“It is not the number of witnesses you call to give evidence that determines your case but how well you plan your strategy in line with what you are trying to achieve in your case. Our intention was to call only one witness since we felt that there was no need to continue to repeat what has already been established and as you can see, our strategy worked perfectly. We are satisfied with our case.”
Those were the sentiments expressed by Chief K.D Mozia, SAN, lead counsel of the day to Governor Ifeanyi Okowa, First Respondent, as he opened and subsequently closed his defense, with only one witness, against the petition filed by the Labour Party, LP and its Governorship candidate, Chief Great Ogboru, Challenging the declaration of Senator Ifeanyi Okowa, as the winner of the April 11 Delta state governorship election, by the Independent National Electoral Commission, INEC.
The star witness in question was Mercy Ekhihametalo, an INEC Asaba Staff in the ICT Department and a familiar face from an earlier defense by the First Respondent against the All Progressive Congress, APC and its gubernatorial candidate, Olorogun O’tega Emerhor.
After her witness statement on oath was adopted as her evidence-in-chief, Ken Mozia Esquire tendered two crucial documents before the court for adoption as affidavits. The first was the results of the uploaded data from the Card Readers as at April 16, 2015 and the second was the pending, un-uploaded results from the Card Readers as at April 16, 2015. Both documents were accompanied by the requisite certification from INEC, as required for such public documents tendered in evidence before the court.
In raising an objection to the documents being tendered, Robert Emukperuo Esquire, lead counsel for the day to the petitioners, Labour Party, LP and Chief Great Ogboru, told the court that both documents were neither pleaded nor listed and basing his argument on his interpretation of First Schedule of the Electoral Act, Section 12/3, he told the tribunal that it was mandatory for the First Respondent to file copies of the documentary evidence along with his reply to the petition.
Arguing further, Emukperuo, citing the Supreme Court case of ACN vs Lamido, 2012, posited that a document must be mandatorily pleaded to guarantee its admissibility and INEC, as 3rd Respondent, did not plead or list the reports, rather it only pleaded correspondences which are not the same thing as specifically pleading the reports.
But Ken Mozia, SAN, responded quickly and swiftly, by first telling the tribunal that the objection was misconceived and taking on the argument on pleadings averred that there was sufficient pleadings in the First Respondent’s reply to the petition, since it was clearly stated that they would rely on accreditation related to Card Reader results of Polling Units by Polling Units, which in any case was the basis on which the petitioners case was anchored on.
Accordingly, Mozia argued that any document by INEC tending to either prove or disprove the number of voters in the April 11, 2015 governorship election was relevant to the matter and relying on Section 4 of the Evidence Act as amended, governing admissibility, he posited that the document need not be specifically pleaded, adding that anything that would assist the tribunal to establish over-voting or otherwise in relation to the Card Reader results was relevant.
Mozia, who further averred that a party is at liberty to place reliance on the pleadings of any party relevant to the facts in issue, cited Ogboru vs Uduaghan, 2011 where the Court of Appeal ruled that once a public document is certified, it automatically becomes admissible in the interest of justice.
In giving their ruling, the three-man tribunal panel led by Justice Nasiru Gunmi said in summary that there were sufficient facts in the argument of the First Respondent to support the documents. The tribunal thus overruled the objection of the petitioners and admitted the documents as numbered exhibits for the trial.
Chief A.T Kehinde, SAN, counsel to the Peoples Democratic Party, PDP, in the cross examination of Mercy Ekhihametalo that followed, established through her that card readers were deployed to all the voting points in every polling unit and that while the card reader was deployed for verification of the PVC and authentication of the voter, the final accreditation was done on the manual register, where the voter, having crossed the first two stages, would now be ticked on the voter manuel voter register and accredited to vote, adding that all the data from the card readers in all the voting points must be fully uploaded for the data from that polling unit to be complete.
She also told the tribunal that the nil entries recorded in the first Card Reader report did not mean that there was no voting in the area but rather that the data from the card reader in those polling units had not been uploaded to the server as at the time the document was printed out and this could have been as a result of the minor challenges like network issues at the polling centres that affected the upload, adding that while there were no more uploads after April 16, the total percentage figure of 67.7% of Card Reader votes provided by INEC was not the complete results from all the card readers used for the elections.
She equally admitted that her experience with card readers was not just limited to her election monitoring in Isko North LGA but that she had been sent on training by the Saba office to Abuja where she and other staff had been trained on the use and operations of Card Readers and she had in turn returned to Asaba to train other INEC Staff and stakeholders in the state including women and youths, as well as Moslem, Christian and other religious stakeholders, even as she stressed the point that the training had only been on the use of card reader and not on its uploading, adding that none of the political party officials had tampered with the card readers before, during and after the elections.
In his own cross examination, M. Nasiru Esquire, who was INEC lead counsel of the day established through Mercy Ekhikhametalo that 32.3% of all the data from the card readers were not uploaded as at the time the final report of the card reader results came in from Abuja and while affirming that the information from card readers will not get to the main data base in Abuja if not uploaded, informed the tribunal that the main server in Abuja had been shut down for upgrade and maintenance before the final shut down, when it was noticed that card reader reports were not getting to the server as a result of network issues.
Robert Emukperuo Esquire, lead counsel to the petitioner tried to establish, in his own cross examination, that more card reader data was uploaded after April 16, contrary to Ekhikametalo’s deposition, but met a brick-wall when she replied that the percentage figure of 67.7% was the last figure received from INEC Abuja. He then tried to establish some discrepancies in the results from Aniocha North Ward 1, Obior, to show that while the first card reader report had nil entries, the second had figures in the columns, to which she answered that the report was incomplete since INEC printed two forms, one coloured and one black and white for the elections and both forms needed to be present for her to give a complete answer to the question.
There was however a mild drama when Emukperuo tried to cross examine her on results from Burutu LGA, which he said recorded no single accreditation by the manual register, but the court clerks could not locate the results on time which led to what Justice Gunmi referred to as an ‘Evidence break’ to enable the court clerks locate the documents, which he said had been kept in a secret place for safety due to their sensitive nature.
Emukperuo’s attempt to continue with that line of cross examination, on resumption from the adjournment, and after the documents had been located and presented to the witness for cross examination, was immediately opposed by Mozia, who drew the attention of the tribunal to the fact that while the witness was not the maker of the document, she could not also be made to give evidence on a document she had neither tendered nor adopted in her deposition on oath, adding that there was no nexus between the witness and the document as the petitioners themselves had only anchored their argument on the Card Reader results not the manual register.
The tribunal judges, in their ruling, noted that the document was certified and was issued by INEC, thus making it a public document and as such was factual and relevant to the case, so the objection was overruled in favour of the petitioners. Further attempts by Emukperuo to pigeon-hole her into a definite answer on the Burutu results were stonewalled by the witness and he was eventually cut short as the tribunal judges called time on his cross examination, which effectively brought an end to his efforts to try and consolidate on the petition.
However, a new window of opportunity opened for the petitioners during re-examination by the First respondent, when Emukperuo Esquire opposed Ken Mozia, SAN, as he tried to establish the nature of the data in the Card Reader in relation to an annulled election, by positing that the question was irrelevant since the nullification of an election means that the results would be annulled as well, even as Mozia had argued that he only wanted to establish whether the data in the card reader would be wiped away if the election was annulled.
After listening to the arguments, the tribunal overruled the objection and affirmed that the question was relevant and in answering the question, Mercy Ekhihametalo told the tribunal that the cancellation of an election will not affect the data in the card reader, affirming that whether the elections was annulled or not, the data in the card will still be intact and will not be nullified despite the election nullification.
It was on this note that Ken Mozia Esquire shocked the packed tribunal court room by announcing that he was closing his defense for the First respondent, Governor Ifeanyi Okowa, in response to the petition filed by the Labour Party and its gubernatorial candidate, Chief Great Ovedje Ogboru, challenging Okowa’s declaration by INEC, as the winner of the April 11, 2015, Delta State Governorship elections.
The petitioners, who were still in the legal war mood to continue, were left flat footed and the suggestion by Three-man Tribunal to A.T Kehinde, SAN, lead counsel to PDP, to consider the commencement of his own defense against the Labour Party and Chief Ogboru, was quickly echoed by Robert Emukperuo Esquire, but the wily Kehinde simply laughed off the veiled ploy by telling the Tribunal that he was simply not ready.
Kehinde further informed the Tribunal that decision of the First Respondent to close his case so suddenly with more than five days to spare and the fact that he was opening his defense against the APC on Tuesday, coupled with the celebrations of the Sallah holidays just around the corner, the earliest he could open his defense with the Labour Party was September 30, 2015.
The Justice Nasiru Gunmi led three-man election petition tribunal panel, having listened and got the consent of all the parties, including A.T Kehinde’s pledge that His intention was to open and close his defense in one day, subsequently adjourned hearing to Wednesday September 30, 2015.
Mixed reactions greeted the unexpected early closing of his defense by the First respondent Governor Ifeanyi Okowa, as opinions varied over the import of the move, even as both sides held firmly to their positions that they had delivered satisfactorily on their cases.
Robert Emukperuo Esquire, counsel to Labour Party/Chief Ogboru, even though surprised that the First Respondent closed his case unexpectedly and without calling further witnesses, was however very confident that they had proved their case of over voting in the April 11, 2015 Delta state governorship elections successfully.
“I don’t know why they decided to close their case without calling any more witnesses but I can assure you that we have proved our case of over voting satisfactorily. You can see from the way the witness was hesitating to answer the question on the voter register that we had a very strong case and we are happy that the tribunal judges compelled her to answer the question.
“All we wanted to do was to tell Deltans and the world, what really happened during the governorship elections in Delta State and we are pleased that we have established cases of over voting. We will now go and prepare our final address and await the judgment, but I can assure you that we are satisfied with the way the tribunal has handled the matter so far,” Emukperuo said confidently.
Ken Mozia, SAN had earlier expressed the sentiments of the First R espondent on the perfection of their strategy to call only one witness and the same feeling of confidence was expressed by Governor Ifeanyi Okowa’s legal team coordinated by Peter Mrakpor Esquire, as they noted that they were satisfied with the way they have defended the petition challenging the victory of Senator Okowa at the April 11, 2015 governorship polls, having established with some success that elections indeed held and that the card reader, given its challenges in the election and especially in relation to its role alongside the provisions of the electoral act, remains a relevant issue in the determination of the election results of 2015 general elections, as have been successfully argued in some election tribunals that have already given judgment.
Chief Cassidy Iloba, a frontline Anioma politician in Asaba and former chairman of the Police Community Relations Committee, PCRC, who has been a very visible presence at the tribunal sittings, noted that the Okowa legal team has done a good job and was confident of victory, even as he chided those spreading false information about tribunal proceedings as those who never attend sittings.
“I want to commend the Okowa legal team for a job well done in their defense against O’tega Emerhor and Chief Great Ogboru’s petitions. I am satisfied with the way they handled the matter and even the way the tribunal judges have been fair to all parties, in their rulings on points or law and arguments.
But I want to use this medium to caution those already passing their own judgment of what will happen in the tribunal at the end of the day. These are people who have never even been in court for one day to see and hear how the matter is going yet they already know what the outcome will be. They should stop spreading falsehood and let justice take its course. My advice to all is that we should give Governor Okowa a chance. He has already started on a good note so let’s join hands with him to move Delta State to the next level.” Ogbueshi Cassidy said.