Imo Supreme Court Judgement: Why Judicial Review May Fail

The Peoples’ Democratic Party (PDP) has protested the Supreme Court’s judgment upholding the election petition of the All Progressives Congress’ (APC’s) Hope Uzodinma and installing him as Imo State elected governor last Tuesday. But some senior lawyers say the judgment is sound and a judicial review may not succeed, writes ADEBISI ONANUGA.

The Supreme Court last Tuesday nullified the election of Emeka Ihedioha of the Peoples Democratic Party (PDP) as the Governor of Imo State.

In his stead, the apex court declared Hope Uzodinma of the All Progressives Congress (APC) as the winner of the March 9 governorship election.

The unanimous judgment of a seven-member panel was read by Justice Kudirat Kekere-Ekun.

The justices of 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.

Justice Kekere-Ekun said the results from the 388 polling units, when added to votes already declared for Uzodinma of the APC, showed that he polled a majority of the lawful votes and that he ought to have been declared the winner of the election by the Independent National Electoral Commission (INEC).

The Supreme Court voided and set aside the election and declaration of lhedioha as the winner of the 2019 governorship election.

The apex court ordered INEC to issue a certificate of return to Uzodinma and withdraw the one earlier issued to lhedioha.

The apex court gave no further details of the votes scored by each of the candidates to buttress its decision that led to the new development.

Ihedioha had ruled the state for barely nine months before the Supreme Court’s judgmen.

How it all started

The Returning Officer for the govership election in Imo State and Vice-Chancellor, Michael Okpara University of Agriculture, Umudike, Abia State, Prof Francis Otunta, had on March 11, last year declared Ihedioha winner of the March 9, 2019 governorship election, having scored 273,404, the highest number of votes.

He said Action Alliance (AA) candidate Uche Nwosu polled 190,364 votes; All Progressives Grand Alliance (APGA) candidate Ifeanyi Ararume scored 114,676 votes, Uzodinma, who came fourth, polled 96,458, while Ikedi Ohakim of the Accord Party (AP) got 6,846 votes.

Dissatisfied, Nwosu, Ararume and Uzodinma petitioned the Election Tribunal.

Uzodinma’s prayers before Election Tribunal

In his petition at the Election Tribunal, Uzodinma, among other reliefs, sought to be declared the winner claiming that he scored the majority of lawful votes cast during the March 9, last year governorship election and that he satisfied the mandatory constitutional requirement of the local government area (LGA) spread.

Uzodinma claimed that the collation officers deliberately omitted to collate the results from 388 polling units that were his stronghold.

He claimed that by the results declared at the polling unit level by the presiding officers, he got 213, 695 votes in the 388 polling units.

Uzodinma prayed the tribunal to retrieve the excluded votes, add them to the figures declared by INEC, which will make him the candidate with the highest votes.

Most importantly, he predicated on his claim that INEC unlawfully cancelled results in most polling units where he scored majority votes.

He contended that INEC lacked the power to nullify the election of a polling unit after the presiding officer had declared the result and that when the votes in the polling units unlawfully cancelled by INEC are added to the 96,458 allocated to him, he would have the highest number of valid votes cast.

During the hearing of Uzodinma’s petition, a Deputy Commissioner of Police, Rabiu Huseini, who was in charge of operations on the day of the election, and subpoenaed by the petitioner, gave evidence.

Huseini tendered copies of Form EC8A from the affected polling units as part of his evidence.

The tribunal, in a ruling, disregarded Ihedioha’s lawyer’s contention that the witness, who was PW54, was not the maker of the result sheets.

It agreed with Uzodinma’s lawyer’s position that the evidence by the police officer was relevant because security agents were part of those who conducted the election.

Tribunal’s verdict

The three-member panel of the Imo State governorship election tribunal in a unanimous decision delivered September 21 held that Ihedioha was lawfully declared the winner of the governorship election by INEC.

The panel led by Justice Malami Dongondaji dismissed Ararume, Nwosu and Uzodinma’s petitions for lacking in merit on the grounds that they failed to prove the allegations made in their petitions.

The tribunal held that their evidence was mainly based on hearsay and that the unlawful exclusion allegation was not proven.

Dismissing Uzodinma’s petition in particular, the tribunal held that the results he presented were not recognised by law as they neither emanated from, nor were authenticated by, INEC.

It said in addition that the results were not signed by polling agents, who were essential elements in the polling process.

Appeal Court proceedings

Three appeals were filed against the judgment of the Imo State Governorship Election Petition Tribunal, which upheld Ihedioha’s election. They include that of the All Progressives Grand Alliance (APGA) and its candidate, Ifeanyi Ararume; Action Alliance (AA) and its candidate, Uche Nwosu and that of the APC and its candidate, Uzodinma.

The appellants had argued that Ihedioha did not obtain the constitutionally required one-quarter of the votes cast in at least two-thirds of the 27 local government areas of the state, as provided under Section 179 of the Constitution.

They, therefore, asked the court to set aside the election petition tribunal decision. Each of the petitioners asked the Court of Appeal to declare him winner of the election or in the alternative order a rerun.

But a five-member panel of the Court of Appeal led by Oyebisi Omoleye, on November 19 affirmed Ihedioha’s victory as governor.

The Court of Appeal upheld the Tribunal’s findings and conclusions.

In the case of Uzodinma and APC’s appeal, this was decided by a four-to-one verdict.

The appellate court found that Uzodinma, who came fourth, called no witness from the polling units, ward or local government to prove that Ihedioha did not score 25 per cent of the votes cast in 18 out of the 27 LGAs.

The Court of Appeal discountenanced a set of documents in which he claimed to have scored substantial votes from 386 polling units, but which he alleged were excluded by INEC.

However, one of the Justices of the Court of Appeal upheld Uzodinma’s case and dissented from the majority decision of the other four members of the panel, which upheld the tribunal’s verdict. Based on the dissented judgment, Uzodinma headed for the Supreme Court, which last Tuesday upheld his appeal and declared him Governor of Imo State.

Dissenting judgment that gave Uzodinma hope

The dissenting judgment was given by Justice Frederick Oho at the appellate court last November 19.

Although the five-person panel dismissed Uzodinma’s appeal, there are strong indications that Oho’s dissenting judgment formed the basis of the Supreme Court pronouncement that led to Ihedioha’s removal as governor.

In the March 9 governorship election, INEC declared the final scores as follows: Ihedioha (PDP), 273,404 (winner), Uche Nwosu, (AA) 190,364, Ararume (APGA) 114,676 and Uzodinma (APC) 96,458.

Uzodinma then approached the election petitions tribunal to argue that the results from 388 polling units were excluded from collation.

He argued that the exclusion of his scores from the 388 polling units denied the him a total 213,695 votes due to him from scores contained in Forms EC8A (result sheets) issued at the polling units.

He argued that Iheodioha scored only 1,903 votes in those units.

Uzodinma’s lawyers got the tribunal to subpoena DCP Hassaini, who supervised the security of the elections and is by law entitled to “duplicate originals” of the result sheets.

The tribunal accepted the “duplicate originals” as evidence but said Hassaini did not prove that he had the authority of the Inspector-General of Police to testify before the tribunal and therefore rejected his testimony.

Uzodinma then headed for the court of appeal, where four of the judges ruled against him.

But Oho dissented and held:  (1) the Forms EC8A from the 388 units were wrongfully excluded

(2) Iheodioha’s lawyers did not prove that the results sheets were forged

(3) the DCP got the subpoena through the office of the IGP and needed not be asked to prove that he had the IGP’s consent to testify.

Oho ruled: “It is also clear on the record that after the Appellants had explicitly set out in the Petition a schedule of all the polling unit results, which were allegedly excluded from collation at ward level by the third Respondent (INEC), they led evidence through several witnesses to prove their case as contained in the Petition, by showing that, if those excluded votes scored by the first Appellant and those scored by the first Respondent (Ihedioha) in the 388 polling units are added to their scores of 96,458 and 258,259 votes, as declared by the third Respondent (INEC), the outcome will show that the first Appellant (Uzodinma) won the Governorship election held in Imo State on March 9, 2019 as the first Appellant’s votes will amount to a total of 310,153 votes whiles the first Respondent’s score will be a total of 260,162 votes.”

PDP:  Judgment ‘unfair, unjust’

Expectedly, the PDP expressed unhappiness with the judgment.

The party’s National Chairman, Uche Secondus, and Ihedioha expressed disappointment with the verdict, saying it was “unfair and unjust”.

They said they would seek a review of the verdict, which they described as a “recipe for crisis”.

The party also requested Chief Justice of Nigeria (CJN), Ibrahim Tanko Muhammad, to step down while the six other justices that decided the matter should recuse themselves from the remaining election petition cases pending at the apex court.

Secondus said: “That the Supreme Court, as presently constituted under Justice Tanko Mohammad  has become heavily compromised; lost its credibility and is now annexed to the ignoble agenda of the APC-led Federal Government against the Nigerian people.

“That the judgment of the Supreme Court voiding the lawful election of Hon. Emeka Ihedioha (who scored 276,404 votes) and awarding fictitious votes to declare Hope Uzodinma of the APC, who scored 96, 458 votes as governor of Imo State, is highly irrational, unfounded, a provocative product of Executive manipulation and a recipe for crisis, which should not be allowed to stand.

“With the verdict, the Supreme Court executed a coup against the PDP and the people of Imo State as well as other Nigerians, and such must not be allowed to have a place in our democracy.”

APC: we deserve victory

But the APC said it deserved the victory handed it by the Supreme Court.

The party’s National Chairman, Adams Oshiomhole, argued that the APC deserves the judgment based on the ‘facts’ available to the court.

‘’Courts are bound to interpret laws according to the constitution. No court has the power to bend the 1999 Constitution of Nigeria as amended,” Oshiomhole said.

He described the INEC’s declaration of Ihedioha as governor as fraudulent since the sacked governor never met the required one-quarter vote in two-thirds of the 27 local government areas of Imo State.

“As far as we know, Imo has 27 local governments, and Emeka Ihedioha scored two-thirds of the votes in 12 LGs. Two-thirds of 27 is 18. So, you have a huge deficit of six LGAs, which Ihedioha or anybody else must necessarily have to be declared a winner of a governorship election,” the APC chairman explained as he condemned the state’s Returning Officer, Francis Otunta, for “unlawfully’’ declaring Ihedioha as governor.

Basis of Supreme Court Judgment

Many observers of the Imo State governorship appeals, said the judgment of the Supreme Court was a big surprise. They were surprised that the candidate declared fourth in the March 9, 2019 election was adjudged winner by the apex court.

But a lawyer, Kenneth Ikonne, in an article entitled: “The Imo gubernatorial judgment – a painful but legally correct verdict!” said the Supreme Court, based on the facts, was right in declaring Uzodinma the winner in law.

According to him, Ihedioha’s legal team made a “fatal” error.

He recalled that results from more than 350 polling units, signed by INEC presiding officers, which gave Uzodinma an unassailable lead, were rejected by ward collation officers, who had no power in law to cancel or reject them.

Ikonne said the law is settled that neither collation officers nor a returning officer has the power in law to exclude a polling unit result duly signed by the presiding officer; except the tribunal.

Lawyers: the  reaction to the judgment

Also, lawyers, who are experienced in constitutional matters, told The Nation that there was nothing wrong with the judgment of the apex court as the decision was based on law.

They said judgment review was also unlikely.

They included Chief Robert Clarke (SAN), Olukayode Enitan (SAN) and former Vice President of the Nigerian Bar Association (NBA) Monday Ubani.

According to Chief Clarke, the judgment of the Supreme Court “is okay by any standard. Although the judgment is unique and may be a disappointment to many people, by and large, I think the judgment is good enough”.

Judgment review possible

Nevertheless, he noted that the judgment could be reviewed under special situation, if necessary request was made by the PDP and if made in conformity with the law.

Clarke said: “Under the Supreme Court rules, it can review its judgment. Even Oputa, a Justice of the Supreme Court then, said Justices of the Supreme Court were not infallible. They are not angels. They are bound to make mistakes because they are human and, therefore, it is reasonable that if they made mistake, they can come back to them and ask them to review.

“This practice is not new. All the Commonwealth countries, which Nigeria is a part, it is done in America, it is done all over the world. Here the Supreme Court, as the apex court, can review itself.

“But the Supreme Court says if you want us to review our judgment, we have laid the foundation upon which you can ask us. If the judgment is made outside jurisdiction, you can call our attention to it. If it was made functus officio, draw our attention to it, we would look into it. If it is against the Constitution, we would look into it. If it is against public policy, we would look into it. So, they have stated conditions under which you can ask them to review a judgment.”

He, however, observed that it might be an uphill task for the PDP to get the judgment reviewed as the issue at hand does not fall under the parameters set by the apex court under the rules of the Supreme Court.

Clarke said: “The question then arises, does this one fall under the parameters? I would say ‘No’ and my reasons are these: The consequential order was made within jurisdiction because the Supreme Court was sitting as an appellate court of an election matter. So, it is within jurisdiction.  It is not against public policy.”

Judgment review unlikely

But, according to the Silk, judgment review in this case is unlikely.

He said: “I have looked at it. It is a judgment that is okay. I am not saying they cannot review, but it will be an uphill task because they have not told us under what condition they want it to be reviewed.

“As I have said, the Supreme Court will not just review a judgment because you want them to review it. It must fall within the parameters that they have laid down and I don’t see any of those parameter in this one.

“The Supreme Court says our judgment is a final of all finals. So, the Supreme Court judgment is not reversible but a consequential order made thereto. If the Supreme Court decides and then decides to make consequential orders arising from that judgment, then you can ask the Supreme Court to review that consequential order like the consequential order made here that Uzodinma should take over from the present governor, Ihedioha. That is a consequential order made and arising from the order.

“They would not say the Supreme Court should review its judgment. They can say review the consequential order. Rather than saying so, so and so should take over, they should have asked INEC to conduct a fresh election. That is the alternative they can do. It has no place. That is what is at stake”.

Allegation of partisanship against the CJN

Clarke also noted that it would be an uphill task for the PDP to prove allegation of partisanship against the CJN.

He said: “When you pick an issue like they have picked, partisanship, it would be difficult for them to prove. How are they going to prove that the CJN was partisan? Is it from the proceedings?

“If they have evidence from the proceedings that the CJN was partisan, then let them call for records of the proceedings and show to the world, then at what stage can they say conveniently and confidently that the CJN as partisan? It is a difficult ladder to climb.

“They should look for another excuse because if that is the criteria for determining justice in Nigeria, gradually all judges will be labelled with that accusation.”

The learned silk advised the PDP to let sleeping dogs lie.

He added: “More so that the Supreme Court says the fault is within their lawyers that they did not do that which they ought to have done and that is a fact which they cannot run away from.Theirs is not the first governor to be removed.”

Challenge of reversing apex court judgment

Enitan agreed that the Supreme Court can and has reversed itself in the past.

He, however, said he was not aware of any case in which the apex court reversed itself in the same appeal.

“All such cases in which a party had asked the court to reverse itself after it had given a decision were always met with serious castigation of the counsel that had the temerity to approach the court for such a relief followed with heavy cost to be paid by the counsel who not only failed to advise his client properly as to the propriety of seeking such relief but also failed to advise himself as to the danger in towing such a path,” Enitan noted.

On the call on the CJN to step aside from other pending election appeals, the learned Silk added: “I haven’t seen the process or letter by which the CJN is being requested to step aside, but I pray and hope that none of our colleagues of the outer or inner Bar is lending himself to this chicanery.”

‘Triumph of substantial justice over mere technicality’

For Ubani, the Supreme Court judgment “is a triumph of substantial justice over mere technicality.”

He noted that it had always been “practically impossible to succeed as a petitioner in electoral matters to upturn at the Election Tribunal, the declaration of INEC announcing the respondent the winner with such onus of burden placed on the Petitioner.

He said Uzodinma’s success at the Supreme Court had changed all that.

Ubani, in a post on his WhatsApp platform, stated: “In a decision that appears  unprecedented, the Supreme Court of Nigeria held in the recent case of Hope Uzodinma v. Emeka Ihedioha that result sheets tendered by a single policeman over several poling units is admissible and enjoys probative value of the courts.

“… The Hope Uzodinma case has altered for good our electoral jurisprudence on admissibility and assignment of probative value to documentary evidence (Result Sheets of INEC) during election petition matters.

“It is for good indeed. A heavy burden has been removed from the shoulders of legal team of various petitioners who under tremendous pressure with limited time at their disposal are required to call several witnesses albeit unnecessary when a single person could have tended all the documents at once, more so when such documents are certified by INEC with presumption of regularity that goes with it.

“This is a triumph of substantial justice over mere technicality. A day is coming and that day is almost here when the burden of proving substantial compliance in conducting election matters will shift to INEC, the umpire,” he said.

He, however, advised for patience on the part of parties in the matter until the fuller reasons for this decision is made public by the Supreme Court.