By Emeka Ugwuonye
In fidelity to the rule law and fairness, we must acknowledge that one of the cardinal pillars of due process requires that a person sued in court must have the opportunity of the following defensive measures:
(1) The opportunity to controvert evidence tendered against him in the case,
(2) The opportunity to confront witnesses called against him,
(3) The opportunity to testify on his behalf and to call witness to testify in his defense, and
(4) The opportunity to adduce evidence in his defense.
These are the basic rights of every defendant in a court of law. Peter Mbah has these rights. As regards his right to confront witnesses that testified against him, his lawyers did this through cross-examination of witnesses who were called by Edeoga. You confront the opponent’s witness by cross-examining him and using that opportunity to impeach his credibility, his character and weaken the evidentiary weight of his testimony. Peter Mbah had the opportunity to do this and his lawyers did that for him. Courtroom trials are about the art of confrontation and controverting.
To controvert the evidence of your opponent, you do that in a number of ways, mainly by objections to the admissibility and relevance of the evidence adduced by your opponent and oral arguments to whittle down the weight of his evidence and motions to eliminate evidence of your opponent. Confronting of a witness and controverting his evidence are what you do when your opponent is presenting his case. If you do it successfully, you weaken the case of your opponent and make it harder or impossible for him to discharge the requisite burden of proof.
The first part of this trial was for Edeoga to present his case by calling witnesses and tendering evidence. Some of his witnesses were forced to come through subpoenas. Some came on their own. Edeoga called a compelling lineup of witnesses, including the NYSC and INEC, itself. He tendered compelling documentary evidence, including evidence of BVAS. These pieces of evidence were tendered through the witnesses he called and those he subpoenaed.
While the case of Edeoga was going on, Mbah, through his lawyers, did cross-examine Edeoga’s witnesses. The performance of Mbah’s team during cross-examination and controverting period was not remarkable or impressive. There are two ways to look at it: It is either that Mbah’s lawyers were not as skillful as expected or that the facts of this case were so unfavorable to Mbah such that it would amount to a miracle for his lawyers to do better than they did. I tend to think that it is the latter, as Mbah’s lawyers are clearly excellent and experienced lawyers. But it doesn’t matter how good a lawyer is, lawyers are not magicians. A bad case is a bad case.
The second half of the case starts today when Mbah opens his defense. This is the time, Mbah will have the opportunity to call his witnesses and to adduce evidence on his behalf. And it is now the turn of Edeoga to confront Mbah’s witnesses and to controvert any evidence Mbah will adduce. One of the witnesses Mbah has for himself is Mbah himself. The question is whether Mbah would testify. Will he enter the witness box and testify? If he does, that means that he will be cross-examined. And that will be the nightmare he must avoid. You will recall that when Edeoga subpoenaed Mbah during the first half of the case, Mbah adamantly refused to show up in court. That was because he knew he would be cross-examined even though he would be testifying on subpoena. It was a big deal then. The court ordered that the subpoena be served on him through his lawyers. Mbah refused to testify. It was expected that Mbah would gladly go to court to defend his NYSC certificate or to defend his mandate. But he chickened out. He was scared of one thing, which was that he could be confronted through cross-examination.
As he opens his defense today, it is a big question whether Mbah would enter the witness box to testify for himself. For a normal person in a normal situation, Mbah should be bold enough to go out there and defend himself and answer questions. But I doubt that he will do that. He is still scared of facing questions. I believe that during his cross-examination, Edeoga’s lawyers will have some ready-made questions for Mbah. First, they will ask him to state where exactly he did his NYSC – was it at the Udeh & Associates Law Firm in Surulere, Lagos, which he claims now, or was it at the Nnaemeka Agu’s law firm in Enugu, as he wrote in his statement to the EFCC in 2007, or in the Enugu State Government House as the Chief of Staff, where he actually worked during the same time he claimed to be doing NYSC.
If I were the lawyer cross-examining Mbah, I will just show him: (1) his statement to the EFCC, (2) his letter of appointment as the Chief of Staff and (3) his recent claims that he did his national service in Lagos. These three contradictory claims which have to be cleared by Mbah. I will hit him hard with question thus:
LAWYER: “Good morning, Sir. I will be asking you a few questions. If you don’t know the answer to my question, feel free to say ‘I don’t know’. Is that okay?”
After some general easy questions to calm him down and to give him a false sense of ease, I will move to the killer questions after showing him the three statements he made:
LAWYER: “Mr. Mbah, did you make these statements?”
MBAH: “Yes, I made them.”
LAWYER: “Since the three statements cannot all be true, which of them is true and which ones are false?”
At this point, Mbah will not be able to answer questions anymore. He may want to answer “I don’t know”. But he realizes the risk he faces with that answer.
As we wait for him to answer the question, after five minutes of his continued silence, I will ask: “Do you need a break to think about it?” He will look at me and look at his lawyers and look at the judges. Note that we haven’t yet gotten to the point where I will show him the NYSC certificate he claimed to have. He is already stuck. Out of the fear of this kind of situation, I believe that Mbah will not testify for himself. He will stay in his office counting the days.
The above illustration shows you the type of hell Mbah is facing right now. He will not adduce any evidence that will discredit the testimony of NYSC’s Director of Certification. There is nothing he can do at this point to overcome that testimony. Also, because INEC witness called to tender the BVAS claimed he had nothing to show and that the court should rely on what Edeoga tendered, the same INEC cannot tender any material now that is contrary to what they said before. They already said that they have nothing more to show. A party/witness who failed to tender a piece of evidence when ordered to do so cannot later tender such evidence at a time of his choosing. So, one must now wonder what kind of evidence will Peter Mbah adduce, what type of witnesses will he call. It seems the game is over for him. But let’s give them the benefit of doubt. Maybe they have some magic wand, some African wonder that would turn night into day. Today, we shall see.