March 3, 2020

IHEDIOHA vs UZODINMA: Nagging issues before apex court on two-thirds majority

*The 10 conditions for Supreme Court to set aside its judgement

Ihedioha(left) and Uzodinma

By Clifford Ndujihe, Politics Editor

As the Supreme Court, Today, entertains the appeal filed by former Imo State Governor, Emeka Ihedioha, challenging the nullification of his election, fresh facts show that the apex court has many knotty questions to answer.

There are indications that neither Senator Hope Uzodinma nor Ihedioha meets the constitutional requirements to be declared the winner from all results available.
Therefore, if none of the duo meets the requirement to be declared governor, what will the apex court do? Will it order a re-run or fresh poll?

Uzodinma’s headache

From the results, Uzodinma tendered based on which the apex court nullified Ihedioha’s election and ordered his swearing-in, the All Progressives Congress, APC, candidate did not score 25 percent of votes cast in at least 18 of the 27 local councils (two-third) required to be declared governor.

Former Deputy Speaker of the House of Representatives, Emeka Ihedioha, who ran on the card of Peoples Democratic Party, PDP, was declared the winner of the governorship election and sworn in.

The figures in the first results announced by the Independent National Electoral Commission, INEC, showed that Ihedioha polled 273,404 ahead of his closest rival and candidate of Action Alliance, AA, Uche Nwosu, who polled 190,364 votes.

The candidate of All Progressives Grand Alliance, APGA, Ifeanyi Ararume, came third with 114,676 votes ahead of Uzodinma, who came fourth with 96,458 votes. No fewer than 70 candidates took part in the election.

Announcing the results, the state’s returning officer and Vice-Chancellor of the Federal University of Agriculture, Umudike, Abia State, Francis Otunta, gave the total registered voters across the state as 2,221,008 and the total accredited voters as 823,743.

He said 25,130 votes were cancelled across the state, with total valid votes as 714,355, while the total votes cast were 739,485.

However, Uzodinma challenged the declaration of Ihedioha as winner, arguing that INEC excluded results from 388 polling units, which if added he would be the winner. He lost at the tribunal and Court of Appeal, but had the upper hand at the apex court.

The Supreme Court, in the unanimous judgement delivered by Justice Kudirat Kekere-Ekun, held that the case of the appellants had merit and consequently granted the reliefs as prayed by Uzodinma and APC.

According to the apex court, the concurrent judgement of the lower court erred in law when it excluded votes totalling 213,295 from 388 polling units from the total scores at the election.

“It is, hereby, declared that first appellant, Senator Hope Uzodinma, polled a majority of lawful votes cast at the governorship held in Imo State on March 9, 2019 and satisfied the mandatory constitutional threshold and spread across the state,” the apex ruled.

25% in 17 councils

However, Vanguard checks showed that from the results Uzodinma tendered he did not meet the 25 percent score in 18 local councils, which is two-third of 27 local councils in Imo State.

In the first result, he scored 25 percent and above in two councils—Oru West and Oru East. In the second, which did not have scores for the other 68 parties, Uzodinma had 25 percent and above in 17 councils, one shy of the required 18.

If the scores of the other political parties were added, it would be less than 17.

The 17 councils where he scored 25 percent and above are Obowo, Ehime Mbano, Ngor Okpala, Isiala Mbano, Owerri West, Njaba, Oru East, Oru West, Orlu, Oguta, Ohaji-Egbema, Mbaitoli, Orsu, Ikeduru, Nkwere, Ideato North and Isu.

Ihedioha’s drawback

Although, Ihedioha had the simple majority in the first result, the tally showed that he did not secure 25 percent of the votes in 18 local councils. He did in 11 local councils. And in the second result that gifted Uzodinma victory, he secured 25 percent in eight local governments.

The 11 councils Ihedioha got 25 percent in the first result are Obowo, Ezinifite Mbaise, Ahiazu Mbaise, Ngor Okpala,Owerri North, Owerri West, Oguta, Mbaitoli, Owerri Municipal, Ikeduru, and Aboh Mbaise.

Ray of hope

However, if the results of Chief Uche Nwosu, the AA candidate is discountenanced, Ihedioha will have 25 percent in no fewer than 20 councils in the first result.
Uzodinma will also enjoy the same measure from the second result.

After the declaration of Ihedioha as winner of the election by INEC, nine political parties brought petitions before the Governorship Election Petition Tribunal.
After exchange of pleadings, six petitioners withdrew their petitions leaving only three that went to trial.

Uche Nwosu of AA claimed that there should be a run-off between him and Emeka Ihedioha because he came second and that Ihedioha did not obtain the mandatory 25 percent of the votes cast in two-thirds of the local governments.

At the trial, Uche Nwosu failed to establish this allegation, and his petition was dismissed.

Nwosu, who pursued his case to the Supreme Court, withdrew his appeal, having regard to the judgement of the Supreme Court on December 20, 2019 stating that Uche Nwosu was nominated by APC as her candidate for the governorship election and that later on he obtained a second nomination from AA, thereby rendering his candidature in the election invalid and void as provided in Section 37 of the Electoral Act.

With Nwosu out of the way, whoever gets a favourable verdict today between Uzodinma and Ihedioha will not have the problem of 25 percent spread.

Uzodinma asks Supreme Court to dismiss Ihedioha’s motion

Uzodinma has asked the Supreme Court to dismiss Ihedioha’s application seeking judicial review of the apex court’s judgement which had on January 14, ordered his removal from office.

Uzodimma’s preliminary objection was against a motion on notice dated February 5, filed by Ihedioha and PDP. They prayed the Supreme Court for an order setting aside “as a nullity the judgement delivered by it on January 14.”

Uzodinma and APC’s preliminary objection against Ihedioha was brought pursuant to Section 6(6)(a) of the 1999 Constitution of the Federal Republic of Nigeria, as amended.

The objection raised and argued the competence of the motion and the jurisdiction of the court to entertain same and, therefore, urged the apex court to strike out the motion filed by Ihedioha. They said 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” Uzodinma posited.

They submitted that having delivered its final decision, the Supreme Court has become fuctus officio and divested of jurisdiction over the same subject matter.

They said: “Order 8 Rule 16 of the Supreme Court Rules 2014 prohibits the apex court from reviewing its judgement once given and delivered, save to correct clerical mistakes or accidental slip.

“The judgement sought to be set aside having been given effect by the inauguration of Uzodinma as Governor of Imo, this honourable court lacks the jurisdiction to grant the prayer sought.”

More so, Uzodinma stated that Ihedioha’s application “constitutes an abuse of court process” and “is against public policy. He added that the application filed by the ousted governor amounts to an invitation to the court to indulge in academic exercise and answer hypothetical questions.

ALSO READ: Imo Governorship: Uzodinma asks Supreme Court to dismiss Ihedioha’s motion

My case is different from Bayelsa’s—Ihedioha

However, Ihedioha said his appeal has merit and is different from the Bayelsa election ruling, in which the apex fined APC counsels for asking it to review its decision sacking David Lyon because his deputy had multiple names.

He argued through his lead counsel and former Attorney-General of the Federation and Minister of Justice, Kanu Agabi (SAN) that, “the application is not an academic exercise or an invitation to this honourable court to answer hypothetical questions as the issue of nullity of the judgement of January 14 is neither academic nor hypothetical.

“Contrary to the deposition by Governor Hope Uzodinma, he (Uzodinma) never stated the results of the other 68 candidates that participated in the election at the 388 polling units, as their scores were not indicated anywhere by the appellants.

“Contrary to the depositions by the respondents, there is nowhere in the judgement of this honourable court delivered on January 14 in which the decision of the lower court striking out the petition for incompetence was set aside or upturned.

“On the contrary, the judgement of this honourable court only set aside the judgement of the lower court affirming the judgement of the governorship election tribunal. The order of the lower court striking out the petition was not an affirmation of any decision of the governorship election tribunal.

“That the failure to state the results of the other 68 candidates that participated in the election in the disputed 388 polling units and the 1st appellant/respondent’s (Uzodinma) admission under cross-examination of allocating to himself more votes than the total registered voters in the identified units are all manifest on the face of the record of the Supreme Court.

“That no evidence was led as to how Governor Uzodinma satisfied the mandatory spread required under Section 179(2) of the 1999 Constitution.

“That while Uzodinma and his APC claimed that results from 388 polling units were excluded which this court ordered to be added to him, PW54, whose evidence they relied upon, testified that he came to tender results of only 366 polling units.

“Under cross-examination, PW54 admitted that the result he tendered was even less than the number (366) he alleged he had come to tender.

“Even going by the number of 366 polling units stated by PW54, nothing in the judgement of this court explained the difference, particularly the number of votes in 22 polling units that the appellants/respondents misled this court to add to the 366 polling units to make up the 388 polling units.”

The 10 conditions for Supreme Court to set aside its judgement

Looking at the issues, a lawyer, Mr. Chidi Anya, said there are instances that can make the Supreme Court review its decisions.

Citing Stanbic IBTC Bank Plc v L. G. C. Ltd (2020) 2 NWLR (Pt. 1707) 1 @ 17 , Anya said the Supreme Court per Abba Aji, held inter alia that the Supreme Court has the power to set aside its judgement, and rehear same under the following circumstances:

1. Where there is a clerical mistake in the judgement or Order,
2. Where there is an error arising from an accidental slip or omission,
3. Where there arises the necessity for carrying out its own meaning and to make its intention plain,
4. Where any of the parties obtained judgement by fraud or deceit;
5. Where such a decision is a nullity,
6. Where it is obvious that the Court was misled into giving the decision under a wrong belief that the parties consented to it,
7. When the judgement was given without jurisdiction,
8. Where the procedure adopted was such as to deprive the decision or judgement of the character of a legitimate adjudication,
9. Where the writ or application was not served on the other party, or there is denial of fair hearing and
10. Where the decision/judgement is contrary to public policy and will perpetuate injustice.