How Imo Governorship Election Verdict Generates Judicial Crisis

Olusegun Awe Obe describes the Supreme Court judgment on the 2019 Imo State governorship election as a miracle that overthrew all known judicial precedents

Seventy candidates sponsored by seventy different political parties contested the governorship election in Imo State held on March, 9, 2019. By the result declared by the Independent National Electoral Commission (INEC) , each of these parties earned votes. The parties that scored significant number of votes are as follows: Emeka Ihedioha of PDP- 273,404 votes; Nwosu Uche of Action Alliance (AA)-190,364 votes; Senator Ifeanyi Ararume Godwin of APGA-114,676 votes; Senator Hope Odidika Uzodinma of APC- 96,458 votes.

From the INEC Electoral Form EC8D, the total number of registered voters in Imo State is 2,221,008 voters. Total number of accredited votes cast was 739,485 votes. Rejected votes were 25,130 votes.Total valid votes cast in the election was recorded as 714,355 votes. It is evident from this official result declaration that the voter turnout was very poor throughout the state.

After the declaration of Rt. Hon. Emeka Ihedioha as winner of the election by INEC, nine (9) political parties brought petitions before the Governorship Election Petition Tribunal.

After exchange of pleadings, six petitioners withdrew their petitions having only three (3) that went to trial.
Uche Nwosu of Action Alliance (AA) claimed that there should be a run-off between him and Emeka Ihedioha because he came second and that Rt. Hon. Emeka Ihedioha did not obtain the mandatory 25% of the votes cast in 2/3rds of the local governments.
There are 27 local governments in Imo State and 2/3rds of it is 18.

At the trial, however, Uche Nwosu failed to establish this allegation, hence his petition was dismissed.
Senator Ifeanyi Ararume who came third in the election was the only witness in his petition with his allegations bordering on irregularities, non-compliance with the provisions of the Electoral Act and Guidelines and over voting that occurred across the various polling units and 305 electoral wards in Imo State.

Because he called no witnesses to prove those allegations and not being a spirit who could be everywhere at the same time, his petition failed and was accordingly dismissed as he could not prove his allegations.
In all the petitions, no other petitioner made a case for wrongful compilation of results by INEC except Senator Hope Uzodinma.
Also, no other petitioner claimed that votes were not collated or that votes were excluded in the process of collation at the various wards in Imo State except Senator Hope Uzodinma and the All Progressive Congress (APC) even though they took the fourth position in the election.
In the petition he presented, the case of Hope Uzodinma was that INEC omitted or failed to record or reckon with votes due to him from 388 polling units cut across the various local governments and electoral wards in Imo State as can been seen from pages 9 – 27 of his petition.
In paragraph 9 of his petition, the petitioners pleaded thus:
“The petitioners shall rely on the excluded result as shown on the face of the result Forms EC8B of the ward collation centers”
The exclusion of the results therefore was pleaded to have occurred at the ward collation centers which are 305 in number in Imo State.
At the trial, no ward collation agent was called to show that at the collation centre, results were brought from the 388 polling units where the alleged exclusion took place and INEC refused to accept or collate them.

The petitioner rather called 28 polling unit agents who came to identify some of the results tendered by the petitioner from the bar. All the electoral documents from Forms EC8A – EC8E were tendered from the bar and thus dumped on the court without anybody giving evidence correlating the contents of the result forms with the tabulation done by the petitioner himself.
Each of the 18 polling unit agents under cross-examination, manifested ignorance of the contents of the documents and never convinced anybody of being present in their claimed polling units.
These witnesses were called to testify in respect of the disputed 388 polling units where the petitioner tendered what he called Pink Copies of result sheets.
INEC had in their reply to the petition disowned those result sheets and averred emphatically that no results were generated from those polling units as elections in those polling units were cancelled by presiding officers as a result of violence, over voting, snatching of electoral materials etc.

INEC stated that any result from those polling units presented by any of the candidates, in this case, the petitioners, must be fake.
These polling unit agents were called to testify that the election took place in those polling units but when confronted with the purported result sheets tendered by the petitioners, each of the witnesses admitted as follows:

The names and signatures of the Presiding Officers were not well found on those results.
The names and signatures of other party agents did not appear on the result sheets, neither could they mention even one party agent of the other political parties in those booths.
The result sheets do not contain the total number of ballot papers used and number of ballot papers unused or invalid. The scores of political parties are not clear on the face of the documents.

It was on account of this and many other material contradictions that the Elections Petition Tribunal found as a fact that the evidence adduced by these 28 polling unit agents of the petitioner has been so contradicted under cross-examination and rendered so manifestly unreliable that no reasonable tribunal or court can ever rely on them for any purpose whatsoever.

The petitioner called 27 local government collation agents who tendered only the local government collation results which were not in issue. Local government collation result sheets contain only a summary of results from the various wards in each local government and do not contain polling unit results.

Each of these Local Government collation agents of the petitioner admitted not being present at the polling unit where the purported results are said to have emanated. They also admitted being absent at the ward collation centers where results from the polling units were collated. The tribunal therefore found their evidence as hearsay and completely unhelpful in resolving the issue of whether there was exclusion of results at the ward collation centers or not.
The court therefore rejected the evidence of these witnesses before making its judgment.

The 1st petitioner – Senator Hope Uzodinma testified as PW11 and gave a global evidence of what transpired in the polling units across the state, he also tendered some of the results sheets.
Under cross-examination, he admitted being present in his polling unit at Omuma only. He claimed that his evidence on the 388 polling units and indeed in other polling units across the state are based on what he was told by his agents.
The next witness who also gave a global evidence but admitted not being present and as such not having witnessed the election or collation in the 388 polling units was one Cyprian Okechukwu .C. Akaolisa – PW51. His evidence is the same as that of the 1st Petitioner – Hope Uzodinma as both of them reproduced the entire petition as their evidence.
He admitted under cross-examination, just like the 1st Petitioner – Hope Uzodinma (PW11), that he did not witness voting or collation of results in any of these 388 polling units. His duty post was only in the State Collation Office, Owerri.
The most controversial witness called by the petitioners was one Deputy Commissioner of Police – Rabiu Hussein, who was in Imo State from the period of primary election in 2018 till March, 2019 when the election took place.

The respondents objected to the testimony of this witness on the ground that he had no written deposition before the court; hence his evidence will spring a surprise. The court overruled the objection and allowed him to testify since he claimed he was on subpoena.
He introduced himself and tendered bundles of documents contained in envelopes and ‘Ghana-Must-Go’ bags which he said he produced pursuant to the subpoena.
Unknown to the respondents and the court, the petitioners’ counsel had applied for subpoena on this witness through the office of the Inspector General of Police (IGP), collected the subpoena and kept it to themselves and thereafter invited Rabiu Hussein who is said to be a friend of the 1st petitioner to testify as a subpoenaed witness.

The Police Officer testified as PW54, under cross – examination, this witness told the court that all processes of court including subpoena or correspondence meant for service on the Inspector General of Police must be received and stamped in the Inspector General’s office and also dated.

When given the subpoena he tendered in court and asked to tell the court whether it contained evidence that it was served on the Inspector General of Police, this witness confessed on record that he was given the subpoena he tendered on his arrival at the court for purpose of giving evidence by the petitioner’s counsel – Chief Olusola Oke (SAN) to whom he pointed for the court to know who gave him the document.

He also admitted not being present in any of the 388 polling units which he was subpoenaed to produce the results of. When the results were counted, what was found was 366 and not 388. They were marked as Exhibits PPP1 – PPP366.
The witness – Hussein admitted that he never opened the documents and does not know its contents as the police were not interested in the score of the parties.
He again admitted not being one of the policemen that were on election duty who received the documents, and concluded by saying that the documents he tendered are supposed to be in the custody of the Imo State Command, yet he was invited to come and tender the documents from his new duty post in Markurdi, Benue State where he has since been transferred to.
The 1st Respondent, Emeka Ihedioha called witnesses who testified that they were his agents in the said polling units and that because of violence, snatching of electoral materials and over – voting, discovered at the end of the voting in some of the polling units where elections took place, the elections/results were cancelled by the presiding officers in line with INEC guidelines.
Each of them disowned the results tendered by the petitioner emphasizing that they did not and could not have emanated from the election in those polling units where elections were cancelled.
One INEC official who was Deputy Head of Operations Department and Head of Logistics – one Victor Obieze testified that he was officer in charge of logistics and that he issued out sensitive and non- sensitive materials to the electoral officers in each local government who in turn distributed same to the presiding officers who worked on the day of election. He tendered a list of presiding officers which was received in evidence as to show that the 388 polling units could not have been issued by the authentic presiding officers.
He also tendered INEC Form EC40G otherwise known as incident form which is usually filled by the electoral officers anywhere the presiding officer reports cancellation of an election with the reasons for the cancellation also stated in the forms.
The forms EC40G tendered by respondent’s witness Number 5 were admitted in evidence as Exhibit 63RD1 – 63RD19. These forms EC40G show conclusively that elections were cancelled in the polling units where the petitioner claimed his votes were excluded.
The 1st Petitioner under cross – examination was taken through the tabulation of results or scores accompanying his petition.
In Item No. 69 being Eziama/Okpala ward, polling unit 8 (Umualum Square, Eziama) the total number of registered voters shown therein is 462 but the petitioner Chief Hope Uzodinma scored himself 819 votes and scored PDP 7 votes.
In Item No. 285, Obudiaro ward in Ngwuta LGA, Polling Unit 12, Central Assembly Square Amusa II, the Petitioner again admitted the total number of registered voters as 449 while APC scored 780 votes and PDP 4 votes.
In Item No. 377, Umuozu Ward in Isiala Mbano LGA, Umuchoko Town Hall Polling Unit 6, the tabulation showed that 367 persons were registered as voters. Hope Uzodinma scored the whole 367 with PDP scoring 4.
In Item No. 384, Umunkwo Ward, also in Isiala Mbano LGA, in Community Primary School Umuopara Polling Unit 06, the entry there shows the total number of registered voters as 526 with the Petitioner scoring the whole 526 and PDP scoring 2 votes.
In all the tabulation shown, the petitioner scored themselves over 98% of the votes cast when by the result declared by INEC, they never earned more than 13% in any polling unit or local government.
The trial tribunal after evaluating the evidence adduced at the trial found as a fact that the evidence of the 28 polling unit agents who are supposed to be eye witnesses are so contradictory that no reasonable tribunal can act on them and accordingly rejected their evidence.
The court following objections to admissibility of evidence and documents tendered from the bar, by Hope Uzodinma and the 27 local government collation agents found their evidence to be hearsay, the court also found that having no personal knowledge of the documents they tendered, not being the makers, not being present when they were made and not being in a position to answer questions on those documents, the court rejected those pieces of evidence and expunged them from the records.

The evidence of the policeman was also rejected and expunged from the records for being hearsay. The petition was dismissed by the tribunal as lacking in merit in that the allegations therein contained were not proved by any piece of evidence.
The court again found the results from the 388 polling units as dubious and of doubtful origin. The Court of Appeal by a judgment of four Judges as against one dissenting opinion agreed with the judgment of the tribunal.

At the Supreme Court, Mr. Uche Nwosu who pursued his case to the Supreme Court withdrew his appeal, having regard to the judgment of the Supreme Court on the 20th of Dec, 2019 stating that Uche Nwosu was nominated by APC as her candidate for the governorship election and that later on he obtained a second nomination from Action Alliance rendering his candidature in the election invalid and void as provided in Section 37 of the Electoral Act.

With the decision of the Supreme Court that Uche Nwosu was the duly nominated candidate of the APC, it becomes logical to conclude that Senator Hope Uzodinma was not a candidate at the election. This is because by the provision of section 87 of the Electoral Act, no person can contest for any elective position unless he contests and wins a primary election and a duly nominated candidate is the only one who can stand for election unless he withdraws in writing or he dies.

An application by Rt. Hon. Emeka Ihedioha for a determination that Hope Uzodinma was not a candidate at the election having regard to the decision of the Supreme Court on the 20th of Dec, 2019 and upholding Uche Nwosu as the duly nominated candidate of APC was brushed aside by the Supreme Court.

The appeal filed by Senator Araraume (SC/1461/2019) at the Supreme Court was heard and judgment was stood down to be delivered the same day. The appeal by Senator Hope Uzodinma (SC/1462/2019) was equally heard the same day and judgment was stood down.
The appeal or cross-appeal by Emeka Ihedioha (SC/1470/2019) was also heard and judgment stood down.
The Supreme Court had expressed worry and concern that in each of these appeals, there were volumes of records which they were yet to read or study.

They also expressed worry that there were in each case at least 4, 5 or more briefs of arguments as the appellants each had one brief, the respondents had 3 sets of briefs and there were reply briefs to read in other to do justice to the case, parties were therefore constrained to adoption of their briefs of argument only, to save time and enable their lordships study the records.

Surprisingly, even though the Supreme Court stated that the time for determination of the appeals lasted up to Friday, January 17, 2019, the Supreme Court decided to give summary judgment on the appeals without studying the records of appeal, the evidence adduced at the trial and the arguments canvassed by the respective parties in their briefs of argument.
The Supreme Court stood down for one hour, 30 minutes to enable them come up with their judgment.

All counsel in the matter had to comply, thinking that the Supreme Court would pronounce its judgment and defer the reason for the judgment to be given on a date to be communicated to the parties.

Incidentally, when their Lordships came out, they read a full and final judgment which was silent on the evidence adduced at the trial and also silent on the arguments canvassed by the respective parties. The judgment did not last up to ten (10) minutes.
In their judgment, the Supreme Court stated that their judgment in Hope Uzodinma’s appeal will resolve all the issues in the two other appeals.

After delivering judgment in Hope Uzodinma appeal, other appeals were deemed overtaken by events.
They simply stated the reliefs claimed by the Petitioner/Appellants, and proceeded to hold that Hope Uzodinma’s scores in the 388 disputed polling units were wrongfully excluded and that the two lower courts were wrong when they held that the APC candidate ought to have called eye witnesses i.e. polling units agents and ward collation agents as according to them, the Appellants’ case was that of exclusion of votes.

They ordered that votes as tabulated by Hope Uzodinma in his table in his petition which had been discredited under cross-examination should be added to his scores without any form of recomputation of the results or arithmetic to determine if even with the addition of the votes, Hope Uzodinma met the constitutional requirement of geographical spread as enshrined in Section 179(2) of the constitution. The Supreme Court proceeded to declare him winner of the election and also held that he had satisfied the mandatory constitutional threshold of geographical spread when there was no iota of evidence on record to that effect.

On the 22nd day of January, the Supreme Court released a 42 paged judgment as against the one they read out in open court.
To all intents and purposes, this judgment was a premeditated judicial coup d’état and rape against democracy and the rule of law and particularly against the people of Imo State whose mandate has been transferred to a candidate that came fourth in the election, improperly.

It is important to point out the following:
All the documents tendered by Hope Uzodinma as stated earlier were tendered through the bar.
Poling unit agents were called for only 28 polling units leaving 360 polling units dumped on the tribunal.
There was no evidence showing that the contents of the 388 polling units tallied with the tabulation contained in Hope Uzodinma’s petition.

There was no evidence showing that those documents produced by the police witness came from any of the 388 polling units or the contents of those documents as they were only dumped on the tribunal without more.

There was also no attempt to match those documents produced by the police witness with those tendered by Hope Uzodinma and his lawyers.
It is surprising that the Supreme Court had forgotten its judgments and decisions as contained in our law reports on the need to call eye witness evidence in proof of election petitions, inadmissibility of hearsay evidence including documentary hearsay and also the import of dumping of documents without having them demonstrated in open court or relating them to aspects of the petitioners’ case, even as their decision in the case of Abubakar Atiku v. Major General Buhari is very much fresh in their memory.

For us, the judgment is a miracle as it completely overthrew all known judicial precedents and electoral jurisprudence in Nigeria. It would appear to be based on extra legal considerations, therefore requires a desired reversal by the Supreme Court as dictated by precedent

Therefore, does the Supreme Court possess the powers to review or reverse its earlier decision?
Delivering the lead judgment in *Adegoke Motors Ltd. v. Adesanya* [1989] 13 NWLR (Pt.109) 250 at page 275A, Justice Chukwudifu Oputa, also known as the *Socrates* of the Supreme Court considered the powers of the Supreme Court (as the final Court in the land) to review its earlier decisions and said inter alia:

*We are final not because we are infallible; rather we are infallible because we are final. Justices of this Court are human-beings, capable of erring. It will certainly be short sighted arrogance not to accept this obvious truth. It is also true that this Court can do inestimable good through its wise decisions. Similarly, the Court can do incalculable harm through its mistakes. When therefore it appears to learned counsel that any decision of this Court has been given per incuriam, such counsel should have the boldness and courage to ask that such a decision be over-ruled. This Court has the power to over-rule itself (and has done so in the past) for it gladly accepts that it is far better to admit an error than to persevere in error*
Chukwudifu Oputa JSC in Adegoke Motors Vs. Adesanya (1989)

* Obe writes on behalf of Eminent National Leaders of Nigerian Civil Society & Third Force Movement