Delta Electoral Tribunal: Again Emerhor’s Motion to Call More Witnesses Suffers Setback

… Substantive trial to commence next week  

…INEC, PDP to present 145 witnesses

The suit filed by the All Progressive Congress (APC) and its gubernatorial candidate Olorogun O’tega Emerhor  , challenging the victory of Governor Ifeanyi Okowa in the April 14th   governorship election in Delta State,   suffered yet another major setback as the state Election Petition Tribunal, sitting in Asaba, on Wednesday, quashed its motion seeking to call additional seven witnesses to support its petition.

The tribunal which also ended its pre-hearing conference on Wednesday, said it has concluded arrangements    to admit no less than 145 witnesses  from the Independent National Electoral Commission (INEC) and the People’s Democratic Party (PDP), in the course of the substantive trial

Chairman of the Tribunal, Justice Nasiru Gunmi,   in a ruling that lasted about an hour on the motion brought by Emerhor, through his counsel, Mr. Thompson Okpokor (SAN), held that the motion lacks merit.

Emerhor’s counsel had sought the leave of the tribunal to invite seven additional witness even when the time allowed for such action has elapsed.  

Justice Gunmi posited, “We are strongly of the view that the applicant have not adduced sufficient reason before us to persuade us to deviate from the mandatory provision of section 45 of the Electoral Act, 2010, which enables us to exercise our discretion in their favour . We are of the view that the issues as conversed   are hereby resolved against the petitioner applicant, this motion is therefore unmeritorious and same is not only refused but consequently dismissed”.

Counsel to Governor Ifeanyi Okowa, the, Dr. Alex Iziyon (SAN) had in his opposition to the motion informed the tribunal that , by the  provisions of    section 45 of the first schedule  of the electoral act 2010, the word shall  is mandatory  for the petitioner to front load his petition to the respondent ,  adding that the petitioner , after reviewing their cases decided to come with the application to call 7 more witnesses which he described as after though .

He averred that for the petitioner to get the reliefs sought, they must show exceptional circumstance as stated in section 41(a) of the Electoral Act 2010.

He went ahead to urge the tribunal not to grant the reliefs   sought. In his words  ‘”if such relief should be granted, there should also be a consequential order,  as contained  in section 45 of the Electoral Act, 2010,  which stipulates  that front loading of evidence should accompany the petition, adding that anything to the contrary  will be unfair to the respondents as the right to respond would have been breached.

Collaborating  the  views  of  Iziyon, Counsel to PDP,  A .T  Kehinde (SAN)  in his submission vehemently opposed the motion,   arguing that  section 14 of the Electoral Act , stated that any amendment  in which ever form  in an election petition  where the petitioner seeks  to introduce additional particulars  in the same petition is an amendment which the law does not allow.

He  submitted that section 255 of the constitution of the Federal Republic of Nigeria 1999 as amended , and  section 4(5) of the electoral act 2010 as amended forecloses any amendment after 21 days, adding  that the tribunal lacks the power to grant same, averring  that bringing application at this stage to file additional witness  by the petitioner   is nothing short of amendment as those documents were not front loaded with the petition, saying if the application is granted , that it will bring great injustice to the respondents who will not have the opportunity to file  response

Justice Gunmi  further ruled that a review of the petition of the applicant presupposes that they were trying to  upgrade the same petition from which the respondents have all filed replies and the applicant have also responded to the replies of the respondents and pleading has subsequently closed.

He said there is no averment in the affidavit in support of their application that  can suggest that those additional witnesses they intend to call in their application were unavailable immediately after the election.  we do not think that the realization to call additional witness is sufficient enough to amount to exceptional circumstance, adding that an election petition matter which is sui-jeneris are determined under a particular and specific period of time.

He held that the petitioner had no sufficient reasons  in the instance case, hence  granting the relief would amount to an unnecessary elongation of time,

He posited further that by the provision of section 45 of the Electoral Act 2010 as amended,  it specifies the content of election petition, which he said must accompany  by a list of witnesses that a petitioner  intends to call in proof of his petition , written statement  on oath of the witnesses , and copies of writs of every document to be replied on the hearing of the petition.

Counsel to  Emerhor ,  Mr. Thomson okpokor (SAN) had  averred that the application was not meant to mean the amend the petition through the back door, neither has the petitioner introduced any new facts into the matter which is outside their pleading.

However, Justice Gunmi who concluded the pre-hearing conference in the petition, said the report of the pre-trial hearing will be ready on the next adjourned date, on 7th August 2015, to enable the counsels in the tribunal commence hearing on the substantive suit.

Counsels to the  respondents, particularly, INEC and PDP informed the court that a total of 145 witnesses,  respectively  have been assembled  to proof  its  cases, APC and O’tega  said it shall call only nine witnesses  while Ogboru  and Labour Party  said its  shopping for 36 witnesses at the commencement of trial.