Senior Lawyers Push for Elevation of Substantial Justice above Technicalities

·         Want section on timeline for filing, hearing amended

·         Opine lawsuits should end before swearing in

Alex Enumah in Abuja

With just the Adamawa State Governorship Election Appeal pending at the Supreme Court, one can say that the curtain is drawn on litigations concerning the 2023 general elections.

Besides the presidential petitions of mainly the Peoples Democratic Party (PDP) and that of the Labour Party, 21 governorship appeals got to the apex court with 20 already decided, remaining that of Adamawa.

The elections had its highs and lows, especially the sack of Plateau State lawmakers, who suffered irreparable injustice due to the perverse judgements of the Plateau National and State Houses of Assembly Elections.

In nearly all the petitions, issues of irregularities, malpractice, non-compliance and even non-qualification that seemingly pervaded the elections, were said to have been unproven by the Courts.

This was despite the introduction of the BVAS and IREV technologies, as well as the amendment of the Electoral Act, 2022.

The court’s position on these issues however deflated the hopes of many electorates who had thought that the 2023 general elections would have been the best.

The Independent National Electoral Commission (INEC) had made many Nigerians, as well as the international community to believe that issues of rigging, over-voting and other corrupt practices that had characterised the nation’s elections over the years would be a thing of the past, with the deployment of latest technologies, especially the transmission of election results real time from the polling units into the INEC Results Viewing (IREV) Portal.

However, speaking on the outcome of the general elections, some senior advocates observed that if the nation must get it right in future elections, the courts must begin to dwell on achieving substantial justice in the petitions brought before it rather than on technicalities.

The tribunals, as well as the apex court had dismissed many of the petitions on grounds of technicalities, such as “testimonies of witnesses were not filed alongside the petition, or witnesses were not called to speak on documents presented before the court.”

Not even Section 137 of the Electoral Act could rescue petitioners who alleged irregularities and corrupt practice.

Suggesting how the laws could be made better to handle these issues, fast becoming insurmountable to the country’s quest for quality representation and true democracy, the senior lawyers, besides urging justices to pursue substantial justice, called for further amendment of the electoral laws.

“What, in my humble view, needs to be the primary focus in our electoral jurisprudence is substantial justice. If there is any area of our laws that substantial justice should occupy a preeminent pride of place and premium, it is in election-related cases,” Mr. Dayo Akinlaja, SAN said.

He observed that the usual mantra that election petitions are “sui generis” (of distinct or special class), is the reason why judicial proclivity should tend towards doing substantial justice at the expense of technicalities.

According to him, once this is so, the wishes of the electorate would almost always prevail.

“The current approach, regrettably in my view, ends up celebrating technicalities to the prejudice of substantial justice. I believe that even in the face of the extant provisions of the relevant laws, the focus can conveniently be on doing substantial justice.

“Put differently, the existing legal regime does not necessarily mean that the jurist cannot dispense with technicalities and reach decisions on the crest of substantial justice devoid of technicalities.

“However, if it is otherwise thought that there are areas of the law that need to be tinkered with by the legislature to make it more convenient for the jurists to do substantial justice, the legislature should be called to duty in that respect.

“On the pains of emphasis, it is my candid view that the current dissatisfaction with our electoral jurisprudence is a product of the prevalent technical attitude of our courts rather than the faults in our laws,” he added.

On his part, former chairman of the Nigerian Bar Association (NBA), Abuja Branch, who pointed out that the extant Electoral Act and its Practice Directions are Respondents friendly, argued that proving issues of irregularities, malpractices and non-compliance are difficult, to say the least.

“The first problem is the requirement of 21 days to file an election petition from the day of declaration of results. I think there’s a need to amend this. Why will it take INEC four years to prepare for and conduct an election (which as Nigerians, we know are misconducted) and you then expect a person who perceives he has been robbed to gather evidence within 21 days.

“The second is that the 21 days period should not be of general application for all the elections. How can you have such a number of days for both councilorship election and presidential election for instance. It is absurd. The number of wards involved, the volume of documents required to prove the petition and number of witnesses vary.

“Therefore, I think the period for filing a petition should be graduated to reflect these variables,” the senior lawyer stated.

Besides, Ebute stated that there is nothing wrong in legislating that all the elections should hold the same day, adding that apart from states where there are offseason elections, all successful candidates are sworn in the same day, especially executive positions.

Meanwhile, the senior lawyer suggested the need for the lawmakers to pass a law creating special courts for election petitions.

“I think the election tribunals which are being manned by regular Judges are overwhelmed and are being overburdened.

“This is more so that they must hear and determine every petition within 180 days from date of filing instead of from the date of commencement of trial. In other words, the amendment should be that judgement be delivered within 180 days of commencement of trial (calling of oral evidence).

“Furthermore, there should be an amendment to the time of conducting elections. It could be at least one year before swearing in another government rather than a few months (in three or four months as obtained now) to the end of an administration.

“This would reduce the pressure on the judiciary to deliver within 180 days as it could have an extended time in between, especially if a specialised court is in place.

The apex court in dismissing the appeals of Atiku Abubakar of the PDP and Peter Obi of the Labour Party had held that the petitioners failed to prove allegations against the election of President Bola Tinubu.

On the issue of non-compliance, the apex court, which agreed with the tribunal that the appellants did not present relevant evidence to prove this allegation, pointed out that the appellants abandoned the duty placed on them to prove non-compliance and rely solely on INEC’s failure to transmit results real time.

According to Justice John Okoro, “The unavailability of results on the Independent National Electoral Commission (INEC) Result Viewing (IReV) cannot be a ground to nullify” the February 25 presidential election which produced Asiwaju Bola Tinubu as President.

In addition he held that failure to transmit results to IReV does not affect the results of the election, because the IREV portal is not a collation center.

“IREV is not a collation center. Whenever iREV fails, it doesn’t stop collation of results because collation never stopped,” the apex court held, adding that the results on the IReV are meant to be compared with the hardcopy results in an event of a dispute.

Besides, Okoro had agreed with the respondents and the tribunal that INEC has the constitutional right to determine how it organises or collates results.

The apex court also held that allowing the statements of witnesses not attached to the petition would amount to amending or bringing additional evidence outside the 21 days permitted by law.

Similarly, the apex court held that the claim of votes suppression and diversion were not proved because the appellants failed to call witnesses from the polling units where such occurred, adding that the statements of the Ward, Local Government, State and National agents were more of hearsay since they could only testify of what they saw in the polling units and not across the country where elections held.