David Diai



okoemeThe Delta State Governorship Election Petition Tribunal sitting in Asaba, on Friday, September 4, 2015, rejected an attempt by the All Progressive Congress (APC) and its gubernatorial candidate in the April 11, governorship election, Olorogun O’tega Emerhor, to tender the election results from the 25 Local Government Areas of Delta State, on the grounds that the document containing the results, were neither pleaded nor listed by the Petitioners and the mere mention of the existence of such a document in the petition is not sufficient to establish the fact that it was specifically pleaded and listed as documents to be tendered for the trial proper.

This ruling was the high point of an eventful day at the resumed sitting of the three-man tribunal panel, led by Justice Nasiru Gunmi, to determine the petition filed by the All Progressive Congress, APC, and its gubernatorial candidate, Olorogun O’tega Emerhor, challenging the declaration of Senator Ifeanyi Okowa, PDP, as the winner of the April 11 Delta State governorship elections, by the Independent National Electoral Commission, INEC.

Sitting had resumed on September 4, at the Governorship Election petition tribunal in Asaba, the Delta State capital, with a mild drama, when the petitioners lead counsel, Chief Thomson Okpoko, SAN, had moved a motion to call an INEC witness to tender the unit by unit election results of the 25 local government areas of the state.

Chief Okopoko was however intercepted before he could commence with the introduction of the witness, by lead counsel of the day to INEC, Mr. O. Anumonye Esquire, who drew the attention of the tribunal to the fact that, the documents sought to be tendered had been in the custody of APC and O’tega Emerhor’s counsels, for over twenty- four hours and as such INEC could not guaranty the authenticity of the documents, since they had not been returned to INEC, who was the original maker and the institution subpoenaed to tender the documents.

He therefore dissociated himself and INEC from the documents and instead sought the leave of the court to disallow the INEC witness from tendering and adopting the said documents on behalf of INEC, seeking rather that the documents should rather be tendered through APC witness from the bar, arguing that the witness was no longer necessary, since the petitioners had already taken possession of the documents he was supposed to tender and the authenticity of the documents could no longer be verified having come to court directly from the petitioners, instead of INEC via its witness.

Anumonye further argued that the petitioners could no longer insist on the subpoena that invited the witness when they had already removed the documents from the premises of INEC.

Lending his voice in the same vein with Anumonye’s position, Chief Ken Mozea, SAN, lead counsel of the day to Governor Okowa argued that what the petitioners had done was akin to raising ‘a red flag’ and a break in the chain of the judicial process caused by the fact that the petitioners took the documents away and were now attempting to represent them as fresh documents.

In his own submission, Chief A.T Kehinde, lead counsel to PDP, sought leave of the tribunal to grant the petitioners a brief adjournment in order for them to certify the documents and tender them from the bar, but not as a fresh document since they had removed the documents from INEC, which is the original maker and owner.

The Justice Nasiru Gunmi led election panel, after a brief adjournment, ruled that the witness should only tender the documents from the bar, after which he was summarily discharged from further participation in the trial, even without a formal introduction.

The second petitioners witness of the day, Ore Ohimor, a legal practitioner and director of Administration and Operations in the O’tega Campaign organization, was introduced by Chief Okpoko, SAN but just as he was about to begin to identify certain documents, was laid into by Chief Ken Mozea, SAN, who described him as a complete stranger to the proceedings.

“A man cannot just walk into the dock and start tendering documents. A witness must first adopt his witness deposition before he begins to identify any documents”, Mozea averred, adding further that, while his objection was based on the inadmissibility of the document and not aimed at the petition or terminating the petition, the earlier ruling of the Tribunal on objections to documents was not interlocutory and so cannot apply in this case, as this particular objection was on the receipt of the witnesses additional statements after his original deposition which accompanied the petition.

Chief Okpoko, SAN, however established amongst other points, that the witness was not a stranger as he already had four depositions before the tribunal, filed in reply to the respondents reply to his original deposition, which accompanied the petition, filed on May 2, 2015. He also argued that the objections of the respondents were belated since they should have raised them earlier and as such should be over-ruled, adding that the objections were misleading and an attempt by the respondents to deliberately delay the proceedings.

This allegation of delay immediately drew the anger of the respondents and led to minor verbal altercation between petitioner and respondents, with Chief Mozea describing the allegation of by the Chief Okpoko of deliberately delaying the proceedings as a demeaning allegation which he took strong exception to as it cast aspersions on his integrity and reputation not only as a member of the inner bar but indeed as a well respected Senior Advocate of Nigeria.

Chief A.T Kehinde was even more piqued by the allegation and, after relying on the fourth schedule of the electoral act, section 285/5 of the constitution and citing the case of Ernest Ndukwe VS Andy Uba, amongst others, as grounds for expressing his objection to every other witness statement on oath by the witness after May 2, when the petition was filed, then went ahead to debunk the smear of the allegation of misleading the Tribunal, by telling the court that not only was he a well respected member of the disciplinary committee of the Judicial Council, Chief Okpoko himself had once led him in a Supreme Court matter, against Damien Dodo, the INEC lead counsel in the Delta State petitioner matter and they had lost that matter in the Supreme Court, so he was unhappy that the same Chief Okpoko, would now turn around and accuse him, Kehinde, of misleading the Tribunal, when the revered elder of the legal profession was in fact his leader and teacher.

The Justice Nasiru Gunmi led tribunal, sensing a rapidly manifesting fraying of nerves on all sides, quickly took a fairly lengthy adjournment for obvious and when they returned after about one hour, ruled that the witness statements had been filed in response to the original statement on oath with the petition and the witness can adopt his other statements on oath because if the objection was sustained then the original statement would be expunged thus affecting the substance of the petition and while recognizing all the authorities cited by the respondents, including Ernest Ndukwe VS Andy Uba, however over-ruled the respondents objections.

The petitioners were to score another victory when, after the petitioners witness, Mr. Ore Ohimor, had tendered the results of the April 11 elections polling Unit by polling unit from the 25 Local Government Areas of the state, as contained in form EC8, the tribunal over-ruled the objections of the respondents that Form EC8 had not been pleaded in the petition.

Another round of arguments ensued soon after Ohimor had tendered the documents, as the respondents counsels randomly objected to the tendering of the unit by unit election result sheets as contained in form EC8 A, as Counsels to Governor Ifeanyi Okowa, PDP and INEC, Chief. Ken Mozea (SAN), Mr. Timothy Kehinde (SAN) and O. Anumonye, respectively, raised the argument that the petitioners counsel, Chief Thomson Okpoko (SAN), was trying to tender electoral documents through the back door, and applying non-legal methods in the prosecution of their case.

In a swift reaction, Ken Mozea (SAN), lead counsel to Governor Ifeanyi Okowa, vehemently opposed the move, arguing that the documents sought to be tendered was not pleaded nor listed in the witness statement on oath, positing that the documents listed in the witness statement on oath are form EC8D and EC8E, which contained the compilation and declaration of results and not form EC8A, which was the final tabulation of the results polling unit by polling unit, adding that any attempt to adopt form EC8A, would amount to subverting due process and obtaining justice through the back door.

Mozea said, “We object to the admissibility of these documents. The fundamental foundational requirements were not met as detailed in paragraph 14 of the witness statement, which stipulated that only forms EC8D and form EC8E were pleaded, in their reply to our reply. It was not pleaded and no reference was made to the document sought to be tendered. Interpretation of documents is a matter of law. Compilation of results is embodied in form EC8D and declaration in Form EC8E. Listing the document will not cure it if it was not accommodated in their pleading.” He then urged the tribunal to reject it.

In his own submission, counsel to PDP, Timothy Kehinde (SAN) pointed out that it is an elementary principles of law to put the parties on notice and not take them by surprise, as the document sought to be tendered must be specifically pleaded, adding that an un-pleaded document cannot be admitted even when the document was mentioned in the witness statement, and that in the instant case. The document was not mentioned in the witness statement on oath and neither was it pleaded. Documents must be specifically pleaded and not by inference.

INEC counsel, O. Anumonye while arguing in the same vein, pointed out that, “The document sought to be tendered by APC and O’tega were not referred in the witness deposition”, adding that, “having pleaded over-voting by tendering forms EC8D and form EC8E, pleading form EC8A will constitute springing a surprise.”

Chief Okopoko, SAN, however argued that none of the respondents can say they were taken by surprise with the tendering of the documents since the documents had been specifically identified and the petitioners had deposed that they would tender and rely on the combined results declared by INEC (3rd respondent), which was the polling unit by polling unit results which have already been listed, adding that he was not concerned with naming the documents specifically since the combined PU by PU results has already been listed.

Delivering a consolidated ruling on the objections raised by the respondents, the Justice Nasiru Gunmi led panel averred that while the petitioners specifically pleaded form EC8A, a consideration of Agboola VS UBA and Odunsi VS Gbamgbala, indicate that documentary evidence need not be specifically pleaded on the other forms.

The Tribunal further averred that there are enough facts to support that the ruling that respondents were aware of the intention by the petitioners to invoke FORM EC8A as a comprehensive document and as such their objection was over-ruled.

Having thus over-ruled the respondents, the Justice Gunmi Tribunal then proceeded to adopt the PU by PU results for the 25 LGAs in the April 11, governorship elections as exhibit in the trial proper and they were accordingly numbered as P7 –P31 respectively.

However, the victory roll of the petitioners was cut short dramatically, when the Tribunal rejected the tendering of the document containing the results of the April 11 governorship elections from the 25 Local Government Areas, on the grounds that they were not pleaded in the petition by the petitioners.

Chief Okpoko had sought to also tender the results compiled at the Local Government Areas level, in addition to the form EC8A and the adoption of forms EC8 D and EC8E, granted by the tribunal ruling, but the petitioners came to grief when the Tribunal ruled that the Local Government results of the Governorship elections had neither been pleaded nor listed and that mere mention of the intention to list them, as had been done in the previous rulings, was not sufficient in this instant.

Chief Ken Mozea, SAN had specifically re-echoed his earlier argument and objection to the admissibility of documents that had not been originally pleaded and listed with the petition and maintained consistently his objection on the admissibility of documents that had not been pleaded or listed.

In their ruling, the chairman of the three-man panel of the tribunal, Justice Nasiru Gunmi rejected the move by APC to tendered local government results, on the grounds that since the pleadings were not enough in the depositions to support the tendering of the Local Government Results, the Objection by the respondents was therefore sustained.

The last issue for the day was the attempt by the petitioners counsel, Chief Thomson Okpoko, SAN, to tender another document titled: “Comparative Analysis of the Election results”, produced by the witness, Mr. Ore Ohimor, as documentary evidence for the trial.

Chief Okpoko, SAN, in defending the document, averred in response to the respondents objection that the document was pleaded and was the same as AA and AB, even as he added that despite the document being processed by a computer, certification, as stipulated in section 84 of the Evidence Act, was not necessary since the document was the original impute of the maker, Mr. Ore Ohimor, into the computer, even as he cited the rulings of the Tribunal so far, which needed no certification to be adopted.  

Mozea, SAN, had immediately objected on the grounds that first, the document was different from the originally document frontloaded for the trial and second that the document was generated by a computer and was not certified as stipulated in Sectoion 84; 1 and 2 of the Evidence Act. Relying on Kubor VS Dickson, and Omisore VS Aregbesola, Chief Mozea, SAN, averred that, “there was no scintilla of evidence to show compliance with Section 84/2 of the Evidence Act”

Mozea further averred that section 84 of the Evidence Act had taken full cognizance of the role of the computer as a necessary instrument in the production of documents, created and produced solely by the intelligence of the person who imputes the information into the computer, and as such, the Tribunal should not go looking for what he referred to as “the leg of the snake”, since the document was a private document and not a public document, and so was not comparable to the tribunal rulings which the petitioners had referred to in their argument to justify the non certification of the document, even as he stated categorically that as a private document produced by the maker, it must be certified before it can be tendered as a document for the proceedings.

In his own submission, Chief A.T Kehinde, lead counsel for INEC, citing Ugwu VS Ararume and P.D Hallmark VS Gomwalk, amongst other authorities, told the tribunal that, given the date the document was filed and the fact that both the first and second documents title; AA and AB respectively, the document was made in the course of the matter and in anticipation of the matter by a person who interested in the matter as reflected in the position of the witness, Mr. Ore Ohimor, who is the Director, Admin and Operations of the O’tega Campaign Organization.

The Tribunal, after listening to all the argument, adjourned ruling to Monday September 7, by 1pm, after the Ogboru/Labour Party case, which re-commences on the same Monday September 7, must have been heard, and instructed that the tendered and adopted PU by PU results of all the Wards in all the Local Government Areas be number accordingly in case of specific needs which will be made by any of the parties to any particular PU result in the course of the trial.

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