By Efosa Ugiagbe

LAWYERS can be very confounding when prosecuting or defending a case. It seems in the nature of their practice to raise objections even when they are not convinced by their own antics. There is always an objective though. At times, it is just to waste time. The foregoing is predicated on the observation of the ballot recount controversy at the ongoing Edo State Governorship Election Petition Tribunal, that had to be taken to the Court of Appeal for direction.

It is rather perplexing that the recount of the subpoenaed ballot papers from four of the eighteen local government areas in which the September 28, 2016 election were held, became the subject of legal technicality as to whether the Tribunal was right in aborting its own order on the ground that the fourteen days granted the petitioners to present witnesses had elapsed. How could this vital course in the presentation of evidence which is at the heart of the petition that seeks to establish the incidences of non-accreditation and over-voting be subject to an impossible time frame whereas the Tribunal had two clear months to conclude its business? Well, the Appeal Court has been invited to apply its superior understanding in the matter.

However, a more perplexing twist at the Court of Appeal is the cross appeal filed by the respondents. The cross appeal seeks to invalidate the order of the Tribunal that had led to the ballot papers recount, an exercise which nonetheless was inconclusive. The cross appeal also challenges the acceptance by the Tribunal, of the results derived from the aborted exercise. While the ordinary man would wonder what this cross appeal seeks to achieve, in the legal circle, it is taken for granted that if the Appeal Court rules in favour of the respondents, the Tribunal is bound to pretend that it never made the order of ballot paper recount or that the discrepancies discovered in the counted units and wards are of no consequence to its ruling on the matter before it. This is a classic instance of how legal practice makes fool of us all, including the Tribunal.

The overriding interest in the instant case is the procurement of justice. It is in recognition of this fact that the Tribunal ordered, upon the request of the petitioners, the recount of the subpoenaed ballot papers which are in part, fundamental to establishing the allegation of reprehensible acts of over-voting. That was already being done until the recount was stopped on the assumption that the petitioners had lost the privilege, the fourteen days allocated to them having expired. The petitioners aver that the act of recounting the subpoenaed ballot paper had a life of its own having been derived from an order of the Tribunal. The respondents claim that the order for a recount was an error.

The undeniable reality is that the ballot papers have been partially counted and impression in favour of the petitioners has been made. The question now is, whether the ballot papers are conclusively counted or not, has it not been proven by what may be called incidental discovery that the contested areas have question marks on them? The documentary evidences, we are made to understand even already capture the picture presented by the petitioners, despite the recounting exercise.

The proceedings of the Tribunal has been copiously exposed to the public court which has formed its opinion from the revelations made. Can we then really erase from our minds the reality of the revelations, including  the inflation of figures for ballot papers cast? Can the judges remove the truth they have been exposed to from their conscience? These are issues that agitate the minds of ordinary people, but judges are no ordinary people. They are however, elevated minds who are supposed to see between arguments of learned minds and the antics of smart legal tacticians, right into the heart of a matter. It should be noted though that they are guided. And in the matter of elections, the Electoral Act 2010 (as amended) and the Constitution of the Federal republic are the ultimate guide.

In conclusion, talking about the heart of the matter around which arose the controversy of an appeal to conclude the Tribunal ordered recount, the issue for our consideration is straight forward: have the petitioners proved that there was over-voting from the result sheets before the Tribunal and the ballot papers counted so far? The Honourable Tribunal may at the end of the day have a well reasoned opinion contrary to what the ordinary people have heard and believe or it may yet confirm what the people have heard and believe. This can only be by focusing on the heart of the matter.

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