The sum total of the assignment of any election petition tribunal is to ensure that substantial justice has been served to both the petitioner and respondent at the end of its sittings.
To be able to lay claims to any form of credibility, same tribunal must also be seen as favouring justice above all other considerations.
The Imo state tribunals for the 2011 elections petitions are being handled by Justice E. N. Kpojime, for the Governorship petitions while Justice I. Bello and Justice Umoekoyo Essang handle the National Assembly and House of Assembly petitions interchangeably.
Of the three Justices; Bello’s discharge of his duties as tribunal chairman has agitated the Imo electorate the most and have continued to task the sensibilities of the fast despairing Imo public.
Since May 17 when the tribunals commenced sitting in the state, Bello has thrown out no fewer than four National and State Assembly petitions without hearing the substantive case, largely on the ground of contestable technicality.
Justice Bello clearly seems to have a serious issue with the mode of application for the pre-hearing notice. Much as the processes of law must be respected, a mode of application that is legally contestable as inferior and a process deemed as mere administrative should not justify the denial of fair hearing and justice, for petitioners who approach the tribunal with genuine cases of electoral injustice.
As it presently stands, several thousands of supporters and allies of the petitioners from the Senate, House of Representatives and State Assembly elections whose cases were denied on the ground of their mode of application for the pre-hearing notice would now want the court of public opinion to determine their fate in the face of Bello’s perceived disregard for superior legal argument on the issue.
The provision for pre-hearing notice is regulated by the content of paragraph 18 of the 1st Schedule of the Electoral Act 2010, as amended.
Within 7 days after filing and service of the petitioner’s reply on the respondent or 7 days after the filing and service of the respondent’s reply, as the case may be, the petitioner shall apply for the issuance of pre-hearing notice as in Form TF 007.
The issue at this point is the fact that Justice Bello favours only applications made through motions and tends to promptly strike out all those cases in which applications were made through a letter.
Apparently ignoring paragraph 47 (1) of the 1st Schedule of the Electoral Act 2010 as amended which states that:
(1) No motion shall be moved and all motions shall come up at the pre-hearing session except in extreme circumstance with leave of Tribunal or Court (There is evidently no extreme circumstance or emergency in this case),
Justice Bello yet opts to favour paragraph 47 (2) which states thus:
(2) Whereby in these Rules any application is authorized to be made to the tribunal or court, such application shall be made by motion which must be supported by affidavit and shall state under what rule or law the application is brought and shall be served on the respondent.
It may be necessary to note that under these circumstances, some officers of the law may attempt to seek refuge in their right to the exercise of judicial discretion but it must be stressed that judicial discretion can only be applicable to the provisions in paragraph 18 (3) of the 1st Schedule which states that ‘the respondent may bring the application in accordance with sub-paragraph (1) where the petitioner fails to do so, or by motion which shall be served on the petitioner and returnable 3 clear days after application for an order to dismiss the petition’.
From the fore-going, it is clear that ‘application’ in the context is neither denotative nor synonymous to ‘motion’.
It however worries discerning members of the public that in support of his stance, Justice Bello has continued to cling onto the Appeal Court decision of 2008 in the case of Riruwai vs Shekarau which had since been rendered inferior by the more recent Supreme Court decision of 2010 in the case of Nwankwo vs Yar’Adua where the court held that, ‘Any motion, or preliminary objection not taken and determined at the pre-hearing session is done or taken without jurisdiction and consequently null and void, as it is a condition precedent to the exercise of Tribunal Jurisdiction.’ By this ruling therefore, it follows that the Electoral Act (2010) may not have foreseen the issue of application by motion since motions can only be heard during pre-hearing sessions proper. This is the superior position of the Supreme Court of the land.
It is however ironic to note that in the same tribunals sitting in the Imo state High Court premises, Justice E.N. Kpojime handling the governorship petitions and Justice Umoekoyo Essang handling National Assembly and State Assembly matters have had to dispense with undue technicalities to serve justice.
Beside sustaining the case of Achike Udenwa vs Hope Uzodinma, in which application was filed by a letter, Justice Essang also held in the case of Cosmos Iwu vs Ambassador Matthew Nwagwu that, “going by the provisions of paragraph 18 (1), (3) and 47 (1) of the 1st Schedule of the Electoral Act, 2010, as amended and the Supreme Court decisions, we are of the humble view that the application for pre-trial session filed by the petitioner is in the circumstances in compliance with the 1st Schedule of the Electoral Act, and we so hold.”
Also, efforts by the incumbent governor of Imo state to dismiss the petition of the opposition in the case of PDP vs Gov. Rochas Okorocha on the grounds of timing and technicalities was rebuffed by Justice E. N. Kpojime who insisted that the petition of the PDP must be heard for justice to be served.
Consequently, this question begs for answers: ‘Is Justice Bello and the duo of Justice Essang and Justice Kpojime, not all officers in the same temple of justice and operating with the same book of law?’ Granted that there may be differences in personal approaches to law but the fundamentals of the law practice remain the same for all practitioners.
Beside these facts and legal arguments, the tribunals and every other court of law are designed to aim for the highest good of society which in this case is untainted justice for public good.
Not a few however, are of the conviction that it would in the long run amount to grave injustice to uphold undue technicalities at the expense of substantive justice.
In the case of Uduma vs Arunsi, Justice Abdullahi held thus: “The courts are no longer swayed by mere technicality rather, the tendency now is towards striving for ideals of doing substantial justice, even in election matters, election petitions should be conducted with the same feasibility and crass technicality should be avoided.”
Also noteworthy is the case of Ikoro vs Izunaso in 2009 where the court also held that: “The trend practise for sometime now particularly in election matters which are of different and special nature is to do justice, even if only substantial, in matters that can come before the courts regardless of the harmless deficiencies in form that may exist in the process used to have access to the seat of justice where every citizen have the constitutional right to…”
It is instructive for the Tribunal in Imo to note that in the course of Tribunal sittings for the 2011 election petitions, the Appeal tribunal in Yola recently upturned the dismissal of two cases by the lower tribunal predicated on the mode of application (Letter/motion). The cases are that of Arch. Aliyu Dankaru vs PDP and others, and Simon Issah vs Alhaji Saad Tahir and INEC.
Looking back at the casualty figures emanating from the choices and legal assumptions of Justice I. Bello which occasioned the dismissal of the cases of Kema Chikwe vs Chris Anyanwu (Senate); Nkemdi Opara vs Bethel Amadi (House of Representatives) and Chima Akuzie vs Simeon Iwunze (State House of Assembly) and the most recent, Chikwem Onuoha vs Matthew Omegara; it is only fair to urge Justice Bello to stop and think again.
Slaughtering fair hearing on the excuse of undue technicality is a massive denial of justice against thousands of Imo people spread across the 27 council areas of the state.
The judiciary in Nigeria is presently at a cross-road occasioned by perceived unethical compromises on the part of the officers of the law, the choices of Justice Bello, wittingly or unwittingly must not deepen these woes, as we continue to pray that our judiciary would find their way out of the morass.
It has now become a popular opinion that the tribunal cannot be excluded from culpability in electoral injustices if they are seen to be deliberately hinging the bulk of their judicial pronouncements and decisions on undue technicalities and harmless oversights in crass antagonism of the course of justice.
Imo state presently, is tense from the strings of hardly justifiable decisions of Justice Bello in the course of handling high profile electoral petitions brought to his tribunal.
While we may not be able to predict the reactions of other segments of the state, we, as professionals would be left with no other option than to petition the National Judicial Commission if Justice I. Bello persists in his seeming flagrant disregard for the ideals of justice and fair hearing.
A man who has honestly and fairly won an election, should be able to prove his victory beyond reasonable doubt, so also is a man who lost an election; he should be given the opportunity to prove his case without the legal hamstrings of technicalities which are now known avenues of denying petitioners substantive justice.
The public is therefore urged to dispassionately monitor Justice Bello’s tribunal in the hope that some how, we may collectively saveguard the judiciary from further decay.
Imo people are watching. Nigerians are watching. And for their sake, ‘let justice be served even if the heavens fall.’