Godwin Tsa, Abuja
On January 14, 2020, the Supreme Court in a unanimous judgment cut short the seven months reign of former Governor Emeka Ihedioha when it dethroned him as the governor of Imo State.
In his place, the apex court ordered that Senator Hope Uzodinma of the All Progressives Congress (APC), be sworn in as the validly elected governor of the state.
The judgment followed an appeal filed before the court by the incumbent governor and his political platform, the APC, against the declaration of Ihedioha of the Peoples Democratic Party (PDP) as winner of the March 9 governorship election in the state by the Independent National Electoral Commission (INEC).
Although both the state governorship election tribunal and the Court of Appeal affirmed the election of Ihedioha as the elected governor, the table was upturned by the apex court which held that his declaration was based on wrong computation of result.
Justice Kudirat Kekere-Ekun who delivered the lead judgement declared Uzodinma as the valid winner of the governorship contest and
ordered the INEC to withdraw the Certificate of Return from Ihedioha and give it to Uzodinma, who is to be sworn in immediately.
The seven-member panel of the apex court unanimously agreed that the INEC was wrong to have excluded results from 318 polling units from the votes recorded for the APC candidate.
The votes scored by Uzodinma and his party in the 318 polling units and which the court held was unlawfully excluded was put at 213, 695. Ihedioha and the PDP were said to have scored 1,903 in the polling units said to be located in Uzodinma’s stronghold.
Justice Kekere-Ekun who read the lead judgment held that the election petition tribunal and the Court of Appeal misunderstood Uzodinma’s case when they ruled in favour of Ihedioha.
She said the case of the appellants (Uzodinma and the APC) was about unlawful exclusion of part of the votes he garnered in the election and not whether or not there was a valid election in part of the state where Uzodinma’s results were cancelled.
Justice Kekere-Ekun said the judgment in the appeal marked: SC/14/62/2019 filed by Uzodinma and his party was used to resolve all the issues.
She added that the other appeals – SC/1461/2019 (filed by Ifeanyi Ararume of the All Progressives Grand Alliance and SC/1470/2019 filed by Ihedioha were no longer necessary. According to her, they had become academic in view of the court’s decision in Uzodinma’s appeal.
Other members of the panel were Justices Ibrahim Muhammad (Chief Justice of Nigeria and head of the panel), Sylvester Ngwuta, Olukayode Ariwoola, Amiru Sanusi and Uwani Abba-Aji,
Justice Kekere-Ekun earlier dismissed a motion by Ihedioha, challenging Uzodinma’s candidacy for the election on the grounds that the Supreme Court had held in a judgment in December last year, in an appeal marked: SC/1384/2019, to the effect that Uche Nwosu of the Action Alliance(AA) was also a candidate of the APC for the same election.
She said: “The judgment in SC/1384/2019 relates to the valid nomination of a candidate in a party’s primary, which is a pre-election matter.
“The validity of the first appellant’s (Uzodinma’s) nomination cannot be enquired into by this court in a post -election appeal.”
The court earlier yesterday also struck out the appeal filed by Nwosu after it was withdrawn by his lawyer, Solomon Umoh (SAN).
Justice Kekere- Ekun said: “In the substantive appeal, I am of the view that the two main issues that can resolve this appeal are appellants’ issues one and two.
“Issue one is in respect of the concurrent findings of the two lower courts to the effect that PW54 was not the proper person to tender Exhibits PPP1 to PPP366.
“Having given careful consideration to the arguments of the respective learned counsel, there was clear evidence before the court that PW54, a police officer, who was subpoenaed to testify and produce the documents in question.
“Having produced the documents handed over to the police in obedience to the subpoena issued by the court, the lower courts were wrong to have held that he was not the. proper person to tender them on the grounds that he was not present at the polling units, where the results emanated from.
“I agree with the learned counsel for the appellants that the lower courts misconstrued their case. The issue in contention was whether the results for 318 polling units were unlawfully excluded from the collated results.
“The documents were tendered to prove the exclusion as pleaded by the appellants and not whether election held in the polling units, in which case, the polling agents would have been called.
“With regard to the appellants’ second issue, a careful perusal of the appellants’ pleading reveals that, indeed, the finding that the appellants did not prove the allegation that their votes were excluded from collation, was as a result of the misapprehension of their case.
“Having resolved these two issues in the appellants’ favour, I am of the view that it is not necessary to consider the remaining issues. In the circumstances, I hold that there is merit in this appeal. It is hereby allowed that:
-The majority judgment of the lower court, affirming the judgment of the governorship election tribunal, is hereby set aside. It is hereby ordered as follows;
.It is hereby declared that votes due to the appellants, that is Uzodinma and the APC from the 318 polling units, were wrongly excluded from the scores ascribed to the appellants.
.It is hereby ordered that the appellants’ votes from the 318 polling units, unlawfully excluded from the appellants’ scores declared, shall be added to the results earlier declared by the 3rd respondent (INEC).
.It is hereby declared that the 1st respondent, Rt Hon. Emeka Ihedioha, was not duly elected. by majority of lawful votes cast at the said election. His return as the elected governor of Imo State is hereby declared null and void and is accordingly set aside.
.It is hereby declared that the 1st appellant, Senator Uzodinma, polled the majority lawful votes cast at the governorship election held in Imo State on 9th March 2019 and satisfied the mandatory constitutional threshold and spread across the state.
.It is hereby declared that the 1st appellant, Senator Uzodinma is the winner of the governorship election of Imo State. held on 9th March 2019 and declared on 11th March 2019.
.The certificate of return issued to the 1st respondent, Ihedioha, is hereby withdrawn.
.It is hereby ordered that a certificate of return shall be issued to the 1st appellant, Senator Uzodinma forthwith and should be sworn in as the governor of Imo State immediately.
.In the circumstance, appeals numbers SC/1461 of 2019 and SC/1470 of 2019 have become academic and are hereby struck out.”
Ihedioha, PDP kick, seek reversal of judgment
Responding to the Supreme Court judgment that sacked him from office, an angry Ihedioha described it as “unfair, unjust and does not reflect the voting that took place during the elections.”
He added that the decision is ”the truncation of the people’s will and an affront on the good initiative of his administration after its experiences with ‘bad governance’ of the previous government in the state.
“In the last seven months, we sought to elevate merit, unity of purpose, honesty, transparency and an inclusive approach to governance, as the hallmarks of our administration. We sought to restore once again, the pride and dignity of Imo people. We worked very hard to re-engineer the Imo renaissance. But God knows why he has allowed this current state of affairs.
“I do not agree with the judgement of the Supreme Court. I think it is unfair, unjust and does not reflect the voting that took place during the elections. It also didn’t take care of the sensibilities of the people of Imo State. But as true democrats, Engr Gerald Irona (ousted deputy governor) and I have no option but to respect the outcome of that judgement.
“It is incontrovertible that we ran a good race, fought tough battles, (including, principalities and powers)and governed the state well, with the fear of God, accountability, transparency and entrenched due process,” the former deputy speaker said. ”We, however, take solace in the book of Ecclesiastics 3:1, “To everything, there is a season, and a time to every purpose under the heaven,”he said.
His political platform and Nigeria’s main opposition party, the PDP, in it’s reaction to the judgment took to the streets to register it’s protest against the verdict, which it described as “a coup and miscarriage of Justice against the lawfully elected governor of Imo State.
In Abuja, the protest which started at the PDP’s Legacy House to the Three Arms Zone was led by the PDP National Chairman, Mr Uche Secondus.
The National Chairman of PDP while addressing the protesters said that the Supreme Court had misfired as the figures that gave Uzodinma victory were “not adding up”.
Secondus said all the protesters were demanding for, was for the Supreme Court to reverse its judgment which removed Ihedioha as the governor of Imo.
“We are here, under one God, under one nation; our nation is under the rule of law.
“We are a nation governed by law; therefore, all we are seeking today is for our very highly respected jurists at the highest court of the land to be just.
“We are not against you, we are against the error. And by the special grace of God, I know you will revisit the error.
“All we are saying is for you to review this error because the figures are not adding up.
“We, therefore, call on the leadership of the judiciary to please note that we are all human beings. God is the highest.
“We know that they worship God, all of us worship God, to revisit and reverse the Imo State judgment because we believe that the figures are not adding up,” he said.
Secondus said the party believed that the Supreme Court judges would hear their cry, revisit, review, and if possible reverse the judgment.
“That is justice that will be done, not only to the people of Imo but for Nigerians who are crying. This is time to show courage,” Secondus said.
Also speaking, the former Governor of Anambra, Mr Peter Obi, said he was not just speaking as member of PDP, but also as a beneficiary of the right thing done by the party during its 16 years administration.
Obi, the running mate to Atiku Abubakar in the last Presidential election, recalled how he was a member of a minority party (then APGA) and he won election, went to court and PDP did not intervene.
He added that Mr Adams Oshiomhole, former Edo governor and National Chairman of the APC couldn’t have been governor, or beneficiary of judiciary, if PDP had intervened.
“So as a beneficiary, I am appealing to the judiciary to save this country. What happened in Imo State is enough to kill our democracy.
“Let us ensure that the judiciary is the last hope of the common man,” Obi said.
The Senate Minority Leader, Sen. Enyinnaya Abaribe, said the only message of PDP was that the judgment should be reviewed as figures were not adding up.
Application for review of judgment
In continuation of their protest against the decision of the apex court, Ihedioha and PDP filed a motion seeking the setting aside of the judgment.
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 Uzodinma, APC and Ihedioha, PDP and INEC.
It is the contention of Ihedioha is that the judgment of the Supreme Court ought to be set aside as it was 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.
He further submitted that “the 1st Appellant/Respondent admitted under cross-examination that he was the person (and not the 3rd 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.
“The fraudulent nature of the additional votes was demonstrated by the fact that the total votes cast as shown in the 1st 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 1st Appellant/Respondent showed only the votes of the 1st Applicant and the 1st Appellant/Respondent without specifying the votes scored by the other 68 candidates who participated in the election.
But responding, Governor Hope Uzodimma has asked the Supreme Court to dismiss an application filed by former Governor Emeka Ihedioha, seeking the setting aside of it’s January 14 judgment that removed him from office.
The governor’s position is contained in his preliminary objection challenging the competence of Ihedioha’s motion.
In the said motion dated February 5, 2020, Ihedioha prayed the apex court for an order setting aside “as a nullity the judgment delivered by it on the 14th of January, 2020 in Appeal No. SC.1462/ 2019 and Cross-Appeal No. SC.147Y0/ 2019.
However, governor Uzodinma in his preliminary objection dated February 6, 2020, urged the court to strike it out.
In addition to motion on notice brought pursuant to Section 6(6)(a) of the 1999, Uzodinma and his political platform, the APC,
predicated their objection on the grounds that “the application being a proceeding relating to or arising from election of a governor is barred by effluxion of time.
“The application constitutes an invitation to the Supreme Court to sit on appeal over its final decision” Uzodimma posited.
Besides, the objectors through their counsel, Damien Dodo (SAN) submitted that “having delivered its final decision on the 1st and 2nd Respondents’ Appeal No. SC. 1462/2019 between Senator Hope Uzodinma & Anor v Rt. Hon. Emeka Ihedioha & 2 Ors., the Supreme Court has become fuctus officio and divested of jurisdiction over the same subject matter”.
“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.
“The judgment sought to be set aside having been given effect by the inauguration of the 1st Respondent/Objector as Governor of Imo State, this Honourable Court lacks the jurisdiction to grant the prayer sought” Uzodimma argued.
Ruling
After considering the arguments for and against the motion, the Supreme Court in a split judgment of six-to-one dismissed the application for lacking in merit.
Delivering the lead ruling, Justice Olukayode Ariwoola noted that “there is no doubt that the judgment of this court, being sought to be set aside for being a nullity was delivered on the 14th of January 2020. The judgment is a final judgment of the court as prescribed in Section 235 of the Constitution.
“The appeal was adjudged meritorious and was allowed, and the judgment of the lower court (the Court of Appeal), which affirmed the judgment of the Governorship Election Tribunal was set aside.
“Generally, by the provision of the Rules of this court, it shall not review any judgment once delivered by it save to correct any clerical mistake or some errors arising from any accidental slip or omission, or to vary the judgment or order so as to give effect to its meaning or intention.
“A judgment or order shall not be varied when it correctly represents what the court decided nor shall the operative and supportive part of it be varied and a different form substituted, see Order 8 Rule 16 of the Rules of this court.
“The general law is that the court has no power to alter or vary a judgment or order after delivery, except; (a) so far as it is necessary to correct errors in expressing the intention of the court or (b) to correct clerical mistakes or some errors arising from accidental slip or omission, that is the slip rule; or (c) an order which is a nullity owing to failure to comply with an essential provision, such as the service of process, can be set aside by the court which made the order, and (e) a judgment or an order made against a party in default (may also be set aside.).
*It is settled law that this court has no power to change or alter its own judgment or sits as an Appeal Court over its own judgment.
“There is no doubt that the court has inherent powers in respect of matters within its jurisdiction. It certainly has no inherent power to assume jurisdiction in respect of the matter not within its jurisdiction.
“It is clear from the tone and the wording of the instant application that what is being sought is asking the court to sit over its own judgment already delivered and executed. That is certain beyond the competence of this court.
“It is not disputable that the jurisdiction of the court is derived from the Constitution and an Act of the National Assembly. There is no constitutional provision for the review of the judgement of the Supreme Court by itself. And, therefore, once it delivers its final judgment, the Supreme Court, subject, of course, to the slip rule principle, becomes functus officio in respect thereof,” he said.
Justice Ariwoola, recalled that on February 26 this year, the court was confronted with similar application in relation to the judgement it gave on February 13 this year in relation to the Bayelsa governorship dispute.
He noted that the Supreme Court, in rejecting the application, relied on the provision of Order 8 Rule 16 of the court’s Rules, which prohibits a review of the apex court’s judgment.
Justice Ariwoola held that the implication of the Order 8 Rule 16 of the court’s Rules is that the court “does not have the competence and lacks the required jurisdiction to review its own judgment, except, as earlier stated, in the circumstances set out in the Rules of this court.”
He noted that the court has held in cases before now that “the finality of the Supreme Court is entrenched in the Constitution. Therefore, once the decision of the court is clear, it is final in the sense that the thrust of the ratio decidendi is manifest in it.
“Inherent powers of the court can only be invoked if there is a missing link in the main body of the judgment. And some steps must be taken to fill in the gap or ambiguity so that the justice of the issue will be clear.
“That is why this court can sometimes be called upon to dot the Is and fill in the gaps in the slip apparent in the judgment. Otherwise, the court cannot, under any guise or so called inherent powers, alter or has to clear an unambiguous judgment once given.
Justice Ariwoola relied on another earlier judgment of the court where it was held that among others, that the finality of the decision of the Supreme Court in civil proceedings is absolute unless specifically set aside by a later legislation.
He added: “The justices that man the court are of course fallible, but their judgments are, as the Constitution intends, infallible.
“Therefore, any ingenious attempt by counsel to set aside or circumvent the decision of the Supreme Court, will be met wit stiff resistance.
“Without any further ado, this application is considered lacking in merit and is liable to be dismissed.
“To ask us to set aside the judgment of this court delivered on the 14th of January 2020 is an invitation to ask us to sit on appeal over our own judgment. We cannot do so.
“To set aside the judgement in this instant circumstance, is to open the floodgate for applications by parties to review the judgments of this court. To do that will to say the list, bring the court to disrepute. and ridicule.
“In the circumstance, this application is accordingly dismissed,” Justice Ariwoola said, but declined to award cost against any party in the case.
Other five members of the court’s panel, who agreed with the lead ruling are Justices Muhammad (the CJN), Sylvester Ngwuta, Kudirat Kekere-Ekun, Amina Augie and Uwani Abba-Aji.
Justice Nweze disagreed
In his dissenting ruling, Nweze said there are a number of reasons for the court to have granted the review sought by Ihedioha.
Justice Nweze agreed with Ihedioha’s lawyer, Kanu Agabi (SAN) that the Supreme Court was without the necessary jurisdiction when it sat and considered the appeal on which its January 14th judgment was given.
He held that the judgment of the Court of Appeal, which struck out Uzodinma’s petition at the tribunal, for being incompetent, was still subsisting because it raised issue of jurisdiction which the Supreme Court did not resolve in its judgment.
Referring to the court’s past decisions in Adegoke Motors and Adesanya, Johnson and Lawanson, among others, Justice Nweze disagreed with the majority position that the decision of the Supreme Court cannot be set aside.
“This court has the power to overrule itself and has done so in the past,” Justice Nweze said.
He also held that it was wrong for the court to have awarded electoral victory to Uzodinma, who had argued that the election was a nullity on grounds of non-compliance.
Justice Nweze also faulted the results Uzodinma claimed at the tribunal and wondered why he omitted to present the scores of the other candidates in the election.
He added: “Having thus failed, neglected or omitted to bring the scores of other candidates in the election, this court wrongly declared him as duly elected”
Justice Nweze was also of the view that the Supreme Court ought not to have upheld the results claimed by Uzodinma because he had, while testifying at the tribunal, admitted the results was more than the number of accredited voters, and that he did the compilation of the results on his own.
He held that Uzodinma misled the court to accept the “ubiquitous and fake results” which he admitted that he complied on his own.
Justice Nweze noted that, in accepting the results claimed by Uzodinma, the court was misled into coming out with total votes in excess of the total number of accredited voters, which was 823,743.
He also held that the court was misled in declaring Uzodinma winner when it did not find that the APC candidate met the constitutional requirement to be so declared.
Justice Nweze upheld the application by Ihedioha and granted the reliefs contained, including setting aside the Supreme Court judgment.
He held that Uzodinma mischievously misled the court into unjust conclusion with the unverified votes credited to himself in the disputed 388 polling units.
“In my intimate reading of the January 14 judgment, the meat and substance of Ihedioha’s matter were lost to time frame. This Court once set aside its own earlier judgment and therefore cannot use time frame to extinguish the right of any person.
“This Court has powers to over rule itself and can revisit any decision not in accordance with justice”, he said.
According to Justice Nweze, the decision of the Supreme Court in the instant matter will continue to haunt our electoral jurisprudence for a long time to come, adding that without evidence of meeting other constitutional provisions, the court misled itself into declaring Uzodinma as governor.
“This Court has a duty of redeeming its image, it is against this background that the finality of the Court cannot extinguish the right of any person.
While agreeing with Agabi that from the computation of the court in it’s January 14 judgment, the number of votes exceeded the total number of accredited voters by over 100, 000 votes, Justice Nweze said “wonders shall never end.’
“I am of the view that this application should succeed. I hereby make an order setting aside the decision of this Court made on January 14 and that the certificate of return issued to the appeallant be returned to INEC.
“I also make an order restoring the respondents as winner of the March 9, 2019 governorship election.”