Tribunal again, quashes APC, O’tega’s motion to call more witnesses

The Election Petitions tribunal in Asaba, Delta State Wednesday described the motion by the All Progressive Party (APC) and its governorship candidate, Olorogun O’tega Emeror as unmeritorious and a subtle attempt to introduce fresh facts after the time required by law had lapsed.

“We are strongly of the view that the applicant has failed to persuade the tribunal to grant his application. The fears expressed by the respondents are real; It is not for fun that the law provided time limits to complete the hearing and determination of cases. Parties are expected to obey time limit rules, the tribunal stated.

The three-man tribunal headed by Justice Nasiru Gumi quashed the petitioners’ application seeking a motion to call additional seven witnesses to support their petition.

The tribunal which also ended its pre-hearing conference Wednesday, said it has concluded arrangements to admit no less than 145 witnesses from the Independent National Electoral Commission (INEC) and the People’s Democratic Party (PDP), in the course of the substantive trial.

In a ruling that lasted about an hour on the motion brought by O’tega, through his counsel, Mr. Thomson Okpokor (SAN), the tribunal held that the motion lacked merit.

O’tega’s counsel had sought the leave of the tribunal to invite seven additional witnesses even when the time allowed for such action had lapsed.    

Justice Gunmi declared: “We are strongly of the view that the applicants have not adduced sufficient reason before us to persuade us to deviate from the mandatory provision of Section 45 of the Electoral Act, 2010, which enables us to exercise our discretion in their favour. We are of the view that the issues as canvassed are hereby resolved against the petitioner/ applicant, this motion is therefore unmeritorious and same is not only refused but consequently dismissed”. 

Counsel to  Governor Ifeanyi Okowa, Dr. Alex Iziyon (SAN) had in his opposition to the motion informed the tribunal that, by the  provisions of    Section 45 of the first schedule  of the Electoral Act 2010, the word shall  is mandatory  for the petitioner to front load his petition to the respondent ,  adding that the petitioner , after reviewing their cases decided to come with the application to call seven more witnesses which he described as after thought .

He argued that for the petitioners to get the reliefs sought, they must show exceptional circumstance as stated in Section 4(1) (a) of the Electoral Act 2010.

He then urge the tribunal not to grant the reliefs sought. He contended that, “If such relief should be granted, there should also be a consequential order,  as contained  in Section 45 of the Electoral Act, 2010,  which stipulates  that front loading of evidence should accompany the petition, adding that anything to the contrary  will be unfair to the respondents as the right to respond would have been breached.

Collaborating  the  views  of  Iziyon, Counsel to PDP,  A .T  Kehinde (SAN)  in his submission vehemently opposed the motion, arguing that  Section 14 of the Electoral Act stated that any amendment  in which ever form  in an election petition  where the petitioner seeks  to introduce additional particulars  in the same petition is an amendment which the law does not allow.

He said Section 255 of the Constitution of the Federal Republic of Nigeria 1999 as amended , and  Section 4 (5) of the Electoral Act 2010 as amended forecloses any amendment after 21 days, adding  that the tribunal lacked the power to grant same. He contended that bringing application at this stage to file additional witnesses  by the petitioners is nothing short of amendment as those documents were not front loaded with the petition, pointing out that granting the application will bring great injustice to the respondents who will not have the opportunity to file  response.  

Justice Gumi further  ruled that a review of the petition of the applicant presupposes that they were trying to  upgrade the same petition from which the respondents have all filed replies and the applicant have also responded to the replies of the respondents and pleading has subsequently closed.

He said there is no averment in the affidavit in support of their application that can suggest that those additional witnesses they intend to call in their application were unavailable immediately after the election. “ We do not think that the realization to call additional witness is sufficient enough to amount to exceptional circumstance”, adding that an election petition matter which is sui-jeneris are determined under a particular and specific period of time.

 He held that the petitioner had no sufficient reason  in the instant case, hence  granting the relief would amount to an unnecessary elongation of time, He posited that by the provision of Section 45 of the Electoral Act 2010 as amended,  it specifies the content of election petition, which, he said, must accompany a list of witnesses that a petitioner  intends to call in proof of his petition , written statement  on oath of the witnesses , and copies of writs of every document to be replied on the hearing of the petition.

     

Counsel to  O’tega ,  Mr. Thomson Okpokor (SAN) had  argued that the application was not meant to mean amending the petition through the back door, neither has the petitioner introduced any new facts into the matter which is outside their pleading.

However, Justice Gunmi who concluded the pre-hearing conference in the petition, said the report of the pre-trial hearing will be ready on the next adjourned date,   on August 7^th,  2015, to enable the counsels commence hearing on the substantive suit.

 Counsels to the  respondents, particularly ,  INEC and PDP informed the court that a total of 145 witnesses,  respectively  have been assembled  to proof  its  cases   ,  APC and O’tega  said it shall call only nine witnesses  while  Ogboru  and Labour Party  said they will be  shopping for 36 witnesses at the commencement of trial.