Dr. Alex Iziyon, SAN, had promised that he was going to spring a surprise when he opens his defense on Monday, September 14, 2015, against the petition filed by the All Progressive Congress, APC and its gubernatorial candidate, Olorogun O’tega Emerhor, challenging the declaration of his client, Senator Ifeanyi Okowa as the governor of Delta State, by the Independent National Electoral Commission, INEC, after the April 11, 2015 Governorship elections in the state.
And that was exactly what he did as lead counsel to the respondent in the Delta State Election petitions hearing, in Asaba Delta State, when he called out his first witness; G.U 7.
The packed tribunal court room and all the respective counsels, with arguably the exception of the respondents counsel, was thrown into confused uncertainty and the curiosity and expectations reached high levels when a bulky fellow, dressed in a loose shirt and baggy jeans walked confidently into the witness box and took his position inside to be sworn-in.
If Dr. Iziyon’s intention was to wrong foot the petitioners from the onset then he achieved it completely as Chief Thomson Okpoko, SAN and his entire legal team were suddenly thrown into a legal muddle over this very novel and unexpected yet perfectly legitimate legal manouvre as was to be revealed in the course of the day’s proceedings.
Dr. Iziyion, with a wry smile on his wizened face, watched as the witness, whose real names; Ikechukwu Akozor, from Aboh in Ndokwa East LGA, of Delta State, was sworn to oath as the first Respondents First Witness to open his case.
But just before Iziyon could lead him to adopt his witness deposition, Chief Okpoko, SAN, expectedly struck the much anticipated first punch by rising in swift objection to the authenticity of the witness to testify in the trial, arguing that G.U 7 was not a human being, did not refer to anybody in the witness deposition but only on the witness list and most importantly, that it was only the petitioners and not the respondents, who had authority to file a witness list.
Grounding his argument on the specific paragraphs in the Electoral Act, section 117 of the Evidence Act and the Election Tribunal and Practice Directives, 2011, Chief Okpoko averred that there was nowhere in the statute books where reference was made to using figures or initials to represent witness and, while describing the move by the first respondent as an attempt to rewrite the practice directives, said that since the witness did not state in his witness deposition that he was not going to use his name but adopt another name, the court should expunge him from the witness list.
But Dr. Iziyon was ready for the objection and he countered thus: “I am confounded by this argument. It has no basis in law and is a gross misconception. If it is only the petitioner and not the respondents that can call witnesses then the interest of justice will not be served and that will be standing the law on its head. It is illogical and an affront to logic. It is contradictory and bizarre. What is good for the goose is also good for the gander My lords,” he said.
Consolidating his argument on specific paragraphs of the election Tribunal guidelines and citing the Supreme Court matter of Abubakar vs Yar’adua, 2008, in which he and Damien Dodo, SAN, lead counsel to INEC in this matter were also involved, Iziyon told the tribunal that the law had already settled the issue of opting to use alphabets or symbols instead of real names, and it was to safeguard the identity of witnesses and protect them from attack by opposition parties, especially given the volatile nature of Nigerians in the matter of party politics, propelled by their do or die attitude.
In his own submission, Chief A.T Kehinde, lead counsel to the PDP, first took issue with the interjection of Chief Okpoko challenging his right to contribute in the first respondent’s case, by emphasizing to the elder Senior advocate that, as a lead counsel to the 2nd respondent, he was also a party to the case, after which he challenged Chief Okpoko to do the proper thing and file an application to strike him and the PDP out of the case if he was so aggrieved.
Chief Okpoko declined the challenge and Kehinde proceeded to hinge his case on Saleh vs Abdul, 2011, pointing out that the intendment of the law was to ensure that witnesses were not attacked, harassed or even kidnapped. “This witness could have been kidnapped my lords, yes kidnapped”, he said with great passion.
Damien Dodo, SAN, capped up the argument of the respondents and referring to a Justice Tanko ruling in the Supreme Court, told the tribunal that the matter of using alphabets and symbols had already been long settled by the Supreme Court.
Dodo said: “If not that it is Chief Okpoko, I would have asked my lords to dismiss the objection out rightly and issue costs. But with great respect to Chief Okpoko, who is our father and teacher in law, I urge you respectfully to dismiss this objection so that we can move on with this witness. We have another case this afternoon my lords.”
Giving their consolidated ruling, the Justice Nasiru Gunmi led three-man election tribunal panel, basing its decision on the relevant section of the Election Tribunal and Practice Directions as well as the cited cases of Saleh vs Hashidu and Abubakar vs Yardua, noted that the intendment of the law was to grant parties the opportunity of protecting their witnesses, even as they added that restriction of witnesses would not be fair in the quest of providing justice.
“The objection of the petitioners counsel is without merit and therefore dismissed and the witness statement on oath is hereby admitted”, the Tribunal panel ruled.
This ruling paved the way for the cross examination of Mr. Akozor, who
Having tendered his documents and affirmed his deposition on oath, confirmed that he was the PDP Ward collation agent for his ward, agreed that other political parties also had their agents on ground and stressed that there were no disturbances or protests after the election, even though he was quick to submit that the All Progressive Congress, APC, agent had walked away after the elections and thus did not sign the results at the ward collation headquarters.
He equally agreed under cross examination that all electoral processes were followed, from the Card reader/manual register accreditation, to voting and eventual collation of results and no one tampered with the process to the best of his knowledge, adding that the security agents provided adequate security for the process at the collation centre and that the results so tendered before the court is a correct5 reflection of what is contained in Form EC8C.
The second witness of the day was Mr. Festus Ovie Agas, the Delta State Secretary to the State Government who, under examination, by Okowa’s counsel, Mr. Alex Izyon (SAN), told the tribunal that from the election results from INEC records, that Okowa scored the highest votes cast during the election to emerge the winner at polls in the state.
Agas said PDP victory in the governorship election did not come as a surprise because PDP has always won its elections in the state as the state is a PDP controlled state since 1999 to date, affirming that it was a continuation of a pattern of victory in Delta state politics
He further stated that the victory of Okowa at the polls is a further confirmation of PDP dominance in Delta state political space, as PDP won 23 seats out of the 29 seats of the state House of Assembly.
He told the tribunal that he casted his vote as a good citizen during the elections at Oteri town, in unit 1 of ward 2/6 of Ughelli North local government area. He said most of the political parties had their agents in the polling units where he followed the due process of INEC accreditation which culminated into his voting in the presence of all security agents deployed to man election
He also told the tribunal that although, the card reader did not fail while he was been accredited to vote but that there were few instances where the card reader failed and the INEC officials were instructed by their superiors to resort to the use of manual accreditations through the use of the voters register, adding that PDP also won overwhelmingly in the Presidential election in the state.
He was however unsettled, when Chief Okpoko, SAN, during his own cross examination sought to establish the reason for the discrepancy in the total votes with which Governor Okowa won the election, was higher than the total accredited votes for the elections, as reflected in the INEC records.
The Justice Nasiru Gunmi led three-man election tribunal panel then adjourned sitting to the next day, September 15, 2015.