February 27, 2020

Imo and Bayelsa supreme court judgment review: A case of different facts and circumstances

Supreme Court, Imo

Supreme Court

Supreme Court

By Chuks Nwani

As the Supreme Court commences the decongestion of applications  to review its judgment currently pending before it, the decision of the Court dismissing the application filed by David Lyon of APC against Governor Diri Douye of the PDP on the ground that the Supreme Court,without any error pointed to it in the original judgement, has no constitutional powers to review its judgment, has reinforced the finality of the Supreme Court as provided under the 1999 Constitution.

The Supreme Court in the said ruling held that there was no error pointed out by the Applicant that deserves reviewing its judgment and doing same will open a floodgate for parties that lose cases at the Supreme Court to bring applications for review, thereby defeating the constitutional finality of the Court. This, in my view, is a good decision to preserve the sanctity and finality of the Supreme Court Judgment.

The ruling of the Supreme Court in David Lyon’s case has made some legal pundits to conclude that the application of Rt. Hon. Emeka Ihedioha of Imo State and other applications for review currently pending before the Supreme Court should suffer the same faith.

No matter how appealing this sentimental suggestion may be, one does hope that the Supreme Court justices do not fall into it. Justice is not done by rationing or apportionment.   Every case is considered on its own merit.

The quick speculation in some quarters that the Emeka Ihedioha application will suffer the same fate suffered by David Lyon’s application lends credence to the suspicion expressed by many that the application by David Lyon and his party the APC was a grand design by the APC to make the Supreme Court act against a possible avalanche of such applications and act swiftly by dismissing all applications, including that of Emeka Ihedioha. This suspicion was further helped when some APC-leaning media hyped took up the mere threat by PDP to bring more applications and hyped it to high heavens, even to the extent of giving the impression that PDP had already filed applications in respect of pother states than Imo.

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The Supreme Court has so many cases held that it has inherent jurisdiction to set aside its judgment in deserving circumstance.The question therefore is, are facts and circumstances set out by the applicant able to demonstrate grievous mistake of the court that occasioned injustice or miscarriage of justice? If yes, then the Supreme Court of Nigeria that was set up to do justice must rise to the occasion and discharge its constitutional responsibilities of dispensing justice. Such is a mark courage not cowardice.

A few distinctions between the Imo application and Bayelsa application deserves to be made  in the light of this confusing comparisons and to enlighten the public on the differences in the two applications and why the Supreme Court will not be expected to extend its ruling in David Lyon case to Rt. Hon. Emeka Ihedioha’s application.

The Imo case which has raised local and international condemnation does not have the same fact as the Bayelsa case. The Bayelsa case is purely an issue of interpretation of the law which is a prerogative of Supreme Court to decide how it interprets the law and therefore asking Supreme court to reinterpret the law in certain manner amounts to re-arguing the Appeal which is not permitted under the law.

The application of RT. Hon. Emeka Ihedioha is purely on the issue of facts, records of proceedings and breach of law which the Supreme Court did not advert their mind before giving judgment that has now turned out to violate the  1999 Constitution, Electoral Act 2010 (As Amended 2015)  and INEC Guideline for 2019 General Election.

The Supreme Court was created to protect the laws and not to violate it and when it is brought to its attention of such unintended consequences and the court is satisfied that its decision has led to violation of law, Supreme Court will be courageous to quickly set aside such decision in order so that it cannot be used subsequently as a precedent by the lower courts.

In the same manner that the Supreme Court refused to legitimize forged certificate in Bayelsa, they are being called upon to take a second look at the elements of forgery of election result sheets in Imo case which facts were all before the Supreme Court but the Court inadvertently did not advert their minds to it and/or probably did not have enough time to read the records of proceedings and/or Judgment of the Tribunal and that of the Court of Appeal before delivery its January 14th Judgment.

The Supreme Court had in their Judgment held that the 3rd Respondent (Independent National Electoral Commission) did not call any witness or tender document to counter the falsified 388 polling unit results tendered by Senator Hope Uzodimma. This position was taken ostensibly because the Supreme Court did not advert their mind to the evidence of DW5, a staff of INEC who testified before the Tribunal and tendered INEC Form ECG40G (Incidence Forms) that were admitted as Exhibits 63RD1 to 63RD19.

The application that was filed by Ihedioha and PDP is now pointing to the Supreme Court that DW5, a staff of INEC, testified before the Tribunal that there were no elections in the affected 388 polling units because of violence and malpractices. The DW5 tendered INEC Form EC40G as Exhibits 63RD1 to 63RD19 to show that in those polling units, the election was cancelled due to electoral violence as reported by the presiding officers in those polling units.This information was recorded in the records of proceedings and the Tribunal Judgment, but the Supreme Court did not advert their minds to these facts in the trial court’s records of proceedings and/or Judgment of the Tribunal.

The Supreme Court had in their Judgment stated that there was no evidence by the RT. Hon. Emeka Ihedioha that the result from 388 polling units produced by Uzodimma was falsified. RT. Hon. Ihedioha application has now pointed out to the Supreme Court the evidence of Uzodimma witnesses admitting that the results Uzodimma scored himself in most of the 388 polling units were more than the registered voters and done in violation of Electoral Act.

  1. Hon. Ihedioha’s application is not pointing out to the Supreme Court the pages of the record of proceedings where Hope Uzodimma  admitted in his testimony at the Tribunal that in his private and personal tabulation of the votes (shown at pages 9-27 of Volume 1 of the Records) in column 69 Polling Unit 08 in Eziama/Okpalla Ward he scored 819 votes whereas the total number of registered voters was 462. In column 285 he stated that in Polling Unit 12 in Odudi/Aro Ward he scored 780 votes whereas the total number of registered voters were 449. In column 377 he stated that in Polling Unit 6 in Umuozu Ward he scored 367 votes and the Ihedioha scored 4 votes making a total of 371 votes whereas the total number of registered voters was 367. In column 384 he stated that in Polling Unit 6 in Umunkwo ward he scored 526 votes and Ihedioa scored 2 votes making a total of 528 votes whereas the total number of registered voters was 526. These are just a few examples of the fraudulent results that Uzodimma admitted awarding to himself and induced Supreme court into accepting them as a part of his votes.

Uzodimma equally admitted that in the tabulation of the votes in the 388 polling units(at pages 9-27 in Volume 1 of the Record), there was no record of any accreditation and the votes were allocated  between APC and PDP whereas 70 candidates  including the candidates that came 2nd and 3rdcontested the election.Without a record of accredited voters, the votes alleged to have been scored in those polling units were invalid and void because there can be no valid votes without accreditation – FAYEMI v ONI (2009) All FWLR (Pt 493) 1254 at 1309 paras F-H.

These facts are contained in the record of proceedings/Judgment of the Tribunal, but the Supreme Court did not advert their minds to it. These are facts already before the Supreme Court which if they had adverted their minds to would have assisted them in doing substantial justice.

The Supreme Court also did not advert their mind that by adding the result of the 388 polling units, the total result recorded in Imo election will be more than the total number of accredited voters in the State by over 129,039 votes.  It is imperative to note that even though the Supreme Court had directed that Certificate of Return should be issued to Senator Hope Uzodimma,on the website of Independent National Electoral Commission (INEC) RT. Hon. Emeka Ihedioha is still being retained as the candidate that scored majority of lawful votes because if INEC adds the result from the miracle 388 polling units as directed by Supreme Court, the total votes recorded in Imo election will be more than the total accredited votes by 129, 039 which will now invalidate the whole election.

This indirectly means that the Supreme sustaining the judgment has violated the provision of 1999 Constitution (As Amended), Electoral Act 2010 (As Amended) and INEC Guideline for 2019 General Election which it was created to protect.

The Supreme Court in Imo case did not also realize that Uzodimma petition was struck out by the Court of Appeal and did not revive or resuscitate the petition before going into the merit of the case. Which means that at the time the Supreme Court was determining Uzodimma case, Uzodimma had no existing petition before the Court.

Similarly, the Supreme Court  did not advert their mind that it will be in violationof the Constitutional provision  to declare SenatorHope Uzodimma as elected Governor of the State without the fulfillment of constitutional provision of scoring 25% of votes in 2/3 of the local government in Imo State.

These are facts which are in the record of proceedings before Supreme Court and which the Supreme Court did not advert their mind to perhaps owing to time constraint.It is not the fault of RT. Hon. Emeka Ihedioha that the Supreme Court did not see them.

These facts are too material, germane, too many and so significant that it cannot be glossed over. Its wider implication if allowed to stand is more threatening than one can imagine.

It is our view that Imo people and indeed voters in subsequent elections do not deserve to suffer the unintended consequences of the outcome of these lapses because of the finality of Supreme Court. A forger of result sheet must not be allowed to enjoy the proceeds of his criminal enterprise because the Supreme Court did not in the first instance see the evidence of falsification of result in the record of proceedings. The unintended consequences will be that the Supreme Court has legitimized forgery of result sheets.

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The Judgment of the Supreme Court in Imo State if not set aside may become the bedrock of judicial institutionalization of political violence in an election as candidates in an election is only required to cause mayhem in selected polling units, compute results that will give him/her a wining margin and approach the court that these are his results that were excluded and the court will have no choice than to accept them not withstanding the obvious irregularities on the face of the document or any incidence Form  tendered by INEC that there were violence in those polling units.

Most of the electoral matters that terminates at the Court of Appeal will suffer the injustice institutionalized by the Supreme Court in Imo State if not revised as the Court of Appeal will have no choice than to follow precedent.Politicians are waiting patiently to take advantage of this judicial sanctioned election rigging in the next election and the consequences of the outcome should be of concern to the Supreme Court as references will always be traced to the decisions of these 7 wise Men made on 14th January 2020.

We wish to remind the Supreme Court of its decision ITEOGU v LEGAL PRACTITRIONERS DISCIPLINARY COMMITEE (2018) LPELR 4345(SC) at 9-10 paras D-A where it held that –

‘There is no doubt that honourable justices of this court are human beings and therefore not infallible. They can make mistakes or commit errors at any time like any other mortals, this is why the law allows for correction of errors in its judgment when called upon so to do for instance in the slip rule or pencil rule. In other words, in deserved situation or circumstances this court when invited can revisit the judgment it delivered earlier or previously if such judgment is seen not to be in accord with desired justice by setting same aside or by varying same or even overruling such judgment ….. It goes without saying therefore that in the exercise of setting aside its previous judgment this court and indeed every other court must do so only in the interest of justice which is indeed the preoccupation of all courts’

The purpose of inherent jurisdiction of the Supreme Court to set aside its judgment is for a time like this. It is not for every Tom, Dick and Harry to come to Supreme Court for review. There must be merit for Supreme Court to do so and the Imo case, where the effects of the injustice can be felt even by the deaf, dumb and blind, falls within the circumstances when the court should exercise its powers to set aside its judgment.

The outcome of the review of Imo judgement no doubt will beatest of courage, integrity and honesty of the Supreme Court.

Chuks Nwani. A Lawyer writes from Lagos.