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Delta Guber Polls: TRIBUNAL UPHOLDS OBJECTION TO ATTEMPT BY OGBORU’S LAWYER TO REPAIR INCONSISTENT WITNESS EVIDENCE, AS PDP, INEC LAWYERS ESTABLISH ELECTION FACTS, CONDUCT IN DISPUTED AREAS

David Diai

 

okoogboThe seeming expose of contradictions, inconsistencies and outright ignorance of election rules and guidelines by the Labour Party and its gubernatorial candidate, Chief Great Ogboru’s witnesses, continued on Wednesday September 8, 2015, as Counsel to Governor Okowa, the Peoples Democratic Party, PDP and INEC, further intensified cross examination of the witnesses at the resumed sitting of the three-man election petition panel of the Delta State Governorship Election Petition, sitting in Asaba, the Delta State capital.

Indeed, the Justice Nasiru Gunmi led election tribunal was compelled to intervene, when it rightly overruled Counsel to Chief Ogboru/Labour Party, LP, Chief Dele Adesina, SAN, in an argument which he instigated, to challenge the obvious contradiction and ambiguity between witness testimony in open court and his sworn deposition before the court as his evidence in chief, established by the rigourous and professional cross examination of the respondents counsel, Chief Ken Mozia, SAN, for Okowa, Chief Dele Adesina, SAN, for PDP and O. Anumonye Esquire, who was lead cousel of the day for INEC, respectively.

The day had commenced with the Petitioners counsel, Dele Adesina, SAN tendering Forms EC8D and EC8E which are the Certified True Copies of the Summary of collation of results from the Delta State Governorship elections, 2015 and the Declaration of the results of the April 11, 2015 Governorship election results, respectively, which were adopted by the tribunal as exhibits, without any objections from the respondents.

The drama of the day was however set in motion, when the first of the marathon witnesses called for the day, Mr. Uto Andrew, from Patani, was sworn-in and had his witness statement and deposition adopted as his evidence-in-chief, Dele Adesina, SAN.

Under cross examination by respondents counsel, Ken Mozia, for Okowa, Chief Dele Adesina, SAN, for PDP and O. Anumonye Esquire, Mr. Uto Andrew, simply referred him to Paragraph of his own witness statement and deposition on oath and on the strength of that paragraph completely discredited his testimony in open court.

While confirming that he was not accredited by INEC to function as either Ward or Polling Unit Agent in his Ward 9 Unit 5, that he was accredited to vote in the elections and that the Labour Party had Polling Unit and Ward collation agents in all the Wards and Polling Units, the witness however reeled out what the respondents counsel established as a host of unsubstantiated information under cross examination, which they then proceeded to employ as strategic cross examination weapons to discredit him, even while at the same time ensuring that no new matter outside his own evidence-in-chief was introduced in the course of the cross examination.

His claims that he was authorised by the Labour Party as the Supervisor/Ward agent of Ward 9, Unit 5 was debunked when he failed to produce the letter or documentation to corroborate the claim, which he said he left at home. Then he claimed that there were no results from Ward 9, even when he was told by the respondents that according to the petition, the only results cancelled in Patani, were that of Ward 9, Unit 5, his own unit, to which he expressed huge surprise.

His claim also that there was no accreditation or voting in Ward 9, as well as well as other assertions that there were no election materials nor was there any voting were equally debunked and his witness statement was beginning to sound strange to his testimony, as virtually all his claims either contradicted his witness deposition under oath which is his evidence in chief before the court, or raised ambiguities on his real role in the elections as well as the overall conduct of the April 11, 2015 Delta state governorship elections proper.

This prompted his counsel, the ebullient Dele Adesina, SAN, under re-examination, to boldly and eloquently call for arguments and an outright ruling by the tribunal on what exactly should be done under cross examination and re-examination, asserting, amongst points that while cross examination is meant to challenge the witness deposition on oath, re-examination on the other hand should engage in clearing up ambiguities and contradictions raised in witness testimony during cross examination.

Invoking the case of Ayorinde VS Sogunro, cited in S.T Hon’s Law of Evidence in Nigeria, Adesina posited authoritatively that the even the concept of ambiguity was not specifically mentioned in but was an importation into section 215/3 of the Evidence Act and thus was not even applicable in the contest of the cross examination.

In his own argument, Chief Ken Mozia, SAN, while anchoring his argument on the pillar of Section 215 sub-section 3 of the Evidence Act, averred that, while there was no reference to the witness statement on deposition, except to discredit the claims in Paragraph 5 and there were no contradictions or ambiguities in the witness answers under cross examination, to warrant an argument or re-examination, the purpose of cross examination was to contradict the witness statement, test his veracity and establish that he is manifestly unreliable and not a witness of truth in relation to his evidence-in-chief.

“If every time you trip a witness on cross examination, he goes for re-examination, then there is no need for cross examination. I urge the tribunal to disallow this attempt to white wash the witness who has been tainted under the cross fire of cross examination. He should be allowed to retain his tag of taint and be discharged accordingly as he has been properly cross examined”, he said.

Arguing in the same vein, Chief A.T Kehinde, SAN said that the testimony of Mr. Uto Andrew was contradictory and fundamentally irreconcilable on the issue of accreditation, which are completely at variance with his deposition on oath as contained in Paragraph 5of his witness statement and even confirmed, after several promptings on cross examination, asking him if he wanted to change his deposition, that he would stand by his statement on oath.

Kehinde said, “The evergreen principle of Law is that the address of counsel, no matter how brilliant, eloquent and convincing it is, cannot take the place of evidence before the court. There is no ambiguity in the witness testimony on cross examination and there is nothing requiring explanation on the cross examination, whose purpose is to discredit the witness and prove inconsistency in his case.”

And citing the cases of Olomosola VS Oloriawo and ACMES vs First Bank, Kehinde, while telling the tribunal categorically that there is nothing to be cleared by re-examination, concluded thus: “It is too late in the day for any attempt to be made to change the character of the evidence before your Lordships. The material contradictions in the evidence of the witness and his testimony on cross examination, cannot be elevated to the status of ambiguity”

Giving their ruling, the justice Nasiru Gunmi led three man tribunal panel said that having carefully considered the arguments of the respective counsel vis-a-vis section 215/3 of the evidence act, they agreed that the question posed by Dele Adesina on the issue of ambiguity and contradiction does not arise and while affirming the position that the witness has raised fundamental reasons for contradiction with his testimony as against what was contained in his evidence-in-chief, equally disagreed with the application and overruled Dele Adesina on his attempt to repair the damage and whitewash his witness, who had, it seemed, been thoroughly discredited under the cross examination of the respondents.

The ruling which appeared to be a strategic affirmation of the efforts of the respondents strategy to discredit all the petitioners witnesses, was to gain greater relevance in the course of the cross examinations of the remaining witnesses of the day as the same set of questions and consistent effort to cause witness to fall into the trap of inconsistencies with their evidence-in-chief under cross examination.

They also attempted at the same time, to establish through the same witnesses, that elections not only held on April 11, 2015, but were conducted in full compliance with the guidelines and regulations stipulated for the process and that the incidences of alleged malpractices by persons associated with the respondents, were at best fabrications formulated by the witnesses to justify both their unauthorized presence at the election venues and the failure or limitations of some of them to properly interpret and understand the rules, guideline s and processes governing the election.

Roland Okorodudu from Ugborodo, in Warri South West LGA, affirmed amongst points, that he did not know what a SUPERAC meant, could not read and write and so had to rely on his educated brother and his lawyers to prepare his deposition and that he did not even know the exact location of the court where his witness statement was prepared.

Isioma Abadum from West End, Oshimili South LGA, who registered and voted at AGGS Asaba, yet claimed to be a collation officer appointed by the Labour party at Uzoigwe Primary school also confirmed that she moved around freely in violation of the restriction of movement directive by INEC, as the Labour Party provided vehicles for them to move from one place to another, and her only claim to justify election malpractice by alleged “PDP thugs”, was when she “peeped through the window of the classroom to see them stuffing ballot boxes with previously thumb printed ballot papers”, even though there was nowhere in her witness statement on oath where she stated that the ballot boxes had been moved from the polling units to classrooms

Friday Okpoko, who pleaded to speak in his native Itsekiri dialect since he could not speak English very well, but was quickly cautioned that this was not a native court, and later allowed to give his further testimony on cross examination in the more comfortable pidgin English, first claimed that he had learnt of the alleged malpractices committed by supposed “PDP thugs”, through ‘rumours’, only for him to quickly rescind the claim after some vocal protestation by Dele Adesina, to affirm, that it had been through “murmurings in the voting area and phone calls from other agents.

Evans Daddy from Warri South West LGA, claimed that he had been at the ward headquarters from 7.15 am – 6pm on election day and only discovered that ballot boxes had been snatched after 6pm, did know that the elections took place in his ward because he did not see any materials and was highly surprised that the petitioners, whom he had come to court on their behalf, had categorically mentioned in their petition that elections actually took place.

Chiedu Osakwe, from Ubulu Uku, the last witness of the day, who claimed that all the polling units had not been located in the same vicinity but he had been simultaneously present in 12 out of the 14 polling units in ubulu-uku, to witness what he referred to as “improper accreditation” in his witness statement on oath, between the hours of 10am and 12noon, even when confirmed that he himself had been properly verified by the card reader, his PVC authenticated and his accreditation completed with his identity confirmed and ticked on the voters register before going to vote, and had even denied knowledge of a certain Francisca Osakwe, who was said to be his own sister and the accredited Ward agent of the Labour Party on election day in his Ubulu-uku Ward.

In all, the Labour Party and Chief Ogboru had called 14 witnesses so far and all the witnesses confirmed that, while their party had ward and polling unit agents in all the elections  centres they had however forgotten the names of these agents, even as they affirmed that there had been officially accredited Polling unit agents and Ward collation agents and all the registered political parties for the elections had their agents presents in all the Wards and polling units, where they had participated in the elections.

They also confirmed that they knew and lived in the same neigbourhoods with alleged “PDP Thugs” who committed the purported election malpractices and though they either did not know their names or were afraid to mention them in their witness deposition for fear of reprisal attacks, could however identify them if they see them in public places.

Dele Adesina, SAN had to call a halt to the marathon witness appearance on the grounds that he had no further witnesses for the day, thus paving way for the three-man election tribunal panel to adjourn further hearing on his petition to the next day, September 10, 2015.

 

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