The Drama At The Edo State Gubernatorial Election Petitions Tribunal These Last Couple Of Days:
The melo-drama which Nigerians, particularly those of Edo State extraction, have been treated to by events at the on-going hearing of the petition filed by the PDP candidate at the last Guber election in the State these last few days present admixture of very interesting and disturbing scenario.
The events are two in the main, viz: (1) the question whether witnesses subpoenaed could testify as prayed by the petitioners and (2) whether a recount of ballot papers in respect of four named LGAs should be allowed, also as prayed on that side of the divide. The Tribunal had ruled on the two points and is now functus officio on those issues. I feel constrain to give the following as my opinion on the two issues and the rulings thereon.
A subpoena is a document by which a court commands a person to appear in court to either give viva voce evidence or to simply tender a document in a matter without more. If the former (i.e. subpoena ad testificandum) such a witness usually mounts the witness stand to testify orally after he had been sworn or had otherwise affirmed. In that case he is liable to to be cross examined on his testimony in-chief but if the latter (i.e. subpoena duces tecum) he does not usually mount the witness stand nor is he sworn and therefore not liable to be cross examined.
He simply presents to court that which he is commanded to bring. A subpoena may be issued by court suo motu or it may be issued by court at the instance of a desiring party. Issuance of a subpoena is said to be a command because a person on whom it’s served has no choice to make on the point whether or not to attend to court. He is bound to attend and if fails he does so upon pain of punishment.
In other words, whether a subpoena was issued by court suo motu or upon an application by a party, such a witness on which same is directed is generally referred to as a witness of the court, being in court at its command. This is why it came to me a surprise and indeed curious, to say the least, when I learnt that respondents in the above mentioned case had resisted the fielding by petitioners of such witnesses upon whatever reason, even the most puerile of reasons or for no reason at all.
In my own opinion I think such resistance was accentuated by reason or reasons other than one for a call of duty in ensuring due administration of Justice. If anything, I believe it was motivated by act of desperation which I consider unfortunate. It’s therefore delightful to see that the Tribunal did not accede to such bogus objection.
If the Tribunal did otherwise, it would not only have amounted to gross injustice but indeed it would have amounted to the Tribunal shooting itself on the foot because preventing a witness on whom a subpoena issued by it had been served and was in court in answer thereto would have amounted to the Tribunal committing judicial heresy of enormous proportion.
I daresay, it would have amounted to self annihilation on the part of the Tribunal. On the part of the defence, it was a clear case of mischief and desperation to have urged the court to hold that such a witness could not testify. Surely, such contention ought not have come from true Ministers in the hallowed temple of Justice, whose primary duty is to the court before any duty to a client. Such objection is therefore highly condemn-able and I condemn it intoto.
On the second issue of recount of ballot papers, it was proper and commendable step for the Tribunal to have granted the prayer, especially as respondents had prior notice of it from the petitioners without objection from the former at the time such notice was given. Even if there had been such objection, that would not have automatically closed the point against the adverse party.
The Tribunal still had a duty, in a bid to do justice as it was required to do, to consider whether or not the objection was a sustainable one, bearing mind the need to do justice and if be not, it was at liberty to overrule it. So, by ordering such a recount which the interest of Justice so much demanded, the Tribunal was clearly on the right lane of the otherwise bifurcated lanes.
What however I cannot understand and which completely baffles me is why the Tribunal, after taking such a noble course which the Justice of the case had demanded, subsequently took a summersault by acceding to the questionable position taken by the respondents that the recount be guillotined based on what they (respondents) had called lapsing of the period stipulated for the petitioner. The Tribunal completely goofed in acceding to the respondents’ prayer in that regard because that action of it clearly undermines two vital points.
The first is that whereas the guidelines to the Electoral Law admittedly stipulates a period of 14 days within which the petitioner should present his case, it’s quite doubtful if the action of the Tribunal in halting the recount was the best that the Justice of the case had demanded in all the circumstances of the case. The application for recount was made when petitioners still had up to 24 or so hours to exhaust their 14 days.
For a panel desirous of doing justice what the Tribunal should have done which would have met d Justice of the case was to adjourn hearing for one day to enable recount to be completed; which period should not count as part of the 14 days, while continuing the recount in the interim even possibly up to and including Saturday, Feb. 11, 2017.
After all, I’m not too sure the guidelines, while stipulating 14 days for a petitioner to present his case or 10 days for a respondent’s response, used the word “consecutive” as to indicate that under no circumstances must a day be omitted within the petitioner’s 14 days or the respondent’s 10 days (as the case may be) once any side had opened his case. In any event, what degree of force of law does mere guidelines possess to warrant a court using it as a subterfuge to truncate its own order validly and duly made in the first instance? How sacrosanct?
We are not here talking of a provision in the extant Electoral Act. Why would the Tribunal for whatever reason not allow a process with great potentials of giving it the enablement do justice to the point in issue run it’s full course? Especially that it was a process kick-started by its own order duly made. If the recount had run it’s full course and it was shown that petitioners lied on their allegations that prompted the recount, there’s great likelihood it would have assisted the Tribunal one way and not the other.
In the same vein, if the result of the recount showed that the petitioners’ allegations had element of truth, it would have assisted the Tribunal in some other way different from the first. Either way, it would have assisted in making its burden less tasking. Rather than take that noble course which the Justice of the case required, the Tribunal chose to do that which, in my considered opinion, had the rich potentials of visiting and did visit profound injustice on both sides, perhaps more on the petitioners or perhaps more on the adverse party.
That, unfortunately, now belongs to the realm of speculations as regards the point or points sought to be proved or disproved by the exercise if it had been allowed to run its full course. So for the Tribunal to have put on the front burner the issue of lapsing of 14 days period and that it had no power to extend the period, amounts, in my considered opinion, to seeking shelter where none existed for the wrong steps it took on the point. The second point (this is equally important) is that it is curious for a court to have made an order which was intended to be carried to fruition only to subsequently turn around to frustrate such an order.
When the Tribunal made an order allowing a recount it was expected it wanted the order to have some effects that would throw light to the matter before it but most regrettably whilst the journey towards the realization of the set objective had commenced, it simply halted the journey, thus frustrating or otherwise scuttling it’s own order. The order then became one that was made in vain. It’s not the norm for a court to, on its own, do anything towards non-realization of the fruits of its own order. Nor is it the norm for a court to make an order in vain.
In the instant case, it is even more curious, to say the least, for respondents who won an election and were so declared to have opposed a recount of ballot papers used in the election. It sounds incredibly immoral for winners of an election to either directly or by proxy (i.e. thru their Counsel) (1) vehemently oppose recount of ballot papers used for the election, if it was a live issue in the matter and (2) gleefully be part of the process of scuttling a recount which had already commenced. Even more troubling in the foregoing regard is the attitude of INEC which also resisted, as reported, any move at recount at all and/or played a role (directly or indirectly) in ensuring that the process was scuttled after commencement.
Such attitude of INEC and other respondents raises more questions than answers. The life question is: what is the interest of an electoral umpire in opposing recount of ballot papers used in an election in which it returned as duly elected a candidate whose said election is now under judicial scrutiny? The whole saga portrays, head or tail, that Nigeria is in grave danger as far as her electoral process is concerned. Who therefore will FCC Nigerians from these shenanigans by our political class and the electoral umpire that are daily plaguing us as a nation and are not abating any time soon? Your guess is as good as mine.
On the whole therefore I’m firmly of the view that the decision by the Tribunal in stopping the ballot papers recount is an appeal-able decision which needs to be tested upstairs. I recommend that option to the party aggrieved.