TELL Magazine

Edo State Election

The Edo State Governorship Election Petition Tribunal sitting in Benin ruled this afternoon that witnesses subpoenaed by the petitioners – the Peoples Democratic Party, PDP, and its candidate, Osagie Ize-Iyamu can testify as witnesses in the substantive petition brought before it. The Ahmed Badamasi-led three-man tribunal had on Monday reserved ruling until today in the propriety of allowing a subpoenaed witness, Oviosun Enas to testify following the opposition by the respondents’ counsel who argued that he was not a member of the PDP, and not a party to the case. Counsel to INEC and Godwin Obaseki declared winner of the September 28, 2016, governorship election, Onyechi Ikpeazu and Ken Mozia, respectively, had argued that witnesses who were not parties to the case and whose depositions had not been submitted along with the substantive petition to the tribunal before the pre-hearing session, could not be allowed to testify.

 Their submissions were also supported by counsel to the APC, Adeniyi Akintola, who argued ‎that the said witness, being a member of a political party not included in the main petition, could not testify at the tribunal. Respondents’ counsel said it would amount to a judicial ambush to allow the subpoenaed witnesses to testify.

The tribunal also reserved ruling in another issue till tomorrow (Thursday) on whether ballot papers used for the September 28, 2016, election in four local government areas could be tendered as exhibits.‎

 Delivering its ruling on the controversy over subpoenaed witnesses, the tribunal said having painstakingly run through the processes filed by all the parties for and against the objection, it identified one issue that called for determination which was mainly if the subpoenaed witness was competent to testify in the circumstances of this case. Badamasi recalled that on January 29, 2017, the petitioners applied for a subpoena to be served on the witness, stating that “the application was granted, and the witness was served. He said later, the witness filed a written statement on oath on February 2, 2017. The tribunal chairman posited that “it is not out of place to state that the petitioners in Forms TF 008 during pre-hearing session categorically stated their intention to call and rely upon subpoenaed witnesses. Again, in our report issued on the 5th December 2016 after pre-hearing session, we alluded to the issue of a subpoena to subpoenaed witnesses where we stated the position of subpoena of witnesses is required if they are to testify and no party in this petition lodged an appeal in that regard”. Badamasi similarly emphasized that in paragraph 250 of the petition, particularly paragraph 84A, the petitioners, under the list of witnesses, stated as follows ‘either witnesses are to be called by subpoena to testify on behalf of the petitioners’. Badamasi said it was therefore not in doubt that the issue of subpoenaed witnesses had featured in the petition. According to the tribunal, “the pertinent question, however, is that what is the needed efficacy of subpoenaed witnesses in an election petition?” Citing a Court of Appeal ruling, Badamasi held that a subpoena is issued by the court at the instance of one of the parties to command the appearance of a witness who is not involved in the matter before the court or who is an adverse party to the party calling him to produce a secret document or to testify or both. He said there is, however, no procedure for the manner in which a subpoenaed witness should testify in election petition proceedings, stressing that that is left for the court or tribunal to determine. Badamasi said from the above decision of the court of appeal, it is evident that a subpoena may be issued by a tribunal to command the appearance of a witness who is not involved in the matter before the tribunal.

 On the submission by a senior counsel to the respondents that the deposition of the witness was tantamount to amending the petition, the tribunal said the submission appeared not take into account that in Form TF 00 filed by the petitioner, the indication was made to the effect that subpoenaed witnesses will be called by the petitioners. Similarly, the tribunal did not agree with the submission by senior counsel to the respondents that the deposition of the witness meant that the petitioners wanted to introduce new facts which are not contained in the petition. Giving its verdict, the tribunal held that “the summary of what we have been saying is that subpoenaed witnesses are competent witnesses especially when the respondents were put on notice as in this petition. Having served the witnesses the subpoena by this tribunal, we will be seen to be blowing hot and cold at the same time if we refuse to allow his testimony. It is by taking his testimony we will be in a position at the conclusion of the trial that we can weigh the value of his evidence. On the whole, we hold that the objection is lacking in merit and is hereby over-ruled”.

Reacting to the ruling, a visibly elated counsel to the petitioners, Kemi Pinheiro, senior advocate of Nigeria, SAN, described the ruling as fantastic stating that “what you see here was serious maneuvering to achieve the ultimate victory. Pinheiro explained that they had given notice that they were going to rely on witnesses from other parties – polling agents, collation agents, candidates of other parties who, though, have not filed a petition, but were witnesses to the events of the election. He said but that when one of them was called, the respondents objected as to whether we can lead them in evidence not being parties to the petition. According to him, “the tribunal, in its wisdom, has agreed with us and has said that we can call those witnesses being impartial and dispassionate observers of the election”.

 On the issue of the recount, Pinheiro said that the petitioners had given notice that they would be contesting the ballots in some local governments. “We issued a subpoena for INEC; INEC has produced the ballot papers for four local governments. Curiously, and very strangely, the candidate who in his pleading had said he would not oppose a recount, and who was the ultimate beneficiary of the actions of INEC, now sought to oppose the recount of the ballot. Edo people want to know, the court wants to know, we lawyers want to know; let the ballots be counted in open court for us to see whether the ballot papers are in tandem with the results endorsed on Form EC 8A. So, we want to know who got the votes”.

 Speaking to journalists on their submission that the petitioners were seeking to bring in new facts that were not in the petition, Mozia said they were “cool” with the position of the tribunal that they could raise issues concerning the testimonies of the subpoenaed witnesses. Mozia said this is more so when it held that “we have a right at the end of the day to urge the tribunal to expunge such testimonies and that is why the tribunal said it might be to their detriment eventually if that is the case”.