Yakubu Busari
The Governorship Election Tribunal Sitting in Jos the Plateau State capital on Saturday has dismissed the admissibility of a witness tender behind without his name listed in the 1st and 2nd scheduled of proceedings.
However, Dr. Nentawe Yilwada Goshwe and his party, the All-Progressives Congress (APC) on Saturday called his additional witnesses to prove his case in continuation of the prosecution of the Petition before the Plateau State Election Petition Tribunal sitting at the High Court Complex Jos.
The Petitioner’s led Counsel, Edward Pwajok (SAN) told the Tribunal that they intended to call seven additional witnesses having called six previously to testify.
According to this medium when the 6th witness for the day and 12th in all mounted the witness docked and was affirmed, by Emeka Etiaba (SAN) Counsel for the 3rd Respondent (PDP) sought to know where his named witness was on the Petitioners Amended list of witnesses the 2nd scheduled.
Petitioner’s Counsel, Mathew Buka”a (SAN) who immediately had taken over proceedings from Edward Pwajok (SAN) could not convince the Tribunal where the witness was listed and quickly made an oral Application to withdraw the witness.
In the light of the above, Counsel for the 3rd Respondent vehemently objected saying, “My Lords, the witness has been affirmed but is incompetent to testify in this Petition because his name is not on the Petitioners’ Amended list of witnesses”.
Counsel for 3rd Respondent predicated his objection on paragraph 4 subparagraph 51 of the 1st Schedule to the Electoral Act which talks of witnesses to testify and not a witness who has deposed to a statement on oath.
His submission came against the backdrop of the fact that Counsel for the Petitioners had earlier sought the leave of court to continue in examination in chief while the name of the witness was sorted out in the list as his statement on oath was before the Tribunal.
“My Lord, our case is very simple. Once they cannot show us where the witness is listed in the Amended list of witnesses, then he is not qualified to testify and should be dismissed”, Counsel for the 3rd Respondent said.
On behalf of the 2nd Respondent (Caleb Mutfwang), P. An Akubo SAN and Dr A. A Adewale Counsel for the 1st Respondent (INEC) aligned with the submission of Counsel for the 3rd Respondent.
In his response, Counsel for the Petitioners relied on the Application made earlier to withdraw the witness.
In its ruling, the Tribunal held that the witness was incompetent and was accordingly discharged.
Earlier, 1st witness for the day and 7th in all, Sanni Paul Zaruma, a private legal Practitioner and a politician identified his statement on oath. He however, craved the indulgence of the Tribunal to make a correction regarding a topographical error in paragraph 6 of his deposition to the words, “Collation Officer” which he sought to change to “Collation Agent”.
Again, Counsel for the Respondents objected to this. In particular, Counsel for the 1st Respondent said, “My Lords, we object to this Application, the reason being that the Application seeks to amend a written deposition on oath by the witness.
“An amendment to this written deposition can only be done by the swearing to the deposition before the Commissioner of Oath before whom the deposition was done in the first place”.
Counsel cited section 114 of the Evidence Act to support his argument. He further submitted that they had already joined issues with the Petitioners regarding the words “Collation Officer” at paragraph 105 of their reply to the Petition at page 49 thereof.
“The amendment sought will overreach the 1st Respondent and we, therefore, urge your Lordships to refuse same as it is not grounded in law”, the 1st Respondent Counsel said.
Counsel for the 2nd Respondent adopted the submission of Counsel for the 1st Respondent and further said, “and for emphasis, the witness has claimed to be a legal practitioner and he knows that this Application is an impossibility”.
2nd Respondent Counsel added that the larger implication of what Petitioners sought was to amend the Petition through the back door.
He also said that they have also joined issues with the Petitioners with respect to paragraph 111 vie paragraph 125A & B of the 2nd Respondent’s reply. Consequently, Counsel also urged the Tribunal to refuse the Application so as not to allow Petitioners to amend their Petition through the back door.
Counsel for the 3rd Respondent however made a fresh objection different from that of the 1st and 2nd Respondent.
According to Counsel, the witness claimed to be a legal practitioner yet his statement on oath has no seal and stamp affixed in line with Rule 10 of the Rules of Professional Conduct for Legal Practitioners. In this regard, Counsel urged the Tribunal to strike out the witness statement on oath because it was not properly filed.
Responding, Counsel for the Petitioners told the Tribunal that the submissions by Counsel for the Respondents were in error saying that they mistook the statement on oath for Affidavit.
Counsel cited Udeagbu vs Omegara 2010 NWLR part 1204 page 380.
In his further submission, Counsel cited Uduma vs Arunsi, 2012 NWLR part 1298 of 55 to support his argument that a witness can amend his statement on oath before adoption.
On the 3rd Respondent Counsel’s submission and called on the Tribunal to strike out the witness statement on oath, Counsel for the Petitioners said the Petitioners was before the Tribunal as a witness and not as a legal practitioner engaged by the Petitioners for the suit. “And he has already mentioned earlier that he is a legal practitioner and a politician”, Petitioners’ Counsel said.
On the Respondent’s Counsel’s position that they have already joined issues, it was the submission of the Petitioners Counsel that the Counsel for the Respondents that none of the issues joined related to the words, “Collation Officer” of Sunday Pius.
In its ruling, the Tribunal refused to grant the Petitioners Counsel’s Application to affect their correction and equally refused to grant the request of the 3rd Respondent Counsel to strike out the witness statement for allegedly falling short of the requirement of Rule 10 of Professional Conduct for Legal Practitioners.
All the five witnesses taken by the Tribunal on Saturday spoke to exhibits relating to Polling Unit Results. However, they all confirmed none of them was a polling unit agent of the said polling units but either a Ward Collation Agent or a Local Government Collation Agent.
They also confirmed that none of them was equally registered and voted in the polling units under dispute.
Again, all the witnesses confirmed to the Tribunal that all the polling unit agents for the said election are alive.
Also, while some of the witnesses who have claimed in their deposition that the election was not conducted in the polling units in disputes, they however, did confirm to the Tribunal under cross-examination that election was indeed held in the said polling units but cancelled.
As a matter of fact, PW8 (Danbong Nanbol) confirmed to the Tribunal that though the elections in Zamko, Shishiri and Lemo Primary School polling units’ results were cancelled, PDP won in the said polling units before the cancellation.
Most of the witnesses have also agreed to have been trained by the electoral umpire, INEC and that by virtue of their training, if an election is not held or held and later cancelled, INEC documents such development in writing.
They have equally confirmed to the Tribunal that reason (s) for not conducting or for the cancellation are also documented in writing.
All the witnesses have also agreed that their party (the APC) had their agents represented in all the polling units in dispute.
Again, all the witnesses could not show the Tribunal any INEC document to confirm there was no election in the polling units they claimed the election did not hold.
Still, in some instances, witnesses confirmed to the Tribunal that the election in some polling units was cancelled because of over-voting and further confirmed that the election cancelled and the election not held are the same.
Apart from PW7, other witnesses who testified were; PW8, Danbong Nanbol, a politician and farmer who lives at Keller, Langtang North Local Government Area.
PW9, Usman Abdullahi Dakam from Quan’Pan Local Government Area, PW10 Brendan Sallah, a businessman and politician from Shendam Local Government and PW11, David Adukuben, a retired civil servant who lives at Jebbu-Bassa, Bassa LGA.
