In a dramatic twist, the Labour Party (LP) and its Governorship candidate in the April 14, 2015 governorship election in Delta State, Chief Great Ogboru have cried out in court that their star witness has suddenly turned hostile.
The Delta State Governorship Election Petition Tribunal sitting in Asaba, the State capital had subpoenaed the INEC Head of Department; General Administration and Procurement, in Asaba head office, Mr. Felix Enabor, to give evidence in the petition filed by Ogboru and LP, over the conduct of the governorship election in the state.
Soon after Enabor mounted the witness box and his written statement and other documents admitted by the tribunal as exhibit, rather than commence with the examination of the witness, Ogboru’s counsel, Mr. Robert Emukpoeruo, raised the alarm by way of a motion urging the tribunal to label Enabor as a hostile witness.
He contended that some paragraphs in the witness deposition were “animus”, and injurious to the petitioners.
But in a swift reaction, the counsels to governor Okowa, PDP and INEC, Dr. Alex Izyion (SAN), Mr. Timothy Kehinde (SAN) and Onyinyechi Ikpeazu (SAN) respectively, opposed the motion vehemently.
Izyon described the move as “very baseless and unknown to law”, arguing that section 230 of the Evidence Act, has not been complied with.
He pointed out that the request to label the witness as hostile and ‘animus’ is not automatic as it cannot be invoked.
He said, “The petitioner is the one providing the witness upon an application. It is his witness, were the procedure is by deposition, particularly if the witness is adverse to his cases particularly to election petition, they have taken a gamble, they either swim or sink with the witness they have called”.
He said the petitioners are the ones that called the witness, and he obeyed the subpoena, adding that there was no evidence of hostility with the witness as there was nothing to show such, as he has the mandate of the petitioner to come and testify.
He further explained that the issues of the LP Chairman facing criminal prosecution over stolen INEC materials should not a hidden thing, adding that the issue of hostile witness was not new to jurisprudence, as there are no enough grounds to treat witness from INEC as hostile.
He also argued that Enabor has not made another statement that contradicts the one he deposed to in court that will amount to contradiction, hence there was no need to brand him a hostile witness.
The “tribunal is guided by law not by sentiment, we are bound by the rules of the procedure, the witness has adopted, so they are bound by it”.
In his submission, counsel to PDP, Mr. Timothy Kehinde (SAN), averred that “we shall be opposing this application to treat the witness as hostile. The condition precedent for the tribunal to excerise such decision has not been met.
According to him, “a party producing a witness is under obligation not to be allowed to impugn on the credibility of his witness by general conduct or behavior”, adding that, “there is no doubt that the witness is at the command of the tribunal, whose sole duty it is to help the tribunal to arrive at a just decision and not under any obligation to give evidence that is favorable to the parties except to say the truth”.
Kehinde posited that the position of the petitioner that they do not have impute in the evidence of the witness, according to him, is nothing but suggestive of the fact that they have no opportunity to course the witness to commit perjury.
He pointed out that the fact the witness is not giving the petitioner a favorable evidence does not mean that he he is hostile, adding that , before the application can be granted, there must be evidence that a contrary statement has been made by the witness and he must be asked whether he has made such statement for the records.
Kehinde further pointed out that, all the deposition in the witness statement on oath are relevant in the case and explains everything the witness knows about the matter, nothing in the statement to declare him hostile, as that ends his duty to the party that called him , adding that the next move is for the respondents to cross examine him.
Supporting his arguments with section 51(1) of the Evidence Act, Kehinde stated that there shall be no oral examination of the witness by the petitioner but just to tender the document he has listed on oath.
He said granting the application would be tantamount to helping the petitioner to have an impute into the evidence of the witness and that will mean asking the judge to descend from his hallowed chambers as unbiased umpire in the case.
Arguing in the same vein, counsel to INEC Onyechi Ikpeazu (SAN), opposed the application saying it has no bases as provided under section 230 of the evidence act, that the petitioner relied upon for the application, hence the tribunal has no facts before it upon which to grant the application.
After listening to the arguments of all the counsels, Justice Gunmi has reserved ruling for tomorrow, 1st September, 2015