From Ademola Adeyemo and Tunde Sanni in Ibadan, 11.15.2006

The aggrieved 18 legislators had on November 2 filed the application for a stay pending the determination of their appeal to the Supreme Court, asking for the quashing of the judgement of the court below.

But when the matter came up yesterday before Justices Afolabi Fabiyi (Presiding), Aminat Augie and J.B Iwala, the lawmakers who were represented by Hakeem Afolabi from Lateef Fagbemi (SAN) chambers applied to withdraw the application, saying it would be an abuse of court process since the appeal was already before the apex court.

None of the parties objected to the withdrawal and the trial appellate judges subsequently struck out the application.

Following the Court of Appeal judgment the aggrieved lawmakers approached the court through their lawyer, Mr. Lateef Fagbemi (SAN) through a motion on notice and prayed for an order to seek for a stay of execution of the judgment.

Their prayers included;

・An order of injunction restraining the interested party/applicant respondent, Senator Rashidi Ladoja either by himself, servants, agents, privies or anybody acting through him or acting pursuant to the judgment of this honourable court either alone or in conjunction with any other person or body or institution from assuming office as governor of Oyo State or from parading himself as such or from acting pursuant to the judgment of this honourable court delivered on November 1st 2006 pending the hearing and determination of the defendants/appellants/ap-plicants appeal to the Supreme Court

・An order of injunction restraining the 1st and 2nd appellants/respondents; Hon. Abraham Adeolu Adeleke and Hon. Barrister Titilayo Ademola Dauda either by themselves, servants, agents, privies or anybody acting through them or acting pursuant to the judgment of this honourable court either alone or in conjunction with any other person or body or institution from recognising or dealing with the interested party/appellant, Senator Rashidi Ladoja a the governor of Oyo State pending the hearing and determination of the defendants/appellants/ap-plicants appeal to the Supreme Court.

・And for such order this court may make in the circumstance.

In the three grounds of application, the lawmakers deposed that they had filed an appeal to the Supreme Court of Nigeria against the judgment of the court, averring that the grounds of appeal raised serious constitutional and jurisdictional issues as well as issues bordering on breach of appellants rights to fair hearing and serious fundamental procedural irregularity.
The lawmakers averred that there was already a governor, Otunba Adebayo Alao-Akala who was not joined as a party to the proceedings, which led to the judgment of the court subject matter.

The motion was supported by a 23-parsgraph affidavit deposed to by one Omotayo Ojo, a lawyer in the chambers of Fagbemi who deposed that the goodwill, name and peace of the state is being threatened by the action of Ladoja and the 1st and 2nd plaintiffs/appellants.

The lawyer further deposed that by the judgment of the court of Wednesday that Akala had not been removed as the governor of the state. That this court only made some declarative reliefs but did not affirm Senator Ladoja as still being the governor of Oyo State.・BR>He added, that the judgment of this honourable court is merely declaratory and not executory・and pleaded with the court in the interest of justice to preserve the res now, by the grant of this application so that a state of helplessness will not be foisted on the Supreme Court.

Meanwhile, the aggrieved pro-Adedibu lawmakers have accused the justices of the appeal court of abusing their powers when they went ahead to grant all the reliefs asked for by the former Speaker, Hon. Adeolu Adeleke, and his deputy, Hon. Titilayo Dauda, and Ladoja without bothering to hear their own side of the story.

They alleged that the trial appellate court did not give them fair hearing before nullifying the impeachment of Ladoja, which they orchestrated.
In the 10 grounds of appeal pending before the Supreme Court, the aggrieved the lawmakers deposed that the Court of Appeal relied only on the arguments of Adeleke, his deputy, and the impeached governor before holding that the impeachment was not proper.

Ground 1 states that, the justices of the Court of Appeal erred in law and exceeded their jurisdiction when in upholding an appeal against the dismissal of the plaintiffs・case for want of jurisdiction; they proceeded to grant all the reliefs claimed in the substantive case.・BR>According to the lawmakers, the only issue formulated for the Court of Appeal was whether the high court was precluded from looking into the matters relating to alleged non-compliance with the provision of Section 188 (1)-(9) by virtue of Section 188 (10) of the 1999 Constitution.

Having determined that only issue, the Court of Appeal had no jurisdiction to take over the functions of the lower court which was held to have jurisdiction to enquire into all the issues in the case,・the lawmakers argued.

Ground 2 of the appeal accused the Court of Appeal justices of occasioning a miscarriage of justice by relying heavily only on the evidence provided by the speaker, his deputy and Ladoja to decide the case.

They argued that the court should have allowed them to defend the case on merit after it held that the high court had jurisdiction to hear the case. They claimed that had they been given the opportunity to controvert the arguments of the plaintiffs at the high court, the lawmakers, argued that the Court of Appeal would have come to a different conclusion.

The lawmakers insisted that the trial appellate court by not allowing them to proffer counter arguments against the allegations, gave judgment in violation of its rules, which enjoined it to hear all parties to a suit. This, they argued, was done in gross violation of their right to fair hearing.

They further argued that it was wrong for the Court of Appeal to assume that they have accepted the truism of the allegations stated above because they did not file a counter affidavit against the allegations when they were still within time to file the counter affidavit.
The lawmakers said that any order, which would not give the defendants the chance to contest the case on its merits before the trial court, would amount to misuse of the court's powers under Section 16 of the Court of Appeal Act and which has occasioned a miscarriage of justice to the defendants.

They asked the apex court to either allow the appeal or set aside the decision of the Court of Appeal and in the alternative remit the case to the high court for trial on merit.

Seven justices of the apex court led by the Chief Justice of Nigeria, Justice Alfa Modibo Belgore, have been constituted to hear the appeal on Tuesday November 21, 2006.

Other justices to determine the case include Iyorgyer Katsina-Alu, Niki Tobi, Dahiru Musdapher, George Adesola Oguntade, Sunday Akinola Akintan and Ikechi Francis Ogbuagu.

Meanwhile, the lead counsel to Ladoja, Mallam Yusuf Ali (SAN), has criticized Inspector -General of Police Sunday Ehindero's comment that the judgement of the Court of Appeal could not be enforced, saying it was unfortunate.

Ali said Ehindero who is a lawyer ought to have known that his description of the judgement as a toothless bulldog that cannot bite・amounted to "treating the judgement of the court with impunity.

It is most unfortunate, unexpected, disparaging, tendentious and contemptuous,・Ali said, adding: "We are highly disturbed by your said comments and are inclined to believe that you were, perhaps, misquoted.
This is because as the Chief Law Enforcer of the country, you have a legal duty to give effect to the judgment of any court of law that has not been stayed or put in abeyance by a competent court nor set aside by a higher court. Ali in the letter also described the Inspector General's comment as misleading, and political.

He said: "This is more so when the said comments came shortly after your letters to the appellants' counsel, acknowledging the binding nature of the judgment of the Court of Appeal, when you unequivocally stated that an appeal does not operate as a stay of execution, except where death sentence is involved and 'that declaratory judgments cannot be stayed

We rather think that your very high office should not be enmeshed, either in controversy or politics."

The counsel, therefore, urged the police boss to urgently correct "the wrong impression created in the minds of all reasonable men and women by your said sad partisan comment and do give full effect to the Court of Appeal judgment.・BR> This, he said, 妬s the only part of rectitude and abiding faith in our judicial system."