The Delta State Election Petition Tribunal sitting in Asaba on
Monday witnessed a mid-drama following a tense atmosphere after the Labour
Party (LP) and its candidate, Chief Great Ogboru accused one of their key
witnesses of playing to the gallery.
The three-man tribunal, headed by Justice Nasiru Gunmi, had
subpoenaed the Head of the Department of General Administration and
Procurement, INEC Office, Asaba, Mr. Felix Enabor to give evidence in the
petition filed by the LP.
But soon after Enabor entered the witness box and submitted his
written statement and other documents as exhibit before the tribunal, counsel
to Ogboru, Mr. Robert Emukpoeruo raised an objection, by way of a motion,
urging the tribunal to label Enabor as a hostile witness.
In his motion, Emukpoeruo contended that some paragraphs in the
witness’s deposition were “animus” and injurious to the position of the
petitioners.
But his objection was countered by counsels to the respondents,
(Okowa, PDP and INEC), Dr. Alex Izyion (SAN), Mr. Timothy Kehinde (SAN) and
Onyechi Ikpeazu (SAN) respectively.
Iziyon described the move as “very basal and unknown to law”,
arguing that section 230 of the Evidence Act has not been complied with.
He argued that the petitioner’s request to label the witness as
hostile and animus was not automatic as it cannot be invoked.
“The petitioner is the one providing the witness upon an
application, it is his witness.
“They have taken a gamble, they either swim or sink with the
witness they have called”, Iziyon posited.
The legal luminary reminded the tribunal that the petitioners
were the ones that called the witness, and he obeyed the subpoena.
He stated that there was no evidence of hostility with the
witness as there was nothing to show such, as he had the mandate of the petitioner
to come and testify.
Iziyon further explained that the issues of the Labour Party
chairman facing criminal prosecution over stolen INEC materials should not be a
hidden thing.
He also said that the issue of hostile witness was not new to
jurisprudence, as there were not enough grounds to treat witness from INEC as
hostile.
Iziyon argued that Enabor had not made any statement that
contradicted the one he deposed to in court that would amount to contradiction,
hence there was no need to brand him a hostile witness.
“The tribunal is guided by law, not by sentiment, we are bound
by the rules of the procedure the witness has adopted, so they are bound by
it”, he posited.
Counsel to the PDP, Mr. Timothy Kehinde (SAN) submitted that his
client was opposed to the petitioner’s request to treat the witness as hostile,
stressing that the condition for the tribunal to exercise such decision had not
been met.
He said: “A party producing a witness is under obligation not to
be allowed to impugn on the credibility of his witness by general conduct or
behavior.
“There is no doubt that the witness is at the command of the
tribunal, whose sole duty it is to help the tribunal to arrive at a just
decision.
“The witness is not under any obligation to give evidence that
is favorable to the parties except to say the truth.”
Kehinde argued that the position of the petitioner that they do
not have confidence in the evidence of the witness was nothing but suggestive
of the fact that they have no opportunity to cause the witness to commit
perjury.
He pointed out that the fact that the witness was not giving the
petitioner a favorable evidence did not mean that he was hostile.
Kehinde further reminded the tribunal that before the
petitioner’s application can be granted, there must be sufficient evidence that
a contrary statement has been made by the witness and he must be asked whether
he has made such statement for the records.
He noted that all the deposition in the witness’s statement on
oath were relevant in the case and had explained everything the witness knew
about the matter.
According to him, there was nothing in the statement to declare
the witness hostile as his deposition ended his duty to the party that called
him.
Kehinde posited that the next move was for the respondents to
cross examine the witness.
He supported his arguments with section 51(1) of the Evidence
Act, stressing that there shall be no oral examination of the witness by the
petitioner, but just to tender the document he has listed on oath.
The PDP counsel said that granting the application would be
tantamount to helping the petitioner to have an input into the evidence of the
witness and that will mean asking the judge to descend from his hallowed chambers
as unbiased umpire in the case.
In the same vein, counsel to INEC Mr. Onyechi Ikpeazu (SAN),
opposed the application saying it has no bases as provided under section 230 of
the evidence act.
He argued that there was no bases that the petitioner relied upon,
hence the tribunal has no facts before it upon which to grant the application.
Tribunal chairman, Justice Gunmi, after listening to the
arguments of all the counsels, reserved ruling on the motion for Tuesday,
September 1, 2015.
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