Column Opinion

Supreme Court’s Quagmire In Ihedioha’s Unfinished Case, By Charles Ofoji

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“We are final not because we are infallible; rather we are infallible because we are final”. – Hon. Justice Chukwudifu Akunne Oputa, J.S.C.
The above notable pronouncement in jurisprudence forms part of the ipsissima verba of Justice Oputa of blessed memory, who was rightly described, even by his colleagues at the apex court, as the “Socrates of the Nigerian Supreme Court”.

Oputa made that remarkable statement while delivering the leading judgment (to which Obaseki, Nnamani, Karibi-Whyte and Agbaje all concurred) in Adegoke Motors Ltd v. Babatunde Adesanya & Another.

That was when the Supreme Court was the last bastion of hope for commonplace Nigerians. That was also when judges were elevated to the Supreme Court, totally on merit.

Fast-forward to January 14 and you cannot but scratch your head as you search for the answer to the question, how did we get here? However, the answer to this pertinent question is not the focus of this essay.

In any case, Supreme Court’s grotesque decision in Hope Uzodinma Vs Emeka Ihedioha triggered nationwide protests. It was the first time since the establishment of the apex court in 1963 that its decision had sparked nationwide demonstration. In fact, there was also a protest by Nigerians in London against that absurd decision during the UK/Africa Investment Summit last January.

In that case, a Justice Mohammed Tanko-led panel of seven justices, in a unanimous verdict, sacked Emek Ihedioha as Imo State governor and replaced him with Hope Uzodinma of the All Progressives Congress (APC), who came a distant fourth in the March 9, 2019 Imo governorship election.

Tongues have wagged, much has been written about that decision which defied the law, logic and commonsense. As goofy as it was, what remains incomprehensible is the fact that it was unanimous.

Could it still be the same Supreme Court of Justices Oputa, Eso, Bello, Uwais, Nnamani, Atanda-Williams, Belgore, Karibi-Whyte, Obaseki etc?

How could the highest court in the land scuttle democracy by unleashing a “judicial coup” that handed victory to Uzodinma, whose party never won a single seat in the Imo State House of Assembly? Did the will of Imo people matter to the seven learned justices? Nothing suggests that it did.

According to the results announced by the Independent National Electoral Commission (INEC), Ihedioha (PDP) polled the highest number of votes – 273,404 votes; followed in second place by Uche Nwosu (AA) who got 190,364 votes; in third place was Ifeany Ararume (APGA) with 114,676 votes; while Sen. Uzodinma came fourth with 96,458 votes.

Shockingly, the Supreme Court chose to prefer the testimony of PW54, Rabiu Hussein, a Deputy Commissioner of Police and the results tendered by him (marked Exhibit PPP1 to PPP366), which gave additional 213,695 votes to Uzodinma of APC. This catapulted him from fourth to first position.

The Supreme Court held that the votes were unjustly excluded in 388 Polling Units. It ignored its precedent that eye witnesses were needed to establish any claim that voting actually took place in the 388 polling units.

Noteworthy is that INEC, the election management agency, produced Form EC40G as Exhibit D2R1 to R19 to prove that elections did not hold or were cancelled in the 388 Polling Units.

The INEC Form EC8D shows that the total number of accredited voters is 823,743. Total votes cast, 739,435. Total rejected votes 25,130. Total valid votes cast at the election for all the parties was 714,355.

Interestingly, the apex court awarded 213,695 votes to Uzodinma of APC from the 388 Polling Units said to have been excluded, gave 1,903 votes to PDP, and nothing to the rest of the other 68 political parties on the ballot. This brought the total votes scored in the Imo State governorship election to 953,083. This is 129,340 votes in excess.

This is very embarrassing and has done a lot of damage to the credibility of the Supreme Court. More so, when the petitioner, Mr. Uzodinma did not contest the total accreditation in INEC FORM EC8D. In fact, he also tendered and relied on FORM EC8 D which clearly showed the accreditation for the entire election to be 823,743.

So, from where did the justices, whom I presume learned simple mathematics in elementary school, get the additional 129,340 votes they DONATED to the APC candidate? That’s if he was actually the candidate of the party; because the same court had earlier disqualified him as the APC governorship flag-bearer.

This apart, nothing in that judgement suggests that the justices had ever read Section 179(2)(b) of the 1999 Constitution, which states clearly that to be declared elected as governor, a candidate must not only have the majority of total votes cast but also one-quarter of votes cast in two-thirds of the Local Government Areas in the State.

The Supreme Court were only interested in padding Uzodinma’s votes to declare him governor, but failed to give a breakdown of votes cast in all the local government areas to establish spread as constitutionally required.

A cardinal principle of law is that justice must not only be done but seen to be done. It is to put it mildly that in this case, justice was neither done nor seen to have been done. Especially, where after the judgement was delivered in open court, the justices later raised and determined new legal issues to justify their ruling.

It is phony that the judgement read in open court only considered the evidence of the PW54 (Deputy Commissioner of Police, Rabiu Hussein), but the copy of the judgement later given to the Respondent included other witnesses PW12 to PW34, PW11 and PW51. This is repugnant to S.36 (3) of the 1999 Constitution, which states that the announcement of the ruling of a court shall be done in public.

Lord Denning (MR) of blessed memory put it succinctly in Metropolitan Properties Case when he said that “the test for justice is what a fair-minded ordinary person would say as to whether justice has been, or has not been, done.”

There is no beating around the bush that justice was gravely miscarried here. It represents the greatest travesty of justice in the annals of that honorable court.

The primary duty of a jurist on the bench is to serve justice by searching for the truth and not technicalities. It should have been clear to those justices that Uzodinma could not have won the popular votes in Imo. If not for anything – his party could not win one seat in the House of Assembly.

If it was not clear to them before, it should be now. Instead of jubilation in Owerri, the decision only elicited protests there and across the nation.

I heard that Mr. Ihedioha will seek a review of the matter at the Supreme Court. And when this happens, only two options are open to the honorable justices;

1, Pretend to be infallible; say the decision is final and forever be remembered in legal history as those who rendered the most ludicrous decision that disenfranchised the Imo people – imposing on them a leader they never wanted; never voted for. Or

2, Admit they are human and fallible. In which case, they would find courage to correct their error and restore confidence in the Nigerian Judiciary, which is at its lowest ebb since independence.

Should Tanko & Co choose the first course of action, the shame of that ignoble decision will follow them their whole lives and to their graves. And their children would also walk around with their heads bent.

But as they make the difficult choice of which path to follow, they should know that this is not about Ihedioha. It is about doing what is right. It is about respecting the will of Imo voters. It is about restoring confidence in the judiciary. It is about safeguarding our democracy. It is about cleaning the dirt this plebeian decision has splashed of the image of our dear country globally – which puts Nigeria in the column of bad investment destinations.

But what would not be tolerated is for the justices to go about the task before them as if someone slammed the quagmire on them. They created the mess. And they MUST clean it.

They MUST redo the math. Their first attempt was catastrophically poor and UNACCEPTABLE.

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