The Sun News On-line/politics

Monday, April 7, 2008. The day broke early in Osogbo, the serene capital city of Osun State this morning. The previous day, an all night downpour had drenched the tranquil town and beyond, and you would have thought that getting out of bed would pose a big task for many an individual. For politicians, however, especially members of the Action Congress (AC) and their counterparts in the Peoples Democratic Party (PDP) in Osun State, the day couldn’t break early enough.

But then, it was expected. That morning, the case instituted by Mr Rauf Aregbesola, AC gubernatorial candidate in last year’s governorship elections in Osun State in which he’s seeking the nullification of Governor Olagunsoye Oyinlola’s victory before the election petition tribunal was resuming after a three-week lull.

The tribunal had on March 17, this year, adjourned the case till Monday April 7 through Friday April 11 after dismissing an application for a stay of proceedings brought by Aregbesola’s counsel.

The tribunal was scheduled to commence sitting by 9 am. But from early in the morning, the Osun State High Court, venue of the tribunal’s sitting, became a very busy arena. Scores of politicians in native attires as well as lawyers in conservative suits trooped to the venue on foot and in assorted cars. Policemen, their uniforms and badges betraying them as members of the Police Anti-bomb Squad, paraded the area.

Security was a little relaxed on the way to the courtroom, however, unlike what had obtained in the past. Inside the courtroom, a few women scooped out water apparently deposited there by the previous night’s showers. Outside, politicians of either party congregated in distinct groups meters away from each other, chatting and trying to decipher what the day would bring. Soon, the vehicles bringing the tribunal members glided to a halt outside the courtroom, and their Lordships went inside the venue.

At about 8.30, stern-faced security operatives began screening people seeking entry into the courtroom. Soon, the whole room was filled to the very brim, even as several people unable to secure seats in the room stood around in twos and threes, trying to anticipate what the day would bring.

Absolute silence enveloped the courtroom as the panel members walked in. As soon as they settled down to business, the Aregbesola versus Oyinlola case was called. Counsels for the various parties in the case announced their appearances, and the business of the day commenced.

Aregbesola’s lead counsel, Rotimi Akeredolu (SAN) stood up. He told the tribunal that he had submitted a letter dated April 7 to the tribunal through the secretary requesting a short stay of proceedings. According to the legal practitioner, his client had appealed the Osun tribunal’s verdict of March 17, 2008 which dismissed an application by the AC governorship candidate seeking to halt the tribunal’s proceedings.

The Court of Appeal, he said, had fixed April 15 for hearing of the appeal on the tribunal’s refusal to stay proceedings pending the determination of another appeal on the suitability of Adrian Forty to testify in the case.

The lawyer then moved an oral application in which he sought "a short stay of proceedings" pending the decision of the Court of Appeal. The new application, he said, was not the same as the earlier one in which he sought "a stay of proceedings". According to him, since the Court of Appeal was specific on hearing the appeal on April15, Akeredolu urged the tribunal to grant the short adjournment which he insisted would not cause a delay in the tribunal’s activities beyond one week. The application, he said, was different from the one earlier dismissed by the tribunal because now there was a date.

Hardly had he finished with his submission than he was opposed by the counsel to Governor Oyinlola, Otunba Kunle Kalejaiye SAN, and the counsel to the Independent National Electoral Commission (INEC), Mr Joe Gadzama, SAN. Both Kalejaiye and Gadzama vehemently contended that Akeredolu’s request was nothing short of asking the tribunal to overrule itself. The goal of Akeredolu’s application, they maintained, was to perpetually halt the proceedings in the case by the tribunal.

Kalejaiye told the tribunal that there was absolutely no difference between Akeredolu’s new application and the one earlier rejected by the tribunal. He argued further that the authorities cited by Akeredolu were irrelevant, saying they all referred to civil cases. Election petition cases, he said, are special ones. There is absolutely no room for an oral application as moved by Akeredolu, said the eminent legal practitioner.

Said he: "We do not share the views of the petitioners’ senior counsel as to the proprietary of an oral application for a stay when the same application had been refused by this tribunal. All the authorities referred to in the letter may very well be the position of the law in civil cases. It is beyond argument now that election petitions are sui generic. Therefore, the principles of law enunciated in the petitioner’s letter will not sway the court in their favour in this rather novel application.

"The tribunal though has discretional powers, it must however, exercise this judiciously and judicially. The filing of an interlocutory appeal in an election petition does not necessarily result in a stay. Election petitions are sui generis, that is, they are in a special class of their own, where time is of primary essence. If the petitioners know that they cannot go on with their case, let them withdraw it. The practice direction is very clear on the mode of bringing motions and applications. There is absolutely no room for an oral motion as moved by counsel to the petitioner".

To buttress his point, Kalejaiye cited the case of Osunbor vs Oshiomhole as contained in the Nigeria Weekly Law Report (2007 18 part 1065 page 32 especially at page 40) where the court of appeal refused to entertain an interlocutory appeal filed by Osunbor seeking to stay an election petition based on the fact that it was against the spirit of the law.

According to him, none of the authorities cited by Akeredolu, SAN, was on an election matter. |Said he: "The high court judges sitting in their respective courts would be bound by the decision in Mohammed vs Olawumi but the judges sitting as an election petition tribunal will not be bound by the authorities cited because they are not applicable at all. See the Practice Direction 2007, paragraph 10 which has received judicial interpretation in the case of Osunbor vs Oshiomhole cited earlier."
Gadzama, while urging the tribunal to reject Aregbesola’s new application, argued that there should be consistency in the decision of a court of law.

His words: "I also have a stiff opposition to the application of the petitioner for another stay of action in this matter. I want to emphasize that this tribunal has taken a decision on this matter. There should be consistency. Apart from that, I want to say that all the cases cited by Akeredolu, SAN, are normal civil cases. The mere fact that he has not been able to cite any authority staying an election petition means that his position is not the position of the law. Learned senior counsel to the petitioner sought to make a distinction between their former application and this one.

This is a distinction that does not exist. If the petitioners are not ready to continue with the case, they should withdraw it or the court should assist them to strike it out."
Mr. Niyi Owolade, the state Attorney General and Commissioner for Justice who represented the police told the tribunal that a letter addressed to the tribunal by Akeredolu and upon which the new application was based actually sought an adjournment and not a stay of proceedings. Like the PDP and INEC counsels, he urged the tribunal not to grant the application.

Akeredolu then got up and said what he was seeking was actually a short adjournment as noticed by Owolade. But his attempt to re-argue his case was promptly opposed by Kalejaye. The arguments and counter arguments between Akeredolu and the other counsels continued with the AC candidate’s counsel vigorously maintaining his position. At a point, the tribunal chairman, Justice Thomas Naron informed Akeredolu that his position had been recorded by the tribunal.

"I hope so", said Akeredolu. His statement elicited a loud din from the tribunal.
"Don’t you believe me," asked the chairman.

"My lord, I cannot vouch for the court records," maintained the senior counsel. "Except they are read out to me, I cannot vouch for the court records." Justice Naron smiled.
Soon after, the tribunal went into a short recess to deliberate on the arguments, saying it would give a ruling on the application at 11 am.

The tribunal resumed after the break to give its ruling. In dismissing Aregbesola’s application, the tribunal maintained that the application would amount to a wrongful exercise of the tribunal’s discretion to grant the application after it had earlier dismissed same on March 17, 2008, noting that the application brought by Akeredolu was the same in material and substance with the one earlier dismissed.
According to him, "it is clear from the above that the application by the counsel is for a stay of proceedings. It will amount to an abuse of the court to grant an application we had earlier refused and we accordingly refuse to grant it," Justice Naron declared. He subsequently adjourned the case till April 17 and 18, 2008 "for definite continuation of hearing".

Before the tribunal dismissed however, INEC counsel, Gadzama, issued an apology on behalf of all lawyers at the tribunal. He told the justices that all members of the bar actually held their lordships in high esteem and would do nothing to denigrate that respect.

National Vice Chairman of the PDP (South West), Alhaji Tajudeen Oladipo, who witnessed the proceedings told reporters at the venue that he was satisfied with the decision of the tribunal which he said was based on sound application of law. He expressed surprise that Aregbesola who should naturally be interested in the quick determination of his case was actually the one asking for a stay of proceedings.
"It is an irony that we who are in government are the ones working for a quick determination of this case. The AC people who came to court in the first instance are, sadly, not interested in the case ending as early as possible. We are, however, proud of the judiciary which has shown tremendous courage and honesty in carrying out its duties," he said.

At a brief encounter, Osun State governor, Prince Olagunsoye Oyinlola said he was not surprised that the Aregbesola camp is doing its best to ensure that the case keeps dragging forever. Hear him: "Honestly, I’m not surprised. Since they know they don’t have a case, they will do their best to ensure that the case is not resolved, at least to keep the revenue coming.

The man said he would be sworn-in in 90 days. It is now almost 90 days and he doesn’t seem to be in a hurry to come to the Government House. Is it not an irony that it is those of us who are already in the Government House that want the case to be dispensed with?"