By Oye Chijioke
The suit filed by the All Progressive Congress (APC) and its gubernatorial candidate Olorogun O’tega Emerhor , challenging the victory of Governor.Dr. Ifeanyi Arthur Okowa in the April 14th governorship election in Delta State, suffered yet another major setback.
The Delta State Election Petition Tribunal, sitting in Asaba, recently, quashed its motion seeking to call additional seven witnesses to support its petition.
The tribunal which also ended its pre-hearing conference recently 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 Otega, through his counsel, Mr. Thomson Okpokor (SAN), held that the motion lacks merit.
Oterga’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 O’tega , 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, 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.