Delta State Governorship Election Petition Tribunal sitting in Asaba, on Monday reserved ruling in an application brought by the petitioners seeking a recount of ballot papers used for the March 18 election.
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Governorship candidate of the All Progressive Congress (APC), Ovie Omo-Agege, is challenging the declaration of Governor Sheriff Oborevwori of the People Democratic Party (PDP) as winner of the election by the Independent National Electoral Commission (INEC).
At the resumed hearing, the three-man tribunal headed by Justice C.H Ahuchaogu, reserved the ruling on the application for Tuesday, August 1 after listening to argument by counsels to the parties.
Counsel to the petitioners, Alex Iziyon (SAN), urged the tribunal to make an order for the counting of the ballot papers already admitted in evidence.
“In the circumstances, I will apply to the tribunal that the said bags already in evidence and marked as exhibits 3PR1-3PR176…that the tribunal make an order for the count of the ballot papers already tendered,” he said.
Oborevwori’s counsel, Damian Dodo (SAN), argued that the case for a recount of ballot by the petitioners has not been “made out”, adding that the petitioners failed to apply for a recount at the polling unit level.
He cited Section 61 of the Electoral Act to buttress his position, submitting that “a demand for a recount at the polling unit level is by the intendment of the Electoral Act a sine qua non for an application for an order to recount before the tribunal.”
Earlier, the tribunal dismissed an application brought the petitioners seeking a subpoena witness from INEC to testify in the matter.
In the ruling, Justice Ahuchaogu agreed with the argument of Mr. Dodo, and held that “the witness cannot testify in areas in proof of the petitioner’s case moreso where he is a staff of one of the respondents.
“We sustain the objection and expunge the answers offered by the witness as to the number of ballot papers contained in the respective bags.”
The subpoened witness, Mr. Joseph Ellems, who is INEC Head of Electoral Operation Department, in Asaba, Delta State, had tendered bags of ballot papers used for the election.
Iziyon had applied for the witness to testify, an application that Dodo objected to.
Dodo argued that the witness could not testify, because the petitioner was limited by the terms of the subpoena “Duces Tecom ard Testificandum” issued by the tribunal.
According to Dodo, the witnesses’s duty is “to produce and tender evidence rather than testify.
“We take objection to the last question of the learned silk given the limits of the subpoena which commanded the witnesses’ appearance.
“The tenor of the subpoena is to produce and tender and he has finished the business of tendering. They are limited by the terms of the subpoena.To ask this witness to tell what is in the bag is “Duces Ard Testificandum”
But APC’s counsel, Dr Alex Izinyon (SAN) urged the tribunal overrule the second respondent’s objection as it has no basis in law.
He said it will amount to cutting short his witness if the objection is sustained. He said the objection is “premature and hasty” and urged the tribunal to overrule it.
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