Tuesday, Sepetember 1, 2015, was a god day for Governor Ifeanyi Okowa, the Peoples Democratic Party, PDP and the Independent National Electoral Commission, INEC at the resumed hearing of the substantive suit before the Justice Nasiru Gunmi three-man election tribunal panel, challenging the declaration of Senator Dr. Okowa as the winner of the April 11, 2015 Delta State governorship elections.
In fact, the Petitioners (Chief Great Ogboru/Labour Party), suffered multiple legal setbacks, as three of the four rulings given by the Justice Nasiru Gunmi led election tribuna on the day, went against them, contrary the expectation of a section of the spectators, who had begun getting used to the backdrop of a frightening plethora of over-ruled objections of the Respondemts (Governor Okowa, PDP and INEC) by the Tribunal and with good reasons too, since the pre-trial hearing days.
The day had started with a typically firm and unemotional ruling by the Justice Nasiru Gunmi led tribunal, once again over-ruling the Respondents, represented by their respective counsels of the day, Chief Ken Mozea, SAN (Okowa), Chief A.T Kehinde, SAN (PDP) and Prof. Onyinyechi Ikpeazu (INEC) on their objection to the application by the Petitioners (Ogboru/Labour Party), represented by their legal team led by Chief Dele Adesina, SAN, to declare their own witness, Mr. Felix Enabor from INEC, as a hostile and adverse witness.
The application by the petitioners to declare Mr. Enabor, a witness they had earlier asked the court to subpoena as their own, was based on the argument presented the day before by the lead Counsel of the day, Robert Emuakpoeruo Esquire, urging the Tribunal to declare his own witness, Mr. Felix Enabor as a hostile witness, following the discovery that certain sections of his witness statement was at variance with the position of the petitioners who had originally subpoenaed him as their witness to give evidence against Okowa, PDP and INEC.
Emuakpoeruo, who had sought and been granted a vigourously objected adjournment on Saturday, on the grounds that the petitioners were seeing the witness statement and deposition for the first time and needed time to study and respond to it, had thus come to court on Monday August 31, after studying the statement, to ask the tribunal to declare Enabor as a hostile witness.
Emukpoeruo had informed the tribunal that certain portions in paragraphs 5,6, and 7 of their witness, Mr. Felix Enabor from Independent National Electoral Commission (INEC) statement on oath, contained depositions that are “animus and hostile” to their petitioners.
The respondents had challenged the application on the grounds that, since the witness was the petitioners witness, it was their duty to have ensured that his testimony was what they wanted and so should not blame anybody if their witness had deposed to a statement that was not favourable to them. So they would either swim or sink with him, the posited.
Giving its ruling at resumed sitting on September 1, the Justice Nasiru Gunmi led Tribunal, relying particularly on Paragph 5 of his witness statement, which it said was at variance with the petitioners position and other secions which imputed allegations of crime against the petitioners, subquently declared in favour of the petitioners that Mr. Felix Enabor was a hostile witness against those, who had brought him to give evidence for them and as such should be cross examined by the petitioners in that regard.
In his ruling, Justice Gunmi upheld the position of the petitioners, saying that, “we have carefully examined the deposition of pw2 and we are of the view that some of the paragraphs in the said deposition stands against the pleading of the petitioners, we therefore agree with the petitioners counsel that it was right to treat PW2 as hostile witness for the purpose of being cross examined by the petitioners counsel”.
But the euphoria of victory by the Chief Dele Adesina, SAN led petitioners counsel, was swiftly cut short, even before the cross examination could commence properly, when Chief Ken Mozea, SAN, representing Governor Okowa, sought and got clarification from the tribunal that it was only Paragraph that was deemed contentious in the witness statement and as such, the cross examination by the petitioners should be limited only to the said Paragraph 5, in the bid to establish his hostility to the petitioners.
The Labour party legal team also suffered another embarrassment when an apparent ploy by Chief Adesina to undermine the judicial weight of the legal giants arrayed against him, by handing the prosecution of cross examination to a junior lawyer in the team, Uzor Onwukwe Esquire, backfired, as Onwukwe, while attempting to challenge a position presented by Mozea, seemed to cast aspersions on the reputation of the senior counsel, which generated cultured uproar amongst the legal counsels, but was eventually resolved when a humbled Labour legal team apologized to Mozea through its lead counsel Chief Adesina, SAN.
The Respondents also scored another key psychological point, when Chief Adesina, in an attempt to undo the apparent damage done by Onwukwe, decided to take over the proceedings from the junior lawyer, but was quickly intercepted by Mozea, who told the Tribunal that Adesina had already ceded his right to speak to Onwukwe and so no longer had the privilege to speak, unless he formally announced to the tribunal that he would take over the matter, which he did with some embarassment.
Chief Ogboru and the Labour party were again short-circuited by the respondents when, in the process of their cross examination, an argument ensued over the nature and motive of the cross examination and the objective it was expected to achieve since the witness has already been declared by the tribunal as a hostile witness.
Enabor, under examination by the counsels of Okowa, PDP and INEC, Mr. Ken Mozea (SAN), Timothy Kehinde (SAN) and Dr. Onyechi Ikpeazu (SAN) respectively also affirmed that he was not the maker of the documents that were tendred in court but that he came only to tender them.
He also said that he did not come to court with ill feelings. “My Lords, I am a Civil Servant he said”, adding that paragraph 5 of the deposition he made in court over the stolen INEC document and the arrest of some persons in connect to the criminal act was based on police investigation and report, saying that he has no animosity against those arrested.
He said he stood by the averments made in the depositions in his statement to the tribunal on oath, adding that Governor Ifeanyi Okowa is the duly elected candidate in the governorship election of Delta State having polled the highest votes.
Enabor also told the tribunal that, some of the data captured in the card reader were not captured in the field before the saver was shut dawn.
Attempts by Ogboru’s counsel to subject the witness to another round of cross examination after the court declared him hostile elicited another round of argument as respondent’s counsels vehemently opposed the move.
According to Adesina, the subpoenaed order on the witness has not been vacated by the tribunal, adding that there are some documents that the witness needed to tender before the tribunal.
Mozea strongly opposed it saying, “The argument is grossly mischievous , he has been cross examined, he has deposed to his statement”, adding that the subpoena was issued on the application of the Petitioners.
“I submit that there is no provision of the law for disjointed presentation of evidence. They cannot blow hot and cold at the same time. They choose to treat him as a hostile witness so they cannot ask him to come and tender documents again expect by another subpoena. This witness can no longer give evidence and should be allowed to go.”
Kehinde in his opposition submitted that, “The witness cannot come back to give evidence in chief because there is no provision in our justice system that evidence should be done in bits as he did not apply to make the witness present or tender his document before declaring him hostile.”
Kehinde argued further, that the petitioner can bring any document through other witness saying, “He is their witness so they either sink or swim with the him.”
Ikpeazu, on his part aligned with the submission of the other respondent counsel, adding that the witness has told the tribunal that all the documents needed had been produced.
He informed the court that the prosecution made a very serious and dangerous choice to the effect that they would rather treat the witness as hostile witness which was an abandonment of a friendly witness , if they have to tender any document , it has to come through another witness, the petitioner had made wrong choice.
Ruling on the matter, justice Gunmi disallowed the moves by the petitioners to compel the witness to tender further document or keep him any longer as witness as they have declared him as a hostile witness.
“The petitioners shot themselves in the foot by choosing to ask the court to declare the witness as a hostile witness. The witness is hereby discharged”, Justice Gunmi said.
The matter between the petitioners, Chief Great Ogboru/ Labour Party, LP and the respondents, Governor Ifeanyi Okowa, The Peoples Dempcratic Party, PDP and the Independent National Electoral Commission, INEC, was then adjourned to Monday September 7, 2015 for further hearing.