Monday, August 17, 2015, signals the D day when the trial proper of the April 11, 2015 governorship election petition, brought before the Three-man Delta State Elections Petitions Tribunal, headed by Justice Nasiru Gumi, will commence.
The main protagonists; Governor Ifeanyi Okowa (Peoples Democratic Party, PDP), Chief Great Ogboru, (Labour Party, LP), Olorogun O’tega Emerhor, (All Progressives Congress, APC) and the Independent National Electoral Commission, INEC, represented by their various counsels, have argued their cases at the pre-trial hearing stage and having already agreed to collapse all the main points of argument into the substantive petition and settled on the procedure and schedule of trial, including number and period for the examination of witnesses and dates for inspection of election materials, all is now set for the legal fireworks to begin.
Three petitions had originally been filed before the Delta State three-man elections petitions tribunal headed by Justice Nasiru Gunmi, challenging the declaration of Dr. Ifeanyi Okowa of the People’s Democratic Party (PDP) as winner of the April 11 governorship election by the Independent National Electoral Commission (INEC).
The Three petitions were filed by Chief Great Ogboru of Labour Party, Olorogun O’tega Emerhor of the All Progressive Congress (APC) and Mr. Paul Isamade of Allied Congress Party of Nigeria (ACPN).
Paul Isamade had seemingly withdrawn from proceedings at the pre-trial stage, after counsel representing him and his political party, the Allied Congress Party of Nigeria, ACPN, Kehinde Edun, Esquire, had noticeably stopped appearing at the pre-trial hearings.
Chief Great Ogboru and the Labour Party, LP, as well as Olorogun O’tega Emerhor, in what many Delta political watchers interpreted as a continuation of their no-love lost relationship during the election season, had equally decided against a joint appearance and opted instead to pursue their petitions separately, thus compelling the Justice Gunmi led petition to schedule their individual pre-trial hearings at different times and dates.
THE SUBSTANTIVE MATTER
The substantive petition in the trial proper has now been collapsed as the petition brought before the Tribunal by Olorogu O’tega Emerhor/ All Progressive Congress, APC, as well as Chief Great Ogboru/Labour Party, LP, challenging the declaration of Dr. Ifeanyi Okowa of the People’s Democratic Party, (PDP), as winner of the April 11, 2015 governorship election by the Independent National Electoral Commission (INEC).
However, Chief Ogboru/Labour Party, LP’s legal team led by Mr. Dele Adesina (SAN) have also 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 PDP/Okowa legal teams also have their own issues. They had on the other hand filed a preliminary objection to challenge the authority and jurisdiction of the Tribunal to even proceed with the hearing. PDP lead Consel Alex Iziyon, SAN, had asked the tribunal to terminate the original petition brought by the Labour Party, LP and All Progressive Congress, APC, on the grounds that the petition lacks merit, having been abandoned for failure to apply for pre-trial hearing notice as provided for under paragraph 18(1) of the Electoral Act 2014 as amended.
Iziyon had urged the court to look at the nature of the objection, “as it is fundamental and touches on the spinal cord of the petition”, even as he had averred that the tribunal cannot collapse the hearing of the preliminary objections into the substantive matter as the pre- trial hearing will enable the court to address all the court process, determine whether they are competent or not and in compliance with the new time frame of 180 days, provided a platform, even with new submissions, for controlling and managing the tribunal procedures expeditiously.
Justice Gumi, having established the arguments by the respective Counsels and cited the relevant authorities, including the Supreme Court and the Electoral Act, had not only established the jurisdiction of the Tribunal to entertain the substantive petition, but had also struck out that preliminary objection to hear the APC and LP petitions and, while agreeing that it will be collapsed into the substantive petition, urged the applicants to feel to approach the Court of Appeal, at the end of the Tribunal’s sitting if it so desired.
The PDP/Okowa legal team had not been satisfied with the ruling and confirmed that since its preliminary objection, which it referred to as ‘a live wire’ in the overall determination of the petition would still be entertained in the substantive hearing, the party was ready and poised to pursue its case to a satisfactory conclusion.
The parties are represented by their lead and some supporting counsels as follows: Appearing for Governor Ifeanyi Okowa are; Alex Iziyon (SAN), Ken Mozea (SAN), Andi Osawota Esquire and Peter Mrakpor Esquire, amongst others, while Chief A.T Kehinde, (SAN) leads the legal team for PDP.
The Chief Great Ogboru/Labour Party, LP, legal team is led by Chief Dele Adesina, SAN, and supported by Mr. Robert Emukpoeruo, Esquire and Ediri Diejomaoh, amongst others, while the Olorogun O’tega Emerhor/All Progressive Congress, APC legal team is lead by Chief Thomson Okpoko, SAN and supported by Joseph Omonoseh, amongst others.
The Independent National Electoral Commission, INEC, has Chief Damien Dodo, SAN as its lead counsel, with Mr. Anumonye supporting, but it is generally expected that INEC may yet introduce another top legal luminary before the trial ends, to drive its case satisfactorily.
The substantive trial of the petition between Olorogun O’tega Emerhor/All Progressive Congress, APC versus the Peoples Democratic Party, PDP, and the Independent National Electoral Commission, INEC, is scheduled to kick start proceedings, when it starts on Monday, August 17, 2015, while the trial proper between Chief Great Ogboru/Labour Party, LP versus the Peoples Democratic Party, PDP and INEC will open on Thursday, August 20, 2015.
THE KEY ISSUES
Several key issues will be up for very robust and contentious argument, if what transpired at the pre-trial stage is a measure of what to expect at the trial proper. They include biut are certainly not limited to the following:
The issue of witnesses, which attracted so much attention and hot debate amongst the contending counsels, will be very interesting as the trial commences and the process of examination, cross and re-examinations of the witnesses are played out. A robust verbal exchange had ensued between counsels to the petitioners and respondents during pre-trial arguments, over the number of witnesses and the timing to be allotted for examination and cross examination.
The tribunal in its final pre-trial report had resolved the matter as agreed by all the counsels and it is expected that the legal teams would have coached their respective witnesses before putting them on the dock, as the array of brilliant and tested legal luminaries lined on all sides are not expected to have any sympathy for opposing witnesses during cross examination.
INSPECTION OF ELECTION MATERIALS
Another critical issue will be that of the inspection of election materials, particularly those designated as sensitive materials.
Pre-trial followers will recall that the Justice Nasiru Gunmi led Tribunal had struck out an application and a motion by Ogboru/the Labour Party whose lead counsel, Chief Dele Adesina, SAN, represented by Mr. Robert Emukpoeruo, had attempted to amend an earlier motion which, while urging the Tribunal to compel Independent National Electoral Commission (INEC) to make available and grant him permission to inspect materials used for the April governorship election in the state, had however, sought by way of an ex-parte motion, to bar respondents in his petition (PDP and INEC) from participating in the inspection, arguing that allowing the other parties to be present will not only frustrate the inspection but will delay and derail the process of the trial proper.
Mr. Ken Mozea, SAN, representing lead counsel to Governor Ifeanyi Okowa, Dr. Alex Izyion (SAN), had promptly taken exception to a number of points and claims contained in the re-presented ex-parte application, when he told the Tribunal that, “We are not opposed to the motion to inspect the electoral materials but we want to be joined during the inspection, a position we already made clear when the original application was brought before your Lordships. Today’s motion, which came my way of ex-parte motion, is not the same motion of yesterday. The reliefs sought in this motion on notice have increased, and if we are not joined in the inspection, we will oppose it and we will give reasons why we need time to respond to this application.”
Mozea had also been piqued by the suggestion made by the deponent to Ogboru’s ex-parte motion, who had clearly stated in the affidavit that as an experienced Layer in such matters he has the experience and can authoritatively state that joint participation will frustrate the inspection.
Mozea had very strong words in response: “My lord, I can also categorically state that I am experienced and my experience spanning over three decades have exposed me to the danger of allowing one party to have unrestricted access to sensitive materials, so we want time to respond to this assertion so that we can join issues.”
As though that was not enough, Counsel to INEC, Chief A.T Kehinde, SAN, making his submission in the same vein, not only took exception to the seeming vexatious claim of superiority by the deponent to Ogboru’s petition, but also informed the Court that he intended to bring an application before the Tribunal, compelling the deponent to be brought into the witness dock to test and substantiate the validity of his claim, suggesting that he had superior knowledge, as a result of his stated experience, on joint inspections of election materials.
At this point, Ogboru’s counsel of the day by Mr. Robert Emukpoeruo, had quickly beat a hasty retreat and informed the tribunal of his intention to withdraw the petition, saying, “I plead your lordship’s indulgence to withdraw this application, as it seems that the respondent are intent on frustrating every move we make to ensure a speedy process.”
The Tribunal Chairman, Justice Nasiru Gumi, was thus compelled to strike out the application, since according to him, the party that submitted the ex-parte application had also voluntarily decided to withdraw it.
This issue is also expected to rear its head during the trial proper as the inspection of election materials have always been a highly emotional affair.
THE CARD READER
The most intriguing and perhaps most critical issue for the trial proper will be the role of the Card Readers and indeed the legal interpretation of the position of INEC on the use of the card readers in the determination of the elections results.
The small irony in this card reader matter however is the fact that Chief Great Ogboru, who had been one of the very early and fiercest critics of the efficacy and efficiency of the card readers, when it was introduced by INEC as an accreditation instrument, has now made it a key point of argument in his petition.
Chief Ogboru, following the postponement of the general elections by INEC from February 14 and 28 to March 28 and April 11, 2015, respectively, had demanded that the Independent National Electoral Commission conduct a test run of the card readers to be used in the 2015 general elections, in a proper election environment before deploying them for the polls.
Ogboru had said: “If INEC has the gut, let it test run the card reader machines. This is a point that we will not overlook. This is to avoid a situation whereby the machines will work in one state and fail in another state. If INEC does not do a pre-trial test of the card readers then we are taking a grave risk on election day. The sensible thing to do is to test the machines so that the people that will use then on election day are satisfied that the machines will run smoothly,” he said.
Ogboru, who had strongly averred that there would be grave implications should the card readers fail on election day, had advised INEC to use the opportunity of six weeks postponement to restore its image by not only test-running the process but also putting measures in place to conduct free, fair and credible elections, even as he had equally urged INEC to consider a Plan B, in the event that the Card readers fail to perform optimally, after so much money has been invested in the purchase.
According to him at that time, “I am not bordered about the rescheduling of the elections, but I am worried about the N90 billion already invested in the process and the processes leading to the exercise. For you to use any new technology in the magnitude that it is expected, in this case, the Card Readers, there has to be a test-run of the equipment to check whatever efficiency, effectiveness and poor outage in them. Without this important exercise done, that level of preparedness is doubtful. The sensible thing that should be done, is to at least test-run it to give confidence to those who are going to use those machines such that everybody will have confidence that those machines are not only going to work but will work efficiently,” he had stressed.
Ogboru had further expressed worries that any election which employs the use of the Card Readers in some parts of the country while the old manual system is used in some other parts will eventually be described as non-credible and an outright failure as it lacks uniformity across board, adding that the excuse of security as reason for re-scheduling the elections may not be as critical as the efficiency of the card readers, since INEC has been bound constitutionally from further extending the date of the elections beyond the present dates it has fixed.
Ogboru had then suggested, while reacting to the six weeks postponement that, “It is an opportunity for INEC to do a test run in at least two local government councils in each state under election condition. That is the only time that we can now put our faith in these machines. That is, if the test run is successful but if that is not the case, if the test run fails, the question we will ask ourselves is should we actually use the machines?” he had pondered.
The Delta Labour Party guber candidate had also expressed his dissatisfaction with the results of mock card reader, after the tests carried out by INEC in some selected states, which he had described as largely inconclusive and unsatisfactory to determine its efficacy and effectiveness on election day, following reported huge percentage of failures in some states, during the mock tests. He had however opted not to go on with the elections, despite his reservations over the card reader.
Election watchers would however recall that most of Chief Ogboru’s fears and observations on the Card Reader had come to pass, as the Card reader had failed President Jonathan himself, amongst other notable failures across the country on election day and this had prompted INEC to quickly embrace the option B that Ogboru himself had suggested, by resorting to the use of the manual voters register to conduct elections where the card readers had failed.
It is indeed one of the greatest election travesties, that Chief Ogboru, has now put his faith and eventually come to rely on the performance of the same Card reader device he had so roundly criticized and so vocally and authoritatively doubted, as one of the major evidence and argument on which his election petition is anchored, according to the seven germane issues which his counsel had formulated in their petition.
But of course the law is the law and having opted to contest in the April 11, Delta state guber elections, Chief Great Ogboru will not be faulted if he decides to deploy every available and relevant piece of evidence, including the Card reader, to prosecute his case satisfactorily, if the need arises.
Of course there may be other contentious issues, as has been the case in previous Tribunals, like the authenticity or otherwise of expert forensic evidence and the presentation and admission of other election materials not recognized by the electoral law and the constitution, and of course the preliminary objection of the PDP, which the Tribunal has agreed to collapse into the substantive petition will be very critical in the trial proper.
The Justice Nasiru Gunmi led Delta State elections Petitions Tribunal has already expressed its readiness to see the trial to the end and even the contending counsels have all recognized the need to work within the 180 days time limit designated for the Tribunal to conclude its sitting and deliver judgment.
The Tribunal has already reached 94 days as at August 5, according to Justice Gunmi and with all parties primed to do justice to their arguments in the trial proper, the chant on the lips of Deltans and Delta political watchers is: Let the show begin…