Imo State and the Supreme Court of Nigeria:Crooked lines and straight curves

This article is: concise, easy to understand,  in-depth, powerful, perhaps the most detailed account of the 2019/2020 Imo State Gubernatorial Election Saga and definitely worth all your while.

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On Tuesday the 14th of January 2019, a seven-member panel of the apex court, led by Chief Justice Tanko Muhammad, declared Hope Uzodinma of the All Progressives Congress (APC) as the winner of the March 9, 2019 gubernatorial election in the state.

The court then ordered that the certificate of return wrongly or unlawfully issued to Rt. Hon. Emeka lhedioha be immediately withdrawn by the Independent National Electoral Commission (INEC) and a fresh one issued to Sen. Hope Uzodinma as the duly elected governor of the state.

The decision was severely polarizing with the populace and the legal cognoscenti divided along partisan, class and ethnic lines. However, the opinion of a vast majority of the populace backed by a clear appraisal of the facts and commonsense, including that of this writer, is that the decision of the Supreme Court in Sen. Uzodimma & APC V. INEC & 2 ors is in all ramifications, a case of bodacious injustice given away by simple and poorly-done mathematics.

This article is particularly pertinent given that the initial, general indignation which met the decision seems to have turned into apathetical despair in most parts of the country bar Imo State. This article intends act as a sequel to previous treatises on this incident and state clearly once again that this decision of the Supreme Court inexplicably wants the populace to believe that one plus one equals three. The Supreme Court is final but not because it is always right; it is only right because it is final.

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BRIEF FACTS OF THE CASE:

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, met the constitutional requirements, and was thus 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

Ikedi Ohakim (AP): 6,846

Now each of these candidates filed an election petition at the tribunal premised on different grounds. Senator Uzodinma’s petition(the focal point of this article) was premised largely on the ground that elections were conducted in certain 388 polling units, but that 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.

The respondents in the petition, including INEC, Emeka Ihedioha and the Returning Officer denied the above allegations and characterised the purported results as false in their respective replies to the petition. The respondents argued on their own part, in their reply to the petition that the petitioners had sought to introduce false election sheets into the result of the election and thus must provide the strictest proof that:

1. Those 388 polling units in question were even in existence;

2.  There was distribution of election materials in those purported polling units;

3. That there were elections in those purported 388 polling units and that;

4. Those results were original.

AT THE ELECTION PETITION TRIBUNAL:

At the hearing of the petition, Senator Uzodinma and APC(the Petitioners), 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.

The purported result sheets of the election, relied on by the petitioners, were tendered from the Bar in ‘Ghana must go’ bags and sacks.  Those result sheets were rarely referred to throughout the trial, except for the few which were specifically mentioned by the 28 polling unit agents. PW54, Rabiu Hussein, a Deputy Commissioner of Police, was the star witness of the petitioners. He was sub-poenaed by the tribunal upon the request of the petitioners to give testimony before the court. He claimed that he was in possession of some bags which he described as result sheets from 366 polling units with votes accrual to the APC in the elections which were wrongly excluded. His presence and testimony were strongly challenged by the respondents as it was cited that he was not authorised by the Inspector General of Police or the Commissioner of Police to be there. He was from the Benue Police Command. He did not open any of the purported result sheets nor refer specifically any of them. He admitted, under cross-examination, that he did not know the figures they contained or the polling units they were concerned with.

It is most important to note that the 28 polling unit agents and PW11 who incidentally was Hope Uzodimma, admitted under 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.

PW11(Hope Uzodimma) admitted upon cross-examination, when confronted with his chart in the petition, that some of the results he listed showed over-voting!

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(the police officer) 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. 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.

AT THE COURT OF APPEAL:

The Petitioners, Hope Uzodimma and the APC however appealed the tribunal’s decision.

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 (the Police Officer) as a witness and rejecting his evidence. The respondents offered their own opposing arguments.

The minority judgment by Fredrick Oho JCA,  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.

The Court of Appeal however, in its majority decision of four-to-one, agreed with the petitioners that PW54 was a competent witness, but then reaffirmed the decision of the tribunal that his evidence had no probative value. IT ALSO DISMISSED THE APPEAL.

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.

As stated above, on Tuesday, 14-1-2020, the Supreme Court heard arguments on the appeals and delivered judgment soon after. The petitioners’ appeal was allowed, but Ihedioha’s appeal was struck out.

In the unanimous judgment of the seven-member panel, read by Justice Kudirat Kekere-Ekun, the apex court strangely agreed with the appellants that results in 388 polling units were unlawfully excluded during the collation of the final governorship election result in Imo State.

Justice Kekere-Ekun said with the addition of the results from 388 polling units, Mr Uzodinma pulled a majority of the lawful votes and ought to have been declared the winner of the election by the Independent National Electoral Commission, INEC. The Court therefore ordered that INEC issue Hope Uzodimma with a certificate of return as the duly elected governor of Imo state.

1. The Supreme Court, in a host of cases, the latest and the most celebrated being Atiku V Buhari & Ors, has consistently decided that for a petitioner to succeed in an allegation of infraction of any provision of the Electoral Act especially one complaining about malpractice, as in this case, wrongful exclusion of votes, THE PETITIONER MUST CALL WITNESSES FROM ALL POLLING UNITS. (emphasis mine) –  Udom Emmanuel v. Umana2016) 12 NWLR 9Pt. 1526) 270 at 286.; Wike v.  Peterside (2016)7 NWLR (Pt. 1512) 452; Buhari V. INEC(2008); OMOBORIOWO v. AJASIN (1984) 1 SCNLR 108; HASHIDU v. GOJE (2003) 15 NWLR (Pt. 843) 352; Oke v. Mimiko (2014) 1 NWLR (Pt. 1388) 332 at 376; Andrew v. INEC (2018) 9 NWLR (Pt. 1625) 507 at 563.

ANALYSIS: In this case and against the above precedents, Uzodimma and the APC called witnesses from only 54 out of the 388 polling units were results were allegedly wrongly excluded! Yet inexplicably, the Supreme Court gave judgment in his favor.

2. As recent as the 2019 case between in Atiku Abubakar v. INEC SC.1211/2019 (unreported), the Supreme Court per Tanko Mohammed JSC, was of the opinion that: “The law is trite that a person who did not make a document is not competent to give evidence on it. It is also settled that where the maker of the documents is not called to testify, the document would not be accorded probative value by the court.”  See also the Ekiti state election case of PDP v. INEC & Others marked SC. 409.2019; Atiku Abubakar & Ors v. Umaru Musa Yar-adua & Ors (2008) 19 NWLR (Pt.1120) 1 at 173 E – G.

ANALYSIS: In this case, the PW54(the Deputy Commissioner of Police) who tendered the purported result sheets had, under cross examination unequivocally admitted that, (1) he was not in any of the 388 polling units on the election day; (2) that he was not present when the documents were recorded, prepared and or entries thereon made and; (3) that he did not even know or have the names of the Policemen who allegedly collected the documents from the 388 polling units and the polling units they worked! The Supreme Court yet held that the evidence given by the PW54 was valid with regard to the purported result sheets and accorded probative value to his testimony.

Poorly-done Mathematics:

It is on record that the votes analysis from the Imo governorship election as at March 11, 2019 when the results were declared were as follows:

-Total Accredited Votes: 823,743

-Total Valid Votes: 739,485

-Cancelled Votes: 25, 130

-Total Valid Votes: 714,355

But at the Supreme Court, by the inclusion of the supposed wrongly excluded votes, the Total Valid Votes was increased to 950,952! This accounts for 127, 209 votes in excess of Total Accredited Votes of 823,743! How does this tally?

QUESTIONS RAISED AND CONCLUSION:

If the most minuscule of doubts still remains in the inner recesses of the mind of the reader with regard to the gross injustice of this decision of the Supreme Court of Nigeria upon the good people of Imo State, these questions should serve as a beacon to properly instruct such mind:

1. Couldn’t the Supreme Court have ordered for a rerun of the governorship election since the exclusion of those results suffices for a substantial non-compliance with the Electoral Act?

2. The bags which purportedly contained the results tendered as the wrongly excluded result sheets were not even opened at the Election Petition Tribunal as there was no legal basis to do so. Does the Supreme Court now have the powers to act as a collation center for INEC and to formulate and allocate votes as election results? See Labaran Maku v. Umaru Tanko Al-Makura (2016) 5 NWLR (Pt. 11505) 201 at 230.

3. What were the exact figures from each of the various 388 polling units generated and allocated to Hope Uzodinma/APC by the Supreme Court?

4. Is the Supreme Court saying that all the votes from the alleged 388 polling units were for the APC alone in an election that was contested by over 70 candidates?

5. Can the Supreme Court sit in Abuja on January 14, 2020 to increase the total number of accredited votes in election held in Imo State on March 9, 2019?

6. Is there any law, which permits the Supreme Court or anyone else for that matter, to unilaterally increase the total accredited votes by any margin after the accreditation and/or the election?

7. What shall become of the numerous judicial precedents by the same supreme Court in several cases, including the recent presidential election case of Atiku Abubakar V. INEC &Buhari, regarding the strict level of proof required of a petitioner in an election petition?

8. On that very March 9, 2019, in the Imo State House of Assembly elections which was conducted concurrently with the gubernatorial elections, Hope Uzodimma’s APC failed to secure even one of the 27 Legislative seats in the state. Not even one! And also there was one accreditation for the two elections(guber and legislative). How is it possible then that a party who could not secure even one seat in the State House of Assembly could magically win at the governorship polls with such a large margin?

How the Supreme Court came about this decision and the votes accrued to now impose Hope Uzodimma as the new governor of Imo State continues to defy judicial logic and commonsense. This has been described in many circles as a Coup D’etat by the APC cabal against the political will of the good people of Imo State, who went to the polls on March 9, 2019 in mass and made their choice. Yours truly, is of that same orientation. Future judicial review of this decision is strongly advocated.

If this is not injustice, what then is?

About the author

GODSWILL IZUNNA EKWUNIFE is a 300 Level Law Student of the University of Benin, Edo State, Nigeria. He is also an official member of Amnesty International.

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