Ayade Loses First Round As Tribunal Rules Against Tendering Materials, Documents Outside Original Statement Of Wintesses

From Dominic OKOH, Calabar

After what could be described as legal fireworks between Counsels to Senator Jarigbe Agom Jarigbe, Mba Ukweni, SAN, and former Governor Ben Ayade, Mike Ozekhome, SAN, at the ongoing National Assembly Election Petition Tribunal sitting in Calabar, the chairman of the 3-man panel, Justice M. A. Sambo, ruled against witnesses' moves to tender documents and materials that are not contained in deposed statement.

Hearings began on Monday on the petition with Suit No. EPT/CR/SEN/02/2023 and Ayade had presented evidence from 310 polling units where he alleged there were electoral discrepancies during the February 25, 2023, election to open up his case. 

Ozekhome, the lead counsel had opened his case presenting over 700 documents and four witnesses so far. In presenting two of the principal witnesses from Bekwarra local government area, he had pleaded that they (the witnesses) be allowed to identify the Voters Register as part of the evidence to prove their case of alleged election malpractice.

In arguing his case, the counsel to Ayade cited some authourities empowering him to present the documents and materials for identification by the witnesses to buttress their defense.

But the counsel to Jarigbe, Mba Ukweni, objected vehemently citing some relevant authorities why the Tribunal should not allow such in judicial processes of this magnitude, saying it would amount to abuse of rules of due process.

 After listening to both parties on the matter, the chairman of the panel, Justice M. A. Sambo, ruled against witnesses' moves to plead or identify documents not deposed in the earlier statement.

According to him, any fact not pleaded by the witness or document not refereed to at the earlier statement, cannot also be identified or tendered by the same witness from the witness box during examination. He said the panel had not seen anything that would make them depart from the point of law. Other members of the Tribunal are C. Akabua and J. Zululu.  

Speaking to journalists after the proceedings, counsel to Ben Ayade, Mike Ozekhome, SAN, said: “We have tendered INEC documents and so many voter registers that showed there were some imperfections. We have called four witnesses so far to speak to theses documents. But two of them were prevented from identifying their very polling unit result registers after the witnesses have said they are from that polling units. 

“They have also mentioned registers, BVAS and voters. The only thing they said they did not do is that they should have said voters register. And the law is that pleadings are not evidence. It is evidence that cause the flesh that energises or enables pleadings. 

“We believe the ruling was wrong and we are going to challenge it in our final written addresses because a witness of a polling unit was made not to identify the documents and the Tribunal said no you cannot identify them even when it has been tendered. We shall test that.”

Hailing the ruling, counsel to Senator Jarigbe, Mba Ukweni, SAN, said the matter is progressing and they have called for witnesses and have finished tendering over 700 documents just as his team has cross-examined and would continue to do so till they are done.  

On the issue of Ozekhome insisting on challenging the Tribunal ruling against allowing witnesses to identify their tendered documents, he said: "We are happy for that and we even offered that he asks for stay of proceedings. We would not oppose it. We would encourage him to go on Appeal because it is by testing those decisions that we know the views of Appellate Court on those issues and it guides other lower courts.

"The point is straight forward. The Tribunal had given it's decision. The witnesses that were called did not refer to the documents and then the law had already stated very clearly that for you to identify a document from a witness box or tender a document from the witness box, you must have referred to it in your deposition. 

 “It is similar to the rule of pleadings. If you don't plead any fact, you cannot give evidence on it. So if a witness dis not refer to the document at the earlier statement, he cannot also identify the documents from the witness box or tender it even in normal civil procedure. That is the rule.”