Saturday, 7 December 2013
Ondo Election Tribunal’s Judicial Abracadabra: Abdication Of Equity In The Face Of Flawed Statute
The Ondo Election Tribunal’s held inter alia, “ACN was aware of so-called injection in the 2012 voters register of about 106,000 fictitious names but failed to address it before the election, so it shouldn't cry wolf now, it was pre-election issue which the tribunal has no jurisdiction to entertain".
To this Justice Ka'kan’s judgement, the Yoruba will say “Ani ka ba ole wi, eni onikan ni ofi nka e si bi to da.” It means, when we should condemn the thief for his act, you are placing blame on the owner of the stolen goods for not securing it properly. This proverb is used whenever inequitable judgments are made.
To put it succinctly, Justice ka’kan concurred that there was an injection of over 100,000 fictitious names in the 2012 voters register but the election was fair and regular solely because the ACN was aware of it and failed to address it. It is important to note, that the tribunal camouflaged imputed knowledge and pronounced it as actual knowledge. The conclusion by Justice Ka'kan that “ACN was aware” of the unlawful injection of fictitious names in the voters register was reached on the presumed grounds that they ought to have identified that anomaly and illegality because they had access to the voters register.
It is sad that Justice Ka'kan could not even be bothered to identify the injection of fictitious names in the voters register as unlawful and criminal acts. It was convenient for the honourable judge to simply conclude that a criminal act did not have any bearing on the proceedings because it was pre-election issue. One would expect the honourable judge to make judicial notice of the monumental fraud, castigate INEC and recommend some sort of criminal proceedings against the culprits. No, that is the Nigerian justice. We should not underestimate the consequences of this illegality on our legal and electoral rights. The illegality has imposed an imposter on us as our Governor and we can now witness his countless misdeeds and disregard to the people of Ondo state because as a matter of fact they never elected him.
I am extremely concerned with the level of ethical debasement of the Nigerian society. How can any lawyer who had truly been a student of law failed to see the inequity and perverseness of that judgment. It is equally shameful that Governor Mimiko and his paid celebrators could be jubilant after this judicial pronouncement. The judge had just called you a thief and blamed the owner and, you are comfortable to be jubilant. The judgment had not confirmed your victory; it has clearly deflated your political relevance. Gov. Mimiko has been tarnished politically by this judgment. By this judgment, he is no longer the master politician that people wrongly believed he had become after the 20 October 2012 election.
My dear Ondo State! Why are we so unfortunate with our leadership? A similar traditional judicial pronouncement was made in the same Akure, Ondo State not too long ago. This time, by the son of the soil in the person of the disgraced and deposed Deji of Akure, Oba Oludare Adepoju Adesina. In 2008, the deposed Deji of Akure had intervened in a dispute among cement dealers in Akure. The association of cements dealers in Akure reported one of their members to then Deji of Akure for selling his cement at a lower price than the price illegally agreed by the cartel. In his judgment, the Oba urged the accused person to consider the fact that the other cement dealers have families to feed and ruled by fiat that the accused person should henceforth sell at the same price with others or close his business as a cement dealer in the town. The accused person had to comply with the judgment. He had no right of appeal against the judgment of the kabiyesi (no mortal can ask how the king reached his judgment). Akure people lived with it. They did not protest against it. It is not incorrect to argue that the consequent of the docility was one of the reasons that led the Oba to bring the revered throne into disrepute. The people of Ondo state can no longer afford to be docile in the face of injustice. We need to show our angst and anguish against injustice. It might be the case that, if the people of Akure had protested against the judgment of the Kabiyesi at the time, Justice Ka’kan would not have missed the point.
In the Nigerian judicial system, it is convenient for corrupt judges to hide under the cover of legal technicalities and statutory imperfections. It is not unusual for judge to rely on flaws in the Nigerian constitution or statute books to aid their bad judgment. In Nigeria, that is good law. The judiciary has continuously failed to play its role as a judicial arbiter that interprets the laws in the interest of justice where there are ambiguities in the law or its interpretation. Do we understand what justice means? Do we understand the psychological and material adverse consequences of electoral fraud? Is it necessary in a society to arbitrate in the interest of justice?
It is trite law, that equity follows the law. Where there is any conflict between the rules of law and equity, equity is to prevail. The following equitable principles are applicable to Justice Ka’kan’s judgment:
- Equity will not permit a statute to be a cloak for fraud
- Equity will not suffer a wrong to be without a remedy
- Equity imputes intent to fulfil an obligation.
Justice Ka’kan’s judgment exposed so many anomalies in the Nigerian legal system. Like the deposed Deji of Akure, it exposes the infantile mindset of some of the judges. It exposes the level of degeneration in the judiciary. It exposes the fact that it is generally acceptable for statute to prevail where there is conflict between rules of law and equity.
We have found good examples in the judgment of the family member who defended his relative by castigating the owner of the stolen goods for not keep them safely and the Kabiyesi who found against the conscientious cement dealer in Akure. Let us now examine and apply the above stated equitable principles to Justice Ka’kan’s judicial pronouncement “so-called injection in the 2012 voters register of about 106,000 fictitious names”. It is now generally agreed that over 100,000 fictitious names were injected in the 2012 voters register. Equally it was not argued by any party to the 2012 election that any form of voters registration exercise took place between the 2011 and 2012 elections. It follows that the injection of fictitious names in the 2012 voters register was a monumental fraud. In the corollary, the 2012 voters register was fake and false and could only give rise to a false election.
Therefore, as a matter of law even if it correct that the injection of over 100,000 fictitious names in the voters register was a pre-election matter pursuant to the relevant electoral laws, it beggars belief that any court of law could justify such a colossal fraud on technical ground. Is the interest of justice under the Nigerian law, with its common law background, antithetical to the laws of equity? Were Nigerian lawyers and judges thought in school that it should be right to permit statute to be a cloak for fraud? I submit that lawyers and judges whose understanding of the law is at par with justice Ka’kan’s pronouncement were being dishonest and disingenuous because they know that flawed statutes including electoral laws should not be permitted to be a cloak for fraud.
I am certain that Nigerian laws give judicial recognition to the laws of equity and even place it in a very high pedestal in their legal authorities. Given this, Nigerian laws recognise that equity follows the law. It is consequently unethical and unprofessional if not illegal to suffer a wrong in the form of illegal injection of fictitious names in the 2012 voters register without a remedy.
The judiciary ought to understand the essence of democracy and election and, should impute intent to fulfil an obligation in the circumstances by invoking equity to cancel the 2012 election results in the interest of the people of Ondo state because “equity looks on that as done which ought to be done.”
The views expressed in this article are the author’s own and do not necessarily reflect the editorial policy of SaharaReporters