Heading for an Anticlimax

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Nseobong Okon-Ekong and Adedayo Akinwale write that the exciting series of events following the 2019 Imo State governorship election may be heading for an end that will disappoint a critical mass

From the beginning of the current democratic experience in 1999, the judiciary has been on demand to make pronouncements at very crucial times. Although there have been many controversial decisions from the Nigerian bench, none has tasked the integrity of the judges like the January 14, 2020 verdict of the Supreme Court on the 2019 governorship election in Imo State. The Independent National Electoral Commission (INEC) had declared Rt. Hon. Emeka Ihedioha of the Peoples Democratic Party (PDP), winner of that election.

Other political parties and their candidates that participated in the election including Uche Nwosu of the Action Alliance (AA), Ifeanyi Araraume of the All Progressives Grand Alliance (APGA) and Hope Uzodinma of the All Progressives Congress (APC) did not agree with the conclusion reached by INEC. They took their case to Imo State Governorship Election Tribunal. After going through all the arguments and presenting available evidence, the tribunal decided in favour of Ihedioha. Not satisfied, the litigants went further to the appellate court. Again, the court of appeal insisted Ihedioha should continue as governor. The legal battle ground shifted to the Supreme Court, which proceeded to make, arguably, its most contentious judgement yet on a governorship tussle.

In its judgement, the apex court literarily fulfilled a saying of Jesus Christ that the last shall become the first, when it pronounced that Uzodinma who came fourth in the election should be sworn in as governor. The APC governorship candidate in Imo had claimed all along that his votes from 388 polling units were not counted. He sustained this plea throughout his legal battle, all the way to the Supreme Court. And lastly the learned judges of the final court in the land harkened to his prayer and validated his votes from those units. When these votes were added, Uzodinma who was the last, shot up to the top place. Today, Hope Uzodinma is governor of Imo State!

While many said the matter had reached its logical conclusion, there was a growing din of agitators who sought to exploit a window of opportunity that the Supreme Court could reverse itself. On February 5, Ihedioha formally filed a request before the Supreme Court to review its own judgement of January 14. That was 22 days after the January 14 judgement. But Governor Uzodinma is not bothered, mainly because the 60 days left for the Supreme Court to look into the matter had already expired.

However, Lagos-based lawyer, Mr. Anthony Ogwugwua Agadah has argued that by Section 36 of the Constitution, litigants are granted the right of fair hearing within a reasonable time. According to him, “There is no definition of ‘a reasonable time’ under the Constitution. He contended further that, “Section 285(5) of the Constitution stipulates that every election petition shall be filed within 21 days after the date of the declaration of result of the election. By subsection (6) of Section 285, the tribunal is bound to deliver its judgment in writing within 180 days from the date of the filing of the petition, while by subsection (7) of same section, an appeal arising therefrom shall be concluded within 60 days of the delivery of the judgment of the tribunal or court of appeal. Similar provisions on time limit for pre –election cases are enshrined under Section 285(8), (11), (12), (14) of the 1999 Constitution as amended by the 4th Alteration Act, 2017.”

Agadah maintained that, “One striking fact about Section 285(7) of the Constitution is that the 60 day-time limit commences from the date of judgment. The draftsman of this Section did not take cognizance of; the difficulties legal practitioners encounter in obtaining certified true copies of judgments in our courts and the time expended in the preparation and filing of the Notice of Appeal and the compilation of record of appeal.

Furthermore, it is also observed that Section 285 which placed a time limitation on election cases did not take into account the need for an extension of this time in deserving circumstances.”

Mr. Damian Dodo,SAN, presented a counter argument. He said, “Clearly, the 60 days allowed by Section 285(7) of the 1999 Constitution (as amended) for this Honourable Court to hear and determine appeal from the Court of Appeal in an election matter, lapsed on 17th January, 2020. The Motion to set aside was filed on 5th February, 2020, 19 days after the time allowed by the Constitution. It is now a settled law that the 60-day time limit to determine and conclude litigation on election matters is sacrosanct and cannot be extended by any guise.”

Another dimension to these debates was introduced by some advocacy groups like Movement for the Advancement of Democracy in Nigeria, Cadrell Advocacy Centre, Youth Arise for Nigeria and Constitutional Rights Advocates Initiative from taking a position on the verdict of Supreme Court on the 2019 Imo State governorship election. They posit that the apex court’s judgement was one-sided.

The groups said neither Ihedioha nor Uzodinma met the requirement of Section 179 (2), which stipulates that the winner in a governorship contest must have the highest number of valid votes and should also have a spread of 25 percent of the votes in two-third of the local governments in a state.

“From available facts, whereas 25 percent of votes in 18 LGAs is the minimum requirement to emerge as governor in Imo state,” said Liborous Oshoma, the Publicity Secretary of Youth Arise for Nigeria, “Emeka Ihedioha only secured 25 percent in 14 LGAs and ought not to have been returned in the first place. Shockingly, Senator Hope Uzodinma who secured 25 percent in two local government areas was declared by the Supreme Court as a governor on the basis of simple majority controversial votes from 388 units without consideration of the constitutional requirements of spread, despite the concurrent findings of both Tribunal and Appeal Court.”

He added that, “Neither the APC nor the PDP candidate met these constitutional requirements. We are expecting that the Supreme Court will order the electoral umpire, the Independent National Electoral Commission (INEC) to conduct another election for the two main candidates to the governorship seat in the state.”

Ihedioha’s request to the Supreme Court to review its own judgement first came on February 18, 2020 but was adjourned to March 2 because his lawyer, Mr. Kanu Agabi, filed an application stating that he needs a little time to file some processes before the court.

Lawyers to Governor Hope Uzodinma and the Independent National Electoral Commission (INEC) did not oppose the application.

The seven-man panel of the apex court led by the Chief Justice of Nigeria, Justice Tanko Muhammad, after listening to all the parties, adjourned the hearing to March 2, 2020.

Much of disagreements that arise from political gladiators and end up in the courts arise from liberty taken by the leadership of political parties to subvert their own constitution; especially during the processes in choosing candidates to represent the party in various elections. Though, INEC has a duty to monitor these processes in the political parties, and may be culpable in the ensuing debacle that attends the electoral process, the political parties take the major blame for refusing to abide by the rules, even those set by itself. These political parties find it difficult to follow their party’s constitution in the conduct of party primaries. The politicians also conduct themselves in the most unbecoming manner, appearing to have sworn to a secret oath never to be on the same page with the principle of free, fair, transparent and credible elections. They have made election a do-or-die affair and in most cases they have the guns and political thugs to thank for their electoral victories.

Prior to the 2019 elections, INEC was dragged to court over 800 times, because political parties refused to observe their constitution during the conduct of primaries. This implies that the electoral umpire was involved in over 809 cases on pre-election matters and 807 cases on post-election litigations.

Amongst the post-election cases, especially the governorship elections that had been decided by the Supreme court included, Osun, Oyo, Kano, Rivers, Imo and of recent Bayelsa states, among others. While the Supreme Court had been praised to high heaven in some of its decisions, it has equally received knocks on others too.

If the judgement of the Supreme court on Osun and Kano governorship elections were referred to as miscarriage of justice, its recent judgement on Imo would go down as one of the most controversial in history. The Supreme Court had on January 14, 2020 removed Hon. Emeka Ihedioha of the Peoples Democratic Party (PDP) as Imo State governor and installed Senator Hope Uzodinma of the All Progressives Congress (APC) as his replacement.

A seven-man panel of the apex court led by the Chief Justice of Nigeria (CJN), Justice Tanko Muhammad, had in its January 14, 2020 judgement removed Iheodioha as the Governor of Imo State and declared Uzodinma as the winner of the last governorship election in the state.

Justice Kudirat Kekere-Ekun, who read the lead judgment upheld Uzodinma’s appeal ruling that the votes polled in 388 out of the 3,523 polling units were excluded in the final results declared by INEC in the state. The Supreme Court held that Uzodinma emerged winner of the election after the addition of the excluded votes.

The judgement largely a shock to many and led to pockets of protest by the main opposition party in Imo, Taraba, Abia and Ogun states. The party did not stop at that, as its leadership took it further by making their grievances known to the United Nations and embassies of the European Union and France in Abuja.

The leadership of the party alleged regression of democracy under the government of the APC, adding that critical democratic institutions like INEC, National Assembly and Judiciary have been compromised.

After registering their displeasure through the protest, the party and Ihedioha filed an application seeking the reversal of the judgement. The Supreme Court therefore fixed March 2, 2020 for the hearing of the application filed by Ihedioha seeking the reversal of the judgement which removed him as Imo governor.

A lawyer in Ihedioha’s legal team, Mr. Edidiong Usungurua, confirmed that parties to the case had been served with the notice for the hearing. But there are indications that the scheduled proceedings may not proceed to the substantive hearing on Tuesday, due to the fact that the respondents to the application had yet to file their replies to the application. The respondents are Uzodinma, APC and INEC.

A Supreme Court official who preferred anonymity said that, “even if the respondents file and serve their replies on Monday, the applicants – Ihedioha and his party, PDP, may still ask for time to which they are entitled to file their responses to the replies of the respondents. So, there is likely to be further adjournment of the case before the application can be finally heard.”

Nevertheless, Ihedioha, through his lead counsel, Chief Kanu Agabi (SAN), a former Attorney-General of the Federation, had on February 5, 2020 filed an application before the court seeking “an order setting aside as a nullity the judgment delivered by this Honourable Court on the 14th of January 2020 in Appeal No. SC.1462/2019 and Cross Appeal No. SC.1470/2019.”

Ihedioha’s application anchors on Section 6 (6) of Nigerian Constitution and Section 22 of the Supreme Court Act 2004, that the judgment was obtained by fraud or deceit, adding that the apex court was misled to give the judgment.

He and his party alleged that Uzodinma and his party fraudulently misled the apex court into holding that 213,495 votes were unlawfully excluded from the votes they scored in the governorship election held on March 9, 2019.

Ihedioha argued that Uzodinma admitted under cross-examination that he was the person, and not INEC, who computed the result that gave him the 213,495 votes alleged to have been excluded from his total votes in the election.

He said: “The fraudulent nature of the additional votes was demonstrated by the fact that the total votes cast as shown in the first appellant/respondent’s computation was more than the total number of voters accredited for the election and in some polling units more than the total number of registered voters.

“The fraud was also demonstrated by the fact that the result computed by the first appellant/respondent showed only the votes of the first applicant and the first appellant/respondent without specifying the votes scored by the other 68 candidates who participated in the election.”

Ihedioha and his party also claimed that the judgment sought to set aside is a nullity in that it was delivered without jurisdiction. They claimed further that having regard to Section 140 (2) of the Electoral Act as amended, the appellants/respondents divested the court of the relevant jurisdiction to declare the first appellant/respondent as the winner of the election by branding or stigmatizing the entire election as invalid.

The PDP and Ihedioha also argued that the judgment sought to be set aside is a nullity in that it was given per incuriam. They said by Exhibit A1, the total number of voters accredited for the election was 823, 743 while the total valid votes cast was 731, 485.

The inclusion of 213, 695 votes for the first appellant/respondent, they argued, made the total number of votes cast at the election to be more than the total number of votes accredited for the election. The applicants also, among other grounds, argued that the judgment of the Court of Appeal dismissing Uzodinma’s petition as incompetent continues to subsist as the appeal against that decision was not considered by the apex court.

QUOTE:

*The Independent National Electoral Commission had declared Rt. Hon. Emeka Ihedioha of the Peoples Democratic Party (PDP), winner of the March 9, 2019 governorship election in Imo State. Both the trial and appellate courts agreed with the INEC verdict, but on January 14, 2020, the Supreme Court dislodged Ihedioha and declared that the Imo governorship office belongs to Hope Uzondinma of the All Progressives Congress

*Uzodinma who came fourth in the election result announced by INEC. The APC governorship candidate had claimed all along that his votes from 388 polling units were not counted. He sustained this plea throughout his legal battle, all the way to the Supreme Court. And lastly the learned judges of the final court in the land harkened to his prayer and validated his votes from those units. When these votes were added, Uzodinma who was the last, shot up to the top place

*There is a window of opportunity that the Supreme Court can reverse itself. On February 5, Ihedioha formally filed a request before the Supreme Court to review its own judgement of January 14. That was 22 days after the January 14 judgement

* But Governor Uzodinma is not bothered, mainly because the 60 days left for the Supreme Court to look into the matter had already expired

*Section 36 of the Constitution grants litigants right of fair hearing within a reasonable time

*Section 285(5) of the Constitution stipulates that every election petition shall be filed within 21 days after the date of the declaration of result of the election. By subsection (6) of Section 285, the tribunal is bound to deliver its judgment in writing within 180 days from the date of the filing of the petition, while by subsection (7) of same section, an appeal arising therefrom shall be concluded within 60 days of the delivery of the judgment of the tribunal or court of appeal. Similar provisions on time limit for pre –election cases are enshrined under Section 285(8), (11), (12), (14) of the 1999 Constitution as amended by the 4th Alteration Act, 2017

* Section 285(7) of the Constitution states that the 60-day time limit commences from the date of judgment

*Section 179 (2) stipulates that the winner in a governorship contest must have the highest number of valid votes and should also have a spread of 25 percent of the votes in two-third of the local governments in a state. Neither the APC nor the PDP candidate met these constitutional requirements

*Prior to the 2019 elections, INEC was dragged to court over 800 times, because political parties refused to observe their constitution during the conduct of primaries. This implies that the electoral umpire was involved in over 809 cases on pre-election matters and 807 cases on post-election litigations

* Amongst the post-election cases, especially the governorship elections that had been decided by the Supreme court included, Osun, Oyo, Kano, Rivers, Imo and of recent Bayelsa states, among others