n air of uncertainty is reigning in Imo State following the review of the case PDP candidate, Rt Hon Emeka Ihedioha instituted against his removal by the Supreme Court.
On January 14, 2020, the Supreme Court in a unanimous decision led by the Chief Justice of the Federation, CJN, Chief Justice Tanko sacked Ihedioha in place of Senator Hope Uzodinma of the APC.
Not satisfied with the decision, Ihedioha and his team of lawyers went back to Supreme Court for a review prompting the apex court to fix Tuesday February 18th 2020 for the exercise.
From what Trumpeta realized all the Supreme Court judges would be involved in the review of the case that has attracted international attention through protests and rallies.
Already, tension has enveloped the state with the parties concerned worried about the possible outcome of the Supreme Court review.
On why Ihedioha went back, a national newspaper (Thursday) reported that Uzodinma, APC and the Independent National Electoral Commission (INEC) had been served their application for an order to set aside the judgment of the Supreme Court, saying the judgment was a “nullity.’’
“The fact that a former Attorney-General of the Federation, Chief Kanu Agabi (SAN), is ready to lead other SANs on the matter tells the critical nature of the case. Many Nigerians, who were dissatisfied with the judgment, have in the last few weeks become lawyers in a way.
“It is a very serious matter in the annals of this country. The case has to be decided on its peculiar fact. The Supreme Court judges are humans; they are bound to make mistakes, but because they are expected to be courageous at all time, when courageous lawyers also come to them, they should be courageous enough to look at the merit of the case.
“When ordinary persons begin to lose confidence in the highest court in the land, the institution must redeem its image. The judgment of the Supreme Court on Imo State election is a nullity. And it cannot produce a legitimate governor in the state,’’ the senior lawyer explained.
Stressing the seemingly faulty nature of the judgement, the lawyer said 213,695 votes were added to the total votes scored by the Uzodinma and 1,903 votes were added to the total votes scored by Ihedioha.
“The total number of votes cast at the election after the additional votes ordered by this honourable court now stands at 953,083 (731,485 + 213,695 + 1,903).
“Arising from the judgment of this honourable court (Supreme Court), the total number of votes cast at the election, which now stands at 953,083 votes, is far in excess of the total number of accredited voters which is 823,743.
“The difference between the total number of accredited voters and the votes cast in the governorship election in Imo State based on the judgement of this honourable court is 129,340 votes.’’
He said there were 70 candidates, including the first applicant and the first respondent in the election, but in the table pleaded by the first appellant/respondent, only the votes scored by the first applicant and the first appellant/respondent were reflected whereas votes were cast for the political parties and candidates whose scores were deliberately omitted.
Meanwhile, Ihedioha’s lawyer, Kanu Agali, SAN
In his papers before the apex court seeking for setting aside of the judgment, Agabi observed that the beneficiary of the judgment, Governor Hope Uzodinma failed to plead the votes scored by all the parties in the 388 affected polling units, as it was only the votes scored by him that were pleaded – an omission he said, rendered the petition incompetent.
He submitted that the consequence of this omission was that the apex court was misled into making a vague order directing the inclusion of votes from the 388 polling units without stating or specifying the particular number of votes to be included from those polling units for all the parties.
Agabi added that “without computing the votes for all the parties from the 388 polling units this honourable court was misled into making a declaration that the 1st Appellant/Respondent was the winner of the gubernatorial election in Imo State, an election that the Appellants/Respondents had themselves branded or stigmatized as invalid on account of non-compliance.
In a motion on notice filed pursuant to section 6(6) of the 1999 constitution, section 22 of the Supreme Court Act, 2004, and the inherent jurisdiction of the court, Iheadioha is seeking the setting aside the judgment on the ground that it was obtained by fraud.
The motion which was filed by the legal team of the former governor headed by Chief Kanu Agabi (SAN), was in respect of appeals Nos: SC. 1462/2019; SC/1470/2019; CA/OW/GOV/05/2019and petition No: EPT/GOV/IM/08/2019, between Senator Hope Uzodinma, All Progressives Congress (APC) and Rt. Hon. Emeka Ihedioha, People’s Democratic Party (PDP) and Independent National Electoral Commission (INEC).
It is the contention of Ihedioha that the judgment of the Supreme Court ought to be set aside as it us a nulity obtained by fraud.
On this ground, Ihedioha submitted that “the Appellants/Respondents (Uzodinma), fraudulently misled this court into holding that a total of 213,495 votes were unlawfully excluded from the votes scored by the 1st Appellant/Respondent in the gubernatorial election of 9th March 2019 in Imo State.
“In aaddition, it is the position of the former governor that the apex court gave the judgment without jurisdiction.
On this point, he argued that having regard to section 140(2) of the Electoral Act (as amended), the Appellants/Respondents divested this Honourable Court of the relevant jurisdiction to declare the 1st Appellant/ Respondent as the winner of the gubernatorial election conducted in Imo State on the 9th day of March 2019 by branding or stigmatizing the entire election as invalid.
The lawyer added that at the tribunal, Uzodinma admitted under cross-examination at page 2603 in Volume 4 of the records that instead of the third respondent, (INEC), whose duty it was to compute the alleged votes, it was him who computed the alleged votes in the 388 polling units shown in the table at pages 9-27 of the record.
He said the first appellant/respondent further admitted under cross-examination at pages 2601 to 2603 in Volume 4 of the record that the number of votes he allocated to himself in the table were in excess of the registered voters in the polling units where he claimed he obtained the votes.
According to the lawyer, “The appellants/respondents had themselves prayed that the entire election in Imo State be annulled and in the further alternative an order compelling INEC to conduct supplementary elections in the polling units where they alleged that results were not collated or elections were cancelled.
“It was specifically pleaded by the appellants/respondents in paragraph 39 of their petition that a supplementary election should be conducted in the 388 polling units where the excess votes were allegedly cast and that pleading was binding on the appellants/respondents and the court.
“The first appellant/respondent neither pleaded nor led evidence at the trial showing details or particulars that he met one-quarter of all the votes cast in each of at least two-thirds of the local government areas in the state.’’
Ihedioha’s lawyer said at the tribunal, the second applicant (as second respondent), applied to have the petition struck out on the ground that it was incompetent having regard to the fact that the first petitioner who came fourth did not join the second and third runners-up in the petition.
He said the application was heard and dismissed by the tribunal whereupon the second applicant appealed to the Court of Appeal by way of cross-appeal to which the first and second appellants/respondents replied.
“The cross-appeal was heard and allowed by the court below. In the words of Adah JCA, who delivered the lead judgment in the cross appeal:
“The preliminary objection of the first cross-respondent (sic) at the lower court is allowed and I hold that the appropriate order of the trial tribunal would have been to have petition no EPT/GOV/IM/08/2019 struck out for being incompetent. I, therefore order the petition struck out. No cost is awarded.
“The appellants/respondents appealed against the above order in ground 18 of their Notice of Appeal and argued it as Issue No. 6 in their appellants’ Brief of Argument. Now shown to me and exhibited hereto is a copy of Appellants’ Brief of Argument dated 13 December 2019 marked Exhibit KGA 4.’’
The lawyer added that the order of the Court of Appeal striking out the petition for being incompetent raised a jurisdictional issue, saying that in the judgment subject of the application, the Supreme Court neither considered nor resolved the jurisdictional issue.
“This Honourable Court had no jurisdiction to declare the 1st Appellant/Respondent as elected in an election petition which was based on two inconsistent and mutually exclusive grounds, to wit, (i) that the 1st Applicant was not duly elected by majority of lawful votes cast at the election, the implication of which is that the majority of votes cast at the election were valid; and (ii) that the election was invalid for non-compliance with the Electoral Act, the implication of which is that the election be annulled.
This Honourable Court did not have the jurisdiction to declare the 1st Appellant/Respondent as elected in the absence of any proof that the votes ascribed to him met the mandatory geographical spread stipulated in section 179 (2) of the Constitution of the Federal Republic of Nigeria (as amended).
This Honourable court did not have the jurisdiction to declare that the 1st Appellant/Respondent met the constitutional geographical spread without providing in its judgment the reason(s) for that conclusion.
The apex court had in a unanimous judgment delivered on January 14, removed Ihedioha on the grounds that he did not win a majority of the votes cast in the March 9 governorship election.
The court said Ihedioha was returned as governor of Imo State based on wrong computation of the election results in the state.
In a related development, Senator Hope Uzodinma has filed Preliminary objection and Defence against the application for judgment review by Rt Hon Emeka Ihedioha.
According to his lawyers; Order 8 Rule 16 of the Supreme Court Rules 2014 prohibits this Honourable Court from reviewing its judgment once given and delivered, save to correct clerical mistakes or accidental slip.
That is to say that the Supreme Court can review its judgment but only on issues that do not torch on its judgment and that is applicable to civil jurisprudence.
The Supreme Court has discharged the burden placed on it by the law in section 285 of the 1999 Constitution and the Electoral Act within the sixty days stipulated by law for the court to conclude and election matter.
This Constitutional burden which has been undertaken by the court cannot be changed as the matter has become sui generis.
In other word, by virtue of section 285 (9) of Nigeria’s Constitution, the supreme law in the country, Hon Emeka Ihedioha’s matter under any guise or name, has become statute barred, lifeless and dead on arrival having spent the maximum 60 days allowed by law in the court.
When the Supreme Court has given its verdict and it has been executed by way of swearing in of the executive governor of a state, the only way to vacate its decision is through an election petition which will no longer be possible in this case.
Facts raised in the review are facts that issues were joined and decided during the pendency of the election petition. Inviting the Supreme Court to take a look at those facts again is asking the court to reopen the case which is not tenable at this time.
In the review they are also avoiding the main issues which is: Why Senator Hope Uzodinma’s votes were excluded during the collation of results? Have they brought any better facts to show that the votes were not excluded?
Finally what the Supreme Court did was to show that Imo state is no longer the theatre, for electoral fraud and this has gotten a further stamp of approval from Imoliltes following the vote of confidence passed by the Imo state House of Assembly on the Supreme Court and also calling for the prosection of both the state INEC Returning Officer and Resident Electoral Commissioner.
