Ihedioha: Why Supreme Court May Not Reverse Judgment

By Onyedika Agbedo

The January 14, 2020 judgment of the Supreme Court that nullified the election of Chief Emeka Ihedioha as Imo State governor and declared senator Hope Uzodinma as the winner of March 19, 2019, governorship election has continued to generate agitation for review and possibly, a reversal of the judgment.

Ihedioha’s party, the People’s Democratic Party (PDP) has been at the forefront of the advocacy. The National Chairman of the party, Prince Uche Secondus, while addressing a press conference on the judgment two days after it was delivered, said it must be reversed in the interest of justice.

“In the light of extraordinary circumstances that vitiate that judgment as a product manipulation and a clear coup d’etat against the will of the people of Imo State, we demand that the decision of the Supreme Court on the Imo governorship election be reviewed and reversed in the interest of justice,” Secondus has said.

Other eminent Nigerians have spoken in a similar vein. Three days ago, Bishops and other Christian leaders in Imo State under the umbrella of the Concerned Church Leaders Forum (CCLF) raised their voices against the judgment. The clerics, who spoke through the Anglican Bishop of Ohaji/Egbema, Chidi Oparajiaku, said the judgment ran counter to the facts on the ground. They urged the apex court “to review the judgment and serve justice in the overall interest of peace, unity, development and continued survival of democracy in the state and Nigeria in general.”

Also on the same date, the Archbishop of Enugu Ecclesiastical Province (Anglican Communion), Bishop Emmanuel Olisa Chukwuma, addressed a press conference in Enugu, where he wondered how the Supreme Court Justices arrived at the decision. The cleric even accused the Justices of incompetence.

“I am speaking the minds of some Bishops in the Anglican Church that we are very discontented and disagree with the Supreme Court’s kangaroo judgment in Imo State. We feel disappointed with the Chief Justice of Nigeria (CJN) who has not got his facts correct and we feel that that judgment is wicked and corrupt. We call on the Supreme Court to reverse the judgment to avert the wrath of God,” he stated.

Uzodinma had challenged Ihedioha’s victory from the Imo Governorship Election Petitions Tribunal up to the Supreme Court on the ground that he scored the highest number of votes in the election but the Independent National Electoral Commission (INEC) returned Ihedioha as the governor of the state.

Justice Kudirat Kekere-Ekun, who delivered the judgment of the seven-man panel led by Chief Justice Tanko Muhammad, declared that the votes due to Uzodinma were unlawfully excluded from 388 polling units and should be added to his votes.

The apex court considered the submissions of a principal witness who was on a subpoena to present results and held that the lower court was wrong in its ruling.

Justice Kekere-Ekun, while reading the lead judgment, declared Uzodinma as the validly elected Governor and ordered that the certificate of return issued to Ihedioha be withdrawn immediately and issued to Uzodinma.

INEC had since obeyed the court order and Uzodinma subsequently sworn-in. He has since continued to steer the affairs of the state.

But with increasing calls for the reversal of the judgment, the question on many lips is: Will the Supreme Court bow to pressure and reverse itself?

Under the doctrine of stare decisis, the Supreme Court is bound by its previous decisions. As such there had been cases where the judgment of the Supreme Court stunned a section of the public but the court didn’t reverse its judgment when approached.

In the case of Ihedioha, a constitutional lawyer in Abuja, Mr. Realwan Okpanachi, has argued that the apex court no longer had the jurisdiction to entertain any application relating to the Imo governorship election, because it had clearly passed the 60 days provided for in the constitution. The lawyer cited Section 285 (7) of the constitution to support his assertion.

Okpanachi, who recently spoke to the News Agency of Nigeria (NAN), said: “Section 285 (7) states that an appeal from a decision of an election tribunal or Court of Appeal in an election matter shall be heard and disposed of within 60 days,” he said.

He added: “The judgment in particular was delivered by the Court of Appeal before November 20, 2019. The appeal by Uzodinma was filed around November 20, 2019, and that is to say that the judgment was passed before November 20, 2019.

“When you calculate from November 20, 2019 till date, it clearly shows that it is above 60 days,” Okpanachi said.

According to the lawyer, the Supreme Court cannot entertain, hear, determine any appeal or application connected with that election appeal.

“The judgment, as it is, is binding, conclusive and cannot be set aside, reversed or touched by any person, including the Supreme Court itself. The Supreme Court is the apex court; the highest court in Nigeria and its decision, by virtue of the constitution of the Federal Republic of Nigeria, is final. Therefore, its decision is not subject to any other authority or persons,” Okpanachi said

Okpanachi was right as existing precedents show. On November 2, 2009, Supreme Court dismissed Celestine Omehia’s application seeking for review of its judgment of October 25, 2007, which removed him and declared Rotimi Amaechi as the governor of River State. Amaechi won Rivers State PDP governorship primary in December 2006 but was substituted with Omehia. Early in 2007, Amaechi filed a suit challenging his substitution against the April 14, 2007 elections. The Court held that Amaechi was wrongly substituted with Omehia by PDP and that in the eyes of the law, Amaechi who didn’t contest the election was at all times the legal candidate of PDP at the elections, and proceeded to declare him as Governor of Rivers State.

But Omehia re-appealed saying the apex court made a mistake, arguing that the judgment contradicted some provisions of the 1999 Constitution. But the seven-man panel led by Justice Alloysius Kastina-Alu described the suit as frivolous and an act of judicial rascality. They accordingly dismissed the case with N100,000 cost, saying even if it was a mistake, the apex court has a right to make a mistake.

They insisted that Amaechi remained the legitimate governor and that the decision was final regardless of whether it was rightly or wrongly entered.

The Supreme Court Justices Katsina-Alu had urged anybody aggrieved by the court’s decision to appeal to heaven where God Almighty reigns supreme and not in Nigeria where they held sway, adding that “only God can reverse the October 25, 2007 verdict.”

Also, on May 24, 2019, the Supreme Court nullified the elections of all the candidates of the APC in Zamfara State in the 2019 general elections. Delivering a unanimous judgment of the five-man panel led by then Acting CJN, Justice Tanko Muhammad, the apex court declared the first runners-up in the 2019 general elections in the state as the winners of all the posts earlier declared to have been won by the APC and its candidates.

Justice Paul Galinje, who read the lead judgment, upheld the decision of the Sokoto Division of the Court of Appeal to the effect that the APC did not conduct any valid primary election and as such had no candidate for any of the elections in the state. He described the votes polled by the APC candidates in the elections as wasted. He then ordered that the party and the candidates with the second highest votes and the spread in the various elections were the valid winners. With that, the APC lost the 36 elective positions comprising the governorship, deputy governorship, three senatorial, seven House of Representatives and 24 state House of Assembly seats to the PDP.

After reviewing the judgment, the Chairman, Presidential Advisory Committee Against Corruption, Prof. Itse Sagay, described it as a national tragedy. In a statement, the distinguished legal scholar and human rights activist had raised many posers for the Supreme Court while also urging the APC to approach the court for a review of the judgment.

He said: “By this judgment, the landslide APC victories in the governorship, Senate, House of Representatives and House of Assembly elections are transferred to the PDP.

“If the APC primaries were defective, should the electorate be deprived of their democratic and constitutional rights to vote? Is the electorate to be punished for the transgressions of party officials? Should the judiciary replace the electorate’s decision and install losers in office? Could the judiciary not have drawn on the deep recesses of its intellectual capacity, authority and its inexorable commitment to justice, to prevent this undemocratic calamity? Can the APC officials not be punished, for their lapses without denying the electorate their democratic rights? Should the judiciary take over the electoral rights of the electorate? Is this not a clear case of technical law completely overthrowing justice?

“Have the members of the Supreme Court not achieved a level of creativity and authority to provide a solution without burying democracy and taking over from the registered voters as the judicial electorate? If this judgment had been an international one, it could have been described as ‘shocking the conscience of humanity.’ In this case, it shocks the conscience of Nigerian humanity… I advise the APC legal team to apply for a review of the two judgments. Their Lordships ought to be given an opportunity to reverse this unprecedented tragedy.

The ruling party heeded his advise and filed an application asking the Supreme Court to review the judgment. But the Court threw away the appeal. Justice Rhodes-Vivour in his lead judgment held that the application was incompetent and time-barred, adding that the court had no jurisdiction in the matter.

“The Supreme Court has no jurisdiction over the matter because anything that has to do with pre-election matter must be brought within 60 days after a decision had been delivered,” he said.

Justice Rhodes-Vivour further held that the consequential orders made were part and parcel of the pre-election matter and it was an abuse asking the apex court to review its judgment or orders.

“We don’t seat on appeal over our own decision. We have no jurisdiction over this matter,” he said.

Looking at the law and the above precedents, calls for the reversal of the Supreme Court judgment on the Imo State governorship election may not serve any purpose other than warming the political space. But it remains to be seen the path the Justices of the apex court would toe this time around.