14-17 minutes
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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