Saturday, 18 January 2020

Ihedioha Vs Uzodinma: Legal team opens up

ihedioha
Supreme Court judgement in Senator Uzodinma and APC Vs Emeka Ihedioha and 2 others:
Putting The Record Straight – Rotimi Peters Esq.

1. INTRODUCTION
1.01 On 14.1.2020, the Supreme Court heard the appeal filed by Senator Hope Uzodinma and APC (numbered as shown above) against the judgment of the Court of Appeal affirming the victory of Emeka Ihedioha and the PDP in the Imo State Governorship election on 9.3.2019.




1.02 The Court of Appeal had, on 19.11.2019, affirmed the judgment of the Governorship election tribunal which dismissed the petition of Senator Uzodinma and APC against the return of Emeka Ihedioha and PDP at the Imo State governorship election held on 9.3.2019.

1.03 Soon after hearing oral arguments of senior counsel for the parties, the Supreme Court delivered its judgment and allowed it, and ordered, amongst others, that Senator Uzodinma be sworn-in as the Governor of Imo State.



1.04 Since the delivery of the judgment, commentators have rendered all kinds of opinions on the facts of the case and the judgment of the Supreme Court. Some of the commentators are legal practitioners who were not involved in any professional manner with the case from its inception at the election tribunal up to its conclusion at the Supreme Court. Their comments or opinions now in the public domain, expectedly, are shallow and uninformed and are capable of misinforming the public.

1.05 It has, therefore, become imperative to put the record straight for the benefit of the reading public, even if it would not reverse the unfortunate decision of the Supreme Court and the obvious injustice it has occasioned.

2. BRIEF FACTS OF THE CASE
2.01 In the result of the Imo State Governorship election held on 9.3.2019, INEC declared that Emeka Ihedioha scored the highest number of votes – 273,404 amongst all the candidates and met the constitutional requirements, and was returned. The other three candidates coming behind him were credited with the following votes:

Uche Nwosu (AA): 190,364

Ifeanyi Araraume (APGA): 114,676

Hope Uzodinma (APC): 96,458

2.02 Each of these candidates filed an election petition at the tribunal premised on different grounds. Senator Uzodinma’s petition was premised largely on the false ground that elections were conducted in certain 388 polling units, but the results of the elections which he had copies of (and which were favourable to him) were wrongly excluded by INEC in their collation of results of the election; that if those results were taken into account, he would have won the election.

2.03 The respondents in the petition, including INEC, denied the above allegations and characterised the purported results as false in their respective replies to the petition. Two short examples may be provided here. In paragraph 8i of Ihedioha’s reply to the petition, it is averred inter alia:” . . . Petitioners have embarked on a scheme to introduce false result sheets into the result of the election. They are thus put to the strictest proof of the origin of the result, the existence of the polling units as well as the distribution of election materials to those purported Polling Units.”

2.04 In paragraph 7c of INEC’s reply, it is averred inter alia: “The 3rd Respondent did not omit to record and reckon with votes due to the Petitioners as alleged. . . and any such showing results are fictitious and suborned.”

2.05 It is thus clear from the foregoing, and having regard to decided cases, particularly of the Supreme Court, that the petitioners had the burden of proving the conduct of elections in those polling units, the results emanating from them and the impact those results would have on the result of the election as declared.

2.06 At the hearing of the petition, Senator Uzodinma and APC called 54 witnesses out of which only 28 were polling unit agents. No ward collation agent was called as a witness. Senator Uzodinma himself testified as PW11. His State Collation agent testified as PW51 and a certain police officer testified as PW54. The other 23 witnesses were local government collation agents and sundry witnesses.

2.07 It is noteworthy that purported results of the election, relied on by the petitioners, were tendered from the Bar in bags and sacks! They remained there throughout the trial, except for the few which were specifically mentioned by the 28 polling unit agents. PW54, a Deputy Commissioner of Police, whose presence and testimony were challenged by the respondents, tendered documents in a pack which he described as result sheets from 366 polling units. He did not open any of them or refer specifically to them. He admitted, in cross-examination, that he did not know the figures they contained or the polling units they were concerned with.

2.08 It is, again, noteworthy that the 28 polling unit agents and PW11 admitted, in cross-examination, that the result sheets which they identified were not legible or did not contain the scores of all the political parties which contested the election. The 28 polling agents also admitted that those purported result sheets did not contain any entry to show the number of ballot papers issued to the respective polling units; the number of ballot papers used and unused in those polling units. Many of the sheets did not show the names and signatures of the presiding officers, and the date of issuance. In some of them, the dates written on them were before or after 9.3.2019.

2.09 PW11 admitted in cross-examination, when confronted with his chart in the petition, that some of the results he listed showed over voting.

3. JUDGMENTS OF THE COURTS
3.01 It was because of the foregoing facts and evidence that the election tribunal, in its judgment, agreed with the respondents that the petitioners did not prove the existence of other results from the so-called 388 polling units. In respect of the evidence of PW54, the police officer, the tribunal, again, agreed with the respondents that he had no locus to be a witness and that his evidence was worthless as he could not tie his testimony to any of the documents he presented. The tribunal held that the petitioners merely dumped documents on the tribunal without relevant oral evidence.
3.02 In making these pronouncements, the tribunal relied on the many decisions of the Supreme Court and the Court of Appeal which have determined the manner such evidence as given by the petitioners should be evaluated. The tribunal, therefore, dismissed the petition.

3.03 At the Court of Appeal, the petitioners complained that the tribunal was in error in dismissing the petition and, in particular, in denouncing the presence of PW54 as a witness and rejecting his evidence. The respondents offered opposing arguments.

3.04 The Court of Appeal, in its majority decision of 4-1, agreed with the petitioners that PW54 was a competent witness, but affirmed the decision of the tribunal that his evidence had no probative value. It dismissed the appeal. The minority judgment upheld the complaints of the petitioners and held that they had proved their case, but it did not say, significantly, the number of additional votes which the petitioners proved in order to show that they had scored a majority of lawful votes cast in the election.

3.05 The petitioners, aggrieved with the decision of the Court of Appeal, appealed to the Supreme Court. Ihedioha, aggrieved with the portion of the decision that PW54 was a competent witness, also appealed to the Supreme Court, and his appeal was numbered as SC.1470/2019.

3.06 As stated above, on 14.1.2020, the Supreme Court heard arguments on the appeals and delivered a judgment soon after. The petitioners’ appeal was allowed, but Ihedioha’s appeal was struck out.

4. REMARKS
4.01 In allowing the appeal, the Supreme Court did not state the new scores which the petitioners proved from the 388 polling units, especially having regard to the following facts: (a) that only 28 polling unit agents out of the 388 polling units testified and they admitted that the result sheets had all the vices itemised earlier; (b) that PW11 also admitted over voting apparent in some of the results in the chart in the petition; (c) that more than 90% of result sheets were neither identified nor referred to by any witness; (d) that the respondent, particularly, INEC denied the existence of those result sheets and tendered documentary evidence to show that election did not hold in 388 polling units; (e) that PW54 tendered purported result sheets that were less than the number of polling units mentioned in the petition; (f) that PW54 did not open or read any of the purported result sheets and stated clearly that he did not know the figures or scores they contained or whether there were “mutations or tampering” in them, and that the documents were not submitted to him.

4.02 The Supreme Court did not state that it has computed the new scores, local government by local government, and determined that the petitioners had satisfied the requirements of section 179(2) of the Constitution before it arrived at the decision that Senator Uzodinma should be sworn-in as the new Governor of Imo State.

4.03 In reaching its decision, the Supreme Court ignored well-established principles of law that had guided its previous decision in similar cases. Perhaps, it is better to state that the Court turned those decisions upside down thereby creating the impression of a double standard.

4.04 Two recent decisions of the Supreme Court easily come to mind. The first decision, SC. 409.2019: PDP v. INEC & Others was delivered on 24.5.2019. It was in respect of the Ekiti State governorship election.

4.05 The second decision, SC. 1211/2019: Atiku Abubakar v. INEC (unreported) was delivered on 15.11.2019. At pages 62-63 of the judgment, the Supreme Court reiterated, thus:
Before I conclude on this issue, let me state that whenever documents are tendered from the Bar in election matters, the purport is to speed up the trial in view of time limitation in election matters. Such tendering is not the end itself but a means to an end. The makers of such tendered documents must be called to speak to those documents and be cross-examined on the authenticity of the documents. The law is trite that a party who did not make a document is not competent to give evidence on it. It is also the tested position of the law that where the maker of the document is not called to testify, the document would not be accorded probative value by the Court. That indeed is the fate of Exhibit P80 and P24.

4.06 If the decisions in the above cases were applied to the appeal of Senator Uzodinma and APC, the outcome would have been a dismissal of the appeal. It is a matter of concern and conjecture that the Supreme Court, inexplicably, chose to chart a new, strange course in their decision. Unfortunately, the Court did not indicate that it would give reasons for the decision. That would have offered the Court the opportunity to explain the basis of the decision and state the fate of the long-established principles of law it had led the legal profession and the public to believe were trite.

4.07 In the absence of the explanation, it would be difficult for practitioners and the litigating public to respect decisions of the Supreme Court thereby encouraging disregard of the rule of law.

4.08 Before concluding this piece, it is needful to draw attention to a decision of the Supreme Court in SC. 1384/2019: Ugwumba Uche Nwosu v. Action Peoples Party (unreported) delivered on 20.12.2019, during the pendency of the appeals being discussed.

4.09 The first two paragraphs of the judgment are remarkable. They read:
This Appeal deals purely with the issue of double nomination. The Appellant contested and won the primaries conducted by All Progressives Congress [APC] on 16/10/2018, and his name was forwarded to INEC (fourth Respondent) as the gubernatorial candidate of APC at the general election slated for 9/3/2019.
​But the Appellant also contested and won the Primaries conducted by another Party, Action Alliance, and on 2/11/2018, he was issued with “a Certificate of Return & Confirmation as the duly elected Governorship Candidate” of the said Party.

4.10 The Supreme Court, therefore, held that by “allowing himself to be nominated by two political parties, the Appellant, not only did an act that is not authorised by law, which is illegal, the Electoral Act clearly says in its Section 37, that such a nomination “shall be void”.

4.11 The implication of the above judgment is that Uche Nwosu was the nominated candidate of APC in the election, but that his nomination became void because he had secured “double nomination”. It followed that if Uche Nwosu was factually the candidate of APC in the election, Senator Uzodinma could not have, validly, also be the APC candidate in the same election.

4.12 It was for this reason that Emeka Ihedioha filed an application at the Supreme Court, which was argued on 14.1.2020, contending that Senator Uzodinma and APC’s appeal should be struck out because of the implication in the above-named Supreme Court judgment.

4.13 In the judgment, the Court summarily dismissed Ihedioha’s application on the false basis that the matter of double nomination was a pre-election decision and it could not be applied to the appeal which was a post-election litigation.

4.14 The Supreme Court, in this instance, chose technicality at the expense of substantial justice and denied Ihedioha the benefit of an established legal outcome.

4.15 The effect of the foregoing is that the judgment of the Supreme Court does not reflect the justice of the case. The electorate in Imo State has been short-changed.

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