28th September, 2011
The Independent National Election Commission, INEC, on Wednesday before the Presidential Election Petition Tribunal sitting in Abuja, secured a major victory in its defence of the votes garnered by President Goodluck Jonathan at the 16 April Presidential election.
INEC had applied to the court to discharge a subsisting subpoena it issued against the Chairman of INEC, Prof Attahiru Jega on the request of the petitioners, the Congress for Progressive Change, CPC.
While moving the application before the court this morning, counsel representing INEC, Mr. Onyechi Ikpeazu, a senior advocate of Nigeria, told the court that the subpoena has been overtaken by events since the CPC, which sought for and obtained the subpoena, had closed its case, indicating that it had no more need for the evidence of the witness.
He further argued that parties in the matter had earlier agreed in the open court that even if Jega cannot come personally to give evidence as being demanded by the CPC, that a very senior official of the INEC who is conversant with the conduct of the Presidential election should come.
According to the INEC lawyer, one of the Directors in the Commission was in court on the day the CPC closed its case and he informed the lawyers of the party that the witness they requested for was in court but that they chose to ignore him, meaning that the CPC had no more need for the evidence the witness will give before the court.
Ikpeazu also argued that it was the duty of CPC to draw the attention of the court to the presence of the witness and not INEC’s since it was the party that subpoenaed the witness.
CPC through its lawyers led by Mr. Abubakar Malami, protested and opposed the application and insisted that the party still has need for the evidence which the INEC boss is expected to present before the court and argued that the evidence will be required by the party in prosecuting the petition where it hopes to upturn the victory of President Jonathan and his party, the PDP, secured at the polls.
Part of the materials which CPC hoped to obtain and tender as exhibits before the court through the subpoenaed witness are the National Biometric Database of all voters which participated in the presidential election, Voter’s Register evidencing accreditation of voters at all the polling units across the nation, evidence of results returned at polling units across the nation, complete serial numbers of all ballot papers used at the election, among other election materials.
Counsel to the President, Chief Wole Olanipekun supported INEC’s application, noting that since the CPC had voluntarily closed its case, allowing the subpoena issued against the INEC boss to stand will amount to the petitioner reopening its case and argued that such is not the practice.
In a unanimous ruling, the 5-man panel agreed with INEC and held that since the petitioner, CPC, closed its case without calling the subpoenaed witness to come and testify, that it meant the party have abandoned the evidence which the witness had.
They held that while it is the duty of the court to compel a witness to attend court, that the duty to ensure compliance with a subpoena lies with the party which demanded for the presence of the witness in the first place.
In setting aside the subpoena, the panel held that it had become completely overtaken by events.
In his reaction to the ruling of the court, one of the leading lawyers to INEC, Chief Adegboyega Awomolo, a senior advocate, stated that an order remains binding until it is set aside. And noted that the electoral body drew the court’s attention to the pending subpoena which the CPC had abandoned so that it would be set aside.
According to him, “It is proper that all pending applications or orders be dispensed with before the conclusion of a matter. It was filed before CPC closed it’s case and that closure over reached that subpoena. It had become spent and the court agreed with us on that”.
CPC’s lawyer, Mr. Malami in his reaction over the court’s ruling threatened to head to the Supreme Court over the matter, noting that the evidence the party seeks to obtain from Jega will strengthen the party’s position that the Presidential election was flawed in favour of the President.
The electoral umpire also formally closed its defence at today’s proceedings and cleared the way for President Jonathan to commence the defence of his votes at the tribunal.
The president’s defence will commence on Thursday, 29 September, when the tribunal is scheduled to resume sitting.
—Nnamdi Felix / Abuja