November 5, 2019

Nsima brought fake agents, fake materials to tribunal, Gov Emmanuel, others tell Appeal Court

Gov Emmanuel

“The alleged Polling Unit Agents called by the Appellants did not as much as tender their appointment letters or correspondence by 2nd Appellant to the 3rd Respondent(INEC) in proof that they were indeed polling unit agents.”

“The list of 2nd Appellant’s agents accredited by INEC was tendered in evidence and those pretenders who  paraded themselves as polling unit agents were not listed.”

Governor Udom Emmanuel, through his Lead Counsel, Onyechi Ikpeazu disclosed these on Monday in Calabar, told the Appeal Court to dismiss the appeal filed by the defeated candidate of the All Progressives Congress, APC, Mr Nsima Ekere as lacking in merit and to uphold the decision of the elections petitions tribunal.

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He aligned with the ruling of the tribunal that “witnesses of the Petitioners gave hearsay evidence which was information claimed to be obtained by other persons, maintaining that such evidence has no probative value not being that of an eye witness.

Ikpeazu, SAN while responding to some of the issues raised by the Petitioners’ Lead Counsel, J.S Okutepa, SAN held  that “their allegations that election results were obtained were elections did not hold, amounted to allegations of criminality by the Petitioners and needed the highest standard of proof from polling unit agents.”

He held that the 11 alleged polling units witnesses presented by the Petitioners did not reach a significant standard of proof required to upturn elections that held in the entire state.

“The first Petitioner, Mr Nsima Ekere, his Deputy, Amadu Attai, Ward, Local Government and state collation agents of the Petitioners had statements on oath and oral evidence laced on hearsay.

“Such evidence is inadmissible in Proof of the Petition as rightly contended by the Respondents’ lead Counsel. The submission of the lead Counsel of the Petitioners is therefore discountenanced and the hearsay witnesses hereby rejected and expunged”, the tribunal ruled.

Also, the 1st Respondent argued further that it was not true that the evidence of PW41 and Pw44 were dismissed on technicalities by the tribunal as alleged by Petitioners. He held that despite pointing out that the evidence of the two subpoenaed witnesses ought to have been written, the tribunal went on the evaluate their evidence and dismissed them as lacking in merit.

On the issue of Exhibit PTH36, the First Respondent submitted that PW47, Dr Amadu Attai who was brought to give an assessment report of the inspected electoral documents, could not have given a credible assessment since he was a candidate of the party as deputy to the 1st petitioner.

This, according to Ikpeazu, meant that the Tribunal Court was right in dismissing his credibility and rejecting the admissibility of the Exhibits.

“PW47 was not a statistician but an interested party whose evidence negated the Evidence Act.

The Governor’s lead counsel also argued that the evidence of the Police Officer(PW 41) related to no polling unit and as such his evidence was baseless when he said that the election in the local government where he served as DPO was peaceful.

In his argument, Ekere through his Counsel J. S. Okutepa (SAN), sought the opinion of the appellate court on 24 grounds with which he wants the elections annulled in his favour, among which is his argument that the tribunal erred in dismissing the evidence of the Essien Udim DPO Samuel Ishiek and the alleged Assistant Presiding Officer {PW 41 and PW44} who were subpoenaed witnesses.

Founded on twenty-four grounds and dated October 7, 2019, the filed appeal holds that the learned Trial Tribunal erred in law and that the judgment of the Tribunal is against the weight of evidence and seeks that the Court of Appeal should set aside the Tribunal judgment delivered on September 19, 2019.

Furthering on why the case should be thrashed by the Appeal Court, Chief Ikpeazu argued that “from the testimonies of the witnesses called by the Appellants, there was no proof that any named agent of the 1st Respondent or anyone for that matter committed a crime.”

On their part, Peoples Democratic Party contended that most of the documents tendered by the appellant were inadmissible and thus the tribunal was right in rejecting them.

Counsel to the 2nd respondent, PDP, Tayo Oyetibo SAN in his brief of argument said “The tribunal was right in rejecting Nsima Ekere’s documents in evidence because the said documents which were all public documents were not certified in compliance with the requirements of section 104 of Evidence Act, 2011 which provides as follows:

” Every public officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees prescribed in that respect, together with a certificate written at the foot of such a copy of such document”.

In this case, the documents submitted by Mr NSIMA Ekere did not contain the name and title of the officials who purportedly certified them. There is also no legally admissible evidence that the said documents were paid for as required by law.

Oyetibo insisted that the documents relied on by Nsima Ekere and the APC were therefore of no probative value and the court cannot consider them because they were dumped on the tribunal.

The affected documents were PT1-PT2331, PTA1-PTA2275, PTB1-PTB275, PTC1-PTC28, PTD1, PTE1, PTF1-PTF4, PTG1-PTG19, PTH81, PYH81A, and PTH81B.

He further noted that “no witnesses were called to speak by adducing relevant and cogent evidence relating the documents to specific parts of the case.

The 3rd Respondent, the Independent National Electoral Commission (INEC) reasoned that Ekere and APC have not established any cogent, compelling, and convincing evidence and reason cognizable in law why the election should be invalidated.

Ogwemoh maintained that when the issues have to do with over – voting and lack of proper accreditation, voter register and complete card reader reports are required along with the testimonies of polling unit agents who were directly present at the place of the election.

According to him, “As rightly found by the tribunal, in over 2980 polling units, the appellants only called a miserable 43 witnesses that were mostly non – polling unit agents who only gave hearsay evidence of what they were told.

Earlier, the 1st Respondent had raised preliminary objections urging that Grounds 6 and 22 of the Appellants’ Grounds of Appeal be struck out as the Appellants did not distil any issue from them.

This was accentuated by Counsel to 3rd Respondent who Ogwemoh who opined that failure to distil issues on Ground 22 of their Grounds of Appeal, meant that the Appellants had been deemed to have abandoned it.

The Appeal Court has reserved judgement to a date that will be made known later.