Secret Reporters No place to hide
The Justice A. S. Umar-led Akwa Ibom State Governorship Election Petitions Tribunal in Abuja hearing the petition filed by Mr. Umana Okon Umana and the All Progressives Congress (APC) on Thursday September 10, 2015 refused an application by the 2nd Respondent in the case, the Peoples Democratic Party (PDP), to call additional witnesses in support of their defence at the Tribunal.
At exactly 10:35 am when the matter was called for hearing, the counsel to the PDP, Mr. Tayo Oyetibo, SAN informed the Tribunal that he has been served with the reply of the Petitioners to their application for leave to call additional witnesses in support of their defence at the Tribunal and that he was ready to proceed with the application.
Arguing in support of the application, Mr. Oyetibo informed the Tribunal that the application which has three prayers is dated 5th September, 2015 and is supported with an affidavit and a written address and that he intends to rely on same. In his oral address in support of the application, Mr. Oyetibo stated that with respect to prayer 1, that paragraph 47 (1) of the First Schedule to the Electoral Act allows a party in an election petition to make such application in extreme circumstances with the leave of the Tribunal and that there is extreme or special circumstances were the interest of justice warrants the making of the application.
With respect to the second and third prayers, Mr. Oyetibo submitted that in the interest of justice the Tribunal should take judicial notice of the proceedings of 20th and 21st August, 2015 when the Tribunal granted leave to the Petitioners to call additional witnesses. At this point, the Chairman of the Tribunal interjected and observed that in the case of the Petitioners, it was in respect of expert witnesses sequel to an earlier order of the Tribunal granting leave to the Petitioners to inspect election materials.
Mr. Oyetibo however insisted that what is important is that the Petitioners were given leave to call additional witnesses and that witnesses are witnesses irrespective of type. He also stated that since the proposed witnesses are to give the same line of evidence that the interest of the Petitioners will not be prejudiced because they will still have the opportunity to cross examine the witnesses. He replied to pages 8 – 9 of the Petitioners written address opposing the application and submitted that in the case of Oke v. Mimiko relied on by the Petitioners, that it was the Petitioners that brought the application and not the Respondents and that in matters of discretion, one decision cannot be an authority for another. He cited the case of Oyego v. Nzeribe (2010).
He finally submitted that the Petitioners have not shown the injustice that will be done to them if the application is granted and that the Petitioners have undertaken not to seek for an extention of the 14 days period alloted to them for defence. He urged the Tribunal to grant the application. Mr. Adekunle Oyesanya, SAN who stood in for the Mr. Paul Usoro, SAN, the counsel to the 1st Respondent (governor Udom Emmanuel, and Mr. Ugochukwu Nweke, Esq. representing the 3rd and 4th Respondents (INEC and the Resident Electoral Commissioner Akwa Ibom State) had no objections to the application.
Arguing forcefully against the application, Mr. Solomon Umoh, SAN for the Petitioners informed the Tribunal that they have a 10 paragraph counter affidavit and a written address and adopted same as the Petitioners/Respondents case in opposition to the application. He sought the leave of the Tribunal to orally adumbrate on same. On the use of the phrase “extreme circumstances” in the Electoral Act, he submitted that the word “extreme” denotes what it means and does not admit of casual circumstances. He stated that the present application only advanced one reason, “that the witnesses were not readily available”, which was merely speculative since no particulars were given as to why each of the proposed witnesses were not readily available”. “Your Lordships have been called upon to speculate and speculation is not one of the weapons of justice but is even an anathema to justice and on this alone leave should not be granted as sought in prayer 1”. Umoh submitted.
“Election matters are sui generis and time is of the essence. My brother silk has contended that the additional witnesses are coming to lead the same line of evidence like their other witnesses which raises the question of the relevance of seeking to call these super star witnesses since repetition does not advance a party’s case. They have listed 23 witnesses and have only called 4 the question then is why these super star witnesses?” The learned Senior Advocate of Nigeria contented.
Not done, Mr. Umoh continued, ” On prejudice, while the witnesses he intends to call are subject to cross examination, the Petitioners who are entitled to reply will not be in a position to call rebuttal evidence and that is what the Electoral Act seeks to forbid. I refer my Lordships to paragraph 16 of the First Schedule to the Electoral Act. Delay defeats equity and we have stated that this is four months since they were served. We humbly urge your Lordships to hold that no reason, let alone extreme reason, has been advanced in support of this application.
“And in the likely event that the application is considered on the merit, I urge the Tribunal to hold that the application is speculative and bereft of any particulars as to why the witnesses sought to be called were not readily available. My learned brother silk alluded to the interest of justice but justice does not allow for an uninhibited exercise of discretionary powers as stated in Willobi’s case. My learned brother silk attempted to distinguish Oke v. Mimiko to say that no one decision is an authority for another in matters of discretion but their Lordships will rely on an authority where the facts and circumstances are the same but in the present case the Respondents case is not only worse than the situation in Mimiko’s case were a similar application was refused but is also an afterthought”. Solomon Umoh, SAN finally submitted.
After the long legal fireworks, the Tribunal went on a 2 hours recess to consider the arguments on both sides and the processes filed. When the Tribunal resumed at about 1:05 pm, the application was unanimously dismissed. In the ruling read by its Chairman, the Tribunal upheld the argument of the Petitioners counsel that the 2nd Respondent did not state or give particulars on why the additional witnesses were not readily available and that this was fatal to their case. The Tribunal further held that extreme or special circumstances was not established to warrant the application being brought outside the time permitted by the Electoral Act.
Meanwhile, a staff of the Independent National Electoral Commission (INEC) in Akwa Ibom State, Mr. Obinna Agoyu, tendered documents at the Tribunal based on a subpoena earlier issued on the State Resident Electoral Commissioner as requested by the 2nd Respondent after which the counsel to the PDP pleaded with the Tribunal to adjourn the matter to Friday September 11, 2015 to enable them review their position. He hinted that they will close their case on Friday.
The application for adjournment was not opposed by the other parties. Hearing in the petition has been adjourned to Friday September 11, 2015.
