PDP, Atiku can re-file motion for forensic inspection of election materials – Lawyers

Following refusal by the Presidential Election Petition Tribunal to allow the Peoples Democratic Party (PDP) and its candidate, Atiku Abubakar, the power to have a forensic examination of ballot papers, lawyers say the petitioners can bring fresh application during the hearing of the petition.

Justice Abdul Aboki, leading a three man panel had in a ruling last week, unanimously held that the petitioners cannot be allowed to conduct forensic analysis and scanning of materials used for the conduct of the February 23 presidential election, thereby raising the curiosity of citizens who had witnessed similar expert examinations in the past.

Lagos based lawyer, Bar Inibehe Effiong said the petitioners can make a fresh application to the Tribunal to allow them conduct forensic examination of the electoral materials when the petition is filed.

According to him, the Tribunal refused the prayers on forensic inspection because it was made ex-parte, which will not give the respondents the opportunity to respond to it.

He said: “Forensic examination is essential where a petitioner is alleging corrupt practices and non-compliance with the provisions of the Electoral Act. It is the easiest way to prove over voting and electoral malpractice.

“Through forensic examination, a petitioner may be able to analyse electoral materials within the limited time and summarise irregularities contained in them.”

For Kelvin Ejelonu, a lawyer, based in Bayelsa State, the relief can be sought again when the respondents would be available to make input since it was presented ex-parte.

“From what I could gather from the face of the motion paper, the Tribunal immediately inquired from the counsels whether all the reliefs being sought can be granted, especially with the way they were presented and the petitioners in arguing could not convince the court.

“It was an ex-parte application, the petitioners can present it in better form at pre-hearing but at that stage, the respondents can make an input in opposing or ignoring same,” he explained.

Toeing the same line of argument, Abuja based lawyer, Abubakar Sani stated that Atiku’s legal team believe the issue can be revisited and they intend to do so during the hearing of the petition proper.

Beyond that, he said, the admissibility or otherwise of evidence depends on its relevance or otherwise to the facts in issue in any judicial proceedings. His words: “This is a question of law to be determined by reference to the Evidence Act. In any event, under that law, the wrongful admission or rejection of any piece of evidence shall not, by itself, invalidate any decision unless the court reviewing that decision on appeal believes that the decision would have been otherwise, but for that wrongfully admitted or excluded piece of evidence.

“Another factor, however, is the fairness or otherwise of denying a party of the means of presenting his/her case to the best of his/her ability.

“In this regard, it is arguable that denying Atiku the opportunity of forensic analysis of the electoral materials will impinge upon or violate outright his right to fair hearing.”

According to Sani, it would be a serious charge, which could potentially invalidate the proceedings and decision of the Presidential Election Tribunal if not redressed.

Condemning the decision, a professor of law and the former deputy Director General of the Nigerian Law School, Ernest Ojukwu (SAN), said the Tribunal put so much emphasis on the Electoral Act in arriving at its ruling, as if everything must be stated in laws.

He said: “I have read only newspaper summaries of the Tribunal’s ruling refusing the deployment of forensic examination. I wish I can find the actual ruling so that I understand the actual reasoning of the Tribunal. Generally speaking, I do not understand why there was so much emphasis on the Electoral Act. The provision regarding inspection of materials inserted in the Electoral Act is a surplus usage, maybe because of Nigerian judges and lawyers who want to see every thing stated in a law.

“The Court does not require any specific provision of the Electoral Act to order forensic analysis or even mere inspection of documents. These are all inherent powers that must be exercised to allow fair opportunity for the presentation of evidence.”

He said: “The Tribunal is wrong not to make that order,” he stated.

A Lagos based legal practitioner, Mr. Donald Ibebuike believes that the reasoning that allowing the petitioner to have forensic examination of the voting materials would confer undue advantage to the petitioner is antithetical to the dictates of justice, equity and good conscience.

According to Ibebuike, the onus lies on Atiku to establish his case before the Tribunal and for him to do that, he needs to be given access to all the necessary electoral materials relevant to his case, including conducting forensic analysis of electoral materials, photocopy and scan of the same.

By declining to grant the prayer for forensic analysis of the electoral materials including photocopy and scanning on the ground that granting same will confer undue advantage on Atiku, the Tribunal, he said has descended into the arena of dispute and constituted itself an advocate for the respondents.

“By reasoning that way, the Tribunal speculated, when it has not yet known how and whether the respondents will be interested in making similar application and in any event, the onus is not on Buhari to establish the case of Atiku.
“The purpose of inspection is to reveal the authenticity and the truthfulness of the materials to be relied on by Atiku and forensic analysis of same will be in line with the dictates of the inspection order and a major way to realise the inspection order.

“Moreso, when the meaning of inspection and its synonyms are taken into consideration, one will discover that forensic analysis is one of the ways to give effect to the Tribunal order.”

He explained that the use of forensic evidence in adjudicating electoral matters was not new, as same had been used in Osun, Ekiti and Ondo election petitions and the Tribunals granted the application for the exercise, adding that the evidence gathered was used in establishing the petitioners’ cases and eventually awarding victory to them.

“In the light of the foregoing, one would be compelled to suggest that the order should be appealed against immediately to the Supreme Court, but there are implications and other considerations inherent in taking this route.”

He pointed out that one of the implication is that the petition needs to be filed within 21 days of the declaration of a winner and time is therefore of the essence in the circumstances. He stressed that the refusal to grant the order will undoubtedly constitute a clog in gathering the necessary evidence and presenting a formidable petition by Atiku.

“By virtue of Section 21(2) of the Supreme Court Act, LFN, 2004, no appeal shall lie to the Supreme Court from any order made ex-parte. This appears to be the general position of the law on the subject unless the Constitution or Electoral Act creates any exception.

“By way of conclusion, the prayer by Atiku for forensic analysis of electoral materials, photocopy and scanning of same ought to have been granted by the Tribunal in the interest of justice, fairness and transparency without hesitation,” Ibebuike stated.

Appraising the issue, the national president of the Campaign for the Defence of Human Rights (CDHR), Mr. Malachy Ugwummadu said granting of prayers and reliefs through ex-parte applications in limine are largely discretionary on the part of presiding judges and on the compelling quality of materials and affidavit evidence before the court.

“Two clear options are available to the applicant namely: to challenge the ruling on appeal or represent the same application during the hearing proper in which case, the respondents must be put on notice to respond.

“For obvious strategic reasons, I understand that the legal team of the applicant has resolved to adopt the second option,” he said.

In his contribution, the Director, Access to Justice, Mr. Joseph Otteh said determining electoral disputes must entail that courts ensure easy accessibility to election-related materials, as well as defend the right to analyse the correctness, reliability and authenticity of the materials by those who allege that the elections were flawed in some respects.

According to Otteh, it is very important for courts to be on their front foot in ensuring that the democratic choices made by voters are revalidated through the judicial process, if the political or administrative processes that produced challenged results are called into question.

His words: “Without the ability to subject electoral materials to scientific or forensic audit, it would be more difficult to establish the transparency of how the elections were conducted, how votes were cast and counted, and how votes cast are correlated to the announced results.

“It would also be difficult to hold INEC accountable for errors they have made or any result they have announced that do not objectively reflect the choices made by voters.”

Otteh emphasised the need to respect section 14 of the Constitution, which said that Nigeria shall be a state based on the principles of democracy and social justice.