Uzodinma V Ihedioha: A Jurisprudential “Postmortem” By Raymond Nkannebe

Introduction

Nigerians have understandably reacted with askance to the judgement of the Supreme Court in the Imo state guber appeal arising from the gubernatorial election held in that state on the 9th of March, 2019. A full panel of the apex Court led by the Chief Justice of the Federation, Ibrahim Tanko Muhammad in a unanimous judgment delivered on the 14th of January, 2020 allowed the appeal of the All Progressives Congress (APC) and it’s candidate at the election, Senator Hope Uzodinma and dismissed the Cross-Appeal filed by the Emeka Ihedioha. Consequently, it nullified the victory of Ihedioha who was declared the winner of the election by the electoral commission some 8 months ago and ordered the immediate issuance of a Certificate of Return to Hope. While Uzodinma had failed in his earlier attempts to nullify the victory of Emeka Ihedioha both at the trial Tribunal and the Court of Appeal, the apex Court in an unusual fashion, set aside the concurrent findings of the two lower Court, declaring the findings of both courts to be perverse arising from an apparent misconstruction of Hope Uzodinma’s case.

Allegation of Foul Play

As is customary of Nigeria and Nigerians, the judgement of the apex Court has been met with outright criticism and needless politicization. The situation is not helped by the fact that the ultimate beneficiary, Hope Uzodinma, is of the ruling APC. Thus, not a few persons have described the judgement as the fruit of an unholy alliance between the ruling party and the judiciary to launch the APC fully into the eastern heartland. In a statement delivered to the press on the 16th of January, the opposition PDP did not mince words in this regard and went as far as profiling one of the justices who sat on the panel as an APC-judge citing a couple of cases where the learned Justice had delivered the leading judgements in election appeals that went the way of the ruling party. Let me say right away that this conduct of the PDP is scandalous and contemptuous of the judiciary to say the least, especially as there are no hard evidence on which to vindicate the very strong allegations.

Until the full text of the judgement was delivered to parties in the appeal earlier in the week, many analysts and commentators had embarked on a speculative critique of the judgement of the court not being privy to the real issues submitted to the Court for determination. While the dissenting judgement of the Court of Appeal delivered by the Hon. Justice Frederick Oziakpono Oho;Ph.D, gave a hint of what could have informed the judgement of the apex Court, namely, the reception and collation of results from the now infamous 388 polling units where Hope Uzodinma claimed to have won overwhelmingly, critics (both lawyers and non-lawyers), took umbrage at the apex Court’s reception of the results.

Just as Ihedioha’s lawyers had argued, they said the Supreme Court refused to be bound by its earlier decisions where it had held that only polling unit agents could put such result sheets in evidence if it must be accredited with probative value.  Many persons could not understand how a person who came 4th at the polls could be returned as the winner. Others were preoccupied with how Uzodinma could have garnered such number of votes from only 388 polling units whereas his political party did not win a single seat into the state House of Assembly election held on the same day.

Further, the fact that the total number of votes cast in the state upon the collation of the results from the 388 polling units exceeded the total number of accredited voters according to the data published on INEC’S official website, complicated the issue more and heightened suspicions of foul play. Though, purveyors of this narrative did not tell if INEC factored the accredited voters in the 388 polling units where its officers failed to collate the results of both Hope Uzodinma and Emeka Ihedioha (for reasons best known to it), in the accreditation figures published on its website. In the light of these remonstrations, the popular sentiment was that the apex ought to have ordered for a fresh election and not make a return as it did.

I have since read the leading judgement of the court as delivered by the Hon. Justice Kudirat-Motonmori Olatokunbo Kekere-Ekun as well as the dissenting judgment of My Lord, Oho JCA where he allowed the appeal of senator Hope Uzodinma. The judgement of the Supreme Court in my humble opinion, is merely a rehash of the dissenting judgement of the Court of appeal wherewith the erudite jurist with a jurisprudential bent, deconstructed the centerpiece of Uzodinma’s case and applied the relevant jurisprudence to it, contrary to what his brother judges in the majority judgment as well as the trial Tribunal had done.

Now, a dispassionate construction of Uzodinma’s case from what this writer has read so far, would reveal that it is one of such cases which ought to have succeeded at the trial Tribunal in the first place on the state of the pleadings of parties as well as the evidence led. The reasons why it failed at the tribunal and the Court of Appeal, are not far from the issues I raised in my article entitled, Nigeria: A case for “Judicial Activism” in Post-Election Adjudication. By applying Willy nilly a large body of anti-petitioner case laws to election Petitions without suffering to locate the peculiar issues constituted in the case at hand, too many Petitions have met their water loo at the hands of judicial officers who are not prepared to put in the industry required in the adjudication of election disputes. Uzodinma’s case at the two lower courts with respect, is  a case study of such judicial nonfeasance. To this end, the apex Court deserves some commendation and not opprobrium, for having done justice in the case according to law.

The issues raised in the hypothetical conjectures of commentators as highlighted above are at best a product of ignorance of extant electoral jurisprudence and the workings of the judiciary process. Having had the privilege of being in the legal team of different Petitioners and Respondents at the recently concluded cycle of election Petitions, I should know. Perhaps I should take some of the issues seriatim:

Return of Hope Uzodinma despite coming 4th

While this looks preposterous on the surface, its root are found in our electoral jurisprudence. Section 140(3) of the Electoral Act 2010 (as amended) provides:

“If the Tribunal or the Court determines that a candidate returned as elected was not validly elected on the ground that he did not score the majority of valid votes cast at the election, the election Tribunal or the Court, as the case may be, shall declare as elected the candidate who scored the highest number of valid votes cast at the election and satisfied the requirements of the Constitution and this Act“.

The interpretation of the above provision of the Electoral Act, does not require any training in law. It is what it says. In the circumstances of this case under discourse, having found that Emeka Ihedioha did not score the majority of lawful votes cast at the election and in the light of its findings that Hope Uzodinma scored the highest number of votes cast at the election as well as satisfy the Constitutional requirements as provided in section 179(2) of the Constitution of the Federal Republic of Nigeria (as amended), the apex Court, on the basis of section 140(3) of the Electoral Act was right in returning Hope Uzodinma, irrespective of his having come 4th at the elections, having sought the relief. I might also add that the Court is also invested with the plenitude of powers to make such a consequential order regardless of whether it had been sought or not by a Petitioner.

It is important to emphasize here that the whole essence of litigation is to remedy a wrong or vindicate a right. This is encapsulated in the popular latinism: Ubi jus ibi remedium. Having strongly believed that the votes he polled from the 388 polling units if collated, would have put him ahead of his opponents at the election, his position on the basis of INEC’s declaration becomes inconsequential in the grand scheme of things. There are too many decisions of both the court of appeal and the apex court on the point, that a rehash of them may just be a thankless exercise.

Whether the Polling Unit agents in the 388 Polling Units ought to have been called.

Expectedly, Emeka Ihedioha’s lawyers as well as those of the PDP and INEC made a kerfuffle out of the non calling of agents or presiding officers  by the Petitioners in the 388 polling units whose results it was alleged were not collated at the ward area of collation. This has become a standard practice of lawyers retained to defend an election. Conscious of how almost impossible it is to do this in an election Petition given the number of polling units always in dispute, Respondents use it as a shield,  and almost always get away with it. At the core of prosecution of election Petitions, is this hurdle. Petitioners are therefore always told that they “dumped” documents on the Court having not called their “maker”.

But unfortunately for the Respondents, the result from the contentious 388 polling units is not one of such which must be put in evidence vide their authors or makers. Being original copies of documents emanating from proper custody, in this case, the police vide section 63(3) of the Electoral Act, the trial Tribunal ought to have accredited them with probative value. Reliance on arcane rules of technicalities by both the two lower courts and lawyers for the Respondents to impeach their credibility, was with respect, an attempt to defeat the justice of the cause.

In my referenced article above, I proposed a total departure from the practice of requiring Petitioners in election Petitions to call witnesses from every polling unit where the challenge is on allegations of over voting which could be borne out on the face of documents. I argued that given the sui generis nature of election Petitions which are documentary in nature, requiring a party challenging the results from say, 1,000 polling units to call 1,000 witnesses is to say the least ridiculous especially where all the documents sought to be used in proof of the claim, are duly certified by INEC, which is also a party to the Petition.

In the circumstances of Uzodinma’s case, having put the results in evidence through the Police Officer on subpoena, the coast was clear for the Respondents, especially INEC, which conducted the elections, to impeach their credibility as it alleged. And impeaching such crebility ought to be by the production of a different set of results and not attacking the manner in which they were put in evidence as INEC did throughout the trial of the petition, and as it always does while defending its numerous poorly conducted elections at different tribunals. Consequently, the Supreme Court was right in accrediting the results from the 388 polling units and collating the votes cast in them for Hope Uzodinma. How the latter was able to win overwhelmingly in the polling units ought not to be the concern of the tribunal, not least the supreme court especially in the absence of any other set of results impeaching their authenticity. Lawyers know too well that every election result, being product of official act, enjoy a rebuttable presumption of originality. As it turned out in this case, the presumption of the authenticity of the 388 polling unit results was not rebutted.

Inconsistencies between accreditation values and total votes cast.

It axiomatic amongst lawyers that cases are fought on pleadings. That is to say, no Court will go outside the boundary of issues circumscribed by parties in a dispute in resolving same. A necessarily corollary of this is that an appellate court will not go outside the pleadings of parties to a dispute and the evidence led at the trial court in resolving the dispute on appeal since an appeal is a re-hearing. The authorities in this regard are a multitude but for the purposes of this discourse, Effiom & Ors v Cross River State Independent Electoral Commission & Ors (2010) LPELR-1027(SC) may suffice. The point being made is that issues around votes cast exceeding accreditation was not raised at the lower courts by any of the parties. The apex Court was therefore not obligated to go into those calculations. What is more, it has also not been shown that the total number of accredited voters for the Imo gubernatorial election as published on the INEC website to wit: 823, 743 included voters from the 388 polling units. If it doesn’t, that could explain away the numbers not adding up as some persons have suggested.

But more than anything else, section 53(2) of the Electoral Act benchmarks over-voting at an election against total registered voters in a polling unit, and not against accredited voters. This provision has been upheld by numerous decisions of the apex court with the effect that the total number of votes cast at an election exceeding total accredited voters is largely inconsequential in making a case of over-voting.

Let me put it on record that I do not however share the sentiments of our courts in this regard. Benchmarking over-voting against total registered voters has by far lubricated the engine of fraud at elections. With such attitude, all that an unscrupulous election officer needs to do is to write results that do not exceed the total number of registered voters in a polling unit. This judicial attitude to metrics of over-voting makes nonsense of accreditation as a condition precedent to casting of ballot. I however acknowledge that until the National Assembly amends section 53 of the Electoral Act by adding a new sub-section 3 to also provide for accreditation values as an index of over-voting, there is little or nothing the courts can do, since the role of the judex in adjudication is jus dicere, and not jus dare: to expound the law, and not to make the law.

How Uzodinma scored 213, 695 votes from 388 polling units without the APC winning a House of Assembly Seat

Let me quickly admit that the number of votes allegedly scored by Uzodinma in the 388 polling units beggars belief. This may however be explained away by the fact that they cut across the 11 local government areas constituted in his Orlu zone which represent his political stronghold. Our experience with electioneering in Nigeria has shown that politicians merely go to their strongholds and compromise the electoral process by bribing election officials and security agencies who give them the lee way to write their own results while the officials perfect the crime with stamps and seals of the commission.

Anybody who has participated in grassroots politics in Nigeria knows this. It is an open secret. And every politician is indicted. I dare say that all the leading candidates at the Imo guber election were also involved in the same act, including Emeka Ihedioha in his Mbaise strongholds. Electioneering in Nigeria for the most part, is therefore a rigging contest. My suspicion is that Hope Uzodinma outrigged his contemporaries in his Orlu stronghold hence why there was a conspiracy not to collate the results given how it was going to alter the winning equation. The question is, assuming the results were contrived as being touted, how could their Lordships have known in the absence of any serious evidence led in that regard by the Respondents? Perhaps at the heart of this question lay the allegations of professional negligence being levelled against Emeka Ihedioha’s lawyers who like I have explained, approached the petition with a tinge of arrogance often characterised with lawyers representing Respondents in election Petitions. In the absence of any such serious challenge to the manner in which the results were produced, I am inclined to agree with the apex Court that they deserved to be collated as they enjoyed the presumption of authenticity.

Way Forward?

To be sure, the dust that the verdict of the apex Court in the Imo guber appeal has raised will not settle in a hurry. And this is understandably so. While there are allegations of bias peddled here and there against their Lordships of the apex Court so much that the opposition PDP has for the first time in our recent political history called for the outright revisit of judgement in what it called #SaveJudiciary protest last week, I do not think such efforts tending towards sensationalism can yield any results. The judgment of the Supreme Court is final for all intents and purposes. And while the court acknowledges its fallibility, it is limited and harmstrung by its finality. This is more so as it is in the interest of the public that there should be an end to litigation.

Most importantly, what the judgment has shown is that our courts are not best suited to determine the choice of leaders. That should be the exclusive preserve of the electorates true to democratic ethos. Political cases are almost always given to too much emotion and irrespective of who wins at the end of the day, the reaction from the other side would certainly be one with a tinge of allegation of bias. Where then does all of these leave us? It is this, that we must make a conscious effort at rejigging our entire electoral architecture so that our elections do not always have to be subject to litigations in our courts and before judges who are arguably the most over-worked throughout the world. I think the PDP should dissipate energy in this regard rather than crying foul play founded largely on suspicion.

Conclusion

In the light of the protest embarked upon by the PDP and the allegations of bias levelled against the Supreme Court arising from its judgement in this case, permit me to conclude with the words of that very erudite jurist, Niki Tobi J.S.C (of blessed memory) as it speaks to the perception of the Judiciary by Nigerians at this time:

“Court of law do not give judgments according to public opinion or to reflects public opinion unless such opinion represents or presents the state of the law. This is because the Judge’s clientele is the law and the law only and alone.

It is sad that so much has been said in the newspapers of this country on the case. The new technology of internet reporting has added to the comments, some of them doubting our integrity to do justice according to law. I regard them as blackmail and I will not succumb to blackmail. I swore on that Eventful day as High Court Judge to do justice to all manner of persons without fear or favor. I have never departed from the oath and I will not, God helping. It is too late in the day to do so. Nigeria is a country where suspicion of wrong doing is the past time of the citizen. Nigerians should realise that some public officers should be trusted to do the right thing. Why not the Judges!”

– Per NIKI TOBI JSC (As he then was) in BUHARI VS INEC [2008] 4 NWLR (PT. 1078) 546

Raymond Nkannebe, a legal practitioner is of Synergy Attornies.