Imo State of Nigeria and the whole country was thrown into shock when the news broke out that on 14 January 2020, the Supreme Court sacked Mr Emeka Ihedioha as the Governor of the State. Mr Ihedioha became the first Governor among the set of Governors elected in 2019 to be removed from office through judicial means. The Supreme Court came under heavy attack by those who found it difficult to contain the shock. We shall present a highlight of the Court’s decision and discuss same with a view to determining whether the apex Court went out of line.

Imo Governorship Election and INEC’s Results

Recall that Governorship Election was conducted in Imo State on 9th March 2019. Senator Hope Uzodinma contested under the platform of the All Progressives Congress (APC). Mr Ihedioha contested under the platform of the Peoples Democratic Party (PDP). Other contestants were Mr Uche Nwosu of Action Alliance, Mr Ifeanyi Ararume of All Progressives Grand Alliance (APGA) and 66 others. Mr Ihedioha was returned as the winner by the Independent National Electoral Commission (INEC). Mr Nwosu came second while Mr Ararume and Mr Uzodinma came third and fourth respectively.

Mr Uzodinma’s Petition

Mr Uzodinma and his Party, APC, challenged the outcome of the election at the Election Petition Tribunal on two grounds – That Mr Ihedioha was not validly elected by majority of lawful votes cast; and that the declaration and return of Mr Ihedioha was invalid by reason of non-compliance with the Electoral Act. Mr Uzodinma sought several reliefs including the nullification of Mr Ihedioha’s return and declaration that he (Mr Uzodinma) was the winner of the election.

It was alleged that election held in 27 Local Government Areas, 305 Electoral Wards and 3,523 polling units – that INEC cancelled election in 252 polling units, collated results from 2,883 polling units and excluded results from 388 polling units.  (This alleged exclusion of some lawful votes is the crux of the case of Mr Uzodinma). Mr Uzodinma and APC contended that they scored overwhelming majority in the 388 polling units – they argued that they were entitled to 213,695 votes from the 388 polling units while Mr Ihedioha was entitled to 1,903 votes from the same 388 polling units – that Mr Ihedioha was returned based on wrong computation of votes from the 2,883 polling units.

The Tribunal dismissed the petition. Mr Uzodinma and APC appealed to the Court of Appeal. On 19/11/2019, the Court of Appeal, in a majority of 4 to 1, dismissed the appeal filed (Oho, JCA dissented).

Appeal to the Supreme Court

Mr Uzodinma and APC appealed to the Supreme Court as 1^st and 2^nd Appellants while Mr Ihedioha, PDP and INEC were the 1^st, 2^nd and 3^rd Respondents.

Challenge of Mr Uzodinma’s Nomination by APC

At the Supreme Court, the 1^st Respondent (Mr Ihedioha) challenged the validity of the nomination of the 1^st Appellant (Mr Uzodinma) by the 2^nd Appellant (APC). This issue (a pre-election issue) was raised for the first time at the Supreme Court without seeking and obtaining leave (permission) of the Supreme Court. The Supreme Court held, in line with established principles, that a fresh issue cannot be raised for the first time at the Supreme Court without the Court’s permission. More so, the Supreme Court lacks the jurisdiction to hear a matter bordering on pre-election issue as the court of first instance – meaning that it is only the High Court of a State (Imo State in this regard) that has the jurisdiction to hear the same as the Supreme Court can only hear an appeal (from the Court of Appeal) resulting from any emanating decision. The Court, per Kekere-Ekun, JSC, in dismissing the application rightly concluded as follows (at page 10 of the Judgment):

It is for these reasons that I agree with learned Counsel for the Appellants that the validity of the 1^st Appellant’s nomination as a candidate of the 2^nd Appellant for the Governorship Election in Imo State is a fresh issue raised for the first time in this Court without leave. Furthermore, it is a pre-election matter, in respect of which this Court lacks original jurisdiction to determine same in a post-election appeal.

It may be a point of confusion (especially to non-lawyers) why the highest Court in the land would hold that it lacks the power to hear and determine any case, whether pre-election or post-election matter. The answer is that jurisdiction (power) to hear a case is not about whether a court is high or low in status. The jurisdiction to entertain any case is prescribed by statute. Thus, if a statute donates the power to hear a case to the High Court, the Supreme Court cannot hijack same based on its status as the highest Court. The statute in this instance is the Electoral Act, 2010 (as amended). Section 87 (9) gave power to the Federal High Court or the High Court of a State or High Court of the Federal Capital Territory to deal with pre-election matters. Therefore, the Supreme Court was right in its holding.

Respondents’ Contention

The gist of the Respondents’ contention was that the Appellants’ pleadings (that is the statement of facts relied on by the Appellants) were contradictory and unreliable in terms of the calculation of scores allegedly excluded. Also, that the Appellants failed to call the makers of the documents (result sheets and other documents) relied upon and the relevant polling unit agents who claimed to be witnesses. The Respondents also challenged the signatures on the results from 388 polling units presented by the Appellants on the basis that the results were allegedly fake or forged.

Supreme Court’s Findings that Changed the Tempo of the Game

Failure of Election to Hold and Exclusion of Votes

An allegation that an election did not hold in certain polling units is clearly different from an allegation that lawful votes were excluded from a polling unit. Parties in this case were only at crossroads regarding the issue as to whether or not the Respondents excluded votes due to the Appellants from 388 polling units and not on whether election took place in those units.

The Tribunal and the Court of Appeal had held that in order to prove unlawful exclusion of results in the 388 polling units, the Appellants must call the polling unit agents to testify to the fact that elections took place in their respective units. This is notwithstanding the fact that parties were not at dispute as to whether election held in those units.

The Supreme Court however found that the Appellants did not at any stage challenge the holding of elections in any polling unit and that their position was simply that elections held, they scored votes but that their votes from 388 polling units were excluded at collation stage. The apex Court also found that INEC did not deny that elections held at the 388 polling units. Rather, INEC’s contention was that the results relied upon by the Appellants were false. They undertook to produce the genuine results. The allegation of the falsity of the results tendered by the Appellants are of a criminal nature that needs to be proved beyond reasonable doubt. But INEC and the other Respondents woefully failed. The Supreme Court held (at pages 36-37 of the Judgment):

Although they relied heavily on the assertion that Exhibits PPP1 – PPP366 were fake, no evidence was adduced to prove the assertion at all, let alone beyond reasonable doubt. The Respondent failed to produce the “genuine” results as pleaded.

Duplicate copies of results require no certification

Meanwhile, the Court of Appeal had held that Exhibits PPP1 – PPP366 required certification and based on same not being certified, the documents were ignored. The Supreme Court had no difficulty in upturning this holding on the basis that the said documents were merely counter-part/duplicate of an original and therefore required no certification in line with Section 86(2) of the Evidence Act, 2011.

Results Tendered by Police Officers are reliable

Exhibits PPP1 – PPP366 were tendered by a Deputy Commissioner of Police (PW54) based on subpoena issued on him by the Court. The Supreme Court held that the exhibits tendered by the Police Officer was reliable. The law has since recognised that election results from police officers are reliable in that election result forms given to police officers at the polling booths constitute an internal and inbuilt control mechanism or measures designed to unravel unlawful cancellations, alterations, mutilations, and juggling of figures. This was the position as stated in the case of Nnadi v. Ezike [1999] 10 NWLR (Pt. 622) 228 at 238 relied on by the Supreme Court (at page 39 of the Judgment). The apex Court also upheld the dissenting views of Oho, JCA of the Court of Appeal in this regard.

Although the Nigeria Police do not enjoy so much of public trust per se and are no leading examples on issues of integrity, yet it was the Respondents’ undoing in that they failed to disprove the allegation that the votes were excluded from the 388 polling units and that the results tendered by the respected senior Police officer on behalf of the Appellants were fake, as required by Paragraph 12(2) and 15 of the First Schedule to the Electoral Act, 2010 (as amended). INEC failed to produce the results it considered genuine. The implication of the failure of the Respondents to discharge their burden of proof was that the 388 polling units’ results tendered by the Appellants were deemed unchallenged.

Court of Appeal Failed to Consider Credible Evidence

The Supreme Court also held that the Court of Appeal failed to give any consideration to the evidence of the witnesses (collation agents) who testified that they witnessed the exclusion of the results.

Court of Appeal Misconstrued Appellants’ Case

Above all, the Supreme Court held that the crux of the Appellants’ case was misconstrued by the Court of Appeal (and of course, the Tribunal) and that the Court misplaced the burden of proof, leading to the erroneous decision arrived at. This was in line with the holding of Oho, JCA where his Lordship took the position that “In the instant Appeal, having been so clearly demonstrated that the trial Tribunal misconstrued the issues thrown up by the Appellants’ Petition, what then becomes of the position where a Court or tribunal is said to have misconstrued the nature of what it is called upon to decide? The inescapable answer is that it will in all probability arrive at a wrong conclusion.” (Page 39 of the Dissenting Judgment).

Conclusion

Flowing from the foregoing, we are unable to fault the decision of the Supreme Court on any strong ground. The dissenting Judgment of Oho, JCA at the Court of Appeal is commended too.

We must note that the public sentiment that Mr Uzodinma came 4^th in the election is not material on the face of the allegation of exclusion of some lawful votes. The implication is that if such unlawfully excluded votes were added, Mr Uzodinma’s scores will naturally topple that of everyone else including Mr Ihedioha and other contestants.

Perhaps the Respondents took it for granted that any person who loses an election has a battle of a lifetime to unseat the person declared as the winner. This accounts for the reason the Respondents took the posture that the Appellants have it all to prove, thereby neglecting their own burden of proof. This case will certainly go down in history as one of the most remarkable election petition cases in Nigeria.

Image credit: Vanguard.