Our Witness Has Turned Hostile, Ogboru, LP Cry Out

·         Your Argument is bizarre, has no Basis in Law”, say OKowa, INEC, PDP   

Legal fireworks were literally unleashed at the on-going Governorship Election Petition Tribunal holding in Asaba, Delta State Monday when Mr. Robert Emukpoeruo, counsel to the petitioner, Chief Great Ogboru, governorship candidate of Labour Party (LP) in the April 11, 2015 election denounced the witness they called by subpoena to give evidence on their behalf, Mr. Felix Enabor, an INEC official accusing him of being a hostile witness.  

Soon after Enabor mounted the witness box and his written statement and other documents admitted by the tribunal as exhibit. The tribunal had subpoenaed the INEC Head of Department; General Administration and Procurement, in Asaba, Delta state head office, Mr. Felix Enabor, to give evidence in the petition filed by Ogboru and LP, over the conduct of the governorship election in the state.

In decrying what he claimed to be the unpleasant attitude of their witness, Ogboru and LP’s counsel made a strident call on the tribunal through an application urging it to declare the witness ”hostile animus” because of the criminal allegations he claimed the witness made against the petitioners in his evidence.

Emukpoeruo submitted that the allegations are not founded on any pleading by the petitioners in the case. He contended that some paragraphs in the witness’ deposition were “animus”, and injurious to the petitioners. “I urge your lordships to hold that going against the prescriptions of the subpoena is clearest evidence of hostility. I urge your lordships to look at paragraph four of the statement of Felix Enabor that ‘I have the consent of INEC to make this evidence on their behalf’. This is clear that the witness is a witness that came to give evidence on the side of the adverse party and that makes him an adverse party. I urge your lordships to so hold,” Emukpoeruo argued. He cited some legal authorities to back up his arguments.

But instantly, the counsels to Governor Okowa, PDP and INEC , Dr. Alex Izyion (SAN),  Mr.Akinlolu Timothy Kehinde (SAN) and Onyechi  Ikpeazu (SAN) respectively,  vehemently opposed  the application.  

Iziyon described the application as “very bizzare and unknown to law, because the procedure on Evidence Act have not been complied with.

“The provision cannot be invoked. It is not automatic, or a magic wand”, he argued, pointing out that section 230 of the Evidence Act, has not been complied with. “The petitioner is the party producing this witness, He is its witness”, Iziyon said.

He pointed out that the request to label the witness as” hostile and animus” is not automatic as it cannot be invoked.

He said,  “the petitioner is the one providing the witness upon an application , it is his witness, where the procedure is by deposition , and if the witness is adverse to his case, and particularly in an election petition, they  have  taken a gamble, they either swim or sink with the witness they have called”.

He submitted that the petitioners are the ones that called the witness, and he obeyed the subpoena, adding that there was no evidence of hostility with the witness as there was nothing to show such, as he has the mandate of the petitioner to come and testify.

Okowa’s counsel explained that the issues of the LP Chairman facing criminal prosecution over alleged stolen INEC materials  should  no be a hidden thing. “They should not expect that this important information should be hidden. This is a court of law,” Iziyon submitted, adding that the issue of hostile witness was not new to jurisprudence, as there are no enough grounds to treat witness from INEC as hostile. He said facts must be connected to the facts in issue as paragraphs 11 and 12 explain why this deposition is relevant. “The issue of hostile witness is not new to jurisprudence. There is no ground to hold this witness as a hostile witness,” Iziyon argued and cited legal authorities as his guide.

He also argued that Enabor has not made another statement that contradicted the one he deposed to in court, hence there was no need to brand him a hostile witness.

 The “tribunal is guided by law not by sentiment; we are bound by the rules of procedure, and the material before your lordships.” I urge you to reject the petitioners’ application, Iziyon requested.  

In his submission, counsel to PDP, Mr. Timothy Kehinde (SAN), averred that “We shall be opposing the application to treat the witness as a hostile witness.

“The condition precedent for your lordships to exercise discretion in this type of application has not been met at all. We submit that a party producing a witness is given an obligation not to be allowed to impeach his credit by general evidence of bad character. There is even no evidence to treat him as a hostile witness. Furthermore, this witness is the court’s witness as a competent and compelling witness whose sole duty is to help this honourable tribunal arrive at a just conclusion. And he is not under any obligation to give any evidence that is favourable to any of the parties except to say the truth,” Kehinde argued.

He continued: “We further submit that the petitioners’ position that they had no input in the evidence of the witness is suggestive that they no opportunity to cause the witness to commit perjury. And the fact that the witness is giving an unfavourable evidence before this tribunal is not enough to treat him as a hostile witness.

“Before this type of application can be granted at all, there must be before this tribunal evidence that a contrary statement has been made by the witness. And the witness must be asked whether he has made such statement before. I submit that a definite record to that must be born out of the records before he can be treated as a hostile witness.

“I further submit that the depositions of the witness on oath are relevant to this casa, and are meant to explain everything that the subpoenaed witness knows about this matter, and why it will be possible for the witness to carry out the subsisting order of this court for the production of all the materials needed by this court.

“We submit that the witness is not hostile. And having adopted his witness statement on oath his duty to the party calling him has ended. We submit that the authorities referred to by the petitioner are completely not relevant to this matter as the facts are not the same with that of an election matter.” Kehinde cited legal authorities to back his submissions.   

He called the tribunal’s attention to paragraph 413 of the fourth Schedule to the 2010 Electoral Act provides that provides that there shall be no oral examination of the witness except to ask him to tender his evidence which he has done.

“We finally submit that granting this application will be tantamount to helping the petitioners to have an input in the evidence of the state witness. And that will be asking your lordships to descend from your hallowed positions as unbiased umpire into this matter,” Kehinde argued.

Ikpeazu, SAN, for INEC opposed the application to treat Pw2 as a hostile witness. He submitted: “In line with the pronouncement of Ilouno V Chiekwe cited by the petitioners, the Supreme Court made it clear that the mere fact that a witness gave adverse testimony does not ipso facto make that witness a hostile witness. It said further that the courts are bound to consider the conduct of the witness to determine whether the witness is hostile. The petitioners gave three reasons:

·         Paragraph four of the deposition.

·         That the deposition was not mad on the date it was supposed to be made.

·         That the witness made allegations of commission of an offence against the petitioners.

“This application will not warrant granting that application,” Ikpeazu said, adding: “The subpoena was issued on these officers. So, it is kind of them to have obeyed the order of the officers to appear in court. That cannot be a ground to impugn the conduct of the witness. Standing independently cannot warrant a ground. There must be some sort of felonious intent. There is nothing to show that. The remedy is not to impute hostility but to treat him as a witness of truth.”

He also argued that it was the petitioners that led the witness to adopt the deposition so then where is the prejudice or hostile animus?

Ikpeazu said: “The third ground is the issue that the witness made allegations of commission of an offence. In the deposition he just adopted he displayed the police report, which investigated the commission of an offence committed against INEC. The procedure my learned friend seemed to have adopted is an exception to the rule. Section 230 of the Evidence Act is couched in very mandatory terms that the party producing a witness shall not be allowed to lead him. All that the witness did in his deposition is to explain the absence of polling unit results and other documents. So that should he be asked to produce documents that are not available because they have been stolen, it would be understood. Because, if he had not done so he would have been found to have disobeyed the orders of the court. What the petitioners have done is the assumption of risk. They have adopted the procedure and they are bound by it, and the risk involved.”

Emukpoeruo making a point of law submitted that the procedure in the Evidence Act applies to all proceedings. That section 230 of the Electoral Act applies to all and without distinction.

The tribunal Chairman, Justice Nasiru Gunmi urged the lawyers to avail the tribunal of the books on their legal citations and adjourned ruling in the matter till Tuesday, September1, 2015.