By Yusufu Shehu Usman
The Server is suffering under the “sufferness” of proof and nothing is established unless it is proved
When you assert that there is a server, you must prove where it is unless the opponent admits its existence
If you don’t prove its existence, the court will not know what it is, where it is or what it contains
Those criticising the ruling of the presidential election petition tribunal on the server, do not seem to understand how the law of evidence works
It must be appreciated that judges when faced with a contentious case are detached from public opinion about the existence or non existence of any fact in issue unless it is admitted by the adverse party or it is such a notorious fact that the law deems or legally presumes it’s existence
There is no law that I know which presumes that INEC has a server and even if everybody believes that INEC has a server, the judges are not supposed to know when they sit as judges.
The issue whether INEC has a server or not is an issue of fact and not of law
Therefore if Atiku and the pdp assert that INEC has a server and INEC says it does not have it, it becomes imperative for Atiku and the pdp to show to the court that INEC is lying and the only way to show that,
is to produce evidence to establish before the tribunal that INEC indeed, has a server
When they prove the existence of the server according to the standard of proof required by the law and to the satisfaction of the tribunal that INEC operates the server they relied upon in their petition, they may be entitled by the procedural rules governing the proceedings of the tribunal, to make any application based on it for the consideration of the judges of the tribunal
It must again be reiterated that the judges will only work with the facts adduced and proved before them as laid down by the law.
It is immaterial and inapplicable if the judges in their private knowledge know or privately believe or if all members of the public know and privately believe that INEC has a server if there is no presumption of the law to that effect
This must be so because as judges they can’t give evidence of any fact or state of affairs that comes to their knowledge through private means and they can not be witnesses in a case brought before them for adjudication.
And as stated earlier, judges do not make decisions based on public perception of any issue in the public domain
They act on facts and the application of the law to the facts. No more no less
Therefore if Atiku and the pdp assert that INEC has a server and INEC denies or do not admit the assertion, the petitioners have the burden of proof cast on them to first and foremost adduce evidence to debunk INEC’s defence.
As it is, I am in agreement with the ruling of the tribunal that it can not grant an order for the inspection of a server the existence of which has not been proved. It will be like an order hanging in the air with nothing to ground it
It is trite and an elementary principle of law that the court can not make an order in futility or worst still, an order in vacuum.
That is my simple understanding of the ruling of the tribunal on Atiku’s application and I can find no ground in law to fault it.