Kenneth Ikonne writes: MY PRELIMINARY RESERVATIONS ON THE JUDGMENT!

First, on the holding that the witness statement of an UNWILLING subpoenaed witness must be frontloaded and filed along with the petition. The Court of Appeal was merely enacting a factual impossibility, which has invariably resulted in a miscarriage of Justice with the resultant striking out of critical oral and documentary evidence of petitioners’ witnesses.

The petition must be filed within 21 days of the declaration of the result of the election. Within those 21 days, the panel which will issue and sign the subpoenas wouldn’t even have been inaugurated. How then do you compel the INEC chairman or REC to donate to you a witness statement on oath against his wish, without a subpoena ordering them to do so?

The applicable legal maxim in the circumstances is LES NON COGIT AD IMPOSSIBILIA, meaning “the law does not compel the impossible”! Also applicable is the maxim, IMPOTENTIA EXCUSAT LEGEM”, meaning “the law does not punish a person for not doing what he lacked power to do”: SEE HALSBURY’s LAWS OF ENGLAND, 4th Edition Reissue, volume 44(1), paragraph 1448, page 884.

Secondly, the policy implication of holding that INEC is under no obligation to transmit results electronically signals a return to the era of collation fraud and untrammeled impunity! The better view would have been that even though a duty exists to transmit results electronically, it had not been established by the Petitioners that the failure to do so SUBSTANTIALLY affected the result of the election in this instance! The implication of the judgment on the point is that all the innovations and checkmates against electoral fraud contained in the 2022 Electoral Act have been capriciously cast into the dustbin of history!

It is on these bases therefore that I think, in my humble view, that the judgment is largely unphilosophical. There should have been a more creative and innovative way of dismissing these petitions, in order to retain the reverence of the watching public. The Learned Justices of the Court of Appeal merely failed to employ the law to advance the electoral reforms embodied in the new innovations incorporated in the new Electoral Act!