By Prince Ayoade Adewopo
The two main parties in Osun election tussle clearly undertook a well fought battle.
It is normal for Senator Ademola Adeleke to take his grievance to the court and equally normal for Mr, now Governor Gboyega Oyetola, who was declared the winner of the election, to defend his election, obviously supported by Independent National Electoral Commission, INEC.
But our court has refused to rise to the occasion right from the tribunal all the way to the Supreme Court. Ordinary Nigerians have become the casualties of a rapidly failing system. Without deciding who was the rightful winner, our Supreme Court has said that a supposed day’s absence of one of the members of the Tribunal vitiated the entire proceeding & that the decision which returned Adeleke, having been found on the merit to have satisfied the constitutional requirement, is a nullity. What a travesty of substantive justice in all ramifications – a decision capable of making our Supreme Court and its decision a mockery of the court of sound jurisprudence & certainly a laughing stock in the court of public opinion!
The courts often tell both the learned & unlearned that the sin of the counsel should not be visited on the client. But in our Supreme Court in this case, the rule is that a judge’s absence is the litigant’s loss. In fact, it is an awful beginning of wisdom!
In the case, the appellant is entitled to the right to know if he validly lost the election to the respondent and if the respondent was validly declared the winner. He has been denied that right.
The people of Osun who cast their votes on that day in exercise of their democratic franchise have a right to know who is entitled to be their legitimate governor. They have equally been denied that right; both denied by the highest court of the land because of the absence of one member of the tribunal one day out of several weeks of rigorous and vigorous hearing that took 60 days as required by the electoral law. One day too many!
It is the right every contestant and electorate, all those who vote and are voted for enjoy in this country under the Constitution and in which they ultimately rely on the court to determine one way or the other. Sadly, the Supreme Court has gleefully turned its eyes away from upholding that right, far away from the electorates, the people they are meant to protect by the rule of law.
That the tribunal lacks competence for lack of proper constitution as to number is a well established principle guiding the law of jurisdiction. But a cardinal and superior principle of law is that where there is a right there is a remedy – _Ubi jus ibi remedium_ . A rule so powerful and compelling in the machinery of justice. If there is a remedy to cure an irregularity for the purposes of upholding a constitutional right, where is this found in the unfortunate decision of the highest court of our land, which is the saddest judgment in the history of that court?
It is a rape of democracy and rule of law, an overthrow of the will of the people because of one act of an absent Judge!
Should the electorate be deprived of their democratic & constitutional right because of the transgression of an absent Judge or a biased umpire?
Our Supreme Court is lethargic, bogged down under the yoke of too many matters that it is hurting administration of justice. It is hurting the society.
It has become less than ingenious in finding no remedy for a right and in not probing into the legality & constitutionality of the action of an election umpire. That stubborn law of jurisdiction should and must be re-evaluated in the light of serious constitutional issues such as this case and its impact on substantive justice.
Such hollow decision cannot ever emanate from any serious Constitutional court in any civilised nation! In the words of Justice Krishna Iyer of the Supreme Court of India, placing legal technicalities in perspective ‘the tyranny of procedure, the horror of the doctrine of precedent with its stifling and deadening insistence on uniformity and the booby traps of pleadings’.
What an inspiring judicial reasoning coming from a country versed in the best traditions of Common law like Nigeria but arguably not any more endowed than Nigeria.
Yes, the unfortunate decision has been given and it will live in our memories for all times. It is final but it is not infallible. Posterity will judge it. It flies in the face of rational judicial reasoning to decline to find a remedy to a right and determine the rights of parties. It vacates the call of justice on the altar of technicalities and hence a sad episode in our electoral jurisprudence.
What then happened to that election result that was contested? What about the rerun declared by almighty INEC? The challenger of the election has lost. The beneficiary of the election has won. The absent judge has walked away – walked away without a stick.
The electoral umpire continues to do as it wishes. And the country suffers from rapacious streams of impunity, even the hands of the last hope of the common man are tied. Perhaps, we should look for that hope in the dissenting minority judgment…
God bless the Federal Republic of Nigeria.
Prince Ayoade Adewopo writes from Ile-Ife, Osun State.