The suit filed by the All Progressive Congress (APC) and its gubernatorial candidate Olorogun O’tega Emerhor, challenging the victory of Governor Ifeanyi Okowa (PDP), in the April 14th Delta State governorship election, suffered yet another major setback, when the Tribunal, in its continued sitting on Wednesday August 5, 2015, dismissed their application to call more witnesses in addition to the already submitted list of witnesses they intended to call in the trial proper.
This is even as the Labour Party, LP and Chief Great Ogboru, its candidate in the April 11, 2015 Delta State governorship election, have benefited from the earlier decision of the Tribunal to collapse all relevant motions and application into the substantive petition, including the preliminary motion by the Respondents Counsels, praying the Tribunal to strike out the substantive petition challenging Governor Okowa’s victory at the polls, on technical grounds.
The Justice Nasiru Gumi led Delta State Election Petition Tribunal, in a ruling that lasted about an hour on the motion brought by Olorogun O’tega, through his counsel, Mr. Thomson Okpoko (SAN), held that the motion lacked merit.
Okpoko had sought the leave of the tribunal to invite seven additional witnesses even when the time allowed for such action has elapsed.
Justice Gunmi posited, “We are strongly of the view that the applicant has 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 conversed 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, the, 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 7 more witnesses which he described as after though.
He averred that for the petitioner to get the reliefs sought, they must show exceptional circumstance as stated in section 41(a) of the Electoral Act 2010.
He went ahead to urge the tribunal not to grant the reliefs sought. In his words “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.
Corroborating 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 submitted that 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 lacks the power to grant same, averring that bringing application at this stage to file additional witness by the petitioner is nothing short of amendment as those documents were not front loaded with the petition, saying if the application is granted , that it will bring great injustice to the respondents who will not have the opportunity to file response
Justice Gunmi 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 reasons in the instance case, hence granting the relief would amount to an unnecessary elongation of time,
He posited further 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 by 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 Okpoko (SAN) had averred that the application was not meant to amend 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-trial conference in the petition, said the report of the pre-trial hearing will be ready on the next adjourned date, on 7th August 2015, to enable the counsels in the tribunal commence hearing on the substantive suit.
The Justice Nasiru Gumi led Delta State Election Petition also resolved to entertain the petition filed by the Labour Party, LP and its governorship candidate, Chief Great Ovedje Ogboru when the trial proper commences, following the recent withdrawal of a fresh application, by Dele Adesina, SAN, Counsel to Chief Ogboru, for enlargement of time to seek further and better affidavits.
Ogboru/Labour Party, LP’s legal team led by Mr. Dele Adesina (SAN) had earlier formulated seven issues for the Tribunal to determine, including the prayer that the Tribunal make 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.
Ogboru/LP’s lawyers are equally contending that since Okowa’s votes alone are more than total accredited voters in virtually all polling units, as determined by the Card Reader, then it his votes alone that are responsible for over-voting in the election. If so, then he must suffer the consequences of over-voting alone, since Okowa’s votes have been deemed by the petitioner, to be unlawful for being above accreditation whilst the votes of other contestants that are within accreditation are the only valid votes.
The Ogboru legal team, in their petition, also contend in the alternative that should the Tribunal come to a different conclusion that the election was massively rigged, then it should cancel the election and disqualify Okowa/PDP from participating in a re-run election.
The Respondents, PDP, INEC and Governor Ifeanyi Okowa, had filed a preliminary motion praying the Tribunal to dismiss the Petition both on grounds that the petitioner had not made a formal application for pre-trial hearing and also on the grounds that the Panel lacked jurisdiction to proceed with the Trial.
The Tribunal had, after several deliberations and cited authorities, established its jurisdiction and competence to proceed with the trial and resolved that all other applications and motions pertaining to the trial would be collapsed into the substantive petition for trial, after which it had elected, with the various Counsels to commence with the pre-trial hearing, which was concluded on Wednesday August 5, 2015.
Counsels to the respondents, particularly, INEC and PDP informed the court that a total of 145 witnesses, respectively including those to be subpoenaed, have been assembled to prosecute its cases, while APC and O’tega said it shall call only nine witnesses while Ogboru and Labour Party said its shopping for 36 witnesses, including those to be subpoenaed, at the commencement of trial.
The pre-trial report to be delivered by the Justice Nasiru Gumi led Tribunal, to be delivered on August 7, 2015, is thus expected to provide a roadmap for the trial, including the scheduling of dates for witnesses appearances and harmonizing of all other relevant processes for the trial proper.