The Delta State Governor, Dr. Ifeanyi Okowa yesterday again failed in his bid to stop the All Progressive Congress (APC) governorship candidate, Olorogun O’tega Emerhor from presenting the governorship election unite by unit result sheets used in the conduct of the April 11 governorship election from the 25 Local Government Areas.
The APC governorship candidate had approached the tribunal challenging the election of Gov. Okowa of the People Democratic Party (PDP).
At the resumed hearing yesterday, APC counsel, Thompson Okpoko (SAN) while examining his witness, Ore Ohimor, informed the tribunal that he will tender Form EC8A or election result sheets for the 25 local government areas of the state.
In a swift reaction, Ken Mozie (SAN), counsel to Governor Ifeanyi Okowa, opposed the moved arguing that the documents sought to be tendered was not neither pleaded nor listed in the witness statement on oath.
He argued that the documents listed in the witness statement on oath are form EC8D and EC8E and not form EC8A and that any attempt to tender form EC8A would amount to subverting due process and obtaining justice through the back door.
He said “we object to the admissibility of these documents, the fundamental foundational requirement where not met , in paragraph 14 of the witness statement, only form EC8D and form EC8E were pleaded , in their reply to our reply, it was not pleaded, no reference was made to the document sought to be tendered, listing the document will not cure it, if it was not accommodated in their pleading.”
In his submission, counsel to PDP, Timothy Kehinde (SAN) pointed out that it is an elementary principle of law to put the parties on notice and not by surprise, as the document sought to be tendered must be specifically pleaded.
He said an unleaded document cannot be admitted even when the document was mentioned in the witness statement, adding that in the instant cases, the document was not mention in the witness statement on oath neither was it pleaded.
INEC counsel, O. Anumonye while arguing in the same vein, pointed out that “the document sought to be tendered by APC and Otega were not refereed in the witness deposition”, adding that “having pleaded over voting by tendering forms EC8D and form EC8E, pleading form EC8A will constitute springing a surprise.
Okpoko countered that Form EC8A were listed as documents to be tendered, adding that the documents were specifically identified on paragraphs seven and eight of the petition.
According to Chief Okpoko, “I submit with the greatest respect that the purpose of pleadings have been satisfied – namely, to avoid taking the respondents by surprise. Having referred to and pleaded that we will rely on the results, the respondents had adequate notice. The important thing is to plead facts upon which the documents will be relied on.”
In its ruling, the tribunal averred: “we have looked at the pleadings of the petitioners; we believe that there are enough facts pleaded to justify their admission of the unit result in the polling units in Delta state during the April 11 election. One of such is paragraph 18 of the petition where it was averred that in the said election, the votes allegedly cast exceeded the number of votes cast entitled to vote at the said election.
“Petitioner will rely on the compiled result of the said election as declared by the third respondent in relation to the accreditation as compiled by INEC. We are further fortified by the fact that the petitioners went on to state the unit result of the governorship election as one of the documents to be relied on when they listed the documents they intended to rely on to prove their petition.
“The implication of this is that the respondents were aware that unit by unit result of the governorship election was in issue. The objection to the admissibility of the documents is hereby over-ruled.”