The Court of Appeal sitting in Akure has upheld the decision of the lower tribunal, dismissing the appeal filed by the Peoples Democratic Party’s candidate in the August 9, 2014 governorship election in Osun State, Senator Iyiola Omisore.
The court on Thursday accepted the defence of Governor Rauf Aregebsola of the All Progressives Congress that Omisore’s petition ought to have been dismissed as an abandoned petition in the first instance by the State Election Petition Tribunal before hearing by the Justice Elizabeth Ikpejime led tribunal.
The Justice Gana Mshelia-led Appeal Court in an unanimous decision dismissed Omisore’s appeal for incompetence stressing that the grounds for the appeal did not arise from the judgment of the tribunal.
In determining the appeal, the court adopted the seven issues raised by the appellants and upheld the preliminary objections by Aregbesola and APC’s counsel, while resolving the issues against the appellant.
Referring to the Tribunal’s judgment, the Appeal Court noted that the decision of the tribunal was that Aregbesola’s counsel did not make any admission, and held that Omisore failed to appeal this specific decision of the tribunal,.
The Court of Appeal further held that the evidential burden on the appellant to prove his case would only shift to the respondent if the appellant had put forward cogent, credible and reliable evidence of non-compliance which the appellant had failed to do in the appeal.
It also resolved that contrary to the complaint of the Appellants, the tribunal applied standard of proof on preponderance of evidence in relation to allegation of non-compliance and malpractices.
The Court also upheld the cross-Appeal filed by Aregbesola when he dismissed PDP and Omisore’s petition as having been abandoned for failure to comply with the requirement of filing pre-hearing notice within stipulated time under paragraph 18 of First Schedule to the Electoral Act, 2010 as amended.
It however stated that the tribunal was wrong to have saved the petition relying on paragraph 53(1) of 1st Schedule to the Electoral Act because Paragraph 53(1) only applies where the 1st Schedule to the Electoral Act does not provide for the consequences of non-compliance with the rules.
The Court of Appeal was convinced that paragraph 18(4) expressly provided for consequences of failure to issue application for pre-hearing notice and that was the dismissal of the petition as having been abandoned.