The Supreme Court will on Monday hear an application filed by Emeka Ihedioha of the Peoples Democratic Party (PDP), asking it to review a judgement on Imo governorship that declared Hope Uzodinma of the All Progressives Congress (APC) winner of the March 9, 2019, election.
Mr Ihedioha and the PDP had approached the court after the apex court on January 14 nullified his victory and declared Mr Uzodinma as the winner of the election.
Mr Ihedioha was earlier declared the winner of the election by the electoral umpire, INEC.
PREMIUM TIMES had reported how, in a unanimous judgment of the seven-member panel, read by Justice Kudirat Kekere-Ekun, the apex court agreed that results in 388 polling units were unlawfully excluded during the collation of the final governorship election result in Imo State.
Mr Kekere-Ekun said with the results from the 388 polling units added, Mr Uzodinma polled a majority of the lawful votes and ought to have been declared the winner of the election by the poll commission.
Strangely, the court, however, did not provide the details of the new votes scored by each of the candidates after the addition of the results from the 388 polling units.
Consequently, the court voided and set aside the declaration of Mr lhedioha as the winner of the 2019 governorship election in the South-east state.
The court ordered that the certificate of return issued to Mr lhedioha be immediately withdrawn by INEC and a fresh one issued to Mr Uzodinma as the elected governor of the state.
“Vote due to the appellant Senator Hope Uzodinma and the APC from 388 Polling Units were wrongly excluded from scores ascribed to the appellant (to them),” the justices ruled.
“It is thereby ordered that the appellant votes from 388 Polling Units unlawfully excluded from the appellant vote declared shall be added and that the first respondent, Emeka Ihedioha, was not duly elected by a 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 accordingly set aside.
“It is, hereby, declared that the first appellant (Mr Uzodinma) holds the majority of lawful votes cast at the governorship election held in Imo State on March 9, 2019.”
Dissatisfied with the apex court’s decision, Mr Ihedioha and the PDP in their application filed through their lawyer, Kanu Agabi, said Mr Uzodinma obtained the judgement by deceit.
Mr Ihedioha added that the apex court was misled to have given that judgment.
The former governor described the apex court’s judgment as a nullity, and asked that the decision be set aside.
The aggrieved party brought their application pursuant to Section 6 (6) of the 1999 Constitution as amended and Section 22 of the Supreme Court Act 2004.
In buttressing their allegation of fraud, Mr Ihedioha and the PDP claimed that Mr Uzodinma and his party fraudulently misled the apex court into holding that 213,495 votes were unlawfully excluded from the votes they scored in the governorship election held on March 9, 2019.
They said Mr Uzodinma, while under cross-examination, admitted that he was the person, who computed the result that gave him the 213,495 votes alleged to have been excluded from his total votes in the election and not INEC.
According to them, “The fraudulent nature of the additional votes was demonstrated by the fact that the total votes cast as shown in the first 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 first appellant/respondent showed only the votes of the first applicant and the first appellant/respondent without specifying the votes scored by the other 68 candidates who participated in the election.”
They further argued that the judgment, “which is a nullity sought to be set aside because it was given per incuriam.”
Per incuriam, literally translated as “through lack of care”, is a device within the common law system of judicial precedent. A finding of per incuriam means that a previous court judgment has failed to pay attention to a relevant statutory provision or precedents.
They also said by Exhibit A1, the total number of voters accredited for the election was 823, 743 while the total valid votes cast was 731, 485.
Also, as part of their argument was that the inclusion of 213, 695 votes for the first appellant/respondent, made the total number of votes cast at the election to be more than the total number of votes accredited for the election.
The applicants, among other grounds argued that the majority judgment of the Court of Appeal dismissing Mr Uzodinma’s petition as incompetent continues to subsist as the appeal against that decision was not considered by the apex court.
But, in a 19-paragraph affidavit filed in opposition to Mr Ihedioha’s request, Mr Uzodinma and the APC said the 60 days allowed for the apex court by the constitution has since elapsed.
“The undisputed facts relating to the respondents/applicants’ motion hereinafter referred to as “the motion” are to the effect that the judgment of the Court of Appeal was delivered on 21st September 2019, while the one sought to be set aside, was delivered on 14th January 2020. Clearly, the 60 days allowed by Section 285(7) of the 1999 Constitution (as amended) for this Hon. Court to hear and determine an appeal from the Court of Appeal in an election matter, lapsed on January 17, 2020. The motion to set aside was filed on February 5, 2020, 19 days after the time allowed by the Constitution.
“It is now a settled law that the 60 days’ time limit to determine and conclude litigation on election matters is sacrosanct and cannot be extended by any guise,” they stated, in the counter-affidavit filed on their behalf by their lawyer, Damian Dodo, a Senior Advocate of Nigeria.
In the counter-affidavit deposed to by Mathew Mola, the two respondents said the Supreme Court “is not in the habit of sitting on appeal over its own judgment as being demanded by Mr Ihedioha.”
The deponent averred that by the rule of the apex court, the court is prohibited from reviewing its own judgment once delivered except to correct clerical mistakes or accidental slips.
“As the highest court in the land, the Supreme Court jealously guides its process against abuse by litigants,” he said, “and does not indulge in academic exercise or answer by hypothetical questions.”
He said contrary to the claim of Mr Ihedioha in his application, the scores of all the candidates in the election as declared by INEC were clearly set out.
The deponent added that a petitioner, whose votes were excluded from the declared results, is entitled to compute the votes excluded in the presentation of his case.
The counter-affidavit denied the allegation that Mr Uzodinma admitted that he allocated votes to himself or that the votes in the 388 polling units were in excess of the registered voters.
“I know as a fact that the issue of a total number of votes cast exceeding the total number of accredited voters did not arise from the petition or the appeal considered and determined by the Supreme Court.
“I also know that the issue of the votes of 68 other candidates not being reflected was never raised by Ihedioha in the appeal that led to the judgment now being challenged,” he added.
The deponent noted that Mr Uzodinma and APC did not mislead the Supreme Court “to perpetrate any fraud in the appeal that brought them to power”, describing Mr Ihedioha’s allegations as “wild and baseless”.
The governor and his party, in their joint preliminary objection, asked the apex court to strike out the request for being baseless and unwarranted.
They argued that the application by Mr Ihedioha constitutes a gross abuse of court process, an exercise in futility and an attempt to force the apex court to sit on appeal in its own judgment.
According to the respondents, by virtue of Section 285 of the 1999 Constitution (as amended), the Supreme Court could no longer decide on the matter that has become statute-barred.
A similar application would be heard tomorrow, where APC is seeking a review of the judgment which nullified the victory of the candidates of the party at the 2019 general elections held in Zamfara State.
Meanwhile, some pro-democracy groups and concerned civil society orgnisations on Sunday appealed to the Supreme Court to “rise to the occasion, rekindle hope and demonstrate courage in the interest of justice, by ensuring that the errors reversed and not preserved and justice is not delayed in its review of the Imo State Governorship election appeal”.
The groups, Coalition in Defence of Nigerian Democracy and Constitution, Coalition for Democracy and, Justice and Unity and other CSOs, in a joint-statement sent to PREMIUM TIMES and signed by Ariyo-Dare Atoye, urged the justices of the apex court “to uphold the truth, show fairness, and ensure that justice is regained in the instant case.”
The statement read: “We are delighted that the respected justices of the Supreme Court have not been invited to review its own judgement based an allegation of a judgement obtained by fraud in the case of Imo case, but via a window of justice prescribed by the apex court under order 8 rule 16.
“The extremely unique opportunity of order 8 rule 16 made available by the Supreme Court for use in exceptional cases like that of the Imo Appeal, is a validation of the courage of the apex court that only God is infallible and also that the fallibility of the Supreme Court can be redressed to preserve only justice not error, as the final court.
“We make bold to say that it is more than a national consensus that the Imo judgement was given per incuriam with due respect to the Supreme Court, and since the attention of the apex court has been through a formal application for review drawn to the obvious errors and slips in the matter, it was only a matter of when and not if, for the court to depart from the judgement of January 14, 2020.
“We humbly and passionately appeal to the Supreme Court to review and redress its January 14, 2020 ruling over Imo in the instant case because, an opportunity to depart from the errors made in the decisions may not come in the distant future and these decisions reached would be cited at the lower courts to constrain future elections petitions.
“The January 14, 2020 judgement of the Supreme Court was delivered in error to the extent that: an accidental slip was made in ruling on results from two political parties instead of 70; clerical error was made in calculating results from 388 polling units instead of less 366 polling units tendered by the principal witness (PW54)
“Another clerical error was made in allowing the votes accepted by the Supreme Court to be higher than the number of accredited voters for the election; and also, the apex committed a slip in accidentally omitting the its well settled judgment over spread in declaring a winner.
“Having observed clear cases of errors and slips in the Supreme Court ruling of January 14, 2020, we have decided to equally appeal to the apex court to remember its decision in FRN V. MKO Abiola (1995) 7 NWLR, that: justice must be rooted in confidence and confidence is destroyed when right-minded people go away thinking: The judge is biased.
“We believe that the Supreme Court has the power to overrule itself and do justice to Imo people, because according to the late sage and jurist, Oputa JSC, it is far better for the court to admit an error than to persevere in error,’ and we believe the Supreme Court will do the needful.
“Justice is the ultimate, justice is the beacon of the Supreme Court and the Supreme Court is last hope of every Nigeria, and therefore it is expected that it would neither preserve error over the Imo matter nor persevere in error.”
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