Alex Oti Vs Ikpeazu: Todays Trbunal UPDATE

Otti and Ikpeazu were absent while APGA and PDP Representatives were present. AKEREDOLU SAN, OLANIPEKUN SAN, IKPEAZU SAN and MIKE ONYEKA lead the Lawyers for the Petitioners, 1st, 2nd and 3rd Respondents respectively.

Business:
Akeredolu SAN informed the Court that he has a pending Motion.
OLANIPEKUN SAN informed the Court he has a preliminary objection dated 24/08/2015. In order to save time, he persuaded the Court to oblige them with consolidation of the objection with the Motion.
Ikpeazu SAN made the same application in respect of their own preliminary objection dated 28/04/2015.
The 3rd Respondent Counsel did not file any preliminary objection.
Ruling:
Court granted the 1st and 2nd Respondents’ Counsel prayers to consolidate the objection and the Motion so that the two can be taken together.
MOTION BY AKEREDOLU SAN INTRODUCED:
Our Motion is dated 18/08/2015. The Motion is supported by 15 paragraph affidavit and a written addressed attached to it. We filed our further affidavit in response to the 1st and 2nd Respondents Counter Affidavit. We attached our reply on points of law to our further affidavit.
We rely on all the written addresses and replies on point of law. We also rely on the further affidavits attached to our Motion. The Motion contains the following prayers:
A. Leave of the Tribunal to bring the application outside the time issued in the pretrial schedule or report.
B. Modification of the Report of the Tribunal by extending time within which the Petitioners will call evidence.
OR ALTERNATIVELY: To input the unspent time on the objections and rulings heard while we were calling our witnesses and tendering documents.
We stated our grounds on the Motion paper. I hereby emphasize grounds 1,2 and 5. Ground 5 has to do with our Constitutionally gud anted right to fair hearing. See para 3,5,6,7,8,10 and 13 of our affidavit. Our address attached to the Motion paper is clear and we have stated where your Lordships derive their powers- the Electoral Act has given you powers to do what we are asking you to do. See para 41(10) of the 1st Schedule to the Electoral Act.
Even after issuing the pretrial report, my lord can by para 18(10) modify the report. And my lord has made modifications at least once in this matter. We were given 7 days which is half of the 14 days prescribed by law. Even if we did not bring this application, my lord can Suo motu grant this application.
You lordship is aware that his subpoena for the production of documents by the 3rd Respondent has not been complied with. My lord ordered that we should put in the inspection report and we are yet to put it.
The 1st Petitioner- DR ALEX OTTI himself who is listed as a Witness has not been heard. I pray that he be given an opportunity to be heard. For a fair determination of this case, we urge your lordship to exercise his discretion in favor of the Petitioner to call 4 additional Witnesses.
We submit that the cases cited by the Respondents on waiver are irrelevant. We did not waive our right because the application was filed on time. A constitutional right to fair hearing cannot be waived.
The Respondents talked about functus officio whereas the law has made provision for modifications. It does not apply. This application is an appeal to your Lordships discretion. We refer my lord to para 6,7,8,9,10,11,12,15,21,30 and 36. The Petitioners have not closed their case and neither has the Tribunal closed the case of the Petitioners. We are bound by your lordships’ records. We pray the Court to discountenance the arguments of the Respondents.
RESPONSE BY WALE OLANIPEKUN SAN.
There is a NOTICE OF PRELIMINARY OBJECTION dated 24/08/205 and a written address attached to it. We adopt the written address and urge your lordship to terminate the Motion on the grounds as stated in our application.
My lord, concerning the Motion For extension of time, I urge your lordship to strike out para 4,13,14,16,17,19,20,21,22,30,32,33 and 34 of the further affidavits deposed to by one Emmanuel Obadiah. They offend Sec 115(1) & (2) of the Evidence Act. The language is so volatile, so passionate- is not the language of the Evidence Act.
Coming to the Motion itself, we have filed a Counter Affidavit and a written address on 24/08/2015 and we adopt the processes and urge your lordship to dismiss the application.
None of the prayers on the body of the Motion is grantable. Prayer 2 is nebulous, hanging and leads to no destination.
For Prayer 3, no Tribunal or any Court of Law has powers to do that. You cannot count second by second, hour by hour the unspent time. Doing that will amount to descending to the arena. The entirety of the Motion does not vest any jurisdiction on the Tribunal. Para 18(10) does not apply. With every sense of respect, this Tribunal is presided over by Judges of a Superior Court of Record. My lord, not even a Customary Court can grant this application. We’d have not heard such in our entire legal system. The nearest we have heard is recalling of witnesses that have already testified. A plaintiff cannot come back after a defendant has opened his case. My lord, this is a more curious drama. In all proceedings in civil matters, it is the defendant that gives evidence last. My learned friend said that they have not closed. My lord, constitutionally, factually, actually, impliedly, legally and procedurally, they have closed.
The petitioners had 7 days to call their witnesses and they called 20 Witneses. It is not the duty of your lordship to determine who to call. Logically and legally, the application cannot stand because it is the defendant that gives evidence last. See para 30 of their affidavit, it suggests that we cannot give evidence when they finish calling their witnesses. This cannot happen and will never happen.
The Supreme Court has said we are bound by the Practice Direction. My learned friend suggested 4 days. But unfortunately that is not contained in their Motion. This is pure innovation of Counsel. The Motion is unknown to law. It has no precedence. That is why the Petitioners could not cite one single authority in support of their argument. At this juncture, the learned SAN who was referred in Court today as LION OF IBADA cited Obi’s case reported in (2015) NWLR ( PT 900) @ 564-565.
He argued that the Petitioners were even attacking the Tribunal in their affidavit. My lord delivered a Ruling that has been subjected to Appeal. My lord cannot do what they are asking him to do. They want to call additional 72 Witnesses meaning we will be given an opportunity to call additional 181 Witnesses in line with the lead rules of proceedure. It simply means there will never be end of call if witnesses.
Your lordships decision that Motions cannot be entertained after 24/07/2015 is final and it has been challenged at the Appeal Court. We urge your lordships to dismiss the Motion.
RESPONSE BY IKPEAZU SAN.
The application is incompetent and it is illegal in that my lord issued a report. He referred the Court to Item No. 25 which reads: As from today 24/07/2015, no more Motions will be entertained from any party.
For their application to be proper before my lord, there must be an application to discharge the Order.
Secondly, pre hearing has been concluded. There must be a Motion for pre hearing to reopen. And it is not cured by application outside pre hearing.
See para 8, 9 and 10 of the Petitioners’ Counter Affidavit in response to the 2nd Respondent’s further affidavit. According to their affidavit, ” that the Petitioners never consented to the 7 days…..thought that it was procedural……”.
What the Petitioners are saying is that the Order of my lord was wrong. That Order was made on 24/08/2015 which is more than 21 days today. They were bound to appeal but did not appeal. If they had exercised their right of appeal, they had 21 days to do that. The question now is ” can they now achieve that which by appeal they cannot in view of the time for appeal?”. The answer is no!
See PDP Vs INEC ( 2014) 17 NWLR ( PT 1437 ) pg 525. Here, the Supreme Court said that the time allotted within the time is sacrosanct. They cannot even add a time to extend it. You must operate within 180 days.
See para 12, they are talking about production of documents. This shows they are not even ready or prepared to do their case. See Ladoja Vs INEC ( 2007 ) 12 NWLR ( PT 1047) pg 115. See also Newswatch Communications Ltd Vs. Atta ( 2006 ) 12 NWLR ( PT 943 ) pg 144. The fair hearing on Sec 36 of the Constitution is not for the indolent but for one that is alive and kicking in the litigation process.
On the issue of inspection, there is no application for committal against any INEC OFICER, meaning the Petitioners were satisfied with the documents made available to them. Before a Petitioner comes to this, he must specify in his Motion the evidence he is seeking to call or the documents they are seeking to tender. In the instant case, the Petitioners did not do that.

Source: Ugochukwu Amaraizu