*Seeks explanation on workability of card readers*
The Akwa Ibom Governorship Election Petition Tribunal, sitting in Abuja has affirmed that questions
concerning the malfunctioning or use of the card reader in the election can be raised in tribunal.
The three-man tribunal headed by Justice Sadiq Umar ruling against an objection by Mr Umana Umana of the All Progressives Congress (APC), said the respondents had every right to ask questions bothering on the malfunctioning or use of the card reader in the April 11, governorship election in Akwa Ibom State.
INEC’s first witness in its commencement of defense, Pius Nwankwo, Head of ICT Department of the Independent National Electoral Commission (INEC),Uyo, had while being examined by the counsel to the 1st Respondent Paul Usoroh SAN, admitted he received reports from the field on the functioning of the card readers.
But the APC counsel, Solomon Umoh SAN raised an objection, arguing that the INEC staff should not be questioned on the functionality of card readers. Umoh argued that nowhere in the said witness statement did the witness allude to the fact that he received information from anybody during the elections on April 11 2015, and that in Paragraph 9 of his witness statement he alluded that issues bordering on the card reader was between the polling units and the INEC headquarters in Abuja.
In his ruling, Justice Umar contended that, questions raised from issues in the tribunal must relate to the parties pleaded.
“We have read the entire Paragraph 9 and 11 of the 3rd and 4th respondents and we are of the firm opinion that the issue of card reader was specifically pleaded and parties are specifically joined in the issues. Therefore it would not amount to springing a surprise on any party if a question is elicited on the use or malfunctioning of a card reader in the petition.”
Dismissing the objection, the judge ruled that “The question sort to be asked should be asked and the objection (by Umana’s lawyers) is hereby overruled.”
Before the ruling, the opposing parties had engaged in a fierce battle on the eligibility of the INEC information technology expert to entertain questions on the usage of the card reader.
Paul Usoroh was of the opinion that the witness had testified that his responsibility as INEC ICT helmsman, includes matters concerning the card reader. Usoroh SAN defended that it was a foundational issue as the witness had stated in his statement that there were issues with the card reader.
But Umoh argued further that even if he had made such allusions in his Evidence in Chief, which he didn’t make, it will go to no issue, having not been pleaded. He cited the case of Udiagha vs Omegara (2010) and maintained that the witness must on examination, raise facts that have been raised in the pleadings. He further cited a Supreme Court case of Okwejimimor vs Gbakeji (2008) where the court said that evidence obtained at cross examination when not pleaded is inadmissible.
Solomon Umoh SAN asserted that the issue of relevance as a basis for that question doesn’t hold as relevance of a matter must be in the pleadings. He urged the court to disallow the question.
However, counsel for PDP, Tayo Oyetibo SAN says that in relation to paragraph 6 of the witness statement, there were challenges with the use of card readers and a question can be asked in that regard. He said the questions are within the four walls of the case and should not be opposed.
Mr. Oyetibo referred the tribunal to paragraph 6 of Mr Pius Nwankwo’s statement on oath to the effect that he alluded to issue of card reader, adding that if the petitioner’s counsels were not clear on the statement, “they should have asked for better particulars to the statement on oath a long time before now.”
On his part, Counsel to INEC, Alex Ojiesieme referred the court to Paragraph 9(c) and (d) of the witness statement which expressly stated that in the circumstance that the card reader malfunctions, there were alternatives on ground.
He says section 215(2) of the Evidence Act does not limit questions during cross examination to pleadings. He said that since it is a fact finding tribunal, questions concerning the card reader should not be limited as the petitioners had claimed the card readers worked.
Paul Usoro SAN while adopting the arguments of Messrs Oyetibo and Ejesieme said the case of Udiagha vs Omegara had nothing to do with cross examinations and was cited in error by the petitioner’s counsel. He further faulted Solomon Umoh’s argument based on the Supreme Court case of Okwejimimor vs Gbakeji and said the case is irrelevant to the matter in discussion as the issue in this case is the question whether the card reader malfunctioned or not. He says the witness has clearly said he was in charge of the department that saw to the use of the card readers.
Usoro SAN insisted that the issue is about card reader & the evidence is how the card reader malfunctioned, which needs not be pleaded.
Earlier, a subpoenaed witness appears in court at the instance of the Petitioner, he is Ogechi Ogbonna, from MTN Nigeria. He is an external lawyer and he is in court on behalf of the CEO of MTN Nigeria, Mr Mike Ipoki to produce some documents.
Solomon Umoh SAN, Dayo Akinlaja SAN, Victor Iyanam, Effiong, led the charge for the petitioner Mr. Umana Umana, Asiwaju Awolomo, SAN with Paul Usoro, SAN and 11 other lawyers are in for the 1st respondent Mr Udom Emmanuel; Tayo Oyetibo, SAN and 3 others for the 2nd respondent PDP, Akwa Ibom State; and Alex Ejesieme stood in for the 3rd and 4th respondents.