National and state Houses of Assembly Election Petition Tribunal sitting in Lokoja, Kogi State capital has reserved judgement in a petition brought before it by Senator Smart Adeyemi against Hon. Dino Melaye, representing Kogi West Senatorial District.
Sen. Smart Adeyemi, the People’s Democratic Party,PDP Kogi West Senatorial candidate in the March 28 Presidential and National Assembly Election has approached the tribunal saying that he was validly elected, but was denied victory.
At the resumed hearing Wednesday, all the lawyers in the matter adopted their final addresses and made final submission to further convince the court on their cases.
But after listening to them, Justice Akon Ikpeme, who is the Chairman of the three man panel said he reserved judgement to Saturday 10th October, 2015.
Adeyemi had approached the tribunal with one main objective, to reclaim his mandate but with two main allegations. First is that there were irregularities that affected the outcome of the March 28 senatorial election, a case he advanced vehemently in court.
He first brought the PDP senatorial collation officer for the election, Fehinti Dada as witness. Dada told the tribunal that the result of the March 28, 2015 senatorial election was falsified, fabricated and concocted by INEC to put Melaye ahead.
When he was cross-examined by the counsel to the respondent, Francis Ani, Dada further said the election was marred by irregularities in disputed 21 units of five wards in Lokoja local government area of the state. He also said the result of the recounting ordered by the tribunal showed that INEC counted and recorded the voided votes during the election in favour of Melaye.
He told the tribunal that the APC never held a primary election before Melaye emerged candidate of the party, noting that some members of the APC went to court to challenge the emergence of Melaye because primaries were not organised. He premised his assertion on documentary evidence from the Independent National Electoral Commission (INEC), alleging that Melaye did not emerge from a primary.
The INEC lawyers had earlier tendered a certified true copy of the APC report on the Kogi West Senatorial primaries in which it was adduced that Melaye did not participate in the party primary.
This was indeed a big respite for Adeyemi and his supporters, who went jubilant that with the certified true copy, their case was better because candidates for elective office on the platform of a political party must be democratically elected through a primary.
Three weeks later, a witness from INEC Abuja office, Ibrahim Sanni Mohammed astounded the court when he reverted the earlier and insisted that the body monitored the conduct of Kogi West senatorial primary election for the APC. This was against the position of the Lokoja INEC, which told the previous tribunal that the APC did not conduct primary before it presented Melaye as its candidate.
Despite the silence that pervaded the court room, Sanni’s testimony, which neutralised the earlier gains of the Adeyemi team created uproar. Sanni’s cross-examination by Adeyemi’s counsel, Olakayode Olatoke, revealed that the Subpoena that brought the witness to court was addressed to him directly rather than the proper procedure which is to address it to INEC, which then nominates a witness to come to the tribunal.
Mohammed further surprised the court when he said he did not know the INEC official that conducted the primary but that he was only provided the report of the exercise. He couldn’t also mention two different locations where the primary was conducted under cross-examination.
The figure of the result submitted by the witness, which was marked exhibit 33-3, was not the same as the report of the result also presented by the same witness. Above all, his reports were handwritten and not typed on the INEC letterhead paper.
Against this background, Olatoke urged the tribunal not to entertain the witness’ submission because not even the APC or Melaiye’s counsel disputed the petition on the non-conduct of primary by APC in their responses.
As the legal drama continued, the APC counsel, Ayotunde Ogunleye presented his first witness in the person of Victor Garba, who is working with the Department of State Security (DSS), and he tendered five documents before the tribunal. They are handwritten report of the observation of the verification of the ballot papers, letters from INEC to the DSS asking them to investigate reports of his findings, observation and investigation of the tampering with ballot papers used for the poll.
When he came under cross-examination by the petitioner’s counsel, Lateef Fagbemi (SAN), Garba stated that investigation on the alleged tampering with the election materials, which started since June was still ongoing. He said though some persons have been arrested by the agency, nobody could be said to be guilty until the conclusion of investigation. And that nobody had been charged to court over the alleged tampering with the election materials.
When Fagbemi asked him the name of the Director-General of the organisation, he did not know.
Also, when asked the name of the Assistant Director of Operations of the DSS in the state, Garba said he did not know but told the Justice Akon Ikpeme-led tribunal that he was investigating the case of tampering with election materials used for the election under dispute and that he was the DSS officer attached to the office of INEC in Lokoja as Security Liaison Officer.
He told the court that “Many of the ballot papers were double printed while some had multiple thumb-printing on them. This rendered the ballot papers invalid.” He said the high rate of invalidated ballot papers led to the invitation of the service by the Resident Electoral Commissioner (REC), in the state to properly investigate the development.
But when asked to confirm and prove if he was a staff of the DSS, Garba said he did not come to the court with his identification card and had no other way to identify himself. Just as the Abuja INEC witness, Garba’s report was also handwritten on a paper and not on DSS letter head paper. As with Sanni, the Subpoena that brought Garba before the tribunal was also addressed to him as a person and not to the service.
Evidently, the litigation has elicited reactions and counter-reactions from the people. However, shedding lights on the implications of Subpoena, a renowned legal practitioner, Mr. Bolus Ayeni said Subpoena to call organisation is different from that requesting individual to witness. According to him, when an organisation is called to testify, the witness can only be in a better position in the eyes of the law if he or she is nominated by the organisation summoned.
“Subpoena should be issued to the organisation to testify and the organisation will now authorise whom to represent them. Subpoena cannot read individuals name when it is an organisation that is required for testimony,” he said.
In another reaction, the PDP has maintained that the DSS did not submit any report on the recounting as being made to believe. Disagreeing with media reports that the DSS had submitted a preliminary report to the tribunal, former PDP zonal vice chairman, Mr. Mohammed Mohammed said as far as the PDP is concerned, the DSS is yet to submit report on the Kogi West election to the Elections Petition Tribunal sitting in Lokoja.
“An operative of the DSS, who claimed to have been attached to the office of Independent National Electoral Commission (INEC) during the election, Mr. Victor Garba, who was quoted as having submitted a report from the DSS was not acting on behalf of the DSS as he could not present an identity card to prove that he was a member of staff of the DSS.
“The said report tendered by the acclaimed operative failed under cross examination by the counsel to Senator Smart Adeyemi, Mr. Lateef Fagbemi because the man was subpoenaed in his personal name and not in the name of DSS.
“The said operative was not acting on behalf of the DSS in the case between Senator Smart Adeyemi and Dino Melaye. He could not produce an identity card and he only submitted a report on plain sheet of paper. That cannot be said to be a report of the DSS,” Mohammed stated.
(Additions from: A Tale of Two Kogi Senators)
