DELTA GUBER AND ITS JUDICIAL INJUSTICES.
Injustice is the violation of somebody's right; it implies lack of justice. And when narrowed to the Delta State governorship election conducted 26th April, 2011, Deltans had suffered injustice, injury, wrong and grievance. These denote acts or conditions that have caused the people of the state to undeservedly suffer hardship and grievous losses. This, the courts have meted on Olorogun Great Ovedje Ogboru in violation of his constitutional rights, that is, unfair treatment of his true representation and vision for the good people of Delta State. In the words of Martin Luther King, Jr. that 'injustice anywhere is a threat to justice everywhere'. This the state had experienced over the years. 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 (of the people of the state). 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 has continued to allow electoral manipulations, extra-judicial killings, treasury looting, money laundering and secret executions of innocent Nigerians. These judicial injustices have continued 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 INEC's failure to produce the forms EC 25B for the 308 polling units' Presiding Officers automatically makes the purported results declared for these polling units null and void. That where there was no evidence of receipts of voters' registers, the quantities of ballot papers not stated, it means that the results purportedly 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 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 ……..ovaly……. 97 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 agreed 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 remainder 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 emanating 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 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 election 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 by INEC and tendered by Ogboru /DPP through the said subpoenaed INEC staff.
The concluding question therefore, is, “how come from the lower Trial Tribunal to the Supreme Court decided to close their eyes to the undisputable facts and evidences before them?”
Omonigho Akpahwe, is an indigen of Delta State, and writes from Benin City, Edo State.