Imo Governorship Seat: Summary Of Ihedioha And Uzodinma’s Claims Before The Supreme Court

The application filed by Emeka Ihedioha of the Peoples Democratic Party (PDP), asking the Supreme Court to review its judgement that declared Hope Uzodinma of the All Progressives Congress (APC) winner of the March 9, 2019 Imo governorship election, was slated to be heard on Monday 2^nd of March, 2020 but was adjourned to 3^rd of March, 2020 at the instance of counsel to the Applicants.

Mr Ihedioha and the PDP had approached the court after the apex court on January 14 nullified his victory and declared Mr Uzodinma as the winner of the election. In a unanimous judgment of the seven-member panel, read by Justice Kudirat Kekere-Ekun, the apex court agreed that results in 388 polling units were unlawfully excluded during the collation of the final governorship election result in Imo State.

Mr Kekere-Ekun said with the results from the 388 polling units added, Mr Uzodinma polled a majority of the lawful votes and ought to have been declared the winner of the election by the poll commission.

Consequently, the court ordered that the certificate of return issued to Mr lhedioha be immediately withdrawn by INEC and a fresh one issued to Mr Uzodinma as the elected governor of the state.

“Vote due to the appellant Senator Hope Uzodinma and the APC from 388 Polling Units were wrongly excluded from scores ascribed to the appellant (to them),” the justices ruled.

“It is thereby ordered that the appellant votes from 388 Polling Units unlawfully excluded from the appellant vote declared shall be added and that the first respondent, Emeka Ihedioha, was not duly elected by a majority of lawful votes cast at the said election.

“His return as the elected governor of Imo State is hereby declared null and void and accordingly set aside.

“It is, hereby, declared that the first appellant (Mr Uzodinma) holds the majority of lawful votes cast at the governorship election held in Imo State on March 9, 2019.”

EMEKA IHEDIOHA’S APPLICATION

Obviously miffed by the decision of the Apex Court, Chief Kanu Agabi, SAN on behalf of Mr Ihedioha and the PDP filed an application pursuant to Section 6 (6) of the 1999 Constitution as amended and Section 22 of the Supreme Court Act 2004. for the Supreme Court to review its decision on the ground that Mr Uzodinma obtained the judgement by deceit. Other grounds are that the apex court was misled to have given that judgment and that the judgment is a nullity, and asked that the decision be set aside.

In a 25 page Written Address in support of the Motion dated 28^th day of February, 2020, Chief Agabi, SAN, on behalf of Mr Ihedioha and the PDP argued that Mr 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.

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

According to them, “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.”

They further argued that the judgment, “which is a nullity sought to be set aside because it was given per incuriam.”

Per incuriam, literally translated as “through lack of care”, is a device within the common law system of judicial precedent. A finding of per incuriam means that a previous court judgment has failed to pay attention to a relevant statutory provision or precedents.

They also 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.

Also, as part of their argument was that the inclusion of 213, 695 votes for the first appellant/respondent, 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, among other grounds argued that the majority judgment of the Court of Appeal dismissing Mr Uzodinma’s petition as incompetent continues to subsist as the appeal against that decision was not considered by the apex court.

PRELIMINARY OBJECTION

In response to Emeka Ihedioha’s application, Uzodinma and APC files a preliminary objection challenging the competence of the motion and the jurisdiction of the court to entertain the same and therefore urged the apex court to strike out the motion filed by Ihedioha.

“The application constitutes an invitation to the Supreme Court to sit on appeal over its final decision,” Uzodimma posited.

They submitted that having delivered its final decision, the Supreme Court has become fuctus officio and divested of jurisdiction over the same subject matter.

They said, “Order 8 Rule 16 of the Supreme Court Rules 2014 prohibits the apex court from reviewing its judgement once given and delivered, save to correct clerical mistakes or accidental slip.

“The judgement sought to be set aside having been given effect by the inauguration of Uzodinma as Governor of Imo, this Honourable court lacks the jurisdiction to grant the prayer sought”.

More so, Uzodimma stated that Ihedioha’s application “constitutes an abuse of court process” and “is against public policy”.

He added that the application filed by the ousted governor amounts to an invitation to the Court to indulge in academic exercise and answer hypothetical questions.

The governor and his party, in their joint preliminary objection, asked the apex court to strike out the request for being baseless and unwarranted.

According to the Uzodinma and his party, by virtue of Section 285 of the 1999 Constitution (as amended), the Supreme Court could no longer decide on the matter that has become statute-barred.

EMEKA IHEDIOHA AND PDP’S RESPONSE IN OPPOSITION TO THE PRELIMINARY OBJECTION

Emeka Ihedioha and PDP vehemently disagreed with the objectors. They argued that the Supreme Court is imbued with the inherent jurisdiction to review it’s decision by virtue of Section 6(6)(a) of the constitution. It relies on the decision of the Court in Citec Int’l Estates Ltd v Francis (2014) 8 NWLR (pt.1408) 139 SC. Where it was held as follows:

“Having said that may I state that by virtue of Section 235 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the Supreme Court cannot sit on appeal over its own judgment. The provision gives a stamp of finality to any decision of the Supreme Court. There is no constitutional provision for the review of the judgment of the Supreme Court by itself. See Eleazor Obioha V. Innocent Ibero & Anor (1994) 1 NWLR (pt.322) 503. However, it has been held by this court that the Supreme Court possesses inherent power to set aside its judgment in appropriate cases but that such inherent jurisdiction cannot be converted into an appellate jurisdiction as though the matter before it is another appeal, intended to afford the losing litigants yet another opportunity to re-state or re-argue their appeal.

In Chief Kalu Igwe & 2 Ors V Chief Okuwa Kalu & 3 Ors (2002) 14 NWLR (Pt.787) 435 at 453 paragraphs F – H and p 454 paras A – C, this court per Ogwuegbu, JSC, held as follows:-

“I shall state that this court possesses inherent power to set aside its judgment in appropriate cases. Such cases are as follows:

(i)      When the judgment is obtained by fraud or deceit either in the court or of one or more of the parties. Such a judgment can be impeached or set aside by means of an action which may be brought without leave. See Alaka V. Adekunle (1959) 6 Ch. D. 297, Olufumise v. Falana (1990) 3 NWLR (pt.136) 1.

(ii)     When the judgment is a nullity. A person affected by an order of court which can properly be described as a nullity is entitled ex debito justitiae to have it set aside. See Skenconsult Ltd V Uke (1981) 1 SC 6, Craig V. Kanssen (1943) KB 256, and 263, Ojiako & Ors V. Ogueze & Ors (1962) 1 SCNLR 112, (1962) 1 ALL NLR 58, Okafor & Ors V Anambra State & Ors (1991) 6 NWLR (pt.200) 659, 680.

(iii)    When it is obvious that the court was misled into giving judgment under a mistaken belief that the parties consented to it. See Agunbiade v. Okunoga A Co. (1961) ALL NLR 110 and Obimonure v. Erinosho (1966) 1 ALL NLR 250.

In Olorunfemi V Asho (2000) 2 NWLR (pt.643) 143, this court in its unreported Ruling dated 19/3/99 set aside its judgment delivered on 8/1/99 on the ground that it failed to consider the respondents’ cross-appeal before allowing the appellant’s appeal. It ordered that the appeal be heard de novo by another panel of justices of this court. See generally Alao V. ACB Ltd (supra).”

They argued that the instant case falls under circumstances where the Supreme Court can set aside its decision being a nullity. They submitted further that time does not run against void acts.

The Applicants also distinguished the cases cited by the Respondents in support of their preliminary objection from the instant application. They urged the Supreme Court to dismiss the Preliminary Objection.

“All the arguments proffered by the Appellants/Respondents in their Preliminary Objection were made in utter disregard of the Supreme Court’s inherent jurisdiction to set aside its decision in deserving circumstances as being sought in our application. The powers exercisable by the Supreme Court under section 6(6)(a) are, by all means and to all intents and purposes, sufficiently wide in scope and cannot in any way whatsoever be circumscribed by any other provision of the constitution or any rule of law as argued by the Appellants/Respondents including but not limited to the provisions of Order 8 Rule (16) of the Supreme Court Rules as well as sections 235 and 285(7) of the 1999 constitution (as amended)”