Supreme Court Judgement On Imo Was Based On False Grounds, Say Ihedioha’s Lawyers

The legal team of Emeka Ihedioha, former governor of Imo state,
says election did not hold in the 388 polling units excluded by the
Independent National Electoral Commission (INEC) in the Imo
governorship poll.

Hope Uzodinma, candidate of the All Progressives Congress (APC)
in the governorship election, had said INEC denied him victory by
excluding the votes he garnered from the 388 polling units.

In its ruling, the apex court said INEC was wrong to have
excluded results of the 388 polling units during collation.

Uzodinma, APC candidate, had come fourth when the electoral
commission declared the final tally in the March election.

But in a statement, Rotimi Peter, one of the counsels of
Ihedioha, said the supreme court ignored well-established
principles of law that had guided its previous decision in similar
cases.

He said the people of Imo were short-changed by the apex
court.

Below is the full statement:

1.01 On 14.1.2020, the Supreme Court heard the appeal filed
by Senator Hope Uzodinma and APC (numbered as shown above) against
the judgment of the Court of Appeal affirming the victory of Emeka
Ihedioha and the PDP in the Imo State Governorship election on
9.3.2019.

1.02 The Court of Appeal had, on 19.11.2019, affirmed the
judgment of the Governorship election tribunal which dismissed the
petition of Senator Uzodinma and APC against the return of Emeka
Ihedioha and PDP at the Imo State governorship election held on
9.3.2019.

1.03 Soon after hearing oral arguments of senior counsel for
the parties, the Supreme Court delivered its judgment and allowed
it, and ordered, amongst others, that Senator Uzodinma be sworn in
as the Governor of Imo State.

1.04 Since the delivery of the judgment, commentators have
rendered all kinds of opinions on the facts of the case and the
judgment of the Supreme Court. Some of the commentators are legal
practitioners who were not involved in any professional manner with
the case from its inception at the election tribunal up to its
conclusion at the Supreme Court. Their comments or opinions now in
the public domain, expectedly, are shallow and uninformed and are
capable of misinforming the public.

1.05 It has, therefore, become imperative to put the record
straight for the benefit of the reading public, even if it would
not reverse the unfortunate decision of the Supreme Court and the
obvious injustice it has occasioned.

2. BRIEF FACTS OF THE CASE 2.01 In the result of the Imo
State Governorship election held on 9.3.2019, INEC declared that
Emeka Ihedioha scored the highest number of votes – 273,404 amongst
all the candidates and met the constitutional requirements, and was
returned. The other three candidates coming behind him were
credited with the following votes: Uche Nwosu (AA):
190,364
Ifeanyi Araraume (APGA): 114,676
Hope Uzodinma (APC): 96,458

2.02 Each of these candidates filed an election petition at
the tribunal premised on different grounds. Senator Uzodinma’s
petition was premised largely on the false ground that elections
were conducted in certain 388 polling units, but the results of the
elections which he had copies of (and which were favourable to him)
were wrongly excluded by INEC in their collation of results of the
election; that if those results were taken into account, he would
have won the election.

2.03 The respondents in the petition, including INEC, denied
the above allegations and characterised the purported results as
false in their respective replies to the petition. Two short
examples may be provided here. In paragraph 8i of Ihedioha’s reply
to the petition, it is averred inter alia:” . . . Petitioners have
embarked on a scheme to introduce false result sheets into the
result of the election. They are thus put to the strictest proof of
the origin of the result, the existence of the polling units as
well as the distribution of election materials to those purported
Polling Units.”

2.04 In paragraph 7c of INEC’s reply, it is averred inter
alia: “The 3rd Respondent did not omit to record and reckon with
votes due to the Petitioners as alleged. . . and any such showing
results are fictitious and suborned.”

2.05 It is thus clear from the foregoing, and having regard
to decided cases, particularly of the Supreme Court, that the
petitioners had the burden of proving the conduct of elections in
those polling units, the results emanating from them and the impact
those results would have on the result of the election as
declared.

2.06 At the hearing of the petition, Senator Uzodinma and
APC called 54 witnesses out of which only 28 were polling unit
agents. No ward collation agent was called as a witness. Senator
Uzodinma himself testified as PW11. His State Collation agent
testified as PW51 and a certain police officer testified as PW54.
The other 23 witnesses were local government collation agents and
sundry witnesses.

2.07 It is noteworthy that purported results of the
election, relied on by the petitioners, were tendered from the Bar
in bags and sacks! They remained there throughout the trial, except
for the few which were specifically mentioned by the 28 polling
unit agents. PW54, a Deputy Commissioner of Police, whose presence
and testimony were challenged by the respondents, tendered
documents in a pack which he described as result sheets from 366
polling units. He did not open any of them or refer specifically to
them. He admitted, in cross-examination, that he did not know the
figures they contained or the polling units they were concerned
with.

2.08 It is, again, noteworthy that the 28 polling unit
agents and PW11 admitted, in cross-examination, that the result
sheets which they identified were not legible or did not contain
the scores of all the political parties which contested the
election. The 28 polling agents also admitted that those purported
result sheets did not contain any entry to show the number of
ballot papers issued to the respective polling units; the number of
ballot papers used and unused in those polling units. Many of the
sheets did not show the names and signatures of the presiding
officers, and the date of issuance. In some of them, the dates
written on them were before or after 9.3.2019.

2.09 PW11 admitted in cross-examination, when confronted
with his chart in the petition, that some of the results he listed
showed over voting.

3. JUDGMENTS OF THE COURTS

3.01 It was because of the foregoing facts and evidence that
the election tribunal, in its judgment, agreed with the respondents
that the petitioners did not prove the existence of other results
from the so-called 388 polling units. In respect of the evidence of
PW54, the police officer, the tribunal, again, agreed with the
respondents that he had no locus to be a witness and that his
evidence was worthless as he could not tie his testimony to any of
the documents he presented. The tribunal held that the petitioners
merely dumped documents on the tribunal without relevant oral
evidence.3.02 In making these pronouncements, the tribunal relied
on the many decisions of the Supreme Court and the Court of Appeal
which have determined the manner such evidence as given by the
petitioners should be evaluated. The tribunal, therefore, dismissed
the petition.

3.03 At the Court of Appeal, the petitioners complained that
the tribunal was in error in dismissing the petition and, in
particular, in denouncing the presence of PW54 as a witness and
rejecting his evidence. The respondents offered opposing
arguments.

3.04 The Court of Appeal, in its majority decision of 4-1,
agreed with the petitioners that PW54 was a competent witness, but
affirmed the decision of the tribunal that his evidence had no
probative value. It dismissed the appeal. The minority judgment
upheld the complaints of the petitioners and held that they had
proved their case, but it did not say, significantly, the number of
additional votes which the petitioners proved in order to show that
they had scored a majority of lawful votes cast in the
election.

3.05 The petitioners, aggrieved with the decision of the
Court of Appeal, appealed to the Supreme Court. Ihedioha, aggrieved
with the portion of the decision that PW54 was a competent witness,
also appealed to the Supreme Court, and his appeal was numbered as
SC.1470/2019.
3.06 As stated above, on 14.1.2020, the Supreme Court heard
arguments on the appeals and delivered a judgment soon after. The
petitioners’ appeal was allowed, but Ihedioha’s appeal was struck
out.

4. REMARKS4.01 In allowing the appeal, the Supreme Court did
not state the new scores which the petitioners proved from the 388
polling units, especially having regard to the following facts: (a)
that only 28 polling unit agents out of the 388 polling units
testified and they admitted that the result sheets had all the
vices itemised earlier; (b) that PW11 also admitted over voting
apparent in some of the results in the chart in the petition; (c)
that more than 90% of result sheets were neither identified nor
referred to by any witness; (d) that the respondent, particularly,
INEC denied the existence of those result sheets and tendered
documentary evidence to show that election did not hold in 388
polling units;

(e) that PW54 tendered purported result sheets that were
less than the number of polling units mentioned in the petition;
(f) that PW54 did not open or read any of the purported result
sheets and stated clearly that he did not know the figures or
scores they contained or whether there were “mutations or
tampering” in them, and that the documents were not submitted to
him.

4.02 The Supreme Court did not state that it has computed
the new scores, local government by local government, and
determined that the petitioners had satisfied the requirements of
section 179(2) of the Constitution before it arrived at the
decision that Senator Uzodinma should be sworn-in as the new
Governor of Imo State.

4.03 In reaching its decision, the Supreme Court ignored
well-established principles of law that had guided its previous
decision in similar cases. Perhaps, it is better to state that the
Court turned those decisions upside down thereby creating the
impression of a double standard.

4.04 Two recent decisions of the Supreme Court easily come
to mind. The first decision, SC. 409.2019: PDP v. INEC & Others was
delivered on 24.5.2019. It was in respect of the Ekiti State
governorship election.
4.05 The second decision, SC. 1211/2019: Atiku Abubakar v. INEC
(unreported) was delivered on 15.11.2019. At pages 62-63 of the
judgment, the Supreme Court reiterated, thus:Before I conclude on
this issue, let me state that whenever documents are tendered from
the Bar in election matters, the purport is to speed up the trial
in view of time limitation in election matters. Such tendering is
not the end itself but a means to an end. The makers of such
tendered documents must be called to speak to those documents and
be cross-examined on the authenticity of the documents. The law is
trite that a party who did not make a document is not competent to
give evidence on it. It is also the tested position of the law that
where the maker of the document is not called to testify, the
document would not be accorded probative value by the Court. That
indeed is the fate of Exhibit P80 and P24.
4.06 If the decisions in the above cases were applied to the
appeal of Senator Uzodinma and APC, the outcome would have been a
dismissal of the appeal. It is a matter of concern and conjecture
that the Supreme Court, inexplicably, chose to chart a new, strange
course in their decision. Unfortunately, the Court did not indicate
that it would give reasons for the decision. That would have
offered the Court the opportunity to explain the basis of the
decision and state the fate of the long-established principles of
law it had led the legal profession and the public to believe were
trite.
4.07 In the absence of the explanation, it would be difficult
for practitioners and the litigating public to respect decisions of
the Supreme Court thereby encouraging disregard of the rule of
law.

4.08 Before concluding this piece, it is needful to draw
attention to a decision of the Supreme Court in SC. 1384/2019:
Ugwumba Uche Nwosu v. Action Peoples Party (unreported) delivered
on 20.12.2019, during the pendency of the appeals being
discussed.

4.09 The first two paragraphs of the judgment are
remarkable. They read:This Appeal deals purely with the issue of
double nomination. The Appellant contested and won the primaries
conducted by All Progressives Congress [APC] on 16/10/2018, and his
name was forwarded to INEC (fourth Respondent) as the gubernatorial
candidate of APC at the general election slated for 9/3/2019.​But
the Appellant also contested and won the Primaries conducted by
another Party, Action Alliance, and on 2/11/2018, he was issued
with “a Certificate of Return & Confirmation as the duly elected
Governorship Candidate” of the said Party.

4.10 The Supreme Court, therefore, held that by “allowing
himself to be nominated by two political parties, the Appellant,
not only did an act that is not authorised by law, which is
illegal, the Electoral Act clearly says in its Section 37, that
such a nomination “shall be void”.

4.11 The implication of the above judgment is that Uche
Nwosu was the nominated candidate of APC in the election, but that
his nomination became void because he had secured “double
nomination”. It followed that if Uche Nwosu was factually the
candidate of APC in the election, Senator Uzodinma could not have,
validly, also be the APC candidate in the same election.

4.12 It was for this reason that Emeka Ihedioha filed an
application at the Supreme Court, which was argued on 14.1.2020,
contending that Senator Uzodinma and APC’s appeal should be struck
out because of the implication in the above-named Supreme Court
judgment.

4.13 In the judgment, the Court summarily dismissed
Ihedioha’s application on the false basis that the matter of double
nomination was a pre-election decision and it could not be applied
to the appeal which was a post-election litigation.

4.14 The Supreme Court, in this instance, chose technicality
at the expense of substantial justice and denied Ihedioha the
benefit of an established legal outcome.

4.15 The effect of the foregoing is that the judgment of the
Supreme Court does not reflect the justice of the case. The
electorate in Imo State has been short-changed.

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