Ado Ekiti — THE petition of the Action Congress (AC) candidate in the rerun governorship Election, Dr. Kayode Fayemi, yesterday suffered a setback as the election Petition Tribunal sitting in Ado Ekiti, Ekiti State disqualified one of the witnesses lined up to give evidence before it.
AC had brought one Peter Oladesu, a subpoenaed witness to court to give evidence on how the re-run governorship election was allegedly rigged in Ido Osi Local Government Area of the state.
Peter, popularly called Erinmoje, was one of the close allies of Governor Segun Oni during the election , but now ready to give evidence in court due to frosty relationship between him and his former principal.
The Justice Hamma Barka led Tribunal in its ruling held that the subpoena that compelled Peter to give evidence in court was signed on September 27, and his deposition to his written statement on oath was done on September 24, adding that since the two were at variance that the witness was not qualified to give evidence.
He ruled that the subpoena was the foundation for the written deposition, saying his written statement on oath must be predicated on the subpoena and not in the reverse form.
He said granting the witness to give evidence before the tribunal could be contrary to the Federal High Court Civil Procedure Rule, which he said governed the operation of the tribunal.
After the ruling, the counsel to the petitioner, Chief Tony Adeniyi, sought the leave of the court for the witness to step down, but the counsels to the Respondents countered, saying they have the constitutional rights to cross examine him, having been sworn- in.
Chief Adebayo Adenipekun (SAN) , Counsel to Segun Oni and Chief Bolaji Ayorinde (SAN), counsel to the Peoples Democratic Party, Mr. Roland Otaru (SAN), counsel to the Independent National Electoral Commission (INEC) and Tayo Oyetibo (SAN) for the returning officers in Ido Osi and Ijero Local Governments, objected to the oral application of the petitioner.
They said that the witness having supplied his occupation , hobby, names and address before the court is subject to cross-examination, urging the tribunal to grant their leave in the interest of fair hearing.
But reprieve came the way of the AC, as the tribunal admitted in evidence the medical report of its amputee witnesses, Mr. Segun Ajayi , despite the spirited efforts made by the counsels to the respondents in the case to disallow the admissibility of the document.
The document signed by one Dr. Abiola P.O. was obtained from the Federal Medical Centre Ido Ekiti, where the witness was hospitalised after the April 25 gunshot allegedly fired at him by the police and suspected party thugs that rendered his amputated right leg.
Ajayi was shot at the office of the Independent National Electoral Commission (INEC) in Ido Ekiti on the re-run governorship election.
There were, however, fierce objections to the admissibility of the document from the counsels to the respondents in the case, with Mr. Adenipekun (SAN), maintaining that the document was not pleaded in his witness statement on oath , which he said was contrary to Paragraph 4 Sub Paragraph 3 of the Practice Direction.
Citing the case of Agdeyin VS State, Supreme Court judgment delivered in 1966, Ifenadio VS State, Supreme Court Judgment 605/ 1966 and Adie VS State 1980, Supreme Court judgment , Adenipekun held that the witness was not maker of the document, hence, he is prohibited by law to tender it before the tribunal.
Adding that enough foundation had not been laid to warrant the admissibility of the medical report, the counsel to the first respondent opined that since the author of the report had not been called to tender the document that the report remained invalid.
In his own submission, counsel to the Peoples Democratic Party (PDP), Mr. Obafemi Adewale, said evidence on issue not pleaded was no issue in law , adding that going by Section 91 of the Evidence Act that the witness was not competent to tender the document.
Relying on the case of Okereke VS YarAdua 2008, 12 NWLR to corroborate his assertion and Chime VS Onyia 2008, 12NWLR , Adewale posited that the document has no probative value since the author was not put on subpoena to tender it.
Banking on provision of Paragraph 34(3) of the Evidence Act, the counsel to the INEC, Roland Otaru (SAN), held that the absence of the Doctor, who is a Public Officer to tender the document in Court is suffice for its rejection.
He cited the cases of Ikpo VS State 1995, 9 NWLR and Ujoku VS State and Ubhosi VS State, as reported in 8 NWLRs to drive home his points.
Replying on point of Law, the counsel to Dr. Kayode Fayemi of the AC, Chief Adeniyi contended that the document under contention was relevant, admissible in law and had been pleaded and listed in the original petition of the petitioner, as required by Paragraph 1C of the Practice Direction, clarifying further that it was listed as item 18 in the petition.
Tribunal Chairman, Justice Hamma Barka admitted the report subject to its weight and evidence in the determination of the case.