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The “over-voting” controversy was about actual accreditation figures on the day of the election especially in the disputed polling units across the 10 Local Government Areas challenged by the APC.
There were 4 major exhibits critical to the determination of the case tendered and admitted in evidence. They were:
i. Exhibit BVR.. that was the certified true copy of the BVAS report obtained from the INEC server by the APC which they used in filing their petition.
ii. Exhibit R.BVR.. that was the certified true copy of the later BVAS report also obtained from the INEC server by the respondents on being served with the petition.
iii. Exhibit RWC.. that was the report of the physical inspection of the BVAS machines themselves conducted by the 2nd Respondent on the order of the Tribunal.
iv. Exhibits R.BVM series were the BVAS machines themselves physically brought before the Tribunal, demonstrated before the Tribunal and taken as duly demonstrated as contained in the records of the Tribunal.
By section 47(1) of the Electoral 2022, an intending voter should show up in the polling unit in the constituency where he is registered as a voter. That is to say, voters register is intrinsically part of the new Electoral Act 2022, therefore it is a necessity and a mandatory factor in the Nigerian elections. See the case of NYESOM WIKE. V. PETERSIDE decided by the Supreme Court in 2016 where a similar provision was interpreted under the repealed 2010 Electoral Act.
Section 49(1) of the repealed Electoral Act which the apex Court interpreted in Wike’s case is the same in content and context, word for word as section 47(1) of the new electoral act, 2022. So, the conclusion of Justice Kume that voters register is no longer part of our electoral system was not founded and grounded in law. It was not sound at all. In fact, Wike’s case is a pointer that in the event the electronic device was eventually raised to the status of the substantive law that is the Electoral Act as we have today, it still has not displaced the use of the voters register. The apex Court was ahead of the BEAST machine. I enjoin us to read that decision.
Secondly, by section 137 of the Electoral Act, 2022, there is no need to call anything witness again in tendering a document if that document in its original form or certified true copy therefore establishes the complaints of non-compliance alleged. The question to ask now is which one is the original document among the exhibits listed above? Of course Exhibit R. BVM, that is the BVAS machines.
Now which one is the certified true copy? Indisputably it is exhibit RWC, that is the certified true copy of the report of inspection of the physical BVAS machines conducted in the permission of the Tribunal. The curious thing to note is that both BVM and RWC were never challenged by the petitioners. Meanwhile, that was the actual accreditation figures on the day of the election in the disputed polling units.
However, the Tribunal Chairman cheerfully went for Exhibit BVR. His lordship bluntly buried exhibit R.BVR and furiously ignored R.BVM and RWC, in such a manner akin to shaving a man’s head behind his back. Both BVR and R.BVR were of the same nature and specie. They were both from the backend server. If his lordship had carefully considered the provision of the Electoral Act, 2022 which provides for continuous updating of election results from time to time by INEC. His lordship’s conclusion that what the Electoral Act requires INEC to be updating is the results not accreditation. With due respect to his lordship, this is fallible.
The reason being that results of an election are not separable from accreditation figures. Both go parri-passu. You can’t have results without determining the scores of the parties vis-a-vis the accreditation. That erroneous conclusion made his lordship to err and misdirect himself, thereby occassioning serious miscarriage of justice. That decision was perverse and there is fervent hope that the Lawlords of the Court of Appeal and the Supreme Court will step into the shoe and remedy the wrong.
Ordinarily, assuming without admitting that there was over-voting (meanwhile there was none except in the highlighted 6 (six) polling units), his lordship was to apply the law relating to over-voting.. by cancelling the results in the affected polling units and ordering a re-run. In the co-authored “we” judgment, his lordship came to a conclusion (erroneously though) that there was substantial non-compliance. Yet, going ahead to give the benefit of the substantial non-compliance was what was not at all understandable, because no law supports a declaration of winner where substantial non-compliance is established. His lordship lacked jurisdiction to turn himself to Algebra the great Mathematician in the circumstance.
At any rate, the co-authored/jointly signed judgement has a date with the Lawlords of the Court of Appeal and the apex Court. Then we shall know whether Justice Kume was right to have beheaded “Kehinde Exhibit R.BVR” for “Taiwo Exhibit BVR”, because the former was alleged by the latter not to be from her mother, when the medical proof “RWC” confirmed that one cannot be preferred over another coupled with the testimony of the mother “R.BVM” in Court that both of them have equal status in the face of the law. His lordship would have done better by allowing RWC and R. BVM to guide through if substantial justice were to be done and seen to have been manifestly done in the circumstance of the case.
Happily, Justice Kume’s judgment was not the terminal point. The judgement has a date with the Lawlords of the Court of Appeal and the Supreme Court.
Hashim Abioye Esq.
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