Imo guber: What do PDP, Ihedioha want?

Can the apex court reverse its judgment in the Emeka Ihedioha case? If that is what he and the Peoples Democratic Party (PDP) want, SUNDAY EJIKE highlights the grounds of their request.

THE Supreme Court shocked the people of Imo State and even the entire country when, in a unanimous judgment delivered on January 14, it sacked Honourable Emeka Ihedioha of the Peoples Democratic Party (PDP) as governor of the state on the ground that he was not validly elected. The court, in the judgment delivered by Justice Kudirat Kekere-Ekun, also ordered that Hope Uzodinma of the All Progressives Congress (APC) be sworn in as the state governor.

In the nation’s constitutional system, the courts are the only decider and interpreter of what the law is for purposes of the Rule of Law, and once a court of competent jurisdiction has spoken, its decision is established with binding force unless and until it is reversed by due process of law.

In this instance, the Supreme Court is the final court of law in the country which judgment is final and thus, cannot be appealed.

Being the final court in the land and that the justices are mortals and can be fallible, aggrieved appellants who lost their cases can approach it for a review of its decision in their cases and that is why individuals and different bodies called on the immediate-past governor of Imo State to approach the court for a review of its January 14 decision.

It is on that note that Ihedioha, through his legal team, approached the Supreme Court via a motion on notice dated February 5, seeking the setting aside as a nullity the judgment delivered by the court on the January 14 in Appeal No. SC.1462/2019 and cross appeal No. SC.1470/2019. His application was brought pursuant to Section 6 (6) of the Constitution of the Federal Republic of Nigeria 1999 (as amended); Section 22 of the Supreme Court Act, 2004; and under the inherent jurisdiction of the Supreme Court.

Ihedioha argued in his motion that the order of the Court of Appeal striking out Uzodinma’s petition for being incompetent raises a jurisdictional issue which the Supreme Court ought to have resolved first before delving into the merits of the appeal.

“In its judgment, this court neither considered nor resolved this jurisdictional issue. The failure of the Supreme Court to consider and pronounce on this issue amounts to a failure of jurisdiction and completely erodes the jurisdiction of the Supreme Court to consider the appeal on the merits. Your lordships neither set aside the decision of the Court of Appeal striking out the petition for being incompetent nor made any pronouncement on it. In the absence of any pronouncement by the Supreme Court on this issue, the judgment of the Court of Appeal striking out the petition for being incompetent remains valid and subsisting,” it says.

The motion, hinged on five grounds, stated that the judgment sought to be set aside is a nullity in that it was obtained “by fraud or deceit,” because the appellants/respondents fraudulently misled the court into holding that a total of 213,495 votes were unlawfully excluded from the votes scored by the first appellant/respondent in the gubernatorial election of March 9, 2019 in Imo State. That the first appellant/respondent admitted under cross-examination that he was the person (and not the third respondent [INEC] or any of its officials) who computed the result that gave him the 213,495 votes alleged to have been excluded from his total votes in the election.

Ihedioha contended that the judgment sought to be set aside is a nullity in that it was delivered without jurisdiction by reason of the following: “Having regard to Section 140 (2) of the Electoral Act (as amended), the appellants/respondents divested this court of the relevant jurisdiction to declare the first appellant/respondent as the winner of the gubernatorial election conducted in Imo State on the March 9, 2019 by branding or stigmatising the entire election as invalid.

“This court had no jurisdiction to declare the first appellant/respondent as elected in an election petition which was based on two inconsistent and mutually exclusive grounds, to wit, (i) that the first 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 first 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 first appellant/respondent met the constitutional geographical spread without providing in its judgment the reason(s) for that conclusion.”

It added 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. The fraud was further demonstrated by Exhibits 63RD1 to 63RD19 (INEC Forms EC40G) which show that there were no valid elections in the 388 polling units where the additional 213,495 votes claimed by the first appellant/respondent were allegedly generated,” the motion added.

In ground four of his motion, Ihedioha argued that the judgment sought to be set aside is a nullity, in that it was given per incuriam by reason of the following: “By Exhibit A1 (Form EC8D), the total number of voters accredited for the governorship election held in Imo State was 823,743, while the total valid votes cast was 731,485. With the inclusion of 213,695 votes for the first appellant/respondent and 1,903 to the votes of the first applicant, as ordered by this court, the total number of votes cast at the election now stands at 953,083 (i.e. 731,485 + 213,695 + 1,903), making the total number of votes cast at the election to be far in excess of the total number of voters accredited for the election, 129,340.

“It is unlawful for the total number of votes cast in an election to exceed the number of accredited voters and that illegality rendered the judgment sought to be set aside null and void. The appellants/respondents pleaded in paragraph 39 of their petition that a supplementary election should be conducted in the 388 polling units where the additional votes that created the illegality were alleged to have been cast and that pleading was binding on the appellants/respondents and the court.”

According to the former governor, the judgment he wants to be set aside is a nullity because the apex court was misled to enter the judgment because Uzodinma alleged that votes from 388 polling units were unlawfully excluded or cancelled and urged the court to include in the computation of the election results the votes from those polling units and at the same time prayed that fresh elections be conducted in the said polling units, thus rendering the petition speculative.

The appellants/respondents, he argued, failed to plead the votes scored by all the parties in the 388 affected polling units. Only the votes allegedly scored by the first appellant/respondent and the first applicant were pleaded – an omission which rendered the petition incompetent, noting that the Supreme Court was consequently 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.

“Without computing the votes for all the parties from the 388 polling units this honourable court was misled into making a declaration that the first appellant/respondent was the winner of the gubernatorial election in Imo State – an election that the appellants/respondents had themselves branded or stigmatised as invalid on account of non-compliance,” Ihedioha submitted in his motion on notice.

Checks reveal that the apex court can sit to review its judgment only when the judgment is obtained by fraud or deceit either in the court or of one or more of the parties; or when the judgment is a nullity; or when it is obvious that the court was misled into giving judgment under a mistaken belief that the parties consented to it.

 

Room for review had been created in the past

The Supreme Court, over time, had created room for a review of its previous decisions where such a review would cure a manifest injustice or miscarriage of justice. In the present instance, the authority for a judicial review of the Imo governorship verdict could be found in the decision of the Supreme Court in the case of Adegoke Motors Ltd versus Adesanya (1989) 13 NWLR (Part 109) on page 275, where  Justice Chukwudifu Oputa, in considering the powers of the apex court to review its earlier decision, categorically stated: “We are final not because we are infallible; rather, we are infallible because we are final. Justices of this court are human beings, capable of erring. It will certainly be shortsighted arrogance not to accept this obvious truth.

“It is also true that this court can do incalculable harm through its mistakes. When, therefore, it appears to learned counsel that any decision of this court has been given per incuriam (that is without averting the mind of the court to an existing fact or authority, which could have made the court to decide otherwise), such counsel should have the boldness and courage to ask that such a decision be overruled. This court has the power to overrule itself (and has doneso in the past), for it gladly accepts that it is far better to admit an error than to persevere in error.”

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