Justice A. T. Badamosi’s judgement: A garland for improper elections

BEING AN APPRAISAL OF THE UNANIMOUS JUDGMENT OF EDO GOVERNORSHIP ELECTION TRIBUNAL

IN PETITION NO.EPT/EDS/GOV/2/2015

PASTOR IZE- IYAMU OSAGIE ANDREW & ANR VS INEC & 2 ORS

INTRODUCTION

On Wednesday, September 28th, 2016 election to elect a new governor for Edo state held after it was shifted from the 10th of September 2016. The failure to hold the election on schedule turned out an ominous sign of the desperation of the All Progressives Congress (APC) led government at the Federal and State levels to win at all cost including but not limited to outright manipulation of the electoral process. On the D-Day APC threw caution to the winds when it deployed tactics of intimidation, inducement or compromise which the poll results was falsified  In extreme cases it credited itself with superfluous scores even where election never held,. All these and more APC did to obtain a declaration by the Independent National Electoral Commission ( INEC) that its candidate at the election Mr Godwin Enogheghase Obaseki (relatively obscure in the politics of Edo state) scored the majority of the votes over and above Pastor Osagie Andrew Ize-Iyamu of the Peoples’ Democratic Party (PDP); a well-known politician of several decades.  In the days preceding the election the latter was highly favored by various opinion polls to win the election. Little wonder therefore that the outcome of the election has become the most controversial in contemporary history of Nigerian elections. Findings are that if the votes counted Ize-Iyamu won the election!  INEC declaration of Obaseki sparked spontaneous street and road marches / rallies in protest of the manifestly flawed election. It was just a matter of time before the aggrieved Party and her candidate presented an astounding Petition encapsulating complaints of electoral violations which in proven cases would invalidate any election conducted under our extant electoral  law.

Such was the fears of APC that it  hired many of  Nigeria’s most expensive Advocates to extricate it from the brilliantly woven  chronicle of electoral perfidies presented against it before a Justice A. T. Badamasi led 3 man Edo State Governorship Election Tribunal.  In the petition and accompanying witnesses statements on oaths, it was demonstrated that in places or polling  units where these electoral malfeasance were perpetrated , votes were recorded in excess of  actual numbers of persons accredited or even  against number of  persons who eventually voted. Owing to very recent Judicial pronouncements by the Supreme Court of Nigeria, which declared that the Card Reader is unknown to our electoral laws, the materiality of the voters register as a record of voting activities at the polling units was therefore  put beyond dispute. The voters register  mirrors the essential aspects of the election (accreditation/ballot papers allotments). Information on the polling units result or Form EC8A and  actual balloting  at the election by necessary juxtaposition with the voters register must tally; one with the others  but more significantly, with the voters register which is the root or source from which derived the contents of the others. In other words where it is found as a fact that there exist any disharmony between the voters register and Form EC8A or quantity of ballot papers returned then that raises a prima facie evidence of an improper election. Under our Laws these infractions and /or inconsistencies constitute Grounds of corrupt practices or non-compliance.

The PDP copiously pleaded, analyzed or demonstrated the voters register in its petition and accompanying witnesses’ deposition respectively. During the trial, certified true copies (c t c) of the aforesaid registers as used in the disputed election were produced. Indeed heavy reliance was placed on the register and its content hence the evolvement of the catch – phrase:

ticking to the left, right, or both sides of a registered voter’s  photo on the Register

Although the Respondents and even the Tribunal sooner made this a derisive pun of sort either to trivialize or undermine its relevance to the inquiry but its  true import  or importance was never lost on discerning legal minds. The fact really being that within the inner recesses of the voters register lies the mystery that holds the truth of what transpired at the Edo Governorship election. The register was tendered in evidence for it to be interrogated, investigated and /or probed as per its content  in substantiation of the petition. As a document it speaks for itself and cannot be varied, altered, extended or contrasted by oral evidence. In this case, the voters register could be likened to a knife allegedly used by an accused person in a murder case to commit the heinous crime. If the prosecution produces the weapon in Court and same is tendered and properly admitted in evidence as an exhibit, it becomes incumbent on the Judge to examine same and accord it the appropriate probative value or weight.

The foregoing not withstanding,  Edo state Governorship Election Tribunal (2016)  on 14th April, 2017 in ruling on  the petition dismissed same in its entirety describing it as unmeritorious.  Nevertheless, the verdict has been  more controversial than the outcome of the election. In Legal circles, its been said that the judgment leaves more to be desired and that there was more to it than meet the eyes. Others have opined that the conclusion of Badamasi J did not cognize the law and the facts (evidence) before it and that what was decided by the learned Justices of the Tribunal could fit for a judgment in any other case but certainly not for the case they were called to adjudicate upon i.e. the Petition brought by PDP challenging the poor conduct and handling of an election even the International Observers have pilloried as a good example of bad election.

ELECTION PETITION AND JUDICIAL CORRUPTION

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I have practiced law and politics with moderate excellence and I owe it a duty to posterity to render my thoughts on these developments with as much discipline or strength of objectivity as I can muster in the circumstances. The thoughts of tomorrow would not allow me the latitude of bias or prejudice in my consideration of the Badamasi’s verdict. I say this with every sense of responsibility and consciousness of the fact that injustice is as vicious as cancer and it spreads within the social fabrics from one person to the other. I have personally been served severally with the bitter vinegar of injustice and on each occasion I reject it with every sinew in my body ; often too I endeavor to  make formal notes of  my rejection!  I participated in the 2015 General Elections as candidate of the PDP to the Edo State House of Assembly ( EDHA)  as member representing the Orhionmwon  South Constituency. In that election, we defeated our closet rival Roland Asoro of the APC in over 70% of the polling units but similar to the matter being reviewed our opponents settled for the 3 polling units in Urhomehe of Dr Pius Odubu ( the then Deputy Governor of Edo state) and 2 polling units in Iguere of Asoro ( the Candidate aforesaid) and in collusion and connivance with INEC officials, votes of the dead and absentee voters were horrendously allotted to offset our clear lead at that election. We took our case with evidence before the Edo State National Assembly and State Assembly Election Tribunal. After the final addresses it took over 3 weeks for the Tribunal to render its verdict awarding victory to the APC on twigs of technicalities. We were grievously dissatisfied with the Judgment as we believed it stood the law and the facts on its head. We proceeded to the Court of Appeal which equally but summarily dismissed our appeal with a promise to give fuller reason for their conclusion at a latter date. As I ponder over this latest dishonorable naked dance in our Courts I recall almost 2 years since the Court of Appeal reached that concurrence which justified the electoral perfidies in that election it is yet to come forth with the fuller Judgment as per their undertaken.

So, when the PDP filed its petition against the 2016 Governorship election I had my doubts about the possibility of justice and that is because, in our Country an election petition brief and/or assignment is a Goldmine for Lawyers as well as for the Judges. It is therefore common place knowledge that more often than not, election related cases, are not decided on their merit with a view to doing justice but on a cash and carry basis  As a Lawyer, this is for me most regrettable because a hardworking lawyer with a good case would usually lose to a colleague who though may have a bad case but have a rich and influential (particularly Government) client who does ‘the outside Court room’ finishing. Despite my doubts however, I still kept pace with the proceedings.

Remarkably two instances gave them away as a Tribunal that would neither be firm nor fair  to wit : their apportionment of equal time for cross-examination to the Petitioners who came with a joint petition and common legal representation and the  3 Respondents who from all intent and purposes were pursuing a common cause but  (trickily) came to the Tribunal with separate legal Representations ( particularly as between the 2nd and 3rd Respondents). The 3 sets of Lawyers for the Respondents each had their fill with the Petitioners’ witnesses during cross examination but the subtle application to add to the 4 minutes for the Petitioners Counsel was slyly refused for even when a proviso for such indulgence was provided for in the pre-trial report and commended to the Chairman. The second occasion was the unwarranted delay caused by the Tribunal when it had to reserve ruling on the issue of subpoenaed witnesses which in my humble view ought to have been summarily dealt with by a Bench ruling . It must be noted that this ploy culminated into the failure of the Petitioners to completely and conclusively recount the ballot papers for four (4) Local Government Areas produced before the Tribunal. To think that it was the same Chairman who denied the Petitioners 3 additional counting points to make 6 so as to expedite action on the order for ballots recount was suggestive of a mere passing interest in the matter. Ironically when the Respondents raised objection to the continuation of the ballot recount the Tribunal gleefully acceded and stopped the exercise.

I was therefore not entirely surprised at the Tribunal’s final Judgment and it is indeed scandalous and worrisome that our Judiciary have crumbled this  low such that a Judicial officer who is ordinarily enjoined to dispense justice judicially and judiciously would have a preconceived position on a mater before it and would predictably work from the answer to the question. In the judgment, after the Tribunal had dispensed with all the pending interlocutory applications, it then went on a roller coaster guillotine of the Petition and crashed on the erroneous dismissal of the Petition in a broil of wanton display of legal absurdities and judicial rascality.

WHY THE JUDGMENT IS PERVERSE

A Judgment is said to be perverse in many or several respects it is absurd or unreasonable in the sense that it fails to take into consideration the evidence before it and apply the law on the point appropriately. Badamasi J, said the abandonment of the Ground for corrupt practices without claiming any relief in respect thereof is fatal to the Petition. It should be noted that founding an election petition on the two Grounds of corrupt practices or non- compliance does not in anyway whatsoever make it an inseparable Siamese twins if at the  trial the Petitioner elects to lead evidence in proof only of either of the two and abandon the other. It is the duty of  a Court that is out to do JUSTICE to consider the nature of the evidence placed before it and proceed to determine the case on it. There is no place under our Law where failure to prove an aspect of a claim defeats the others where it has not be shown that there is no sufficient evidence led in proof of the other that other aspects or that the proof of one is inter – dependent on the other. Our Supreme Court as far back as 1984 in the case of CHIEF AKIN OMOBORIOWO & ANOR v. CHIEF MICHAEL ADEKUNLE AJASIN (1984) ALL NLR 105, established the rule that where a petitioner presents a case founded on corrupt practices and non compliance the Court can on the evidence before it determine the petition whether or not the petitioner failed to lead evidence in respect of both. In other words if one of the two is proved by cogent evidence then the Tribunal can act on it and it does not render the petition nugatory only because the petitioner abandoned one of the two grounds. This case was cited in the Petitioners’ address but Justice Badamasi’s panel ignored it ad went on to hold that to abandon a Ground in a petition is fatal. That is the height of Judicial rascality-for a lower and clearly inferior Tribunal to over rule a Superior Court on a legal principle and proceed to seek to set a new one on its own!

This rascality was again demonstrated when the Tribunal described the manual for election officials  as mere administrative directive and not a subsidiary legislation which the Supreme Court said in a 2016 Decision must in appropriate cases be invoked and enforced by the Court .

Another sore point in the Judgment was the aspect where the Tribunal said the documents brought and tendered in evidence were  simply dumped and not demonstrated in the open Court. This is manifest miscomprehension of the practice and procedure of front loading in written depositions of oral  evidence or testimony that would  have been given under examination- in –  chief. Every thing to be said and everything to be demonstrated on the documents have been done well ahead of time in the depositions of the the 1st Petitioner and others who testified on his behalf. Hence at the trial they merely came to adopt what they had put down in writing on oath as their evidence before the Tribunal and of course the documents from which their information are derived. It was left for the defense to fault their claims by way of cross examination. This indeed was the point the leading Counsel for the Petitioners tried to put across to the Court when he described the petition and the style adopted at presenting it as digital whilst the attackers where applying analog approaches in their defense. Agreeing with the Tribunal on this point would make nonsense of front loading as fast track mechanism for the expeditious prosecution of cases. It becomes even prejudicial to apply it against a petitioner who has taken his time to do what the Petitioners in this case did only to be told he /she wasted time complying with a procedure for the time being in force as he could have waited to come to court to do the demonstration. No! that indeed in not what the law and procedure contemplate. Again, I recall YUSSUF Alli whilst addressing the Tribunal said then that what the Petitioner would have said under the old order of giving oral testimony on oath was exactly what under the new order has translated to written statements on oath.

Yet another material goof of the Tribunal was when it held that the only relevant evidence to be given in an election petition is that of polling units agents. Whilst I agree that no evidence on an incident can be preferred against that of an eye witness who actually saw  or perceived what happened by any of the human senses but every case must be considered on its peculiar facts and circumstances. The CPC v INEC case the Tribunal placed reliance on is not the same in style , mould , contemplation and execution as the Petition under review. In that case , there was no issue of  ticking on the voters register in the witness deposition of the witnesses if at all. Interestingly, this is one petition where it was audaciously shown that evidence in an election matters are essentially documentary. Since documents speak for itself the need for eye witness account panes into insignificance. If for instance there are 100 ticking on a voters register to denote accreditation it remains so and the oral evidence even of the  maker or a polling unit agent that its 150 ticking cannot in law and fact changed or contradict what is contained on the document, which is in this instance is the voters register. Strangely, the same Tribunal that said document tendered (by itself) as tendered by the Petitioners does not constitute evidence was however quick to hold that it would be wrong to say that the 1st Respondent did not adduce evidence on its behalf because it did not call any witness of its own because according to Badamasi J, the documents tendered from the Bar for it constitutes evidence in that behalf and the Tribunal can act on them. A Court cannot approbate and reprobate neither is it permitted to blow hot and cold on an issue.

BADAMASI’s DEFINITION OF OVER -VOTING IS RECIPE FOR ELECTORAL HARA KIRI

Under our system or elsewhere for that matter 100% voters turn – out is not only a practical impossibility, it is equally incredible and  as such a legal impossibility. Badamasi gave an absurd re- definition to what constitutes over – voting when He held that over voting could only be established if total votes cast exceeds the total number of registered voters in a polling unit. At the election proper, in Urhonigbe south ward (08) where I voted and served as a ward collation agent for PDP, I secured the cancellation of a polling unit’s (9) result because the Ward Collation officer saw with me that the total votes cast in that unit was in excess of the accreditation figure. Going by Badamasi interpretation that cancellation would be ‘ unlawful’ (?).

In law there are Canons of judicial interpretation of statutes so that when a Court is confronted by a piece of legislation, it must deploy one or several of these Canons towards bringing out the genuine intent or intendment of the Lawmaker in making that law. Flowing from plethora of cases the rather literal interpretation of the portion of the   Electoral Act dealing on this point defeats the entire objective of the Electoral act itself which is to guarantee free, fair and credible elections such that the sanctity of the votes and voting rights is not jeopardized! That provision was actually enacted to cure the mischief of  votes being recorded for absentee , proxy or dead voters  whose names which though have remained on the register but were not present on election day so that only those who are physically available on election day are accredited and are allowed to vote. The learned Chairman of the Tribunal should have come to a proper conclusion on the matter if he appreciated the fact that that Section is ambiguous and giving it an ordinary interpretation as He has done would inevitably defeat the mischief it ought to cure. It therefore implies that the Mischief rule of interpretation was most suitable to give meaning to that provision of the Electoral Act. It is when a law is plain and unambiguous that the primacy of the Literal rule comes to play.

CONCLUSION

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When  I went to the Tribunal for the Judgment on Good Friday 14th April, 2017 the year of our Lord , the significance of that day was not lost on me being the day Jesus Christ the Savior of Mankind was sold into the hands of those that crucified Him on the Cross of Calvary in spite of evidence that attested to His innocence. Honestly, for reasons already stated for my lack of faith in the system arising from my personal experience, I had the foreboding that Pastor Osagie Ize – Iyamu might not carry the day but I never envisaged that the Tribunal would muster the temerity to pull down notable legal milestones in our electoral jurisprudence just to reach a predetermined end.

Badamasi J, has in my estimation succeeded in an attempt at putting in place a new electoral legal order that has kept me wondering if in the unlikely event His legal interpretations are sustained by our Appellate Courts, whether these ‘novel’ rules would really be practicable.

I do not intend to pre-empt what the appellate Courts would say but definitely they would not cut their  nose to spite their face.

OGIERHIAKHI FRIDAY OSAKPAMWAN ESQ

( Lawyer and Politician)