BY CHUKWUDI ABIANDU
 |
| Left to right: Okowa, Ogboru and Emerhor |
Inside the gracelessly furnished High Court Two, where the
three-man panel of the Governorship Election Petition Tribunal is sitting on
Nnebisi Road, by Grand Hotel, Asaba, is a place that when looked at from the
outside does not betray the sign that any serious matter is going on. Except,
of course, for the motley crowd of visible party officials and supporters that
includes men and women, that sit outside because they cannot be accommodated
inside for space reasons, and the heavy presence of a bevy of security
officials that include gun wielding mobile policemen and men of the State
Security Services that are stationed to keep law and order. Otherwise, the
venue of the tribunal sits there innocuously surrounded by trees, bukatarias, and
other shops that attend to customers’ needs.
Yet, going on inside the tribunal room where lawyers and
observers had to huddle inside dilapidated seats is a critical matter that has
to do with hearing of the petitions by three political parties, All Progressive
Congress (APC), Labour Party and Allied Congress Party of Nigeria (ACPN their
respective candidates, Olorogun O’tega Emerhor, Chief Great Ovedje Ogboru and
Mr. Paul Isamade, in which they are challenging the victory of the candidate of
the Peoples Democratic Party (PDP), Senator (Dr) Ifeanyi Arthur Okowa at the
April 11, 2015 election contest. It would however, appear that the ACPN has
stopped appearance in court, and there is no diligent interest in the case
anymore.
It is a different matter with Ogboru and Emerhor who have so
far shown diligence in pursuing their petitions, the hearing of which are being
held separatel. Emerhor and APC alleged fraud in the election, and are seeking
an order for the conduct of re-run of the governorship election. He accused
INEC of colluding with the PDP by preventing the card readers from being used
in many areas during the election. That the election results were fabricated,
thereby violating the electoral laws and INEC guidelines. That accredited
voters for results announced were more than actual card reader records. And
that the tribunal should declare the elections null and void, alleging that the
irregularities recorded in the elections were unimaginable.
In a similar vein, Ogboru and the LP are praying that the
tribunal makes a consequential order declaring Chief Ogboru as the winner of
the election on the ground that all votes received by Senator Okowa are
unlawful, invalid, null and void. They are also asking the tribunal to declare
that the election was massively rigged, and should be cancelled, and that Okowa
and PDP should be disqualified from participating in a re-run. They alleged that
since Okowa’s votes alone are more than the accredited voters in virtually all
polling units, as determined by the card reader, then it is his votes alone
that are responsible for over-voting in the election. They contend that the
tribunal should affirm that this being so, Okowa must suffer the consequences
of over-voting alone, since his votes have been deemed by them to be unlawful
for being above accreditation while the votes of other contestants that are
within accreditation are the only valid votes.
Since the trials started there have been series of
preliminary motions and counter motions with their frills and thrills from all
the parties, all setting the stage for proper hearing into the main issues of
the petitions.
But of great significance is the graceful demeanour
exhibited by the lead counsels to one another, even when in certain instances
that tempers had to rise in the course of making their submissions in support
of positions taken, they had to stand insistent, firm but with deep respect for
their senior colleagues in the opposition side.
On a number of occasions, feathers were ruffled; resulting at times in
hot exchange of words, but the other side usually had to call the attention of
the tribunal chairman, who instantly calls everyone to other.
Of course, the respondents in both cases have been Governor
Okowa, PDP and the Independent National Electoral commission (INEC), they are
the common enemies of the petitioners on either side. Yet, the parties to the
issues have through their lawyers discharged themselves well. The two
petitioners have finished with calling their witnesses and closed their cases.
Okowa has so far called five witnesses, four in the APC petition and just one
in the LP-Ogboru petition that was heard last Saturday, 19th
September, 2015.
At that proceeding, Governor Okowa closed his case with the call of just one witness
in one day in the petition filed by LP and Ogboru challenging Okowa’s victory
at the election. Chief Ken D. Mozia, a
Senior Advocate of Nigeria (SAN) and co-lead counsel with Dr. Alex Izinyon
(SAN) for Okowa, shortly after the three-man panel of the Governorship Election
Petition Tribunal rose last Saturday, he told journalists who accosted him,
saying: “It is not the number of witnesses you
call to give evidence that determines
your case but how well you plan your strategy in line with what you are trying to achieve in your case. Our
intention was to call only one witness
since we felt that there was no need to continue to repeat what has already been established and as you
can see, our strategy worked perfectly.
We are satisfied with our case.”
A staff of INEC, Mercy Ekhihametalo, who works
in the commission’s Asaba office in the ICT Department, was the star witness
for the day. She had earlier appeared as witness in the defense by Okowa, the
first respondent against APC and Emerhor. On
adopting her witness statement on oath, Ken Mozia leading her in
evidence-in-chief tendered two documents believed to be crucial before the court for adoption as affidavits.
They included the results of the uploaded
data from the Card Readers as at April 16, 2015,
and the pending, un-uploaded results from the Card Readers as at April 16, 2015. Accompanying the
documents were the requisite certification from INEC, as required for such
public documents tendered in evidence
before the court.
In his objection to the documents being
tendered, Robert Emukperuo esquire, lead
counsel for the day to the petitioners, LP and Chief Ogboru, told the court
that both documents were neither pleaded
nor listed. And basing his submission on
his interpretation of the First Schedule
of the Electoral Act, Section 12/3, he
said it was mandatory for the First Respondent to file copies of the documentary evidence along with his
reply to the petition. Emukperuo, who
cited the Supreme Court case of ACN V
Lamido, 2012, argued that a document must be
mandatorily pleaded to guarantee its
admissibility and INEC, as third Respondent, did not plead or list the reports, that instead, it only pleaded
correspondences, which are not the same
thing as specifically pleading the reports.
But Mozia, swiftly reacted, and countered by
telling the tribunal, first, that the
objection was misconceived, pointing out that there was sufficient pleadings in
the First Respondent’s reply to the petition,
since it was clearly stated that they
would rely on accreditation related to Card Reader
results of Polling Units by Polling Units, and
which was the basis on which the
petitioners’ anchored their petition.
Mozia submitted that any document by INEC
tending to either prove or disprove the
number of voters in the April 11, 2015 governorship
election was relevant to the matter. Relying on Section 4 of the Evidence Act as amended, governing admissibility, he
stated that the document need not be
specifically pleaded, adding that
anything that would assist the tribunal to establish over-voting or otherwise in relation to the Card Reader results
was relevant.
Mozia, in arguing further that a party is at
liberty to place reliance on the
pleadings of any party relevant to the facts in issue, cited the case of Ogboru V Uduaghan, 2011, where the
Court of Appeal ruled that
once a public document is certified, it automatically
becomes admissible in the interest of
justice.
The tribunal headed by Justice Nasiru Gunmi held that there were sufficient facts in
the argument of the First Respondent to
support the documents. It accordingly overruled the objection of the petitioners
and admitted the documents as numbered
exhibits for the trial.
Chief Akinlolu T. Kehinde, ( SAN), counsel to
Peoples’ Democratic Party, (PDP) in the
cross examination of Mrs. Mercy Ekhihametalo that followed, established through her that card readers were
deployed to all the voting points in
every polling unit and that while the card readers were deployed for verification of the PVC and
authentication of the voter, the final
accreditation was done on the manual register, where the voter, having crossed the first two stages, would now
be ticked on the voter manual, the
voters’ register and accredited to vote. She acknowledged that all the data from the card readers in all the voting
points must be fully uploaded for the
data from that polling unit to be complete.
Mrs. Ekhihametalo also told the tribunal that
the nil entries recorded in the first Card
Reader report did not mean that there was no voting in the area, but rather that the data from the card reader in those
polling units had not been uploaded to
the server as at the time the document was printed
out and this could have been as a result of the minor challenges like network issues at the polling centres
that affected
the upload, pointing out that while there were
no more uploads after April 16, the total
percentage figure of 67.7 percent of Card Reader votes provided by INEC was not the complete results from all the card
readers used for the elections.
She admitted that her experience with card
readers was not just limited to her
election monitoring in Isoko North LGA but that she had been sent on training by the Asaba office to Abuja
where she and
other staff had been trained on the use and
operations of Card Readers and she had in
turn returned to Asaba to train other INEC Staff and stakeholders in the state including women and youths,
as well as
Muslim, Christian and other religious
stakeholders. She confirmed that the training had only been on the use of card
reader and not on its uploading. According to
her, none of the political party officials
had tampered with the card readers before, during and after the elections.
During cross examination by M. Nasiru, Esquire, INEC’s lead counsel for the day, Mercy Ekhikhametalo acknowledged that 32.3 percent
of all the data from the card readers were not
uploaded as at the time
the final report of the card reader results came
in from Abuja. And while affirming that
the information from card readers will not get to the main data base in Abuja if not uploaded, told the
tribunal
that the main server in Abuja had been shut down
for upgrade and maintenance before the
final shut down, when it was noticed that card reader reports were not getting to the server as a result of network
problems.
The petitioners’ counsel Robert Emukperuo, tried
to establish, in his cross examination,
that more card reader data was uploaded
after April 16, contrary to Ekhikametalo’s deposition,
but Mrs. Ekhikametalo disproved him when she
replied that the 67.7 percentage figure was the last figure received from INEC
Abuja. Emukperuo again tried to establish
some discrepancies in the results from Aniocha North Ward 1, Obior, to show that while the first card reader report
had nil entries, the second had figures
in the columns, but she countered that
the report was incomplete since INEC printed two forms, one coloured and one black and white for the elections.
She informed the tribunal that both forms
needed to be present for her to give a complete
answer to the question.
There was, however, a little drama, when Emukperuo tried to
cross examine her on results from Burutu LGA, which, he said,
recorded no single accreditation by the
manual register, but the court clerks could not locate the results on time which led to what Justice Gunmi referred to
as an ‘Evidence break’ to enable the court
clerks locate the documents, which he
said had been kept in a secret place for safety due to their sensitive nature. Emukperuo’s
attempt to continue with that line of cross examination,
on resumption from the short adjournment, was
frantically opposed by Mozia, who drew
the attention of the tribunal to the fact that while the witness was not the maker of the document, she could
not also be made to give evidence on a
document she had neither tendered nor adopted in
her deposition on oath. Mozia argued that there
was no nexus between the
witness and the document as the petitioners
themselves had only
anchored their argument on the Card Reader
results and not the manual voters’
register.
The tribunal judges, in their ruling, noted that
the document was certified and was issued
by INEC, thus making it a public document and, as such, was factual and relevant to the case, so the objection was
overruled in favour of the petitioners.
Further attempts by Emukperuo to box Mrs.
Ekhikametalo into a definite answer on the Burutu results were rebuffed by the witness who stood her ground by
remaining consistent in her answer. Emukperuo was eventually cut short as the
tribunal judges told him that his cross
examination time was up, thus ending his effort to continue with the cross
examination.
During re-examination by the First respondent, Emukperuo
opposed Mozia, when he tried to establish the nature of the data in the Card Reader in relation to an annulled election, by arguing that the
question was irrelevant since the nullification
of an election means that the results
would be annulled as well. Mozia’s point was that he only wanted to establish whether the data in the card reader
would be wiped away if the election was
annulled. After listening to the
arguments, the tribunal overruled the objection affirming that the question was relevant. In her answer to the question, Mrs. Ekhihametalo told the tribunal that the
cancellation of an election will not
affect the data in the card reader, affirming that whether the election was annulled or not, the data in the card
will still be intact and will not be nullified
despite the election nullification.
It was on this note that Mozia shocked the
packed tribunal court room with the
announcement that he was closing his defense for Governor Okowa, in response to
the petition filed by the Labour Party
and its gubernatorial candidate, Chief Great Ovedje Ogboru, challenging Okowa’s declaration by INEC, as the winner
of the April 11, 2015, Delta State Governorship
elections.
The petitioners, who were still in the legal war
mood and wanted to continue, were left
flat footed and the suggestion by Tribunal to A.T Kehinde, SAN, lead counsel to PDP, to consider the
commencement of his own defense against the
Labour Party and Chief Ogboru, was quickly echoed
by Robert Emukperu. But Kehinde simply laughed
and told the Tribunal that he was not
ready. He also informed the Tribunal that
the decision of the First Respondent to
close his case so suddenly with more than five days to spare, and the fact that he was opening his defense
against the APC on Tuesday, coupled with
the Sallah holidays just around the
corner, the earliest he could open his defense with the Labour Party was September 30, 2015. The Justice Nasiru Gunmi led three-man election
petition tribunal panel, having listened
and got the consent of all the parties, including
A.T Kehinde’s pledge that His intention was to open and close his defense in one day, subsequently adjourned
hearing to Wednesday, September 30, 2015.
Mixed reactions trailed the unexpected early
closing of his defense by
the First respondent, Governor Ifeanyi Okowa.
Observers are varied in their opinions, even as both sides held firmly to their
positions that they had delivered satisfactorily
on their cases.
Robert Emukperuo, counsel to Labour Party and
Chief Ogboru, although surprised that the
First Respondent closed his case unexpectedly
and without calling further witnesses,
he was however optimistic that they had proved their case of over voting
in the April 11, 2015 Delta state
governorship elections successfully.
“I don’t know why they decided to close their
case without calling any more witnesses
but I can assure you that we have proved our case of over voting satisfactorily. You can see from the way
the witness was
hesitating to answer the question on the voter
register that we had a very strong case
and we are happy that the tribunal judges compelled her to answer the question.
“All we wanted to do was to tell Deltans and the
world, what really happened during the
governorship elections in Delta State and we are pleased that we have established cases of over voting. We will now go
and prepare our final address and await the
judgment, but I can assure you that we
are satisfied with the way the tribunal has handled the matter so far,” Emukperuo said confidently.
Ken Mozia, (SAN) had earlier expressed sentiment
on the perfection of their strategy to call only one
witness. The same feeling of confidence was
expressed by Governor Ifeanyi Okowa’s
legal team co-ordinated by Peter Mrakpor, Esquire, as they noted that they were satisfied with the way they
have defended the petition challenging
the victory of Senator Okowa at the April 11, 2015 governorship poll. They hinged their optimism on the premise that
the legal team has successfully established that elections, indeed, held and that the card reader, given its challenges
in the election and especially in relation to
its role alongside the provisions of the
Electoral Act, remains a relevant issue in the determination of the election results of 2015 general elections, as
have been successfully argued in some election
tribunals that have already given
judgment.
Chief Cassidy Iloba, a frontline Anioma
politician in Asaba and former chairman
of the Police Community Relations Committee, PCRC, who has been a very visible presence at the tribunal sittings,
noted that the
Okowa legal team has done a good job and was
confident of victory, even as he chided
those spreading false information about tribunal proceedings as those who never attend sittings. “I want to commend the Okowa legal team for a job well
done in their defense against O’tega
Emerhor and Chief Great Ogboru’s petitions. I am satisfied with the way they handled the matter and even the way the
tribunal judges have been fair to all parties,
in their rulings on points of law and in
their arguments. But I want to use this
medium to caution those already passing their own judgment of what will happen in the tribunal at the end of the
day. These are people who have never even been
to the tribunal for one day to see and
hear how the matter is going; yet, they already know what the outcome will be. They should stop spreading falsehood
and let justice take its course. My
advice to all is that we should give Governor
Okowa a chance. He has already started on a good
note, so let’s join hands with him to
move Delta State to the next level.” Ogbueshi Cassidy said.
