BENUE TRIBUNAL
By Nathaniel Ikyur
The Benue State Governorship Elections Petitions Tribunal sitting in Makurdi has heard that the National Working Committee, NWC and the National Executive Council, NEC of the All Progressives Congress, APC approved the waiver that qualified the Benue state Governor, Samuel Ortom to contest it's party primaries in 2014.
Barrister Baba Dala who was the chairman of the December 10th and 11th, 2014 rescheduled gubernatorial primaries in the state made this known when the APC opened its defence at the continued sitting of the Tribunal in Makurdi.
He was led in evidence by counsel to the APC, Sebastian Hon, SAN.
Similarly, the tribunal was told that the petition filed by the defeated PDP governorship candidate in the April 28th general elections, Rt Hon Terhemen Tarzoor was fundamentally defective, in that it is not properly signed by originating legal team.
Counsel to the 1st respondent, Israel Olorundare, SAN contended that "where various lawyers will appear for a litigant, a lawyer signing a process of such litigation should tick his name among the names of other counsel."
According to him, "there was a fundamental defect to the originating processes that activated the setting up of the instant Tribunal." In his words, "a document or court process signed by a non lawyer and that it is required to be signed by a person, called to the Nigerian Bar, is incurably defective and a nullity."
He made this revelations when the All Progressives Congress, APC opened and closed its case before the Benue State Governorship Elections Petitions Tribunal sitting in Makurdi Thursday 6th August, 2015.
The APC's star witness was Baba Dala, a legal practitioner.
He tendered key documents and was led in evidence by the APC counsel, Sebastian T. Hon, SAN.
The following documents were tendered and admitted in evidence. They include:
Affidavit of citation also known as exhibit R7
Resolution of Party delegates, Exhibit R8
APC constitution, Exhibit (R9)
Application for Waiver, Exhibit R1O
Granting of Waiver, Exhibit 11
Receipt for proceedings certificate of Federal High court Makurdi, Exhibit R12
Concurrent originating summons, R13
Receipt of proceedings, R14
Record of proceedings, R15
ST Hon, SAN led the witness in cross examination that went as follows:
Que: In respect to this petition what are you?
Ans: I am one of the resource persons assembled by the APC to add value as professionals, party administrators and political scientists. To add value to the selection process for the emergence of candidates for the various party offices at the last April 2015 elections.
ST Hon – Between 10th and 11th December 2014, where were you and what were you doing?
Baba Dala: I was here in Makurdi as chairman of the gubernatorial primaries of the APC.
ST Hon: Do you remember that 8 July 2015, you deposed to a statement on Oath in this petition?
Baba Dala: Yes I did. At the registry.
ST Hon: Take a look at this exhibit, (shows the document), is it the deposition?
Baba Dala: Yes.
ST Hon: My Lord its on pages 11-17 of the further amended reply filed by the 2nd Respondent in respect of the petition.
Baba Dala: I wish to adopt it as my evidence in this Tribunal. (At this point, the Tribunal chairman ruled that the statement was deemed adopted as his Evidence in Chief.)
ST Hon: Please open Para 11 B of your deposition where you cross referenced 18B to a suit filed by PDP. If you see a copy of the originating summons, will you identify it?
Baba Dala: Yes
ST Hon: Same page 11(b) of statement of Oath, you said PDP being the principal of the petitioner, the petition should be dismissed?
But counsel to the petitioner, Adenikpekun, SAN raised objections, contending that the said documents referred to were already documents before the tribunal and that they will speak for themselves. That the procedure adopted by the 2nd Respondents Counsel, was more of cross examination and was contrary to Section 41 of the Evidence Act. He also referred to it as 'ceding of the court' which was contrary to S128 of the Evidence Act. He then "urged the court to disallow the questioning because it's not permissible.")
At this point, the 1st Respondent counsel, Olorundare, SAN stood up and commenced a process that took everyone by surprise. He began to challenge the jurisdiction of the tribunal which he hinged on some processes filed by the petitioner which on the face of those various processes, it was difficult to deduce which lawyer signed those processes. He contended that "where various lawyers will appear for a litigant, a lawyer signing a process of such litigation should tick his name among the names of other counsel." According to him, "there was a fundamental defect to the originating processes that activated the setting up of the instant Tribunal." In his words, "a document or court process signed by a non lawyer and that it is required to be signed by a person, called to the Nigerian Bar, is incurably defective and a nullity." He cited Dr Bolaji Akinsonya vs Federal Mortgage Finance Ltd, (2010), LPELR, Pt 935/08. He contended further that "the signature is only identifiable by the name of the signatory. It is not enough to sign a process without indicating the name. An application to regularise the process cannot be entertained."
Contributing on the objection by the petitioners counsel, ST Hon, SAN, in aligning himself with the submissions of the 1st Respondent Counsel, contended that the manner of cross examination was designed to elicit a challenge on the jurisdiction of the tribunal, he relied on the authority of Ede vs CBN, (2015) ALL FWLR, Pt 769, page 1113 @1127; Yakubu vs Yola Electricity Company Ltd, (2015) ALL FWLR, pt 764, Pg106 179@ 191. He submitted that signature of an initiating process by improper signature goes to the jurisdiction of the court. Reference was also made of Digest of Election Petition Cases authored by the learned senior Advocate of Nigeria, Adebayo Adenipekun who is also the lead counsel to the petitioner. It was captured on page 368-369, para 110.
It was then that the lead counsel to the Benue state Governor, Isreal Olorundare, SAN reminded the tribunal that on the first day when the tribunal began calling witnesses, a witness from the National Library of Nigeria tendered and explained the content of the document she presented. It was the reasoning of the senior advocate that "it will be against the principles of fair hearing as enshrined in the 1999 constitution if a witness is allowed to tender a document without explaining it as he has pleaded."
Even with clear citation from the book he authored, Adenipekun continued to object the mode of cross examination, insisting that it was not permissible. He was to later apologise overcertain words he uttered and also withdrew his objections.
After this, the tribunal ruled that the witness be allowed to be cross examined as he had pleaded. It was from here that ST Hon took over.
ST Hon: Pages one and two contains questions for determination. 2 & 3 have reliefs sought, 4-8 have the supporting affidavit.
Baba Dala: Yes
ST Hon: In para 11(b) you said what the reliefs sought in the present petition is the same facts and releifs tendered before a Federal High Court Makurdi? Please look at ‘R’ 15 and read to the last point before the name of the judge is inscribed.
Bala Dala then read the concluding part of the ruling of the Federal High Court Makurdi which dismissed the PDP suit wherein the PDP applied to withdraw the suit but the court held that the appropriate order in the circumstance was a dismissal of the suit and it was accordingly dismissed.
Bala was also asked to look at the documents he signed on page 4 of his deposition dated 11th Dec. 2014 and the correction made there in:
ST Hon: Look at Ex R9; the Constitution of APC, article 20 of the documents permits consensus? To which Baba Dala responed in the affirmative.
Thereafter, counsel to governor Ortom took over the cross examination.
Olorundare: Take a look at Ex R10 and R11. They are aapplications for grant of waiver and the grant you mentioned in your para 9.
Baba Dala: Yes.
Olrundare: You are here to testify in this case?
Bala Dala: Yes
Olorundare: Look at the petition and confirm that it is because of it that you are here.
Bala Dala: (Takes a look at a copy of the peition as was handed over to him by a Tribunal official) and answered Yes.
Olorundare: I wish to tender them in Evidence.
A copy of the petition was then admitted by the tribunal and marked 'R16'
There was no objection from any of the parties when Olorundare, SAN, sought to tender the documents in evidence. He then continued with the cross examination of the witness.
Olorundare: You said you were here in Benue to conduct APC primary on the 10th and 11th of December, 2014?
Ans: Yes
Olorundare then asked the witness if the petitioner, Rt Hon Tarzoor was one of the candidates in the APC gubernatorial primaries he supervised. To wit he answered in the negative. He also told the tribunal under cross examination, that as a professional, he has been engaged in legal practice since 1988.
Counsel to INEC, Prof Tony Ijohor, SAN also aligned himself with the submissions of the counsel to the 1st and 2nd Respondents, saying that, "it is my submission that the issue of jurisdiction cannot be tied to pleadings. It can be raised at anytime."
Counsel to Tarzoor submitted that his learned colleagues "missed the point with the reply. The objections to jurisdiction is not being argued now because your Lordship had ruled that all that should be at the final hearing. To him, what is in contention now is whether facts not pleaded can be elicited from a witness in the box under cross examination. He said these facts are not pleaded. He reasoned that a party cannot elicit facts not pleaded under cross examisation citing relevant authorities.
Adenipekun observed that what counsel to the 1st, 2nd and 3rd respondents are doing is to spring a surprise on the other party because according to him, "they did not plead or allude to it. The submission on the signature. This as election petition. In an election petition, its valid once the petitioner or counsels signs it. He cited para 4(3)(b) of the First schedule which he claims states that when just one lawyer or even the petitioner signs it is valid.
At this point the Tribunal chairman, Justice Elizabeth Karatu over ruled objections brought up by the petitioner, saying that "all objections will be delivered when the tribunal delivers its final judgement."
Prof Ijohor, SAN, representing INEC picked up the cross examination in the marathon cross examination of Barr Dala which lasted for more than four hours.
Ijohor: Is it your duty to look at the forms and documents of candidates?
Baba Dala: Exactly.
Ijohor: In the case of the 1st Respondent, did you look at the
documents he presented?
Baba Dala: Yes.
Ijohor: Confirm to the Tribunal that you saw the application for
Waiver to contest the rescheduled primaries and the waiver so
granted?
Ijohor: Did he meet all the conditions?
Baba Dala: Yes
Ijohor: Look at the APC constitution and open to Article 31.
Baba Dala: That was the provision we used to grant him waiver
under sub section (2)
Ijohor: On the face of the application what happened?
Baba Dala: He was scrunitized
Ijohor: After submitting his name, did INEC issue any query as to
the conduct of the primary?
Ijohor: Am I right to say INEC did not seek any clarification as to
the conduct of your primaries?
Baba Dala: Yes
Counsel to the Petitioner, Adebayo Adenipekun, SAN then took over the
last lap of the cross examination.
Adenipekun: APC earlier fixed its primaries for 5th of Dec 2014?
Baba Dala: Yes
Adenipekun: That primary was aborted?
Baba Dala: Yes
Adenipekun: You gave notice to another for 10th and 11th December
2014?
Baba Dala: Yes
Adenipekun: You are the Chairman of the committee that submitted the
report
Baba Dala: Yes
Adenipekun: You also wrote report to the headquarters which is
anexhibit?
Baba Dala: Yes
Adenipekun: You arrived in the Morning of 10th?
Baba Dala: Yes
Adenipekun: However on that 10th most of the delegates were in Lagos
for the National convention?
Baba Dala: Yes, some.
Adenipekun: That convention was supposed to hold between 10th & 11th?
Baba Dala: No. According to our guidelines, it was 9th & 10th (Barr Dala
produced a publication which the party had published to buttress his
point.)
Adenipekun then sought to tender the document but ST Hon and Ijohor
for the 2nd and 3rd Respondents all objected, saying that, it was not
pleaded. And that even if it was pleaded, it has been abandoned by the
petitioner. As since it was not listed it should be rejected.
Adenipekun argued that his client do not need to plead to tender under
cross examination. The Tribunal then over rules the objections and
admitted same.
The cross examination continues:
Adenipekun: The date is 10th – 11th December 2014?
Baba Dala: Yes
Adenipekun: Before this, you said you arrived on the 10th and you met
the aspirants at about 5pm on that day?
Baba Dala: Yes.
Adenipekun: Prof. Ugba & Jime attended. You also met the state EXCO
for modalities for the primaries?
Baba Dala: Yes
Adenipekun: You mandated them to look for an appropriate venue forthe
primaries?
Baba Dala: Yes
Adenipekun: The venue was HAF Haven?
Baba Dala: Yes
The witness also told the Tribunal that even though the security agencies
and the INEC were ready for the conduct of the the gubernatorial
primaries of the APC earlier scheduled for the 5th of December, 2014, it
was aborted because of a court injunction obtained by one of
the aspirants, Prof Steven Ugbah was served on the officials at the venue
of the Congress.
Dala, still under cross examination disclosed that although the 1st
respondent was not a member of the party as at the time the primary
election of 5th December, 2014, he was later qualified to contest in the
rescheduled primaries of December 10th and 11th because he applied for
and was granted waiver by the National Executive Committee, NEC of the
party as recommended by the National Working Committee, NWC.
When Adenipekun, SAN attempted to contradict him on the
superiority between the NEC and NWC, the witness stood firm,
insisting that the NEC and NWC are vested with powers to grant waivers
on the recommendation of the NWC. He confirmed that Benue state
Governor, Samuel Ortom applied for waiver on the 9th of December 2014
and was dully granted. By that, he was qualified to contest in the
rescheduled primaries of the party of december 10th and 11th, 2014 as
enshrined in Article 31 (2) of the constitution of the APC.
Similarly, the witness affirmed that the constitution of the APC gives room
for consensus candidacy. But Adenipekun won't allow him go free. He said:
"I put it to you that it is only for party posts that you apply concensus" to
which Dala vehemently objected.
After tthe tedious cross examination and arguments that trailed this
witness, Tribunal Chairman, Elizabeth Karatu adjourned sitting to
September 7th, 2015 for the submission of written addresses. She
disclosed that the long adjournment was to give counsels time to submit
addresses for final adoption.
INEC did not call any witness in the matter but aligned itself with the
submission of the 1st and 2nd respondents. The commission adopted all
evidences as listed and admitted by the respondents without objection
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