The Court of Appeal sitting in Benin has dismissed a motion by the People Democratic Party (PDP) and Pastor Osagie Ize-Iyamu to, by way of substitution, amend certain portions of the Edo Election Tribunal Chairman, Justice Ahmed Badamasi’s record in favour of another tribunal judge, Gilbert Igele’s record, which they contended was more accurate.
The PDP and its candidate, Pastor Ize-Iyamu, are challenging the judgement of the Edo Election Petition Tribunal delivered on the 14th of Aprilupholding the victory of the candidate of the All Progressive Congress (APC), Mr Godwin Obaseki as Governor of Edo State. They filed 41 grounds of appeal against the tribunal judgment, while Obaseki filed four grounds of cross appeal.
Counsel to PDP, Yusuf Ali (SAN) contended that the correctness of a Court’s record was probable and asked the court to only rely on Exhibit C, as recorded by the 2nd judge at the tribunal to commence the appeal, which to him contained the actual, correct and true account of what transpired as testified by PW01.
He also contended that the respondents’ counsels could not speak for the judges after the latter had contended that all three judges of the election petition tribunal, as well as the tribunal secretary were served the application to amend the tribunal’s records, describing their counterarguments as ‘busy body’ responses.
Meanwhile, INEC counsel, Onyechi Ikpeazu (SAN), urging the panel of justices to strike out the appellants’ motion, noted that the issue raised by the appellants of judges not responding to the notice of appeal was immaterial, adding that the appellant could not depend on evidence C, Judge Igele’s record, which it did not produce. He described the application as lacking merit, saying it was based on documentary hearsay.
For counsel to Obaseki, Wole Olanikpekun (SAN) the appellant did not move any motion as serving judges could not be in opposition in law. He argued that the act of recording judicial proceedings is a judicial act under the law.
He continued that the appellants had not moved any application before the court and described it as a misconception.
He said: “How were the judges served? When and where were they served? There is nothing forbidding oral evidence. It is unfair for them to present this application when they know it is undoable”.
Fagbemi, contending the appeal further, urged the court to dismiss the application saying that appellants’ records were incoherent, and that the presumption of the law is on the correctness of court records.
In her ruling, chairman of the appeal panel, Justice M. B. Dongban-Mensem agreed with the respondent counsels that due and fundamental procedure were not followed as there was no affidavit of non-service nor notice of hearing.
She held that the record of the tribunal Chairman, Justice Ahmad Badamasi was the authentic record of the tribunal and not those of his other two members, and then dismissed the PDP’s motion to amend certain portions of the tribunal Chairman’s record.
The four other justices on the panel, which included Tom Yakubu, Bolaji Yusuf, U. Ogakwu and Mohammed Mustapha as members, verbally consented to her ruling. The appellate court later reserved a date for judgement.