The intention of Counsel representing Governor Ifeanyi Okowa, the Peoples Democratic Party, PDP and the Independent National Electoral Commission, INEC, refered to as respondents, to prevent Counsel to the petioners, Chief Great Ogboru and the Labour Party, LP, from presenting additional witnesses by way of subpoena, met a brick wall, when the three-man Governorship Election Petition Tribunal sitting in Asaba, Delta state capital on Saturday, August 22, 2015, dismissed the three motions brought by them in that regard, as unmeritorious.
However, what many may have interpreted as a major victory for some parties in some quarters, may actually be a flash-in-the-pan, as both the petitioners and respondents have expressed confidence that the decision of the tribunal to dismiss the applications of the respondents, will not have any major impact on their cases, even as they have drawn attention to the time limit of 180 days allowed by the electoral law and constitution to conclude the trial.
The tribunal headed by Justice Nasiru Gunmi, had received three similar petitions from the respondent-applicants, Dr. Alex Iziyon, SAN (for Okowa), Chief A.T Kehinde, SAN (for PDP) and Chief Damien Dodo, SAN (for INEC), challenging the validity of the petitioners, Chief Dele Adesina (for Ogboru/Labour Party, LP), to bring in additional witnesses by way of subpoena, after pre-trial hearing had ended, whose deposition and statements had not been frontloaded during the pre-trial period.
The respondents-applicants had equally challenged the authority of the Tribunal to issue the subpoenas, averred that the evidence to be presented by the additional witnesses will over-reach the respondents case, and contested the legal authenticity of the application by the petitioner-applicants on the allegation that they had defaulted on payment of legal fees required for such applications made after pre-trial hearing.
Giving its ruling on the three motions by the respondents-applicants, summarised appropriately into the four points of law for greater clarity of argument, the Justice Nasiru Gumi led Tribunal, relying on several judicial authorities, cited cases, as well as specific sections of the electoral law and the constition, established its authority to issue the subpoenas on the grounds that, while a subpoena is formal document that orders a named individual to appear before a duly authorized body at a fixed time to give testimony, without necessarily frontloading his witness statement, the additional witnesses so subpoenaed had not exceeded the 30 witnesses allocated to each of the contending parties for the trial.
The Tribunal equally wondered how the respondents-applicants can claim in their application, that the evidence of the subpoenaed witnesses would over-reach their clients, when they had neither seen and interrogated the witnesses’ statements nor accessed the documents to be presented, under-cross examination.
Again, the Tribunal pointed out to the subpoenas had been issued to specific officials of the Independent National Electoral Commission, INEC, who were directly involved with the elections including the Chairman and the Director of the ICT section amongst others and not on the respondents clients, so it was difficult to see how the evidence to be given by these witnesses would over-reach the respondents clients, who have not even been summoned as witnesses.
On the issue of legal fees, the Tribunal, while agreeing that such fees were necessary for cases to be heard in court, however noted that matters of elections petitions did not necessarily fall into that category as the issue of legal fees has already been accommodated as part of the necessary requirements and so need not attract any special attention on its own.
The Tribunal finally noted that the respondents-applicants have not satisfactorily established the existence of extreme circumstances, which would have to be present for the subpoena on additional witnesses to be annulled.
“We have critically examined the averments by the respondent-applicants in support of their various motions but we are unable to identify any averments that suggest circumstance about extremes that would have moved us to grant the reliefs sought without hesitation.
“In the final analysis, we are of the view that the respondents-applicants have not provided good reasons for this tribunal to set aside the subpoena issued. The motions of the respondents-applicants are therefore unmeritorious, and the three motions are hereby dismissed,” the Tribunal ruled.
The Tribunal also said that those documents and statements not listed or deposed to as evidence to be relied on at the trial will however be argued and examined when they are presented and admitted by the witnesses subpoenaed during the trial proper, as that was the right thing to do and not otherwise. The Tribunal does not therefore see sufficient reason to be persuaded to invalidate the subpoena already issued by it.
The sitting was then adjourned till Thursday, August 27, 2015 for the hearing, which had earlier been scheduled to start on August 17, 2015 but had been delayed by the respomdents-applicants motion filed and served on that same day on the petitioners, to finally commence in the substantive petition filed by the governorship candidate of the Labour Party (LP) Chief Great Ovedje Ogboru challenging Dr. Okowa as winner of the 2015 governorship election in Delta State.
Justice Nasiru Gunmi, in adjourning the hearing to Thursady August 27, had also instructed all parties concerned to make sure they appeared on that day with at least five (5) witnesses each.
It will be recalled that the tribunal had only the day before, Friday August 21, given a similar verdict against Okowa, the PDP and INEC on the same motions they brought against Chief O’tega Emerhor and the All Progressive Congress (APC) in the same petition in which Emerhor is also challenging Dr. Okowa as the winner of the last governorship election in the state.
Chief Emerhor and the APC had been billed to call witnesses from INEC, when the Tribunal had resumed to kick-start the substantive trial, but could not do so following restraining motions filed by Gov. Okowa’s lawyer, Dr. Alex Uziyon, SAN, Counsel to PDP, Chief A.T Kehinde, SAN, and INEC Counsel, Chief Damien Dodo, SAN, respectively.
Olorogun Emerhor’s counsel, Chief Thompson Okpoko, SAN, had argued that the PDP, INEC and Mr. Okowa had no justification to challenge the order served on INEC which conducted the election, pointing out that it is the responsibility of INEC to show evidence that the guber polls was conducted in line with the laws stipulated for the conduct of the elections.
INEC counsel, Damien Dodo, SAN had in his counter argument, described the application for additional witnesses by subpoena, as a “tactical manoeuvre by the petitioner to bring documents that were not pleaded nor were listed during pre-trial hearing”.
But the Justice Gunmi-led Three man Tribunal had reaffirmed the order served on INEC and ruled that there was no sufficient reason for the INEC staff not to give testimony, saying that the motion filed by the respondents seeking to stop the electoral officials from appearing, lacked merit.
The ruling in favour of Emerhor therefore cleared the way for the commencement of the substantive of his own petition to be heard on Tuesday, August 25, 2015.
Mixed reactions from the contending parties, have however trailed the rulings by the Justice Gunmi led Tribunal, with each party waxing confident on its chances of coming pout victorious, when the trial proper commences.
A PDP Delta spokesperson and Assitant Secretary of the Party, Hon. Sunday Onoriode, was quick to point out that despite the dismissal of the the motions filed by the respondents-applicants, the Tribunal had also granted leave to the respondents to argue their objections in the trial proper and nothing had been lost strategically.
He said: “The Judges had said that we can continue with our objections during the trial proper so nothing is lost. The Labour party has not achieved any victory as they are claiming and we are sure that we will be truimphat at the end of the day.”
In their own reaction however, Labour Party Chairman, Chief Tony Ezeagwu said that he was quite pleased with the way the Tribunal was handling the matter, even as he expressed his disenchantment with the time wasting attempts by the PDP and Governor Okowa’s counsels
“I am very pleased with the way the tribunal is handling this matter. They have shown that they are, objective, matured and ready to follow due process in the course of the Tribunal.
The PDP and Okowa are just trying to waste time. We have already spent 113 days as at today in this matter and we still have not called witnesses or examined the election materials. However, i am happy with the way the Tribunal is going, but we will also not fail to cry out loudly, when we see something in the way the Tribunal is going”, he noted.
In his own views, Labour Party Chieftain and one of the likely witnesses in the trial proper, Mr. Turner Ogboru, expressed confidence that despite the time delaying strategy of the PDP and Governor Okowa, the Labour would conclude its case within the stipulated 180 days, because it is a straight forward case which will be determined on the strength of the evidence presented.
Turner said: “I have no doubts that we will complete our case in good time. It is a straight forward case. Okowa was adjudged to have have won the elections by INEC but our submission is that he had more votes than the accredited number of voters for the elections. As a result, we are praying that the elections be annulled and the law is very clear on this.
“It is unfortunate that the PDP and Okowa lawyers have tried to use this delay tactics to stall the case. The Tribunal has simply done the right thing by ruling that it is the INEC officials, who conducted the elections that are in the best position to give evidence and present their own documents. Is it me Turner Ogboru or Chief Great Ogboru or our Party Chairman Chief Ezeagwu that will give evidence on behalf of INEC and presnt INEC documents? The answer is no. It is only INEC, which conducted the eletion that is best placed to defend itself so the attempt to stop them from appearing as witnesses has been appropriately dismissed,” he said.
The substantive trial, baring all other unforeseen circumstances and any further applications and/or objections, will finally commence on Tuesday August 25, 2015, with the petition filed by Olorogun O’tega Emerhor and the All Progressives Congress, APC, challenging the declaration of Governor Ifeanyi Okowa (PDP) by the Independent National Electoral Commission, INEC, as the Governor of Delta State, in the April 11, 2015 Delta State Governorship elections.