There is a saying that a Leopard cannot change its spots and this adage certainly applies to Mr. Turner Ogboru, whose witness testimony as a star petitioners witness could not be conducted following a lengthy, often heated and very robust argument by opposing counsels whether or not to tender documents in respect of the petition filed by the Labour Party (LP) and its gubernatorial candidate, Chief Great Ogboru challenging the election victory of Senator Dr. Ifeanyi Okowa at the April 11, 2015 governorship election, as declared by INEC.
A full day of drama at the resumed hearing of the Delta State Governorship Election Petition Tribunal sitting in Asaba, on September 10, 2015, was fittingly completed when an agitated Mr. Turner Ogboru visibly but tactfully disagreed with his own counsel, Dele Adesina, SAN and compelled him to take a position, on a critical legal point which was predicated on the decision as to whether the tribunal should delivered a deferred ruling, or not.
The day’s sitting had commenced with the introduction of Mr. Turner Ogboru and adoption of his deposition on oath by his counsel, Dele Adesina, SAN, but the drama of the day started, when counsel of the day to INEC, O. Anumonye, quickly raised an observation on record, that Turner had sat through and observed the previous testimony and cross examination of several witnesses and thus was not eligible to testify as witness in the trial.
A verbal altercation quickly ensued when Adesina, SAN informed the court that Ogboru had only been in court on the day when Petitioners witness 2, (PW2), the ‘hostile’ witness was giving testimony and while accusing Anumonye of ‘giving evidence from the bar’ conveyed a veiled half humourous threat that he would not ‘like to cross- examine my learned friend by asking him to enter the witness dock’.
But Ken Mozia, SAN, counsel to Governor Ifeanyi Okowa, rose to the defense of his junior colleague and fellow respondent counsel by telling Adesina that his own submission was also akin to giving evidence from the bar and Turner had sat through the witness examination of several witnesses.
In his own response, Mr. Turner Ogboru, said that he had only been in court on the said day and even at that, the witness had eventually turned ‘hostile’ and become the respondents witness, so he did not even do any wrong by sitting through his testimony.
The tribunal noted the observation, but it was after Turner Ogboru had adopted his two witness statements on oath and his counsel Dele Adesina, SAN had gone to great lengths to specify the exact sections of the petition and the witness deposition where the documents, particularly the voters register for the April 2015 Delta State Governorship elections, had been pleaded and listed that the real drama and legal fireworks began.
Ken Mozia, SAN, raised the first objection of the day with the following statement, “When a lawyer cites too many paragraphs in order to establish a case you know he is trying very hard to make a point, but my Lords, there is no paragraph in the petition where voters register was mentioned specifically. It was not listed in the main petition and it cannot be a hydra headed document.”
Arguing further, Mozia said, “The fundamental necessity of pleading has not been met. Pleading is the petition itself. The document sought to be tendered is not pleaded in the petition and i submit that its inclusion in a list of documents to be relied upon is not tantamount to pleading in the petition. This is the foundational and fundamental principle of pleading”.
Mozia equally averred that the list of documents to be relied is a separate process that should accompany a petition, as stated clearly in the first schedule of the Evidence Act, but if however the petitioners counsel insisted that the paragraph 19, which he is basing his argument on, is part of the petition and not the list contemplated by paragraph 4 sub section 5 of the petition, then the document has not been listed, adding that the Tribunal had previously given ruling on a similar application in the trial, which should also be upheld in this instance.
In his own argument, the impressive O. Anumonye, lead counsel of the day to INEC, said that the facts which would facilitate admissibility of the document had not been pleaded and none of the paragraphs listed by the petitioners counsel constitute pleading on the manual register, adding that while there was no doubt that the petitioners were of the fact that INEC had both the manual and electronic registers, it is however a trite rule in law that pleadings must respond to particulars and the pleadings upon which support has been sought by the petitioners, with particular reference to paragraph 16cc, does not specifically mention manual register.
Anumonye, who further argued that there were still pending applications challenging that part of the petition on the grounds that it does not form part of the petition, the paragraphs the petitioners have referred to in the respondents reply to the witness statement on oath, is equally in contention as it tended to introduce new issues which particulars are not available to the respondents.
Anumonye said, “The Manual register was not pleaded anywhere. The list of documents which they have filed does not list manual register but simply said INEC list of registered voters, which could be manual or electronic, and having not put the respondents on notice on the kind of register they intend to rely on”.
The INEC counsel of the day noted further that since 60-70% of the petition relied on the electronic register, it presupposes that the petitioners intended to rely on the electronic register not manual and, citing the exact paragraph in the petition where electronic register was specifically mentioned, averred that allowing the introduction of the manual register, would take the respondents by surprise as nowhere was manual register mentioned in the petition.
Responding, the petitioners counsel Chief Dele Adesina, SAN, reminded the respondents that while the document sought to be tendered is the INEC voters register and 60-70% of their case is based on the electronic register, it presupposes that the remaining 30% of their case is based on the manual register, which they had every right to rely on and intend to give evidence on since it is also an INEC document.
Adesina said, “For the avoidance of doubt, none of the respondents objected to the relevance of the relevance of the document in their replies, which underscores the its importance so the narrow issue of pleading of the document does not arise in this instance”
Relying on the Evidence Act and citing Uduma VS Arunsi to buttress his argument, Adesina said he was ‘submitting vehemently’ that what determines the admissibility of a document is if it is relevant to the case and contrary to the submission of Anumonye, the document sought to be tendered was adequately pleaded by both the petitioners, 1st respondents and 2nd respondents, on the grounds that a reply to a reply is pleading.
But Mozia quickly countered and citing Hashidu vs Goje in “Election Petition Reports”, told the Tribunal that election petition matters were, amongst things, sui generis and a petition cannot rely on a document pleaded by a respondent, which if admitted will amend the grounds on which the petition was founded.
“In law, the deposition of a document is not a matter to be presumed and a party cannot be allowed to refer to a document which he has not pleaded. A document cannot become admissible on the grounds of relevance if the fundamental necessity for pleading is not met”
The very robust and intense legal brick bats and fireworks between the opposing counsels prompted the presiding Judge, Justice Nasiru Gunmi to adjourn briefly to enable him give a ruling on the matter, as they resumed sitting after about thirty minutes of adjournment and were in the process of informing the counsels that they would have to further take another adjournment till next week following the failing health condition of one of the tribunal members and indeed to reference the authorities cited in the arguments in greater detail, the atmosphere in the electrified and a buzz of excitement ran through the court, as Dr. Alex Iziyon, SAN, lead counsel to Governor Okowa and and Damien Dodo, SAN, his INEC counterpart breezed into the tribunal room and dramatically altered the course of the tribunal proceedings.
Iziyon and Dodo, upon entering into the court room, immediately assumed their positions as lead counsels, and after due consultations with Mozia and Anumonye, quickly informed the tribunal and the petitioners counsel that they were going to withdraw their objection challenging the motion to tender electoral documents by the petitioners.
Iziyon and John Okoriko Esquire, who stood in for A.T Kehinde, SAN, as PDP lead counsel of the day, told the court that they were prepared to allow the documents be tendered and adopted as that will not prevent an objection to be raised subsequently and if the need arose, adding that they also reserved the right to raise their objection in their final addresses.The petitioners counsel, Dele Adesina, SAN, initially aligned with the position of the respondent to withdraw the application, but suspicious of a hidden booby trap in the sudden decision of the respondents to withdraw the objection, after such an intense debate, pending ruling, suddenly made a u-turn and asked the court to give a ruling on the matter as both parties have extensively engaged themselves in legal arguments on the issue.
All entreaties to withdraw the objection were rebuffed by the adamant Adesina, who perhaps sensing that a major psychological victory would be achieved with a favourable ruling, stuck with the decision for a ruling, and with that rigid position, incurred the anger of Damien Dodo, SAN who rose up angrily and stated categorically that, “If they want a ruling then give them a ruling my Lords. We are not afraid of a ruling”.
However, sensing the danger of Adesina’s submission, the witness, Turner Ogboru, became restless and agitated and as he fidgeted in the witness box, trying without success to communicate and to his counsel (Adesina) through aggressive gesturing, the audience in the court room, noticing his hilarious predicament burst into a round of laughter.
Ogboru, oblivious of the laughter and unable to control his emotions any longer over Adesina’s apparent lack of understanding, and the legal implications of allowing the respondent have their way, suddenly stood up from the witness box and in the process deliberately or inadvertently pushed down the bulky envelope of documents, which had actually started all the arguments, in the first instance.
This action apparently attracted Adesina’s attention and brought a much needed reprieve to the agonies of Turner Ogboru, who gestured to his counsel vehemently, but still Adesina had to consult with the other members of his legal team, before acceding to Ogboru’s request and concurring with the respondents decision.
“We have no objection to the application of the respondents to withdraw the application challenging the admissibility of the documents in view of the prevailing circumstances to ensure speedy trail,” Adesina told the tribunal Judges.
It was now left for the respondents counsels of the day, Ken Mozia, SAN for Okowa and O. Anumonye Esquire, INEC, to formally withdraw their objection, after which Tribunal Chairman, Justice Nasiru Gunmi, having instructed counsels to make themselves available on Saturday, September 12, for the joint sorting and numbering of the tendered election documents for subsequent adoption and marking of exhibits, baring other unforeseen circumstance or argument, adjourned further hearing on the matter to Monday September 14, 2015, for the continuation of trail.
The Respondents, Governor Ifeanyi Okowa, Peoples Democratic Party, PDP and the Independent National Electoral Commission, INEC are scheduled to open the defense of their case and start calling their witnesses, on Monday, September 14, 2015, in response to the petition filed by the All Progressive Congress, APC and its gubernatorial candidate, Oloroguun O’tega Emerhor, challenging the declaration of Senator Ifeanyi Okowa, PDP, by INEC, as the winner of the April 11 2015 governorship elections in Delta State.