For a very long time to come, last Tuesday’s judgment of the Supreme Court sacking Emeka Ihedioha and ordering the swearing-in of Hope Uzodinma as the governor of Imo State will continue to resonate in the body polity, writes Davidson Iriekpen
The Supreme Court caused a stir last Tuesday, when its full panel led by the Chief Justice of Nigeria, Justice Tanko Ibrahim Muhammad, sacked Emeka Ihedioha of the Peoples Democratic Party (PDP) and ordered that Hope Uzodinma of the All Progressives Congress (APC) be sworn in as governor of Imo State.
Perhaps, the last time the country was jolted by a surprise decision of the Supreme Court such as this was in October 2007 when it sacked Celestine Omehia, whose name was on the final ballot and ordered Chibuike Amaechi, who was not on the ballot to be sworn in as governor of Rivers State.
Even though many analysts can understand that both Omehia and Amaechi were in the same party, the PDP, and that one (Amaechi) won the primary election but his party rejected him, and Omehia whose name was on the ballot and campaigned round the state and finally won the main election, was rejected by the court on the grounds that it is a political party that wins election in Nigeria, never did anybody envisage its verdict on the Imo State governorship tussle.
To them, the fact that the Supreme Court had delivered judgments in appeals against the election of 13 governors and upheld their victories was not a surprise but the reasons it gave for sacking Ihedioha and giving victory to Uzodinma. This is why the issue remains a subject of curious analyses by legal political pundits. While some especially, interested parties hailed the verdict, others, a majority of who were non-aligned politically, were bitter on how the apex court reached absurd its decision.
After the governorship election held on March 9, 2019, the Independent National Electoral Commission (INEC) had in March declared Ihedioha winner with the highest number of 273,404 votes. The three other candidates coming behind him were credited with the following votes: Uche Nwosu (AA) 190,364; Ifeanyi Araraume (APGA) 114,676 and Hope Uzodinma (APC): 96,458
Dissatisfied with the announcement, each of the three candidates filed an election petition at the tribunal premised on different grounds. While Uzodinma’s petition was premised largely on the grounds that the election was conducted in certain 388 polling units, but the results which he had copies of were wrongly excluded by INEC in their collation of results of the election. He argued that if those results were taken into account, he would have won the election.
The respondents in the petition, including INEC, denied the above allegations and described the purported results as false in their respective replies to the petition.
Many had thought that having regard to Supreme Court’s decided cases, that the petitioners had the burden of proving the conduct of elections in those polling units, the results emanating from them and the impact those results would have on the result of the election as declared.
At the hearing of the petition, Uzodinma and APC called 54 witnesses out of which only 28 were polling unit agents. It was gathered that no ward collation agent was called as a witness. Uzodinma himself testified as PW11. His State Collation agent testified as PW51 and a certain police officer testified as PW54. The other 23 witnesses were local government collation agents and sundry witnesses.
Another issue was the results of the election relied on by the petitioners, were tendered from the Bar in bags and sacks! They remained there throughout the trial, except for the few, which were mentioned by the 28 polling unit agents.
PW54, a Deputy Commissioner of Police, whose presence and testimony were challenged by the respondents, tendered documents in a pack, which he described as result sheets from 366 polling units. He was said not to have opened any of them or referred specifically to them. He admitted, in cross-examination, that he did not know the figures they contained or the polling units they were concerned with.
The 28 polling unit agents and PW11 admitted, in cross-examination, that the result sheets that they identified were not legible or did not contain the scores of all the political parties, which contested the election.
The 28 polling agents also admitted that those purported result sheets did not contain any entry to show the number of ballot papers issued to the respective polling units; the number of ballot papers used and unused in those polling units.
Uzodinma admitted in cross-examination, when confronted with his chart in the petition, that some of the results he listed showed over-voting.
But in its verdict, the tribunal dismissed Uzodinma’s appeal, saying he was unable to prove his allegations against Ihedioha’s election. Similarly, the Court of Appeal in a four to one judgment on November 19 upheld the decision of the tribunal, forcing Uzodinma to approach the apex court.
But the Supreme Court, in a unanimous judgment delivered by Justice Kudirat Kekere-Ekun, held that the case of the appellants had merit and consequently granted the reliefs as prayed by Uzodinma and APC. According to the apex court, the concurrent judgments of the lower courts erred in law when they excluded votes totaling 213,295 from 388 polling units from the total scores at the election.
Justice Kekere-Ekun said Ihedioha was returned as governor of Imo State based on wrong computation of the election results. She held that the lower courts were also wrong in holding that PW 54, a police officer, who was on subpoena, was not the appropriate person to have tendered documents that showed the exclusion of votes in the 388 polling units during collation.
Observers believed that in allowing the appeal, the Supreme Court did not only state that it has computed the new scores, local government by local government, and determined that the petitioners had satisfied the requirements of section 179(2) of the Constitution before it arrived at the decision that he should be sworn-in as the new governor of Imo State, but ignored well established principles of law, which had guided its previous decisions in similar cases.
They equally felt that the apex court did not state the new scores, which the petitioners proved from the 388 polling units especially, having regard to the following facts: (a) that only 28 polling unit agents out of the 388 polling units testified and they admitted that the result sheets had all the vices itemised earlier.
(b) That PW11 also admitted over-voting apparent in some of the results in the chart in the petition; (c) that more than 90 per cent of result sheets were neither identified nor referred to by any witness; (d) that the respondent particularly, INEC denied the existence of those result sheets and tendered documentary evidence to show that election did not hold in 388 polling units.
(e) That PW54 tendered purported result sheets that were less than the number of polling units mentioned in the petition; (f) that PW54 did not open or read any of the purported result sheets and stated clearly that he did not know the figures or scores they contained or whether there were “mutations or tampering” in them, and that the documents were not submitted to him.
Another point raised by legal experts to fault the apex court’s ruling is that whenever documents that were tendered from the Bar in election matters, the purport is to speed up the trial in view of time limitation in election matters. They stated that tendering such documents was not the end itself but a means to an end. They therefore contended that the makers of such tendered documents must be called to speak to those documents and be cross-examined on the authenticity of the documents.
In law, it is trite that a party that did not make a document is not competent to give evidence on it. It is also the tested position of the law that where the maker of the document was not called to testify, the document would not be accorded probative value by the Court. That, they noted, was the fate of Exhibit P80 and P24.
Another argument put forward to show that the judgment of the Supreme Court did not reflect the justice of the case was decision of the Supreme Court in SC. 1384/2019 between Ugwumba Uche Nwosu v. Action Peoples Party delivered on December 20, 2019, during the pendency of the Imo governorship appeal.
The first two paragraphs of the judgment were remarkable. They read: “This appeal deals purely with the issue of double nomination. The appellant contested and won the primaries conducted by APC on October 16, 2018; and his name was forwarded to INEC as gubernatorial candidate of APC at the general election slated for March 9, 2019.
“But the appellant also contested and won the primaries conducted by another party, Action Alliance, and on November 2, 2018, he was issued with “a certificate of return & confirmation as the duly elected governorship candidate” of the said party.
The Supreme Court held that by “allowing himself to be nominated by two political parties, the appellant, not only did an act that was not authorised by law, which is illegal, the Electoral Act clearly says in its Section 37, that such a nomination “shall be void”.
The implication of the judgment is that Uche Nwosu was the nominated candidate of APC in the election, but that his nomination became void, because he had secured “double nomination”. It followed that if Uche Nwosu was factually the candidate of APC in the election, Uzodinma could not have, validly, also be the APC candidate in the same election.
It was for this reason that Ihedioha filed an application at the Supreme Court, which was argued on January 14, 2020, contending that Uzodinma and APC’s appeal should be struck out, because of the implication in the above-named Supreme Court judgment.
In the judgment, the Supreme Court chose technicality at the expense of substantiality and denied Ihedioha the benefit of an established legal outcome by summarily dismissing Ihedioha’s application on the basis that the matter of double nomination was a pre-election decision and could not be applied to the appeal, which was a post-election litigation.
Not letting the controversy trailing the judgment go down, the National Chairman of PDP, Uche Secondus raised a compelling poser for the justices of the apex court.
“It is on record that the votes analysis from the Imo governorship election as at March 11, 2019, when the results were declared were as follows: Total Accredited Votes: 823,743; Total Valid Votes: 739,485; Cancelled Votes: 25,130; Total Valid Votes: 714,355. But at the Supreme Court, the Total Valid Votes have increased to 950,952.
“This account for 127,209 votes in excess of total accredited votes of 823,743. Can the Supreme Court sit in Abuja on January 14, 2020 to increase the total number of accredited votes in election held in Imo State on March 9, 2019?
“Is there any law, which permits the Supreme Court or anyone else for that matter, to unilaterally increase the total accredited votes by any margin after the accreditation and or the election? Where did the Supreme Court get the numbers to declare Uzodinma/APC from a paltry 96,456 votes over Ihedioha/PDP votes of 276,404?”
Secondus said even if all the excess accredited votes of 127,209 manufactured by the Supreme Court were added to Uzodinma/APC it would be 223,657 votes, which is still less than Ihedioha’s votes of 276,494 by 42,747 votes.
“It is important to also bring to the consciousness of well-meaning members of the public that there were two elections on March 9, 2019, namely, governorship and the House of Assembly. As already known, there was only one accreditation for the two elections.
“The APC did not win any of the 27 seats in the Imo State House of Assembly, which were won as follows: PDP won 13; AA won 8; APGA won 6; APC won 0; Total is 27.
“The above further questions and confronts the rationale for the judgment of the Supreme Court on Imo State. How then did the Supreme Court arrive at its decision to allocate results to void a lawful governorship election and imposed an unelected person as governor?”
In all, posterity would have its day and in due time. How the justices of the Supreme Court are able to sleep with such brazen heist at the breaking of a new day is befuddling. But, by and large, the judgment points strongly to why the project called Nigeria may never work, regardless of what efforts anyone puts in. Perhaps, it is truly a nation structured to fail.