He said he could now concentrate on the job of lawmaking and on the task of bringing everybody that has hand in voiding the votes of the people to justice in order to act as a determent to others.
Osun Defender