By JACOB KUBEKA, Abuja –
For the people of Imo, the last may not have been heard about the gubernatorial election held in the state on March 9, 2019 in which Emeka Ihedioha of the Peoples Democratic Party (PDP) was declared winner and eventually sworn-in as governor on May 29, 2019.
It is no longer news that following the Supreme Court judgment of January 14, 2020, the candidate of the All Progressives Congress (APC) in that election, Senator Hope Uzodinma was almost immediately sworn in (and has assumed office) a governor of Imo state.
What may be news is that barely one month after he was removed from office Ihedioha and his party, the PDP, have returned to the Supreme Court, asking the apex court to set aside its judgment based on five substantive grounds.
Indeed, a Motion on Notice has already been filed before the Supreme Court to this effect. The Application was filed last week by counsel to Ihedioaha and PDP, Kanu G. Agabi (CON), a former Attorney-General of the Federation and Senior Advocates of Nigeria (SAN), who is leading 12 other lawyers, including seven SANs.
What would also seem to make Ihedioha’s move very interesting is the view in many quarters that the kind of application the sacked governor has taken to the Supreme Court is not an ordinary one. Those who hold this view are quick to point out the fact that for Agabi, a former AGF and Minister of Justice to accept to lead the legal team shows how serious the matter at hand is.
There is also the view that the Imo governorship matter may have gone beyond the interest of Ihedioha and the PDP. His mandate in Imo may turn out to be the binoculars that would be used to thoroughly scrutinize the objectivity of the nation’s judiciary.
It may be argued that this is not the first time the Supreme Court is removing a sitting governor in Nigeria. Still, while a number of commentators have described what is happening in Imo state with particular reference to the January 14 judgment as unprecedented and embarrassing, the mere fact that the Supreme Court is going to revisit or review its earlier decision, further makes the case interesting. It is as if in accepting to entertain Ihedioha’s application, the apex court has also accepted that the inherent finality in the Supreme Court is not because the honourable justices cannot make mistakes.
A source within the legal team told one of our correspondents at the weeked, “we have gone back to the Supreme court because we believe that as Supreme Court justices, they still have that courage to ensure that as a policy court, they will not give judgment that will challenge this nascent democracy.”
According to documents obtained by NATIONAL ACCORD, Ihedioha’s Motion on Notice is brought pursuant to Section 6 (6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended); Section 22 of the Supreme Court Act, 2004; and under the inherent jurisdiction of the same apex court.
It is seeking an order “setting aside as a nullity the judgment delivered by this Honourable Court on the 14th of January 2020 in Appeal No. SC.1462/2019 and Cross Appeal No. SC.1470/2019” and “for such other order (s) as this Honourable Court may deem fit or proper to make in the circumstance.”
The grounds upon which Ihedioha’s Application is brought are as follows:
“(1) THERE BEING A SUBSISTING JUDGMENT OF THE COURT OF APPEAL DISMISSING THE PETITION INCOMPETENT CONTINUES TO. SUBSIST AS THE APPEAL AGAINST THAT DECISION WAS. NOT CONSIDERED BY THIS HONOURABLE COURT.
a. At the Tribunal the 2nd Applicant (as 2nd Respondent) applied to have the petition struck out on the ground that it was incompetent having regard to the fact that the 1st Petitioner who came fourth did not join the 2nd and 3rd runners up in the Petition.
b. The application was heard and dismissed by the Tribunal whereupon the 2nd Applicant appealed to the Court of Appeal by way of Cross Appeal to which the 1st and 2nd Respondents replied.
c. The cross appeal was heard and allowed by the Court below. In the words of Adah JCA, who ‘delivered the lead judgment in the cross appeal:
“The preliminary objection of the 1st Cross Respondent (sic) at the lower court is allowed and I hold that the appropriate order of the trial tribunal would have beer to have petition no EPTIG 0 VIIMIOBI20 19 struck out for being incompetent. I therefore order the petition struck out. No cost is awarded.“
d. The 1st and 2nd Respondents appealed against the above order of the Court below in ground 18- of their Notice of Appeal but only to the extent of showing that the 1st Appellant was the 1st Cross Respondent at the Court of Appeal.
e. The order of the Court of Appeal striking out the Petition for being incompetent raises a jurisdictional issue which this Honourable Court ought to have resolved first before delving into the merits of the Appeal.
f. In its Judgment, this Honourable Court neither considered nor resolved this jurisdictional issue. The failure of the Supreme Court to consider and pronounce on this issue amounts to a failure of jurisdiction and completely erodes the jurisdiction of the Supreme Court to consider the appeal on the merits.
g. Your Lordships neither set aside the decision of the Court of Appeal striking out the Petition for being incompetent nor made any pronouncement on it. In the absence of any pronouncement by the Supreme Court on this issue, the judgment of the Court of Appeal striking out the Petition for being incompetent remains valid and subsisting.
h. In the absence of any specific order of the Supreme Court setting aside the order of the Court of Appeal striking out the petition, the Supreme Court had no jurisdiction to countenance the Appellants’ appeal.
(2) THE JUDGMENT SOUGHT TO BE SET ASIDE IS A NULLITY IN THAT IT WAS DELIVERED WITHOUT JURISDICTION BY REASON OF THE FOLLOWING:
(a) Having regard to section 140(2) of the Electoral Act (as amended), the Appellants/Respondents divested this Honourable Court of the relevant jurisdiction to declare the 1st Appellant Respondent as the winner of the gubernatorial election conducted in Imo State on the 9th day of March 2019 by branding or stigmatizing the entire election as invalid.
(b) This Honourable Court had no jurisdiction to declare the 1st Appellant/Respondent as elected in an election petition which was based on two inconsistent and mutually exclusive grounds, to wit, (i) that the 1st Applicant was not duly elected by majority of lawful votes cast at the election, the implication of which is that the majority of votes cast at the election were valid; and (ii) that the election was invalid for non-compliance with the Electoral Act, the implication of which is that the election be annulled.
(c) This Honourable Court did not have the jurisdiction to declare the 1st Appellant/Respondent as elected in the absence of any proof that the votes ascribed to him met the mandatory geographical spread stipulated in section 179 (2) of the Constitution of the Federal Republic of Nigeria (as amended).
(d) This Honourable court did not have the jurisdiction to declare that .the 1st Appellant/Respondent met the constitutional geographical spread without providing in its judgment the reason(s) for that conclusion.
(3) THE JUDGMENT SOUGHT TO BE SET ASIDE IS A NULLITY IN THAT IT WAS OBTAINED BY FRAUD OR DECEIT DUE TO THE FOLLOWING REASONS–
(a) The Appellants/Respondents 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.
(b) The 1st Appellant/Respondent admitted under cross-examination that he was the person (and not the 3rd Respondent [INEG] 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.
(c) 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.
(d) 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.
(e) The fraud was further demonstrated by Exhibits 63RD1 to 63RD19 (lNEC Forms EC40G) which show that there were no valid elections in the 388 polling units where the additional 213,495 votes claimed by the 1st Appellant/Respondent were allegedly gen
(4) THE JUDGMENT SOUGHT TO BE SET ASIDE IS A NULLITY IN THAT IT WAS GIVEN PER INCURIAM BY REASON OF THE FOLLOWING: .
(a) By Exhibit A1 (Form EC8D) the total number of voters accredited for the Governorship Election held on March 2019 in Imo State was 823,743,while the total valid votes cast was 731,485.
(b) With the inclusion of 213,695 votes for the 1st Appellant/Respondent and 1,903 to the votes of the 1st Applicant, as ordered by this court, the total number of votes cast at the election now, stands at 953,083 (i.e. 731,485 + 213,695 + 1,903) making the total number of votes cast at the election to be far in excess of the total number of voters accredited for the election, 129,
(c) It is unlawful for the total number of votes cast in an election to exceed the number of accredited voters and that illegality rendered (he judgment sought to be set aside null and void.
(d) The Appellants/Respondents pleaded in paragraph 39 of their petition that a supplementary election should be conducted in the 388 polling units where the additional votes that created the illegality were alleged to have been cast and that pleading was binding on the Appellants/Respondents and the court.
(5) THE JUDGMENT SOUGHT TO BE SET ASIDE IS A NULLITY IN THAT .THIS HONOURABLE COURT WAS MISLED TO ENTER THE JUDGMENT BY REASON OF THE FOLLOWING:
a) The 1st Appellant/Respondent alleged that votes from 388 polling units were unlawfully excluded or cancelled and urged the court to. Include in the computation of the election results the votes from those polling unit At the same time the 1st Appellant/Respondent prayed that fresh elections be conducted in the said polling units thus rendering the petition speculative.
(b) The Appellants/Respondents failed to plead the votes scored by all the parties in the 388 affected polling units. Only the votes allegedly scored by the 1st Appellant/Respondent and the 1st Applicant were pleaded – an omission which rendered the petition incompetent.
(c) This Honourable Court was consequently misled into making a vague order directing the inclusion of votes from the 388 polling units without stating or specifying the particular number of votes to be included from those polling units for all the parties.
(d) Without computing the votes for all the parties from the 388 polling units this honourable court was misled into making a declaration that the 1st Appellant/Respondent was the winner of the gubernatorial election in Imo State – an election that the Appellants/Respondents had themselves branded or stigmatized as invalid on account of non- compliance.”
(5) THE JUDGMENT SOUGHT TO BE SET ASIDE IS A NULLITY IN THAT .THIS HONOURABLE COURT WAS MISLED TO ENTER THE JUDGMENT BY REASON OF THE FOLLOWING:
(a) The 1st Appellant/Respondent alleged that votes from 388 polling units were unlawfully excluded or cancelled and urged the court to include in the computation of the election results the votes from those polling units. At the same time the 1st Appellant/Respondent prayed that fresh elections be conducted in the said polling units thus rendering the petition speculative.
(b) The Appellants/Respondents failed to plead the votes scored by all the parties. in the 388 affected polling units. Only the votes allegedly scored by the 1st Appellant/Respondent and the 1st Applicant were pleaded – an omission which rendered the petition incompetent.
(c) This Honourable Court was consequently misled into making a vague order directing the inclusion of votes from the 388 polling units without stating or specifying the particular number of votes to be included from those polling units for all the parties.
(d) Without computing the votes for all the parties from the 388 polling units this honourable court was misled into making a declaration that the 1st Appellant/Respondent was the winner of the gubernatorial election in Imo State – an election that the Appellants/Respondents had themselves branded or stigmatized as invalid on account of non-compliance.
As all eyes now seem focused on the Supreme Court, and not writing off the chances of Governor Uzodinma, there could be a situation whereby, in the end, Nigerians would have cause to be thankful to Ihedioha and the PDP for going back to the Supreme Court.
DISCLAIMER
The OPINION / COLUMN is authored by independent contributors to the National Accord Newspaper. While contributors adhere to our editorial guidelines, they are not employed by the National Accord Newspaper. The perspectives and opinions expressed herein are solely those of the author and do not represent the views of the National Accord Newspaper or its staff.
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