The Akure Division of the Court of Appeal on Friday, dismissed an appeal by the candidate of the Action Congress of Nigeria in the October 20, 2012 Governorship election in Ondo State, Mr Oluwarotimi Akeredolu, SAN, seeking to nullify the recent ruling of the Election Petition Tribunal which did not allow him to demonstrate electronically, the Voter register used for the 2011 and 2012 poll in the state.
The Justice Andovar Ka’kan-led three-member tribunal had on 25th February, 2013 refused an application by Akeredolu seeking to allow his witnesses to demonstrate the contents of the two registers to prove alleged multiple registrations and over voting during the poll.
In the judgment read by Justice Jombo Offor, the court berated the appellants for “attempting to overreach and ambush the respondents by bringing in the application at a stage when the respondents would have no opportunity of replying.”
The judge who cited the case of Orji v Ugochukwu, said the appellants cannot during reply brief bring in such facts which he ought to have pleaded in the main petition to remove element of surprise and give the respondents time to reply.
He said, “The witness was not originally listed in the petition, but in reply brief which was totally irregular. The petitioner cannot at reply stage be allowed to bring in such substantial evidence as it will be prejudicial for the appellants to bring in PW35 being a time the respondents cannot reply to the brief.”
The judge insisted that the order of inspection of election material granted the appellants by the Tribunal did not include demonstration of the documents.
He added, “The order of inspection granted by the tribunal was restricted to only the materials used during the election such as the Certified True Copies of forms and the ballot papers. The order never included demonstration of the Voter Registers.”
Relying on Sec. 84 0f the Evidence Act as well as Para 41 (3) First Schedule of the Electoral Act 2010, the court ruled that “since PW35 was not the maker of the registers, it will be unlawful to allow him to demonstrate it.”
He said, “Moreover, PW35 is not the maker of the documents and were never tendered by him or through him, he will be ignorant of the contents of the documents. It is a fact that since one cannot give what he does not have, he cannot even educate others on it.