By: Patrick Ochoga, Benin City
The Court of Appeal in Benin City yesterday reserved judgment in an appeal filed by Pastor Osagie Ize-Iyamu and the People’s Democratic Party (PDP) challenging the verdict of the Tribunal which upheld Godwin Obaseki as Edo State Governor.
The five-man appeal panel headed by Justice M.B Dongban-Mensem reserved judgment indefinitely after listening to the arguments of all the Senior Advocates of Nigeria (SAN) in the matter.
Ize-Iyamu and the PDP had through their lawyer, Yusuf Ali (SAN) filed an appeal against the judgment of the Tribunal presided over by Justice Ahmed Badamasi, which gave judgment in favour of the Independent National Electoral Commission (INEC), Obaseki and the All Progressives Congress (APC) last Month.
Earlier, the panel which has Justices S. Tom Yakub, M.O. Bolaji-Yusuf, U.A. Ogakwu and Mohammed Mustapha as members, unanimously dismissed a Motion on Notice brought by Ize-Iyamu pursuant to Order 6 Rule 1, Court of Appeal Rules, 2016, and Section 36(1) of the Constitution for the correction/amendment of the trial court’s record of his evidence-in-chief.
He prayed for a leave of court to rely and use the evidence of the first appellant as recorded by Justice Gilbert Ngele (Member 1) of the trial Tribunal instead of that of the Tribunal’s chairman, Justice Ahmed Badamasi.
The appellant also sought an order deeming the record of his evidence by Justice Ngele, made on January 30, as the correct record of his evidence-in-chief at the lower court.
Raising five grounds for the application including that the Tribunal’s record compiled and transmitted to the appellate court contained an incorrect rendition of Ize-Iyamu’s evidence by Justice Badamasi, the appellant prayed for a leave of court to correct the said record of appeal and use the supplementary record of appeal they transmitted to the court.
Their submission was faulted by counsel to INEC, Obaseki and APC, Onyechi Ikpeazu (SAN), Chief Wole Olanipekun (SAN) and Chief Lateef Fagbemi (SAN) respectively.
Olanipekun said the motion was academic and lacked substance, adding that what the appellants wanted the court to allow was not comprehensible.
According to him, Section 285 (4) of the Constitution indicates that the quorum of the lower Tribunal consists of the Chairman and one member, wondering why the appellant wanted to substitute the recording of the Chairman.
Citing Section 41 (3) of the Electoral Act, Olanipekun said oral evidence were forbidden except in cases where a witness was adopting his written position.
He averred that it was trite law for the appellants to request a substitution of the record of the Chairman of the Tribunal with that of Justice Ngele, adding that the appellate court was bound by the proceedings written by Justice Badamasi.
He said: “The appellant has not moved any application and it is a misconception to submit they motions have been served oj the respective judges. The Justices, having delivered their judgements, how were they served? Where and when?
“With due respect to my Lordships, this court does not have jurisdiction to countenance or or grant the applicants their request that the record of the evidence-in-chief of the first appellant be amended.
“Section 41 (3) of the Electoral Act forbidd oral evidence…The appellants themselves, submitted in their man brief (page 35, paragraph 10.40) that no Oral evidence is allowed after adoption of witnesses statements on oath.
“Briefs have been presented, notices argued. There was no grounds of appeal challenging the record. So, where would his Lordships situate the motion if granted?
“I submit that the application is academic and lacking in substance. The appeal is empty and of no legal value. What they want the record for is not stated. It is hanging in the air.”
Citing the case of Ngige vs Obi, lawyer to INEC (first respondent), Onyechi Ikpeazu (SAN) held that there was no way the record of proceeding by the Chairman would be substituted with that of a member, arguing that the members jottings were side notes.
Similarly, counsel to APC, Chief Lateef Fagbemi aligned himself with the arguments of both counsel to the first and second respondents, urging the court to dismiss the application.