INJUSTICES IN THE NIGERIA JUDICIAL SYSTEM

It is quite undisputable that injustice anywhere is a threat to justice everywhere. In an attempt to subdue injustice anywhere and establish justice everywhere, the judicial system as an arm of government was institutionalized. The judicial system or judiciary is a system of court that interprets laws and applies them to their respective areas. Similarly the judiciary serves as the triumvirate of resolving disputes among individuals or groups in a given nation. It usually encompasses a court for final appeal, usually referred to as 'Supreme Court' or 'Constitutional Court'. The word judiciary is also used in describing the personnel, such as judges/justices, magistrates and adjudicators, who constitute the core of a Judiciary; they are also referred to as bench. Generally, the judiciary does not innovate law, but rather strictly and professionally interprets law and applies it to the reality of each case that is brought before the court. Undoubtedly, access to justice in most of our courts is directly proportional to the degree of power and resources under your control or controls of someone whom you know. Injustice is the violation of somebody's right, lack of justice. And when narrowed to the Delta State electoral cases especially that of the election of the 26th April, 2011, Deltans had suffered injustice, injury, wrong and grievance. These denote acts or conditions that have cause the people of the state to suffer hardship or loss undeservedly. This, the courts have meted on Olorogun Great Ovedje Ogboru in violation of his constitutional rights, that is, unfair treatment of his true representative and visions for the good people of Delta State. An injury is an injustice for which legal redress is available, which has being the constant pursuit of the Peoples' General, as he is fondly called. Wrong is now more emphatic than injustice and in a legal sense refers to what violates the right of Ogboru and adversely affects the public welfare. A grievance is regarded as a wrong that affords cause for complaint. The corrupt judicial systems we have experienced over the years have violated the basic right to equality before the law and denied procedural rights guaranteed by our Constitution. We have written timelessly to let the judiciary know our feelings and thoughts about a needed future repair and renovation of our broken judicial system in our dear country that continues to allow the executions of even possible innocent Nigerians like Olorogun Great Ovedje Ogboru. These judicial injustices, continuing to inflict grave harm on the good people of Delta State and the country in general.

Olorogun Great Ovedje Ogboru after the conduct of the aforesaid election filed a petition for redress after INEC had declared Dr. Emmanuel Ewetan Uduaghan as the winner of the said election with unlawful votes. He (Ogboru/ DPP) through his Counsel in the petition filed contended the following, that:

a) Elections were not duly conducted in Bomadi, Burutu, Warri North, parts of Ethiope West, parts of Warri South and parts of Warri South West LGAs respectively.

b) There was no accreditation of voters at the polling units.

c) Sensitive electoral materials like ballot papers, forms EC 8A (result sheets), forms EC 17 (oath of affirmation and neutrality), forms EC 25B (electoral material receipts), forms EC 40A (ballot papers account and verification statement), forms EC 40C (statement of unused and spoilt ballot papers), etc were not distributed from the wards to the polling units, and if distributed, were not received by Presiding Officers.

d) There was no recording / or record by Presiding Officers of the receipt of the sensitive electoral materials such as ballot papers and result sheets on the forms EC 25B.

e) Ballot papers were not stamped, signed or stamped and signed by the Presiding Officers and issued to duly accredited voters to vote.

f) The scores recorded on the forms EC 8A are not from votes cast by registered voters duly accredited to vote by the appointed Presiding Officers.

g) The scores recorded on the forms EC 8Aare not predicated on ballot papers duly signed and stamped by the duly appointed Presiding Officers for units and issued in the course of a due electoral process.

h) The scores recorded on the forms EC 8A are inconsistent with the purportedly used ballot papers.

i) The marks or thumbprints on the purportedly used ballot papers for the scores recorded on the forms EC 8A are not the marks or thumbprints / fingerprints of registered voters on the voters' registers.

j) The scores recorded on the forms EC 8A are not the products of sorting and counting of ballot papers by the Presiding Officers in the course of a due electoral process.

k) The scores recorded on the forms EC 8A exceed the numbers of the purportedly used ballot papers.

l) There is no account rendered and / or recorded by the Presiding Officers of the purportedly used ballot papers in each of the polling units on forms EC 40A nor were any account rendered of the unused and spoilt ballot papers on forms EC 40C.

m) There was no announcement and / or publication of results in the forms EC 60E by the Presiding Officers.

The reliefs sought by Olorogun Great Ogboru / DPP in the said petition are as follows, that:

a) The total lawful votes he had scored during the aforesaid election are 400,058 votes.

b) Dr. Emmanuel Uduaghan was not duly elected or returned as the governor of Delta State not having polled the highest number of lawful votes cast at the said election, and not less than one quarter of all the votes cast in each of at least two thirds of all the local government areas in the state where elections were duly conducted.

c) The Certificate of Return given to Dr. Uduaghan Emmanuel of the Peoples' Democratic Party as the governor is null and void, and of no effect whatsoever.

d) By the lawful votes cast at the said election, Olorogun Great Ovedje Ogboru of the Democratic Peoples' Party ought to have been returned, and should be returned as the duly elected governor of the state, having polled the highest number of lawful votes cast at the election and not less than one quarter of all the votes cast in each of at least two thirds of all the local government areas in the state where elections were duly conducted.

e) Independent National Electoral Commission should issue Olorogun Great Ovedje Ogboru with a Certificate of Return and being sworn in as the duly elected governor of Delta State.

As stated in Ogboru / DPP's petition, the ground upon which they seek for a redress is that Dr. Emmanuel Ewetan Uduaghan was not duly elected by majority of lawful votes cast at the conduct of the 26th April, 2011 governorship election as there was the absence of all constitutive elements of a due electoral processes in the aforementioned local government areas respectively. They did not dispute the distribution of materials from INEC state headquarters in Asaba to the local government headquarters and from there to the ward collation centers but its main complaint was that the said sensitive electoral materials never got to the Presiding Officers. At the trial, Ogboru / DPP called a total of thirty one witnesses including a Forensic Accountant, and tendered documents like the forms EC 8A, hard disk containing soft copies of ballot papers scanned, etc which were accepted and marked exhibits. The sum total of their evidence was that proper election was not conducted. Uduaghan called eighteen witnesses including a Forensic Expert and tendered documents not frontloaded along with his reply to the said petition, PDP called nine witnesses while INEC called sixteen witnesses. The sum total of their evidence was that proper election was conducted and all electoral materials were dispatched to all the polling units in the aforementioned disputed LGAs. They also contended that their witnesses were more credible and should be believed. But it is worth noting that none of their witnesses was a polling unit agent or a Presiding Officer who could give authentic evidence of what transpired at the polling units. Interestingly, Uduaghan sought the leave of the Trial Tribunal to tender the Forensic report of his expert which was not frontloaded with his reply but failed woefully to seek the leave of the court to tender the forms EC 25B, voters' registers, voters' cards, ballot papers including the ten hard disk containing scanned copies of ballot papers. Ogboru /DPP objected to the admissibility of the said documents as required by paragraph 12 (3) of the First Schedule of the Electoral Act 2010 and that no leave of the Tribunal was sought as in paragraph 41 (8) of the First Schedule of the Electoral Act 2010. This provision prescribes a penalty for failure of Uduaghan, PDP and INEC to frontload the aforesaid documents; such documents cannot be received in evidence. Any of them who wish to tender a document which was not frontloaded with his reply is required to seek the leave of the court to tender the documents. And in view of their failure to comply with the said Electoral Act, the Trial Tribunal was stopped from receiving the said documents in evidence and was expunged from its record of proceedings. Also, Ogboru / DPP had applied for Certified True Copies (CTCs) of the critical and core electoral forms in the six disputed LGAs for the governorship election from INEC and that they were provided with only 652 forms EC 25B instead of 960 forms EC 25B for 960 polling units, leaving a short fall of 308 forms EC 25B and that out of these 652 forms EC 25B, some of them did not have the names and addresses of the persons who allegedly issued the electoral materials, some of them did not have evidence of the quantities of ballot papers issued to the polling units while some of them did not have the evidence of receipts of voters' registers. It was contended that failure of INEC to produced the forms EC 25B for the 308 polling units Presiding Officers and that the purportedly results declared for these polling units must be void. That where there was no evidence of receipts of voters' registers, the quantities of ballot papers not stated, it means that the purportedly results declared and recorded on the forms EC 8A are derived from unknown variables and are therefore fabricated and liable to be invalidated. INEC provided only 51 forms EC 40A instead of 960 forms EC 40A for 960 polling units, leaving a shortfall of 909 forms EC 40A; provided only 32 forms EC 40C instead of 960 forms EC 40C for 960 polling units, leaving a shortfall of 928 forms EC 40C; provided no forms EC 17 for 960 polling units, leaving a shortfall of 960 forms EC 17 and that means that the ballot papers were not verified and no confirmation of the oath / affirmation of neutrality as such the results purportedly recorded on the forms EC 8A are unlawful and liable to be invalidated and should be voided. Also of importance, INEC failed to provide the voters' registers containing the fingerprints and the thumbprints of voters during the voters' registration exercise despite the Trial Tribunal's several Orders made to INEC to so produce. The Trial Tribunal conceded that Ogboru / DPP had applied to INEC for the aforesaid documents used in the conduct of the said election and that by Section 77 (1) of the Electoral Act 2010 (as amended); INEC was under a statutory duty to have provided an applicant(s) with all documents requested. And it was evident from the Trial Tribunal's record that they (Ogboru /DPP) were not provided with these documents when it was confirmed to the court by one of the Counsels to INEC on the seventh day out of the eleven days for their trial and the court made it clear in one of its ruling that it would not extend the trial days of any of the parties.

Ogboru /DPP averred further that Uduaghan's alleged a total of 525,793 votes recorded on the forms EC 8A comprises of 291,840 unlawful votes not cast by registered voters. Also, that in Warri North LGA, election materials were surreptitiously distributed a day before the said election day, without the presence and knowledge of party agents other than PDP stalwarts and agents; and this allegation was confirmed by the INEC staff subpoenaed, Mr. Chris Nwosu the Head of Operations when he counted the ballot papers for ward 2 unit 1 as 799 pieces and that the date on 18 pieces of the ballot papers looked like 28/04/11 while the date on the rest 781 pieces of the ballot papers was 25/04/11. And it did not have ballot papers to support over a hundred polling units in Burutu LGA; and able to identify only one polling unit – ward 3 unit 2 in the entire Bomadi LGA.

In the judgment of the Trial Tribunal, it agree with Ogboru /DPP that there was absence of constitutive element of a due electoral process in the six disputed local government areas respectively, and cancelled a sum total of 137,526 unlawful votes (103,287 unlawful votes for Uduaghan /PDP; 23,278 unlawful votes for Ogboru /DPP; and 10,961 unlawful votes for other parties) recorded on the forms EC 8A in the entire Bomadi, Burutu, parts of Ethiope West, parts of Warri North, parts of Warri South and parts of Warii South West LGAs respectively, based on the hard evidence led by Ogboru /DPP, thereby arriving at 422,509 votes for Uduaghan and 410,556 votes for Ogboru but it failed, ignored and refused to invalidate a reminder of 175,583 unlawful votes recorded on the forms EC 8A for Uduaghan, 9,220 unlawful votes recorded on the forms EC 8A for Ogboru and 2,261 unlawful votes recorded on the forms EC 8A for other parties which gave rise to a sum total of 201,432 unlawful votes emanated from polling units where ballot papers did not match or tally with the votes recorded on the forms EC 8A in parts of Ethiope West, Warri North, Warri South and Warri South West LGAs respectively . The pondering question is on which documentary evidence did the Trial Tribunal on its arrived 422,509 votes for Uduaghan stand when it had rejected and expunged from its records the forms EC 17, EC 25B, and most crucial – the ballot papers and the ten hard disk containing soft copies of the ballot papers.

It is of importance to note it was expected of the Trial Tribunal to also cancel the total of 60,554 unlawful votes in the Warri North LGA, (Uduaghan's 58,634 unlawful votes, Ogboru's 1,920 unlawful votes) recorded on the forms EC 8A which had a total of 116 polling units. Only 3 polling units votes recorded on the forms EC 8A had matched with the ballot papers provided by INEC and 113 polling units votes recorded on the forms EC 8A did not match with the ballot papers so provided, as some of them were not signed and stamped, some of them were stamped and not signed, some of them had no voters' registers, etc. Rather, the Trial Tribunal cancelled only 13 polling units by invalidating ward 1 units 12 $ 13, ward 4 units 3 $ 13, ward 5 unit 7, ward 6 units 5, 7 $ 9, ward 9 units 2 $ 8 and ward 10 unit 1 on the premise that INEC could not provide the ballot papers to support the scores purportedly recorded on the polling unit results (forms EC 8A). Invalidated ward 2 unit 1 with ballot papers dated on Friday, 25/04/11. Also, invalidated ward 4 unit 8 for its polling unit result showed a total number of 567 votes while the total number of ballot papers provided by INEC for the said polling unit was 506 ballot papers. In summary, it invalidated only 5,081 unlawful votes recorded on the forms EC 8A for Uduaghan, and 92 unlawful votes recorded on the forms EC 8A for Ogboru leaving a whopping sum of 53,553 unlawful votes recorded on the forms EC 8A for Uduaghan and 1,828 unlawful votes recorded on the forms EC 8A for Ogboru; and other unlawful votes in parts of Ethiope West, parts of Warri South and parts of Warri South West LGAs respectively. No explanation was given for the discrepancy. But the Trial Tribunal only made speculations / or make assumptions that amounted to going on a frolic of its own against the authority of Ibacehm Ltd vs Visa Investment $ Securities Ltd (2009) ALL FWKR (part 485) 1770 at 1788 paragraph C –O it cited. The legal conclusion in the circumstances is that 100 polling units votes recorded on the polling unit results (forms EC 8A) were not supported by the ballot papers purportedly used in the conduct of the said governorship and other reasons alleged by Ogboru /DPP and which evidences are clearly recorded in the hard disk they tendered and the evidence of the documents provided INEC and tendered by Ogboru /DPP through the said subpoenaed INEC staff.

It is worthy of note that on the 15th day of September, 2011, when the then Petitioners were at the advance stage of their case after calling 29 witnesses and tendering 200 documents, in view of the very limited time available and the strict time for disposing of election petitions under the Constitution, have spent 7 days out of the 11 days of their trial days allocated to them, INEC had informed the Tribunal in the evening of the aforementioned date that some of the outstanding documents applied for by the then Petitioners were ready. But the purported claims of INEC was sharply rebuffed by the then Petitioners as they had reminded the Tribunal that they had concluded and prepared their Forensic report, and also in their concluding part of their trial, as such the purportedly claimed documents were no longer useful. In buttressing the points raised by the then Petitioners, the Tribunal in its express ruling it made on the 16th day of September, 2011 that it cannot compel the then Petitioners to accept the said documents, which documents are also incomplete and are not in full compliance with its several Orders. It agreed with the then Petitioners in its entirety and faulted INEC's outright violation of the Constitution and disobedience of its Orders. It went further that it's Order of subpoena granted to Ogboru/DPP, Uduaghan and PDP which were opposed by INEC was for INEC to give evidence on behalf of the aforesaid parties and also to produce at the trial, ORIGINALS of all forms EC 8A, forms EC 8B, forms EC 8C, forms EC 40A forms EC 40C, ORIGINAL ballot papers, voter's registers containing the fingerprints and thumbprints of voters and Certified True Copies of the manual voter's registers of the 920 polling units in disputes, the ORIGINAL manual for Electoral Officers 2011 issued by INEC and the Certified True Copies of Chief Great Ogboru and Dr. Emmanuel Uduaghan's nomination forms respectively. Clearly, that the subpoena Orders, was not for production of the aforementioned documents. The subpoenaed INEC's witness was ordered to tender the originals of the said documents as subpoenaed.

Shockingly, the Tribunal breached it said express ruling in that it contradicted itself as it resulted to its purported judgment delivered on 11th November, 2011 as follows, that:

a. At page 60 paragraphs 5 and page 102 paragraphs 2,3,4 & 5 of its judgment in one hand referred to its said ruling that it cannot compel the then Petitioners to accept the purportedly claimed documents so produced by INEC, on the other hand, it (Tribunal) claimed that INEC provided the said documents including the voters' registers but that the then Petitioners rejected the said documents which it (Tribunal) presumed that if the voters' registers had been tendered, the then Petitioners felt it would be against them and faulted their (Petitioners) rejection of the said documents.

b. At page 94 paragraphs 1 of its judgment where it held that absence of the aforementioned forms in the said 920 polling units in disputes were mere forms and cannot form basis of the invalidation of the purportedly votes recorded on the purportedly forms EC 8A. But it ignored its earlier agreement to the Petitioners submissions of the necessity and importance of the said forms which it (Tribunal) opted in granting several Orders for INEC to produce.

c. At Page 105 paragraphs 6 & 7 of its judgment, it ignored outrightly one of its reasons that votes recorded on the purportedly forms EC 8A cannot stand on their own as they are representation of the ballot papers and once there are no ballot papers to authenticate the content, then the purportedly votes recorded on the purportedly polling units results (forms EC 8A) must fail.

The fundamental error committed by the Tribunal was its hide and seek game. One wonders why it (Tribunal) termed the said aforementioned forms as mere forms against its agreement with the then Petitioners. The said forms are core, critical and crucial as the polling unit results (forms EC 8A) are products of a process controlled by forms EC 17, forms EC 25B, forms EC 40A and forms EC 40C respectively. Therefore, without the aforementioned core, critical and crucial forms, the forms EC 8A and the purportedly votes entered on them can only be a forgery.

The then Petitioners filed an appeal and the appeal emanated from the fundamental error committed by the Tribunal which rose to the Supreme Court. Also, the Supreme Court had committed another fundamental error in its judgment delivered on the 2nd day of March, 2012 when it built its judgment on nothing (nullity). A nullity is nothing and nothing is NO SINGLE THING. But the preliminary objection filed by INEC which it (Supreme Court) built its judgment upon was SOMETHING of the then Appellants appeal filed at the Court of Appeal and not a Cross Appeal filed by INEC at the same Court of Appeal.

I posit here that the said judgment of the Supreme Court was a contradiction in 'terms. On the surface of the concurring judgment of the Chairman of the panel, Samuel .N. Onnoghen JSC, nullified the judgment of the Appellant Court based on the reasoning and conclusion of the lead judgment, allowed the appeal and abide by all the consequential orders including the order as ton costs, and the concurring judgment of Olufunlola .O. Adekeye JSC,also agreed with the fuller reasons given in the lead judgment and nullified the judgment of the Court of Appeal, but sustained the preliminary objections of Uduaghan, PDP $ INEC. She struck out the appeal and abides all consequential orders including order as to costs. But the lead judgment delivered by Ibrahim .T. Muhammad JSC, sustained ONLY the preliminary objection of INEC, struck out the appeal and made no order as to costs. One of the questions the Supreme Court must answer is that is consequential orders granted including order as to costs in an appeal that was struck out? The said concurring judgment of Justice Onnoghen and the altered judgment of Justice Adekeye respectively cannot be said/or proven to be typographical error as claimed by the lead Counsel to Dr. Uduaghan, Chief Wole Olanipekun (SAN) which was not a dissenting judgment. This is a semblance of the Ibori – An ex-convict case in a judgment delivered by a Federal High Court, Gwagwalada, and Abuja that he (Ibori) was 'sentenced but not convicted'.

It will interest you to know that the then Appellants contention is that their appeal that rose from the Tribunal to the Court of Appeal was HEARD but the court struck out the appeal, gave its decision but that the reasons for its decision was given outside the said Section 285(7). But INEC's purportedly claimed preliminary objection was that the appeal was not heard and had lapsed. Based on the error committed by the said Court of Appeal, the then Appellants had requested the Supreme Court to invoke Section 22 to look into the merit of their appeal that was struck out. The then Appellants requested for the nullification of the judgment of the Court of Appeal because its reasons for its decision was unconstitutional, and also, when it (Court of Appeal) struck out its preliminary objection that the court was estopped or precluded to adjudicate on the matter as an appeal had been entered in a higher court. Shockingly, the Apex Court neglected its Act that gave it an official, a legal power / or an authority to step into the situation where it found the said Court of Appeal of negligence to hear the Appellants appeal on merit and to assume jurisdiction. All the Applicants is asking the Apex Court is to reverse its earlier judgment of 2nd March, 2012, assume jurisdiction to look into the fundamental error made in the said judgment of the Tribunal in nullifying the remaining 100 polling units in Warri North, the remains in parts of Warri South, parts of Warri South West and parts of Ethiope West LGAs respectively.

This fundamental error which is termed as one of the greatest error committed by our Apex Court and which is becoming a practice, is what the National Judicial Council (NJC), the umbrella body of our judicial system whose leadership is under the headship of Honourable Justice Mariam Aloma Mukhtar must correct in putting a halt to the conflicts and embarrassment, and to save the practice of our legal professions.

Unfortunately, so many forms and dimensions of injustice shamefully destroy our judicial system that had been instituted to promote justice. So many people have been unjustly killed during the past decades and the cases are yet to be addressed and finalized. Many criminals who have confessed to their crimes were released unconditionally. Prime suspects of extrajudicial killings were allowed to go free. Many architects of religious and communal crises usually go unpunished, even after been identified. Election disputes are usually resolved in favour of people in power. Thousands have been imprisoned unjustly in various prisons all over the country without fair hearing. Politicians mostly instigate their supporters to kill during electioneering, and nobody amongst them has ever been brought to book. Some of the documented and approved laws are completely outdated, substandard and/or smuggled into the Constitution like the claimed Section 285 (7). Many corruption-related cases have been brought against highly placed officials yet no single case has ever been brought to a satisfactory conclusion. Sir Walter Savage Landor has nicely emphasized that 'delay of justice is injustice' and justice delayed is justice denied. Frankly, there are so many cases of delay of justice that are clearly injustice.

Consequently, inequality before the law has replaced equality before the law; some high-placed Nigerians are above the law constitutionally as a result of an unjustifiable immunity clause, while others are above the law politically and sentimentally because they belong to the largest and perhaps most disastrous party in Africa. The so-called Nigerian factor leads to corrupt things. The recent guilt plea by former governor Ibori in a local court in London further shed more light on the rot in our judiciary. Clearly, our justice system is a big joke. One of the expectants of any criminal justice system is having no respect for persons but the law, but in our dear country, the rich and the powerful make a mess of the process. There is an urgent need for the few responsible and just people in the judicial system of government to make sacrifices to rescue this essential tier of government by establishing justice through their final judgment against some political riggers, criminals and their sponsors. Martin Luther King opined that 'human progress is neither automatic nor inevitable… Every step towards the goal of justice requires sacrifice, suffering and struggle; the tireless exertions and passionate concern of dedicated individuals'. May our sinking Nigeria and the judiciary be saved from the ocean of injustice.

By: OMONIGHO AKPAHWE
OMONIGHO AKPAHWE is a Public Affairs analyst, an indigene of Delta State and writes from Benin City, Edo State.

Omonighoakpahwe@yahoo.com, Omonighoakpahwe@gmail.com