APC, O’tega suffer major setback as tribunal rejects witness, documents

The All Progressives Congress (APC) and its governorship candidate in April 11, 2015 election in Delta State Olorogun O’tega Emerhor suffered a major setback Friday when the Elections Petition Tribunal rejected moves by them to tender documents they brought to the tribunal through an official of the Independent National Electoral Commission (INEC).

Justice Nasiru Gunmi upheld the submissions and prayer of INEC counsel Anumonye Onyiye who urged the tribunal to reject the plea by Emerhor’s counsel, Chief Thomson Okpoko that the tribunal should admit the documents in evidence. Chief Okpoko, lead counsel to the petitioners had moved a motion to call an INEC witness to tender unit by unit election results of the 25 local government areas of the state as contained in forms EC8E and EC8D.

Just as the INEC witness mounted the box, in the bid to make the necessary introduction, counsel to INEC, Mr.  Anumnoye interjected, drawing the attention of the tribunal to the fact that the document sought to be tendered has been in the custody of APC for over 24 hours ago.

Anumoye argued that since the document has been in the custody of APC and O’tega’s counsels, INEC could not guaranty the authenticity of the document. He sought urged the tribunal to disallow the INEC witness from tendering the said document and that the document should instead be tendered through an APC witness.  

After listening to the arguments of other respondents’ counsel, namely Counsels to INEC, PDP and Governor Ifeanyi Okowa , Mr. Ken Mozie (SAN), Mr. Akinlolu Timothy Kehinde (SAN) and Anumonye O, respectively , Chairman of the Tribunal Justice Nasiru Gunmi  ordered the witness who was yet to give his name to step out of the witness box and leave the courtroom.

This prompted the  APC counsel , Chief Okpoko to call a second witness, one  Mr. Oreh  Ohimor, a lawyer and the Director of Administration and  Operations in O’tega’s campaign organization.

Moments after Mr. Ohimor entered the witness stand, Okpoko , sought leave of the tribunal to tender a unit by unit election result sheets as contained in form EC8 A through   him. This move elicited another round of arguments as the respondents’ counsels took turns in their submissions to argue vehemently against the  plan.

The respondents’ counsels in their objections argued that the  petitioners’ counsel , Chief Okpoko, is trying to tender  electoral documents through the back door, and applying  non-legal methods in the prosecution of their case.

In his reaction Mozie (SAN), counsel to Governor Ifeanyi Okowa, in his objection argued that the documents sought to be tendered was not pleaded nor listed in the witness’ statement on oath.

He explained that the documents listed in the witness statement on oath are forms EC8D and EC8E and not form EC8A , and that any attempt to tender form EC8A  would amount to subverting due process and obtaining justice through the back door.

He said: “We object to the admissibility  of these documents, the fundamental foundational  requirements  were not met , in paragraph 14  of the  witness statement, only form EC8D and form  EC8E were pleaded.  In their reply to our reply, it was not pleaded,  no reference  was  made to the document  sought to be tendered, listing the document will not cure it if it was not accommodated  in their pleading. I urge the tribunal to reject it”.

In his submission, counsel to PDP, Akinlolu Timothy Kehinde (SAN) pointed out that it is an elementary principle of law  to put the parties on notice  and not by surprise , as the document sought to be tendered  must be specifically pleaded .

He said  an unleaded document cannot be admitted even when  the document was mentioned   in the witness statement , adding that in the instant case, the  document was not mentioned in the witness statement on oath, neither was it pleaded.

INEC counsel, O. Anumonye while arguing in the same vein, pointed out that “the document sought to be tendered by APC and O’tega were not reflected in the witness deposition”, adding that “having pleaded over voting by tendering forms EC8D and form EC8E, pleading form EC8A will constitute springing a surprise.

In two brief  rulings ,  the chairman of the three-man panel of tribunal , Justice Nasiru Gunmi  rejected the move by the APC to tendered local government result. But in another ruling , Justice Gunmi accepted the unit by unit election results  tendered as exhibits.