Sen Jarigbe v Ayade : Counsels clash over witness deposition
From Aniekan Aniekan, Calabar
A mild drama ensued in the courtroom between counsels of Senator Jarigbe Agom Jarigbe and Professor Ben Ayade in the ongoing petition to upturn the Senatorial elections of the Cross River North Senatorial district.
The lead counsel of Sen Jarigbe, Mba Ukweni, SAN objected to the right of two witness of the petitioners to identify evidence P39 brought before the court.
Ukweni argued that for a witness to be able to identify or tender a document from the witness box, he or she must have mentioned or referred to it in his or her earlier deposition.
“It is similar to the rule of pleading, if you don’t plead any fact, you cannot lead evidence on it.
“So, if a witness does not refer to a document in his statement, he cannot also identify the document from the witness box or have it tendered, not just in election cases but also in civil matters,” he said.
Vehemently opposing the counsel to the respondent, Lead Counsel of the petitioners, Prof. Mike Ozekhome, SAN said a witness could mention matters relating to the document in his deposition if he is a polling unit agent for his party.
“Our witnesses have mentioned register, the Bimodal Voter Accreditation System, (BVAS) and voters, the only thing they said they did not do was that they should have said voter register in their deposition.
“Our witnesses said they are from their polling units and can identify the document, the document was already tendered as exhibit, they were not trying to tender them but to identify them.
“A witness from a polling unit can be made to look at the register of voters or any document from that polling unit which he has identified,” he said.
Ruling on the matter, Justice M. A. Sambo upheld the objection of counsel to the respondent, Jarigbe and the PDP that a witness can only identify and speak on an issue contained in the deposition which he tendered.
This decision did not go down well with the counsel to the petitioners as he disclosed that they would challenge it in the end in their final written address.
During the days proceedings, counsels to Professor Ayade – Professor Mike Ozekhome, SAN tendered about 700 exhibits in his attempt to upturn the election results.
