By Abasi Ita, Calabar
Hearings are intensifying in the legal tussle instigated by former Cross River Governor Ben Ayade at the Cross River National Assembly Elections Tribunal challenging the declaration of Senator Jarigbe Agom Jarigbe of the People Democratic Party, PDP as the duly elected Senator for Cross River North by INEC.
The legal battle has pitched two legal luminaries against battling to outwit each other in convincing the 3-man panel headed by Justice M.A. Sambo on the merit and veracity of their submissions in a bid to guarantee a favourable outcome.
Dissatisfied with the ruling of the Tribunal after Tuesday’s hearing which stopped his key witnesses from tendering documents and materials not captured in disposed statement, Ayade’s lead counsel, Mike Ozekhome SAN, who was furious with the position of the 3-man Tribunal has promised to approach the Appeal Court over the matter.
The chairman of the 3-man panel, Justice M. A. Sambo, had ruled against witnesses’ impulsive moves to tender documents and materials that are not contained in the initial deposed statement.
Hearings over the matter began on Monday as captured in the petition with Suit No. EPT/CR/SEN/02/2023 with Ayade legal team presenting evidences 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 who opened his case had presented over 700 documents and four witnesses in the interim. In presenting two of the principal witnesses from Bekwara local government area, he pleaded that they (the witnesses) be permitted to identify the Voters Register as part of the evidence to prove their case of alleged election malpractices.
In arguing his case, the counsel to Ayade cited some legal instances backing his submission to enable him to present the documents and materials for identification by the witnesses to the buttress their defense.
However, the counsel to Jarigbe, Mba Ukweni, SAN, opposed the prayer, vehemently citing some relevant authorities why the Tribunal should not entertain such in judicial processes of this magnitude, saying it would amount to abuse of rules proceedings or due process.
After listening carefully 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 in deposed in the earlier statement field in the suit.
He posited that, “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.”
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He continued that,”The panel had not seen anything that would make them depart from the point of law. Other members of the Tribunal C. Akabua and J. Zululu also aligned with the position.
Addressing 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 on these 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 were 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 identifying their tendered documents, he said: “We are happy for that and we even offered that of 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 is 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 a standard practice.”