DELTA GUBER POLLS: GOVERNOR OKOWA’S LEGAL TEAM ENDS DEFENCE IN STYLE AS TRIBUNAL ADMITS VITAL DOCUMENTS AS EXHIBITS
The
defence team of Governor Ifeanyi Okowa has rounded off its defence at the
on-going Election Petition Tribunal sitting in Asaba. Announcing the formal
closure of its case, Lead counsel for the Governor, Chief
K.D Mozia, SAN, told the
court that the party is glad to bring its defense to an end. He thanked the
tribunal judges for their kind disposition and patience in meticulously
directing the proceedings.
“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, 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.
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