James Sowole and Adibe Emenyonu
24 February 2009
Lagos — Akure, the Ondo State capital, and some neighbouring towns erupted in jubilation yesterday as the news filtered in that hard-fighting Labour Party (LP) gubernatorial candidate in the April 14, 2007 election in the state, Dr. Olusegun Mimiko, had been pronounced the governor of the state.
The atmosphere, however, became electrifying when Mimiko emerged in the town around 7pm and was driving round in a convoy of cars.
The Court of Appeal sitting in Benin, Edo State early yesterday affirmed the decision of the lower tribunal which had on July 25, 2008 declared Mimiko as the winner of the governorship election.
The verdict ended the two-year legal tussle over the seat and put paid to the 21-month reign of former governor Olusegun Agagu of the Peoples Democratic Party (PDP).
Thousands of residents, who had stayed glued to their television sets to watch the proceedings before it was yanked off by the Nigerian Television Authority (NTA), trooped to the streets of Akure immediately the judges gave the final verdict around 12.55pm.
The popular Oyemekun/Adesida road in the city, which was earlier deserted, became a beehive of activities with many siren and horn blaring vehicles of LP supporters jubilating on the streets.
Shops and markets in Akure had remained closed in the morning in compliance with the directive of the Deji of Akure, Oba Oluwadare Adesina, last week.
Banks were attending cautiously to their customers especially in the morning hours, before judgment was delivered, but by the time the verdict filtered in only few had any time for the banks.
The Governor's Office, Alagbaka and the entire state secretariat remained desolate as most civil servants stayed at home for fear of possible outbreak of violence.
In Ondo town where Mimiko hails from, thousands of residents trooped out to celebrate the victory of one of their own.
Combat-ready riot policemen, regular policemen and men of the Nigeria Security and Civil Defence Corps were patrolling the roads and hot spots with Armoured Personnel Carrier (APC), trucks and vans to ward off any outbreak of violence.
Men of the Nigerian Army were also not left out in the task of ensuring that there was no crisis.
The celebration was not limited to the state: it was also singing and dancing in Abuja in areas populated by the state indigenes.
Most of the places visited included the state's Liaison office in the Central area of Abuja and the Governor's Lodge in Asokoro where staff members were met dancing and singing victory songs.
At Jabi park also in Abuja, drivers and food vendors of Ondo State practically took over the entire place dancing.
Meanwhile, in upholding the decision of the lower tribunal headed by Justice Garuba Nabaruma, the appellate court distilled the over 207 grounds of appeal into 12 grounds of appeal, and dismissed 10 of them brought before it by the appellant, former governor Agagu.
In the court's view, it was inappropriate for the appellant to begin to make fresh pleadings when he failed to plead same at the lower tribunal.
The Appeal Court President, Justice Umaru Abdullahi, also dismissed the appellant's plea for the court to quash the tribunal's verdict on the ground that one of the five Justices, J. Goje, did not participate in the entire proceedings of the tribunal.
The court held that the issue of participation of all the five judges was immaterial since Justice Goje, at a point in the life of the tribunal, indeed sat on the panel.
He added that Section 208 (4) of the existing constitution prescribed a quorum of three judges amongst who must be the chairman of the tribunal.
It also threw out the contentious issue of charting of the elections result by the tribunal, which Agagu maintained went outside the competence of the tribunal.
The appeal court held that there was nothing extra-ordinary about the charting of the results as the said documents were brought from the legal custody of Independent National Electoral Commission (INEC).
Justice Abdullahi said: "The order for the collation of the results contained in forms EC8A from the respective wards were made by the tribunal in the full glare of all parties in the petition.
"The appellant who himself had benefited from the results of such collation in other instances, could not now turn around to condemn same."
The appellate court, in a unanimous decision, held that Mimiko having satisfied Sections 21 and 39 of the Electoral Act 2006 "is hereby declared the duly elected Governor of Ondo State".: "The judgment of the tribunal is hereby affirmed. The appeal is hereby dismissed."
According to Justice Abdullahi, Mimiko won the election with 195,030 votes as against 138,155 votes scored by Agagu.
The court held that Mimiko scored 25 per cent of the votes in 12 out of the 18 local governments in the state.
Justice Abdullahi ordered the immediate swearing-in of Mimiko.
The appellate court held that though there were some material errors in the computation of the final results of the election, they were not at a scale as would substantially affect the overall result.
But the court, however, enjoined the INEC to learn to be neutral in electoral cases, just as it condemned the attitude of the Nigerian Police and the Army for joining the electoral fray.
The court held that the appellant was wrong to have raised the issue of non-competence and to have called for the striking out of Mimiko's petition at the appeal stage, stressing that the appropriate place to have raised the issue was the lower tribunal where the matter was tried.
On the non-joinder of the police and electoral officers, which the appellant contended was fatal to Mimiko's petition, the appellate court declared that where INEC was a party in electoral matter, the non-joinder of any of its agents would not have any effect on the petition, noting that joining of the police and other agents alleged to have committed electoral fraud was not necessary, as the Electoral Act 2006 was distinct from the 2002 Electoral Act, which required such joinder.
The court also held that the argument of the appellant's counsel that the tribunal sorted and counted the ballot papers on its own without involving the parties was baseless because the records of the lower tribunal showed that the counting was carried out and witnessed by agents of all parties in the case.
"The allegations of election rigging made by the petitioner against Dr. Agagu and the PDP was proved by a reply in a letter by the Secretary to the Ondo State Government accepting to pay compensation to a 300 level student of the University of Ibadan who was killed while rigging election," the court held.
While okaying the lower tribunal's decision to cancel election results in some units and wards on grounds of irregularities and non-voting, the court held that the appellant's argument that the election did not comply substantially with the 2006 Electoral Act was unmeritorious and therefore resolved in favour of the petitioner holding that the appellant's failure to produce forms EC8A was fatal to his case.
The court further held that the appellant's objection to the use of charts was unmeritorious, as the appellant and respondents made the use of charts the cornerstone of their case.
Reacting to the judgment in court, the lead counsel to Agagu, Chief Lateef Fagbemi (SAN), thanked the justices for their effort.
On his part, Mimiko's lead counsel, Chief Wole Olanipekun (SAN), described the judgment as a demonstration of the wishes of the people through the ballot box, adding: "When you delivered the Oshiomhole judgment, I said it was the best. This judgment is the very best of the very best. It has become the catechism of all judicial authorities. You have carried out a revolution but you might not know. It is redemption of our democracy. The Court of Appeal has never been greater than it is today".
In his reply, Justice Abdullahi commended the counsel for their hard work, saying the case was a very complex case, even as he also commended his colleagues on the bench.
Immediately the court handed out its judgment, security personnel swooped on Mimiko, forming a ring around him from where he was driven to the Government House, Benin.
In and outside the court premises, his supporters were singing songs of joy. Mimiko said nobody should assume that he could steal the people's vote and mandate with impunity, assuring the people of Ondo State that their hope would not be dashed.
He thanked President Umaru Musa Yar"Adua for allowing the judiciary to follow due process in the dispensation of justice.
Responding, Edo State Governor Adams Oshiomhole said: "We in Edo State are privileged to be part of this history. I thank God for the wonderful things He has done for our country when some sections of the political class have continued to mess up the country."
He added that the judiciary had restored those votes the people of Ondo gave to the winner.
Also reacting to the judgment, the PDP Publicity Secretary, Chief Adeyemi Adedipe, said the party would be back to govern the state again because the PDP administration had done many unprecedented developmental projects in the last five years.
The Commissioner for Information and Orientation, Mr. Eddy Olafeso, said Agagu would be remembered as the man who laid a solid foundation for the sustainable development of the state.
"He has been doing that in the last five years; his achievement will always be part of history in the state. In this game, somebody must win and somebody must lose, we believe in the rule of law and we accept the verdict of the Court of Appeal," he said.
The Justice Nabaruma-led Ondo Election Petitions Tribunal had on July 25, 2008 returned Mimiko as the elected governor of the state.
Nabaruma had in the verdict said that Mimiko was able to prove allegations of electoral fraud and non-conduct of elections in nine of the contentious council areas of the state.
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