Osun Retrial: Drama, Tension As Oyinlola’s Lawyer Tenders Suspected Fake Document

THERE was a mild drama and tension before the Justice Ali Garba-led Election Petition Retrial Tribunal on Tuesday, as one of the Governor Olagunsoye Oyinlola’s counsel, Chief Alex Izinyon (SAN) tendered a document before the tribunal, which was suspected to be forged by the state chapter of the Peoples Democratic Party (PDP).
The foul play was suspected by Action Congress (AC) governorship candidate counsel, Chief Akin Olujinmi (SAN) when the PDP counsel tendered a purported Certified True Copy (CTC) of the witness statement on oath of one of the petitioners’ witnesses, Mr. Mudasiru Bello, a situation that prompted tension in court, as counsel for the petitioners and the respondents exchanged altercations.
The witness had earlier identified his written statement on oath and adopted the statement. The whole scenario then started when the witness was being led by Chief Olujinmi to adopt his written statement on oath and the witness discovered that there was a typographical error in his deposition, saying that instead of ‘one’ ward, ‘two’ ward was written, a situation he connected with a typographical error.
In the process, Oyinlola’a counsel objected and argued that “if there is a defect in an affidavit, my learned friend knows the step to take and not for the witness to now make correction in an open court”. He relied on Section 85 of the Evidence Act and Paragraph 3 of the Practice Direction, arguing that the witness was not entitled to give oral evidence during the examination-in-chief, except to adopt his deposition. He urged the court to disallow the correction.
The Independent National Electoral Commission (INEC) counsel, Mr. Dayo Famakin-Johnson and the police counsel, Mr. A.O Adeniji associated themselves with the submission of Oyinlola’s counsel.
Replying, Olujinmi argued: “There is a general misunderstanding of frontloading. When a witness is frontloaded, he is only to give an idea of what he is coming to court to say. That is why the Court of Appeal in case of ANPP held that it is not evidence until it is adopted by the witness. We are all familiar with evidence-in-chief; when the deposition is adopted, it is assumed that your lordships have written it in your records and it does not mean the witness should not make corrections.
“It is settled that it is an oath that can correct an oath and my learned friend has admitted that the witness is already on oath. So, he is still in the witness box, he has not finished his evidence-in-chief.
“My learned friend also referred to Section 85 of the Evidence Act and I submit that this witness statement is not even an affidavit stricto senso as referred to by my learned friend, but it is a witness statement on oath. Even if the witness has finished his examination-in-chief, he is entitled to correct himself when the need arises.
“Your lordships sir, it is your duty not to shut out evidence relevant to the proceedings and you have the duty to override any technical points. On this my lords, I rely on the case of Olisa Agbakoba Vs The Director Of SSS and Others, 1993, 7NWLR, Part 305, page 353.
Assuming the documents was truly an affidavit, Olujinmi added that the correction intended to be made by the witness was not even a defect but a “printers’ devil”, urging the tribunal to allow the correction.
In its ruling, the tribunal held that since the witness had adopted his statement on oath, no other correction could not be allowed, adding that the correction was supposed to have been made before now and subsequently disallowed the correction.
Subsequently, the witness identified the report of the four agents in the four polling units submitted to him and they were tendered by Aregbesola’s counsel. The respondents’ counsel raised objections, but the tribunal overruled the objections and admitted the reports as exhibits 62 (a-d).
The witness, who was AC supervisor in ward 10, Atakumosa-West Local Government Council Area of the state, who was subsequently cross-examined by Oyinlola’s counsel, told the tribunal that there was no collation in the ward on that election day, as the elections had been disrupted in all the units of the ward by the PDP thugs.
During the course of cross-examination, Oyinlola’s counsel asked the witness to confirm whether the statement on oath which was being used for the cross-examination was actually his and the witness answered in affirmative.
Without any further question, the counsel sought to tender the documents before the tribunal.At this point, Aregbesola’s lawyer objected and argued: “It is a settled law that before you can tender a document, there must be a proper foundation laid. My learned friend can not just keep us in the dark, because a trial is not a hide and seek game; it must be opened. As such, he must be able to tell the court the purpose of which he wants to tender the document.
“This statement sought to be tendered is already before the court and if my learned friend wants to tender it for any purpose, we are entitled to know why he wants to tendered it”, Olujinmi argued, praying the tribunal to reject the documents.
In his reply Oyinlola’s lawyer argued that enough foundation had been laid before tendering the documents, because the witness had earlier identified the statement as his own, saying that the documents emanated from the petitioners.
Izinyon further stated: “It is a settled law that a portion of a document can be tendered, even if it is before the court. To say that we must state why we want to tender the documents is a new direction to our rule”, he argued.
In his reply on point of law, Olujinmi argued: “My learned friend said that a portion of a document could be tendered, even if such document is before the court. Yes, I agree, but for what purpose? We ought to know this. A trial is not a hide and seek game; a trial is not a fencing game; we ought to know what we need to know as the trial progresses. Ha! Ha!, this is strange”. He urged the tribunal to reject the documents.
While ruling, the tribunal held that no proper foundation had been laid by Oyinlola’s counsel before tendering the documents, saying that the counsel could refer to the documents at the appropriate time and subsequently rejected the documents.
After the ruling, Oyinlola’s counsel demanded for the document again with a view to making use of it again, arguing that since the tribunal did not mark the document rejected, he could still make use of it, a situation that prompted another objection from Aregbesola’s counsel.
Olujinmi insisted that since the document had been rejected, it should be marked rejected, saying that the respondents’ counsel has no right to make use of it again.
The development prompted another round of arguments from counsel on both sides and at this stage tension had begun to rise between the petitioners’ and respondents’ counsel.
Subsequently, the tribunal ruled that the respondent counsel could still make use of the document, even though an application to tender the same document had been rejected, saying that the contents of the statement were intact.
Tension then rose completely when the deputy state chairman of PDP, Mr. Sunday Ojo-Williams gave a purported CTC of the witness statement on oath of the witness to Oyinlola’s counsel and same was quickly tendered by the counsel.
Aregbesola’s counsel rose and tagged the tendering of the purported CTC of the document as a gross abuse of court process, arguing that the same document was just being rejected by the tribunal and if the respondents’ counsel were not satisfied, they should rather go to the Appeal Court.
The grouse of the objection in the tendering of the document when it was first tendered, according to him, was not to the fact that it was not certified, arguing that the law, which says that a CTC of document could be admitted from the bar does not say that no foundation should not be laid.
“My lords, we, as senior counsel should be able to assist the court. If as senior counsel, we can not assist the court, then everybody is in trouble.
“My lords, there is another serious issue here; this document they brought as CTC is even different from the one your lordships have just rejected. This is a serious issue my lord. Eh! Eh! The one they said has tribunal stamp on it is different from the one before your lordships. Where they got this, my lords, we don’t know.
“Your lordship should look at it (he passed it to the tribunal members), you will see that the one in your record carries number, but the one they brought as CTC has no page number on it”. He urged the tribunal to reject the document.
Oyinlola’s counsel, Izinyon flared up and said: “I was so flabbergasted when my learned friend said we should be able to assist the court. I say with respect that that statement is unfortunate. It is their document and it emanated from the tribunal, but my learned friend was only saying what he is saying, so that newspapers can carry it tomorrow”.
Chief Olujinmi at this point then flared up and fumed: “It is they that falsify the proceedings of this tribunal in the newspapers and they turn the proceedings upside down. If you look at The Tribune, you will see that it is they that falsify the proceedings of this court. There is a man here in court from the Governor’s Office that normally falsifies the proceedings of this court and sends it to The Tribune. I don’t want to raise that now”.Within some minutes, tension rose within the court between the counsel on both sides and the tension also extended to the political party supporters within the court hall, as they had started pointing accusing fingers on each other.
The tribunal quickly intervened and cautioned the counsel, appealing to them to continue with the business of the day.
Izinyon then continued and argued that when a CTC of a document is tendered, no foundation is expected to be laid, saying that the document was received from the tribunal through a normal procedure. He relied on the case of Dagas Vs Gulama, 2004, 14NWLR, part 892, page 114, paragraph 200-201.
Replying on point of law, Chief Olujinmi argued that the only instance by which one resorts to the use of secondary evidence was when the primary evidence, which is the original is not available, saying that the original of the document sought to be tendered was already before the tribunal and there was no reason for the tendering of the secondary evidence, which was the CTC.
He relied in Section 93(4) Paragraph 7 of the Evidence Act and argued that all the authorities cited by Oyinlola’s counsel were not of assistance to him and urged the court to reject the document.
Observing that tension had risen, the tribunal adjourned the ruling on the application to tender the document till the following day (Wednesday) as well as the continuation of hearing of the matter.
By KAZEEM MOHAMMED
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