Ortom Vrs Tarzoor at the Tribunal

IN THE GOVERNORSHIP ELECTION PETITION TRIBUNAL HOLDING AT MAKURDI

PETITION NO: EPT/BEN/GOV/01/2015
THE ELECTION TO THE OFFICE OF GOVERNOR OF BENUE STATE HELD ON THE 11TH DAY OF APRIL, 2015
BETWEEN:
RT. HON. PRINCE TERHEMEN TARZOOR-TETITIONER
AND
1. ORTOM SAMUEL IORAER
2. ALL PROGRESSIVES CONGRESS, APC
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)

THE LEGAL FIRE WORKS SO FAR

Parties in the petition would meet in court again, 7th September 2015 for preliminary objection by respondents counsels and adoption of final written addresses, Hon Justice Elizabeth Karatu chairman of the panel ruled 6th August, 2015.

The date was fixed after hearing both parties but INEC, lead witnesses to give oral evidence, tender documents and cross examination.

Both parties have assembled a team of lawyers who settled their briefs. Before the arrival of Adebayo Adenipekun SAN, Joy Adesina SAN was leading a team of lawyers for Tarzoor (petitioner) while Chief Adeniyi Akintola SAN (who later excused the court for Israel Olorundare SAN), Sabastine Hon SAN and Prof Tony Ijohor SAN are leading appearances for Ortom, APC INEC (1st, 2nd, 3rd respondents) respectively.

Tarzoor's petition is predicated on the following three grounds that Ortom was, at the time of the election not qualified/disqualified to contest the election; that the declaration and return of Ortom as winner of the April 11 poll was invalid by reason of non compliance with the mandatory provisions of the Electoral Act (S. 87) 2010 (as amended) and the 1999 Constitution (S. 177) of the Federal Republic of Nigeria (as amended); and that Ortom was not elected by majority of lawful and valid votes cast at the Governorship Election Benue State held on 11th April, 2015 announced on 13th April, 2015.

He wants a declaration that Ortom was not qualified/disqualified from contesting the election; that he (Tarzoor) ought to have been returned as Governor of Benue State; that the PDP's Tarzoor was duely elected or returned by majority of the lawful and valid votes and an order of the Honorable Tribunal directing INEC to withdraw the Certificate of Return issued to Ortom and issue same to Tarzoor as winner of the April 11 Governorship Election in Benue State.

In replying to the petition, the respondents including Ortom, APC, INEC have raised preliminary objection questioning the jurisdiction of the tribunal to entertain the petition by Tarzoor.

They are contending that the petition is an abuse of the process of the tribunal on the basis of "lis pendes, averring strongly that, Tarzoor is not entitled to the reliefs he is seeking and humbly pray the Honorable Tribunal to dismiss the petition in all its entirety, as being incompetent, frivolous, vexatious, power seeking, time wasting and a flagrant abuse of the Hounourable Justice Elizabeth Karatu led panel with substantial costs.

According to Ortom's counsels "the tribunal has no jurisdiction to hear and determine this petition in that the facts pleaded in the petition only disclose the issues of party membership, nomination/sponsorship of the 1st Respondent by the 2nd Respondent, all of which are pre-election matters.

"That the petitioner not being an aspirant in the 2nd Respondent's primary election complained of, lacks the locus standi to maintain this petition.

"That the petition is an abuse of the process of this tribunal on the basis of lis pendes."
To the second respondent, APC the petitioner has been caught up by the principle of Res Judicata (a matter that is settled by a competent court). Hon, who settled the briefs of the broom party contends that Tarzoor's principal, PDP had initiated Suit No. FHC/MKD/CS/09/2015, which was later dismissed seeking the same reliefs as the petitioner who if interested in the matter could have joined issues with Ortom at the Makurdi Federal High Court only to sleep over his chances.

In its preliminary objection, INEC submitted that "the petition is an abuse of court process, having been filled in respect of the same subject matter that is still being adjudicated upon by the Federal High Court in Suit No. FHC/MKD/CS/09/2015 filled by the Peoples Democratic Party and Suit No. FHC/ABJ/CS/1057/2014 being persued by Rt. Hon. Emmanuel Jime. Both of these suits have been pleaded by the petitioner in paragraph 18 of the petition.

"The subject matter of the petition is an internal affair of a political party, over which the Honorable Tribunal has no jurisdiction, including the issue of whether or not the 1st Respondent was/is a member of any political party.

"The petitioner has no locus standi to challenge the nomination of the 1st Respondent under Section 87 of the Electoral Act, 2010 (as amended).
"The subject matter of the petition does not fall within the purview of Sections 177 and 182 of Constitution of the Federal Republic of Nigeria, 1999 (as amended).

"The Honorable Tribunal has no jurisdiction to entertain the petitioner's complaint in ground 1 and paragraphs 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19 and 20 of the petition, by virtue of section 31(5) and (6) of the Electoral Act, 2010 (as amended).

"The petition is in breach of Paragraph 4(1)(d) of the 1st Schedule to Electoral Act and liable to be struck out under Paragraph 4(9) of the said 1st Schedule, in that there are no facts in support of grounds 2 and 3 of the petition."

During trial however, the curious Olorundare observed that Tarzoor's petition is faulty in its foundation, which further borders on the question of jurisdiction for reason that no single lawyer called to the Nigerian Bar has taken responsibility (by failure to sign and tick his name in the write of processes) of the action.

In a report issued at the end of the pre-trial conference, the Hon Justice Karatu led panel held that it would not delve into the issue of jurisdiction at the initial stage of the petition preferring to entertain the question at the address stage.

The panel maintained this stance in the course of hearing of the petition, which began 3rd August, 2015 even when respondents counsels raised objections as to the admissibility of certain documents Tarzoor sought to tender. Hence, every document that came went in on the premise that parties reserve the right to address.

Tarzoor took two days to make his case, Ortom, one day for defense while APC and INEC concluded their defense in a single day.

Trial was speedily dispensed of because His Lordship Karatu had ordered for definite hearing after pre-trial conference.

In making his case, Tarzoor called three witnesses two of who are subpoenaed (by order of the tribunal) witness and the other, witness under oath.

The first witness Terkaa Andyar, is a staff of the INEC.
He tendered 13 documents in evidence. Despite objection from the respondents' counsels, Tarzoor's applications to tender both material and electronic evidence scaled through and the documents admitted.

Through Terkaa, documents including time table/schedule of activities for the conduct of 2015 general elections, report of INEC's monitoring team on the gubernatorial primary election of the Peoples Democratic Party, PDP Benue State held on 8th December, 2014; and report of INEC's monitoring team on the 5th December, 2014 gubernatorial primary election of the APC Benue State were tendered through the witness.
Save for the time table and schedule of activities for 2015 general elections, the admissibility in evidence of the two reports came under vehement objection by counsels to Ortom, APC and INEC.
The objections were technical and had correlation to issue of jurisdiction and the panel in a ruling delivered by Hon Justice Catherine Ogunsanya, says it would not give into the temptation of delving into the issue of jurisdiction, preferring to be addressed on it and overruled the objection.

Testifying further, Terkaa told the tribunal under cross examination that though, changes were made to the time table and schedule of activities for 2015 general elections, there was no change in the date of primary election for political parties and that INEC attended the 10th and 11the December, 2014 rescheduled Governorship primary election of the APC Benue State only to leave "around 12:00am of 10th December, 2014.
He also told the tribunal that changes were made on the 2015 election time table and is not aware when the APC held her Governorship primary election for 2015 general elections.

When questioned on the signature specimen before his name on the two documents, Terkaa said he has one signature and denied that the signature on INEC's report on Governorship primary election of APC Benue State was not his except the one on the report on PDP's Governorship primary election.

Angela Erdoo Anya, the second subpoena witness, from National Library of Nigeria was led into evidence by Joy Adesino SAN, who led proceedings for Tarzoor for the day. Through her, two editions of The Sun newspaper viz; Saturday Sun 16th May, 2015 and Saturday Sun 23rd May, 2015 were tendered and admitted in evidence. Reports of interest in the two editions are related to the crisis in the Benue APC over nomination of governorship candidate.

Despite the objection from the respondents' counsels on the admissibility, the two newspaper editions, Certified True Copies, CTC of the two were admitted in evidence except that the original copies were rejected.
The witness is not the maker of the documents and had little to answer. From what the witness read from the report in one of the CTC of the newspapers however, Ortom left PDP on the 9th December, 2015, got registered in APC with his Nzorov Ward, got waiver and emerged consensus candidate of the APC for the April 11 Benue Governorship poll.
Before the above evidence was elucidated, the panel had admitted in evidence a number of documents tendered through the Bar including form EC8E (declaration of Governorship Election Result for Benue State), membership register of PDP Nzorov Council Ward, time table/schedule of activities for 2015 general elections, Tarzoor's certificate issued by the PDP and an agreement that INEC would tender CTC of form CF001.

And then came the 3rd witness, Dr. Cletus Tyokyaa. Through this witness, a DVD containing a news report from Channels Television downloaded from youtube was tendered. The admissibility of the DVD faced a serious objections. Respondents counsels' objection to the admissibility of the electronic document was overruled and the DVD, which was later to be played in open court, however, exclusively for lawyers and members of the panel was admitted in evidence.

Tyokyaa denied membership of the APC, was not at Akume's Judges Quarters residence on 11th December, 2014, has no access to APC register of voters for Nzorov Council Ward, neither is he aware that APC conducted governorship primary election nor received any complaint from APC governorship aspirants save for what he read in the media and watch.

He however insisted that APC had no candidate in the April 11 Governorship poll for Benue State and so the tribunal should declare Tarzoor as winner of that poll.

In a swift defense however, Ortom called two witnesses one of who is the chairman of PDP Nzorov Council Ward, Chief Dr. Agbaka Felix and the other, APC chair Guma Local Government Council, Ezekiel Ukulemo...

Agbaka during examination by lead counsel to Ortom, Israel Olorundare, said he received two copies of letter of resignation of Ortom's membership from the PDP on 9th December, 2014 signed, filed one and returned one.

And Ezekiel Ukuremo Adekpe, the Nzorov APC chair told the panel that he registered Ortom in his party on 9th December, 2014 at about 3:00pm and notified the Guma Local Government chair of APC on 15th December, 2015.

Adebayo Adenipekun SAN, Tarzoor's lead counsel however raised objection as to testimony by Ezekiel. He imagined that the path adopted by Ortom's counsel was an ambush and moved the panel to compel parties to stick to the report of the pre-trial conference where in Ortom said he would be calling one witness and would subpoenaed another.

But Israel Olorundare SAN, Sabastine Hon, SAN and Prof Tony Ijohor SAN insisted that the two witnesses (subpoenaed) are official witnesses (witnesses by command of the tribunal) and need not front loaded or listed.
Besides, Olurundare submitted that the petitioner has ambushed them by concluding his case 4th December, 2015 contrary yo their expectation. He reminded the court that he was overruled when he informed the court of his challenge to open defense on 5th December, 2015.

Hon cited S. 218 and S. 219 of the Evidence Act while Ijohor cited S. 175(1) of the same act and also the fact that the panel can Sui moto subpoena any person to appear before it to buttress their points.

The panel in its ruling delivered by Hon Justice Hadiza Ali overruled the objection by Tarzoor's counsels.
In the interest of fair hearing, the objection by Tarzoor's counsels overruled, the panel held. Parties were however encouraged to abide by due process particularly, in calling witnesses as was agreed to at pre-trial.

Ortom tendered the following documents in his defense through the Bar: His APC membership card; Letter of notification dated 15th December, 2015 addressed to Guma Local Government APC chair; Letter of resignation from PDP dated 9th December, 2015; APC membership register Nzorov Council ward; and subpoena.

Other documents tendered by Ortom (through the APC witness) are the petitioner's petition; receipts of payment for petitioner's answer to pre-trial, CTC of petitioner's reply to 1st respondent's reply, payment for pre-trial; petitioner's reply to 1st respondent reply, application for issuance of pre-trial information sheet and form TF007, petitioner's answers to pre-hearing information sheet.

In her defense however, the APC called one Barr Bala Dala, the chairman of the committee that conducted the 10th and 11th December, 2014 rescheduled Governorship primary of the APC Benue State.

According to Bala, Ortom met the conditions for waiver to participate in the rescheduled APC Governorship primary election for Benue State and was granted same.

He denied the statement Adenipekun put to him that no waiver was issued to Ortom insisting that it would be a serious aberration for a member of the PDP to contest primary election on the platform of the APC.

Throwing more light on the question of waiver, Bala told the tribunal that both the National Working Committee, NWC and the National Executive Council, NEC of the APC can issue same however in special circumstances, upon recommendation of the NEC in the case of NWC.

INEC however did not call any witness and only tendered in evidence list of candidates for the 2015 general election submitted to the commission by APC.
Ijohor said he would be relying on facts elicited from cross examination and documents pleaded by the respondents to address the panel at the next adjourned date.

As is the position of the Honourable Tribunal, the petition by Tarzoor has been reduced to two issues: jurisdiction of the panel to entertain the petition and legality of INEC's declaration of Ortom as winner of the April 11 Benue Governorship poll.

Date for judgment would be taken at the next adjourned date. Cooooooourt!

(Denen Achussah)