The trial proper had been billed to commence on August 17, 2015, following the successful conclusion of the pre-trial hearing on August 7, 2015, but was delayed when the three respondents-applicants, Dr. Alex Iziyon, SAN, (for Governor Okowa), Chief A.T Kehinde, SAN, (for PDP) and Damien . D. Dodo, SAN, (for INEC) had all filed motions on notice objecting to the subpoena issued by the Tribunal and challenging the validity of the petitioners, Chief Thomson Okpoko, SAN (for Emerhor/APC) and Chief Dele Adesina (for Ogboru/Labour Party, LP), to bring in additional witnesses by way of subpoena, whose deposition and statements had not been frontloaded during the pre-trial period.
The respondents-applicants had equally averred that the evidence to be presented by the additional witnesses would over-reach the respondents case and contested the legal authenticity of the application by the petitioner-applicants on the allegation that they had defaulted on payment of legal fees required for such applications made after pre-trial hearing.
The Tribunal, in a consolidated ruling on two separate sittings, had not only established its authority to issue the subpoenas but had equally debunked the notion that the evidence of the subpoenaed witnesses would over-reach their clients, since they had neither been seen and interrogated under-cross examination, and while pointing out that the subpoenas had been issued to specific officials of the Independent National Electoral Commission, INEC, who were directly involved with the elections, agreed that there was no extreme circumstances, which would have to be present to annul the subpoena and the payment of legal fees, though necessary, had already been accommodated as part of the necessary requirements in election tribunal matters and so need not attract any special attention on its own.
The Tribunal however said that those documents and statements not listed or deposed to as evidence to be relied on at the trial will however be argued and examined when they are presented and admitted by the witnesses subpoenaed during the trial proper.
Having thus ruled and set aside the respondents objections, the Tribunal now cleared the way for the trial proper of the first petition brought by Olorogun O’tega Emerhor/APC to commence and the first witness invited to the dock by the petitioner, was Mrs. Abimbola Oladunjoye, Assistant Director, ICT at the INEC Headquarters, Abuja.
She tendered two documents which were described as accreditation reports generated from the Server or voter authentication database owned by INEC, which had been duly certified, and dated 29th April, 2015 and 13th August 2015 respectively and while she adopted only the second document dated August 13, both documents were admitted as exhibits by the court.
Multiple objections by the respondents however greeted Mrs. Abimbola Oladunjoye’s testimony, tendered documents and her specific role during the elections, and several points of law were specifically raised by the respondents to challenge the authenticity and admissibility of her evidence in the case.
Dr. Alex Iziyon, SAN, representing Governor Okowa, specifically challenged Chief Thomson Okopoko, SAN, representing the petitioners when he first expressed his objection to the manner the petitioners’ counsel was leading the witness in evidence by suggesting that it was inappropriate to lead the witness to orally adopt evidence and deposition which has already been received by the tribunal.
The respondents, Dr. Iziyon, SAN, Chief A.T Kehinde, SAN and Damien D. Dodo, SAN, equally objected to the documents, noting that only the first document, dated April 29 was listed and frontloaded and the content was different from what was contained in the second document dated August 13, 2015, which was not frontloaded and this amongst other reasons, including certification of the documents by engraving rather than long hand, were sufficient reasons to dismiss the documents as evidence in the case.
A.T Kehinde, SAN, specifically raised objection on what constitutes the proper certification of a document, and invoking the supreme Court judgment in Belgore vs Ahmed, posited that for a document to have been deemed to be properly certified, it must have the name and title of the certifying officer as well as the date all written in long hand rather than stamped or engraved with only the signature written in long hand as was the case with the INEC documents.
He said that the learned judges of the Supreme Court had established this specific way of certification of a document not only to further strengthen that particular provision as contained in the Evidence Act, but also to prevent a situation where persons will be deterred from going to carve stamps with the purpose of impersonating someone else by engraving the stamped name and then signing any signature on the stamp. He equally confirmed that he intended to object to the petition of the petitioners and all the processes filed to support the petition in the Trial proper.
Damien Dodo, SAN also objected specifically to the issue of payment of legal fees which, he said was a point of law and a necessary requirement before any document can be admitted into trial.
During the cross examination Mrs. Oladunjoye, Dr. Iziyon established the following, namely; that while the first document dated April 29, had a total of 709, 700 voters accredited by the card reader, the second document had 715, 393 voters accredited by the card reader; that while the first document had no nil or zero entries, the second document had 232 nil or zero entries. He also informed the Tribunal that the total number of Personal Voters Cards, PVCs released to Delta State was 1, 929, 952.
Iziyon also established, that this was the first time Mrs. Oladunjoye who, by her own admission, confirmed that she had been a staff of INEC for 16 years and had participated in Three (3) previous elections, had participated in an election where the card reader was deployed, and that there were challenges associated with the use of the card readers since it was the first time it was being used in an election in Nigeria.
Mrs. Oladunoye equally admitted, under cross-examination, that while one of the functions of the card reader was to authenticate the identity of the holder of the PVC, she was neither in the field nor participated in the Delta State Governorship elections physically, and that the documents she tendered were derived from information uploaded from the field by the relevant officials that handled the card reader and that while there were no remarks to indicate why the nil entries were made, it was possible that the information contained in some of the card readers used in the elections may not have been uploaded to the main database in the INEC Headquarters as a result of the challenges including network failure.
But she was quick to add that any card reader that failed to upload information from the field, was subsequently brought to the INEC Headquarters were it was activated, and while confirming that there were about 12 (twelve) staff, who had access to the data base with their own personal pass words, the INEC Data base was however shut down six weeks after the elections, when the Commission determined by its own consent that all election results had been received, and that all the relevant authorities and officials involved with the elections had been informed before the database was shut down.
In his own cross examination, counsel to Peoples Democratic Party, PDP, Chief A.T Kehinde, SAN, established that Mrs. Oladunjoye was not involved with voting, counting of votes and the transmission of the votes from the card readers to the main database at INEC.
He also established she was not aware that the card readers may have changed hands before, during and after the elections and that she did not inspect the card readers to access its workability or otherwise, before the results were transmitted to their data base in INEC Headquarters.
Chief Okpoko, SAN, responding to the objections and cross examinations of the respondents, during his own re-examination, established through Mrs. Oladunjoye, the three functions of the card reader as verification of the owner of the card reader as the rightful person, authentication of the card reader as the official property of INEC and accreditation of the owner of the card reader as a voter.
He also countered the decision not to frontload the second document, saying that, you cannot go to your opponent to collect document and when the person subpoenaed is the same person in custody of that document, the document needs not be frontloaded, adding that the surprise expressed by the respondents at the tendering of the document was out of place as they had already pleaded the existence of the document in their response and that since Mrs. Oladunjoye had come to present and tender INEC documents and INEC was was an interested party in the case, the frontloading of the documents was not particularly necessary.
The three-man Tribunal led by Justice Nasiru Gunmi, in a consolidating ruling, upheld the positions of the petitioner, dismissed the objections of the respondents and admitted the documents as numbered petitioner evidence and exhibits for the trial proper.
The second petitioner witness, Ugo Hillary Nkemdi, who was described as a (Chief Planning Officer and) civil servant with INEC presented 3 (Three) documents to the Tribunal viz: INEC Press Statement dated 2nd April 2015; Manual for election officials, 2015 and Approved Guidelines for the regulation of the 2015 elections.
The respondents counsel, Dr. Iziyon, SAN (Okowa), Chief Kehinde, SAN (PDP) Damien Dodo, SAN (INEC), during their cross-examinations, raised the same earlier objections on the authority and instruction contained in the subpoena, the authorised verification rule for documents desirous to be tendered and the issue of Legal fees, as was the case with Mrs. Abimbola Oladunjoye.
Intriguingly, any and all verbal attempts, subtly or otherwise, by the respondents counsel to extract further information from Mr. Ugo Hillary Nkemdi was met with the taciturn answer “My Lords, I don’t know. I was only invited here to tender documents and nothing more.”
In ruling on the objections raised by the respondents, the three-man Justice Nasiru Gunmi led tribunal panel, maintained their positions as with the first petitioner witness and dismissed the objections of the respondents counsel to the witness and documents, which were then admitted and tendered as numbered Exhibits in the trial proper.
Dr. Iziyon, SAN, however expressed his reservations on the documents tendered and in response to Chief Okpoko’s query on the basis of his reservations, told the Tribunal that, based on several other germane evidences, including the mentioned case of Orji vs Okechukwu, which had not been copiously deliberated upon as a result of the time constraints, he reserved the right to present the reasons for his reservations in his final address before the Tribunal.
Justice Nasiru Gunmi led three-man tribunal panel then acceded to Iziyon’s request and the day ended when the petitioner counsel Chief Thomson Okpoko, SAN, indicated to the tribunal that he would desire to take a break for the day after the rigourous arguments and exhaustive witness examinations, to which the Tribunal Chairman, Justice Gunmi, sympathetically concurred with, saying: “By your age, I don’t blame you”, which drew good natured humour and laughter from all sides, as the trial was adjourned to the next day.
DAY TWO
The second day’s sitting had commenced with the petitioner counsel, Chief Thomsom Okpoko, SAN, informing the tribunal that he “had a sackload of election materials which were to be tendered and that he and the respondents counsel had come to agreement to take only one witness in the morning hours, after which they would proceed on recess to do a joint sorting out of the materials and then return later in the day for a couple more witnesses, if there was still time.
The endorsement of this arrangement by the three-man Justice Nasiru Gunmi led Tribunal paved way for the invitation of the first witness of the day, Pastor Ifeanyi Agbeniyi, an APC local government collation agent during the governorship election, who lives at Mission Road, Ashaka in Ndokwa East Local Government Area.
Pastor Agbeniyi presented a set of results, selected from the ‘sackload’ which Chief Okpoko had earlier referred to and having admitted that he had signed some and had not signed others, was led through the process of identifuing those he signed and those he did not sign, as a strategy to establish issues that bothered on alteration and falsification of some results.
Dr. Izyion, SAN, who quickly raised alarm that the documents were only been presented to the respondents for the first time and thus required inspection and appropriate response, however acquiesced, with his other respondents, to the petitioner’s intention to continue with the cross cross examining the witness, Pastor Ifeanyi Agbeniyi.
Pastor Agbeniyi, under cross examination by Iziyon, was led to establish that some of the assertions and allegations were incorrect, as he stated, by his own admission, that he had signed some result sheets in columns where he was not suppose to sign and did not sign where he was supposed to sign.
Chief A.T Kehinde, SAN, appearing for PDP, also challenged the competence of the petition and the processes filed with it, saying that he would reserve the objection to the documents, which will be filed in his final address.
Damien Dodo, SAN, appearing for INEC harped on the right of the respondent to state the reasons for the inadmissibility of document in his final arguments, stating that this is a right that cannot be waived by the court.
Justice Gunmi thereafter adjourned further hearing till 2.00 pm, as agreed to allow for the inspection of election materials.
TRIBUNAL WALKS OUT APC WITNESS
A mild drama however ensued when hearing resumed, when Dr. Alex Izyion, SAN, counsel to Governor Ifeanyi Okowa, alerted the three- man tribunal panel of the unusual presence of one Omadeli Tuoyo, a star witness of the petitioners; the All Progressive Congress (APC) and its gubernatorial candidate in the 2015 governorship election, Olorogun Otega Emerhor.
The bewildered justice Gunmi immediately ordered that the name, Omadeli Tuoyo, be read out loudly to the crowded tribunal hall and suddenly, a dark complexioned young man sauntered out, took to his heels and fled from the next exit, in an apparent bid to escape contempt of court, but was apprehended before he made good his escape.
Izyion, alongside other counsel representing the Independent National Electoral Commission (INEC) and Peoples’ Democratic Party (PDP) Mr. D.D.Dodo (SAN) and A.T Kehinde (SAN) respectively, expressed displeasure over the antics deployed by APC and Olorogun O’tega Emerhor to subvert justice in the trial by allowing their witnesses to hide inside the court room during tribunal proceedings, which runs contrary to the legal procedure.
Dr. Izyion lamented that, “witnesses who are suppose to give evidence in court are suppose to be out of court and out of hearing, adding that the benefit of his presence in court will be against him becosue he has had the proceeding and had the privilege of listening to all the cross examination so, he would not be allowed to benefit from that privilege, so his evidence might be taken with a pinch of salt.”
Counsel to APC and Otega, Chief Thomson Okpoko (SAN), in attempt to absolve himself of any culpability, told Iziyon that: “you should have whispered to me (refereeing to Izyion) that ‘your witness is in court, now you are making it look as if we are planting this witness in court, when we have not heard whether he was here as at the time the witness was giving evidence, or not. However, whatever the position, that is of no consequence to us. When the time comes, he will tell you what he did,” Okpoko said.
Tribunal Chairman, Justice Nasiru Gunmi then walked out the seemingly ‘compromised’ Omadeli Tuoyo, from the tribunal venue for violating the rule that forbids either the petitioners or respondents witnesses to be present at the tribunal room while proceedings are on-going and it was on that note that trial was adjourned till the next day.
DAY THREE
Day Three commenced on a confrontational note, when Counsel to the Labour Party and Chief Great Ogboru, in an apparent expression of fear and unhappiness that a further delay in commencing their own matter, already scheduled by the Tribunal for that same August 27, 2015, may greatly impact on their case, given the time factor, and as such any more attempt to shift the commencement of the trial on their own petition, was totally unacceptable.
The Justice Nasiru Gunmi led three-man Delta State election petitions tribunal panel, had adjourned from the following day, with the agreement that inspection of materials would continue today in order to grant the All Progressive Congress, APC, the opportunity to finish inspection and conclude its case by Friday, August 28, 2015.
However, Counsel to the Labor Party/Chief Great Ogboru, represented on the day by Mr. U Onwukwe Esquire, expressed dissatisfaction with the tribunal panel for allowing the matter between the All Progressive Congress (APC) and Peoples Democratic Party, PDP, take precedence over his own cases, without due consultations with him.
Onwukwe, who stood in for Chief Dele Adesina, SAN, lead counsel to Chief Ogboru/LP, prayed the tribunal to allow his matter to be called, as already scheduled, so that they can finally commence their case and call his witness to mount the witness box.
Onwukwe also pointed out that the Labour Party, LP and Chief Ogboru had filed their own petition earlier than the All Progressive Congress. APC/Olorogun O’tega Emerhor, and so ought to have been given the right of first hearing, however conceded that since the tribunal had already scheduled the inspection of election materials by the other petitioner and the respondents, he was willing to grant them the whole of Thursday, August 27, while his case be re-scheduled for Friday, August 28 to commence.
All entreaties by the respondents, Dr. Alex Izyion (SAN) counsel to governor Okowa, Chief Timothy Kehinde (SAN), counsel to PDP and Mr. D.D Dodo counsel to INEC, who pleaded that the matter be shifted to Saturday even, to allow the Senior and elderly Chief Okpoko, SAN, finish his case, instead of coming to court and waiting and possibly for the whole day, while they took on the Labour Party matter, failed to budge Onwukwe, who stood his ground and even added that that his witness, an INEC staff, who had been subpoenaed for the case, has a limited time to be way from duty post in Abuja.
Chief A.T Kehinde then argued that, “The witness has not write to be absent from court. She is duty bound to be available day to day until your Lordships feel that her services are no longer required. The whole of next week will be very convenient, if she comes on Monday, gives her evidence and we go on with the other witness that they want to present.
“I suggest that tomorrow will not be convenient looking at the entire circumstances, especially taking into consideration the eagerness of APC to conclude their case. By every parameter, the APC trial commenced first, before that of labour party. LP can have the whole of next week to conduct their case, just as APC has taken the whole of this week to prosecute its case. Besides, cases are scheduled according to seniority and not when they filed, when such conflicts of scheduling arises”, Kehinde said.
Dodo, in his submission adopted the positions of the Kehinde and Izyion, and said, “We believe it’s better to have APC close its case, and it goes away for one week or ten days. Then Labour Party, LP, can open its case and take the whole week as well. With that, the Tribunal records will be tidier and more organized. Let’s conduct the case in an orderly manner.
“APC should be allowed conclude its case then Labour will come and have its own bite. Instead of closing at 6pm, we can even stay till about 9pm to 10pm. We have even had cases where we stayed till midnight My Lords. The witness they are talking about is from my client and I can even guarantee that she will be available for the next two weeks if need be”, he said.
But Onwukwe, who explained that lead counsel, Chief Adesina, SAN, was unable to appear in person because of an undisclosed illness, however countered by saying that, “This is not an issue of tidiness. The records are different, as APC record will be different from LP record. We filed our petition first. We can here for the hearing of our matter.
“They cannot be complaining of to taking their time. It’s my time they are taking and I have deferred to them in recognition of seniority. I am not complaining. I have already conceded today to them. Let us take my case tomorrow. It’s important to state that this matter was adjourned for the 20th and because of their motion, the matter was further shifted. This is not about taking bites at the cases. It is a serious affair here My Lords. We cannot continue like this”.
Chairman of the Tribunal, sensing a possible legal confrontation between Onwukwe and the legal giants arrayed against him, wisely acceded to Onwukwe‘s request and asked him to call his witness and commence his cases.
But in a dramatic turn, Onwukwe, after announcing his appearance and the name of his witness, simply said, “My lord, we are still standing on our earlier ground and conceding to them. Let the matter be adjourned till tomorrow to enable us examine our witness and continue with the trial.”
The three-man Justice Nasiru Gunmi tribunal panel, after listening to the arguments, then gave ruling that the Labour Parry, LP matter be re-scheduled for Saturday August 29, 2015 for commencement and adjourned sitting till 2pm to allow for the inspection of election materials, by the APC counsel and the respondents counsel.
DAY FOUR
The highlight of Day Four was the re-echoing of an earlier but sustained allegation by Counsels to Governor Okowa, the Independent National Electoral Commission (INEC) and Peoples Democratic Party (PDP), that the All Progressive Congress (APC) and its gubernatorial candidate in the governorship election in Delta State, Olorogun Otega Emerhor, were stalling the trial in the election petition they filed challenging the victory of Governor Ifeanyi Okowa at the April 2015 polls.
At the resumed hearing of the trial of the Delta State Governorship Election Petition Tribunal sitting in Asaba, on Friday, August 28, counsel to APC and O’tega , Chief Thomson Okpoko (SAN) had moved a motion praying the court for adjournment to enable it get certified copies of his petition documents from INEC.
He had argued that most of the documentations were not properly certified as stipulated by the Supreme Court, adding that, the true and proper certification would be done by the INEC administrative secretary.
But INEC counsel, Damien Dodo (SAN) raised an objection, saying that APC and O’tega’s inability to secure a genuine certification was an act of negligence as they had all the opportunity to do so before approaching the tribunal.
He prayed the court not to grant APC another adjournment as that would amount to stalling the trial noting that ample time have been lost since the tribunal commenced sitting.
He argued further that, the trial can go on, and that APC and Otega can submit whatever document in their position whether certified or not, as the tribunal would give them the opportunity of sending in their documents on or before the end of the trial
Dodo also averred that INEC can avail them the opportunity of using its documents to continue with the trial as both parties will be relying on the same papers to present to the tribunal.
Arguing in the same vein, counsel to PDP, Timothy Kehinde (SAN) urged the tribunal not to grant APC the adjournment saying that, doing so will mean overreaching the petitioner and thus delay the proceedings.
He pointed out that, “The documents were certified and giving to the petitioners, while we responded. We submit that it will be an act of bad faith for the petitioners if they only just discovered the imperfection in their certification. It is trite law that public documents that have not been certified can be put in after which it can be certified”.
He lamented the incessant request for adjournment from the petitioners adding that, the tribunal had already granted such requests on the 25, 26, 27, and 28 of August 2015, adding that any further request for adjournment for the purpose of certification of documents would amount to injustice on the part of the respondents and the general public.
Dr. Alex Izyion, (SAN), counsel to governor Ifeanyi Okowa, in his submission prayed the court to dismissed the motion saying that the petitions is sui generis or in a class of its own being an election petition matter which was time bound, and the tribunal has little or no time left, adding that section 46 of the Electoral Act limits the request being sought.
Chairman of the three-man panel tribunal, Justice Nasiru Gunmi in his ruling said it has become necessary to grant the petitioners time to regularize their document as that will ensure that the parties are giving fair hearing. He therefore adjourned the matter to 4th September, 2015 for continuation of trial and the possible conclusion of the APC/O lorogun O’tega Emerhor’s case.
Reacting to the way and manner the trial has proceeded so far, the Governorship candidate of the All Progressive Congress, APC, in the April 11, 2014, Delta State Governorship elections, Olorogun O’tega Emerhor, expressed satisfaction with the handling of the matter by the three-man Tribunal panel and waxed confident about his chances of getting victory at the end of the day.
Olorogun Emerhor said: “You can see that the matter is very technical and both sets of lawyers have really brought out their legal fireworks to conduct their cases. Of course as the petitioner i am very confident that i will win and that is why i brought the case to the Tribunal. The case is still on-going and though some of the objections raised by the other side have been dismissed, I cannot comment much on it now. But I am very satisfied with the way my legal team is handling the case”, he said.
The respondents, especially the spokespersons for the PDP and Governor Okowa, hinted however that, there was no cause for worry as the dismissal of most of their objections is duly allowed in a legal process and the Tribunal panel has ruled accordingly.
The dismissals had not seriously impacted negatively on their case as they intend to present the reasons for their reservation in their final addresses and take their objection to the petition and all the processes filed with it to its legal and logical conclusion.
“We are here to do our case and you can see that, despite the dismissals of our objections by the tribunal panel in-spite of the reservations, which is our right to express and we have so expressed, over the way the witnesses were invited and the admissibility of the documents presented and adopted as exhibits by the tribunal, we have carried on with the cross examination of the witnesses and inspection of elections materials. We are fully prepared to do our case and we will adopt our positions in our final addresses and take our case to its very logical and legal conclusion, just as the other also has the right to do, if it so desires and if the need arises”, they said.
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