When the Supreme Court on Tuesday declared Senator Hope Uzodinma of the All Progressives Congress (APC) winner of the March 9, 2019 governorship election in Imo State, not a few Nigerians wondered how someone who came fourth could replace the person who came first.
The election of Emeka Ihedioha of the Peoples Democratic Party (PDP) was nullified and Uzodinma was ordered to be sworn in immediately.
In the unanimous judgment of the seven-member panel, read by Justice Kudirat Kekere-Ekun, the Supreme Court held that results in 388 polling units were unlawfully excluded during result collation.
According to her, when the excluded results were added, it meant that Uzodinma polled a majority of the lawful votes cast and ought to have been declared the winner by the Independent National Electoral Commission (INEC).
The Supreme Court, therefore, voided lhedioha’s declaration and ordered that the certificate of return wrongly issued to him be immediately withdrawn and a fresh one issued to Uzodinma.
“It is thereby ordered that the appellant’s votes from 388 polling units unlawfully excluded from the appellant vote declared shall be added and that the first respondent, Emeka Ihedioha, was not duly elected by a majority of lawful votes cast at the said election,” the Supreme Court said.
The Court of Appeal had last November 19 affirmed Ihedioha’s victory.
It disagreed with the appellants, who had argued that he did not obtain the constitutionally required one-quarter of the votes cast in at least two-thirds of the 27 Local Government Areas (LGAs) as provided under Section 179 of the 1999 Constitution.
Last March 11, the Returning Officer, Vice-Chancellor, Michael Okpara University of Agriculture, Umudike, Abia State, Prof Francis Otunta, said Ihedioha scored the highest number of votes (273,404).
He declared him the winner “having satisfied all the requirements of the law and scored the highest number of votes”.
Action Alliance (AA) candidate Uche Nwosu polled 190,364 votes; All Progressive Grand Alliance (APGA) candidate Ifeanyi Ararume scored 114,676 votes.
Uzodinma, who came fourth, polled 96,458, while Ikedi Ohakim of the Accord Party (AP) got 6,846 votes.
Dissatisfied, Nwosu, Ararume and Uzodinma petitioned the Election Tribunal.
In his petition, Uzodinma sought to be declared the winner because he scored the majority of lawful votes cast.
He argued that he satisfied the mandatory constitutional requirement of LGA spread.
He stated that the election was heavily manipulated by collation officers of Mbaise extraction allegedly recruited hurriedly by INEC.
Uzodinma claimed that the collation officers deliberately omitted to collate the results from 388 polling units that were his stronghold.
He claimed that by the results declared at the polling unit level by the presiding officers, he got 213, 695 votes in the 388 polling units.
Uzodinma prayed the tribunal to retrieve the excluded votes, add them to the figures declared by INEC, which will make him the candidate with the highest votes.
In the main, Uzodinma’s petition was predicated on his claim that INEC unlawfully cancelled results in most polling units where he scored majority votes.
He contended that INEC lacked the power to nullify the election of a polling unit after the presiding officer had declared the result.
Uzodinma contended that when the votes in the polling units unlawfully cancelled by INEC are added to the 96,458 allocated to him, he would have the highest number of valid votes cast.
A police officer’s testimony
During the hearing of Uzodinma’s petition, the Tribunal allowed a Deputy Commissioner of Police, Rabiu Huseini, who was in charge of operations on the day of the election, to give evidence.
The petitioners subpoenaed him.
Huseini tendered copies of Form EC8A from the affected polling units as part of his evidence.
The tribunal, in a ruling, disregarded Ihedioha’s lawyer’s contention that the witness, who was PW54, was not the maker of the result sheets.
It agreed with Uzodinma’s lawyer’s position that the evidence by the police officer was relevant because security agents were part of those who conducted the election.
While the Tribunal allowed the tendering of result sheets by the policeman, which content tallied with the copies already tendered by the petitioner’s party agents, the respondents, including INEC could not tender any result sheets to counter what the petitioners and PW54 tendered.
In its September 21 verdict, the tribunal, led by Justice Umar Malami Dogondaji, dismissed the three petitions.
It held that Nwosu, Ararume and Uzodinma failed to prove their cases.
The Tribunal held that the evidence supplied was mainly based on hearsay and that the unlawful exclusion allegation was not proven.
Dismissing Uzodinma’s petition, the Tribunal held that the results he presented were not recognised by law as they neither emanated from, nor were authenticated by, the INEC.
The Tribunal said the results were not signed by polling agents, who were essential elements in the polling process.
“Failure to discharge the heavy burden of proof makes the petition liable for dismissal and it is accordingly dismissed,” the tribunal held.
Appeal Court’s verdict
A five-man panel of the Court of Appeal in Abuja, led by Justice Oyebisi Omoyele unanimously dismissed the appeals.
But, in respect of the appeal by Uzodinma, one of the Justices of the Court of Appeal upheld the case of the appellant and dissented from the majority decision of the other four members of the panel, which upheld the tribunal’s verdict.
Uzodinma and APC’s appeal were decided by a four-to-one verdict.
The Court of Appeal upheld the Tribunal’s findings and conclusions.
It found that Uzodinma, who came fourth, called no witness from the polling units, ward or local government level to prove that Ihedioha did not score 25 per cent of the votes cast in 18 out of the 27 LGAs.
The Court of Appeal discountenanced a set of documents in which he claimed to have scored substantial votes from 386 polling units, but which he alleged were excluded by INEC.
The appellate court allowed a cross-appeal to the effect that with respect to Section 179 (3) (4) and (5) of the 1999 Constitution (as amended), only the person who came second in an election can make a case regarding Section 179 (2).
The big verdict
Dissatisfied, Ihedioha’s opponents headed for the Supreme Court.
In its first decision, the Supreme Court struck out the appeal by Nwosu, after it was withdrawn by his lawyer on the ground that it was overtaken by events given the court’s earlier judgment on his candidacy.
The apex court voided Nwosu’s candidacy on the ground of double nomination.
The Supreme Court struck out Ararume’s appeal because its position in the appeal by Uzodinma rendered it irrelevant.
The court, in a preliminary finding on a motion by Ihedioha and the PDP, disagreed with them that its decision in the Nwosu case (numbered SC/1384/2019) affected Uzodinma’s candidacy.
The Supreme Court was of the view that Uzodinma could not have been affected by the December judgment because he was not a party in the appeal.
It held that the case was a pre-election matter, while the appeal that was being decided was a post-election case.
Justice Kekere-Ekun said: “The judgment in SC/1384/2019 relates to the valid nomination of a candidate in a party’s primary, which is a pre-election matter.
“The validity of the first appellant’s (Uzodinma’s) nomination cannot be inquired into by this court in a post-election appeal.”
In deciding the main appeal, Justice Kekere-Ekun said: “In the substantive appeal, I am of the view that the two main issues that can resolve this appeal are appellants’ issues one and two.
“Issue one is in respect of the concurrent findings of the two lower courts to the effect that PW54 was not the proper person to tender Exhibits PPP1 to PPP366.
“Having given careful consideration to the arguments of the respective learned counsel, there was clear evidence before the court that PW54, a police officer, was subpoenaed to testify and produce the documents in question.
“Having produced the documents handed over to the police in obedience to the subpoena issued by the court, the lower courts were wrong to have held that he was not the proper person to tender them because he was not present at the polling units, where the results emanated from.
“I agree with the learned counsel for the appellants that the lower courts misconstrued their case. The issue in contention was whether the results for 318 polling units were unlawfully excluded from the collated results.
“The documents were tendered to prove the exclusion as pleaded by the appellants and not whether election held in the polling units, in which case, the polling agents would have been called.”
The Supreme Court held that Uzodinma successfully proved that his results were unlawfully excluded.
Justice Kekere-Ekun held: “Having resolved these two issues in the appellants’ favour, I am of the view that it is not necessary to consider the remaining issues.
“In the circumstances, I hold that there is merit in this appeal. It is hereby allowed.
“The majority judgment of the lower court, affirming the judgment of the governorship election tribunal, is hereby set aside.
“It is hereby declared that votes due to the appellants, that is, Senator Hope Uzodinma and the All Progressives Congress, from the 388 polling units, were wrongly excluded from the scores ascribed to the appellants.
“It is hereby ordered that the appellants’ votes from the 388 polling units, unlawfully excluded from the appellants’ scores declare, shall be added to the results earlier declared by the third respondent (INEC).
“It is hereby declared that the first respondent, Right Honourable Emeka Ihedioha, was not duly elected by a majority of lawful votes cast at the said election. His return as the elected governor of Imo State is hereby declared null and void and is accordingly set aside.
“It is hereby declared that the first appellant, Senator Hoe Uzodinma, polled the majority lawful votes cast at the governorship election held in Imo State on 9th March 2019 and satisfied the mandatory constitutional threshold and spread across the state.
“It is hereby declared that the first appellant, Senator Hope Uzodinma, is the winner of the governorship election of Imo State held on 9th March 2019 and declared on 11th March 2019.
“The certificate of return issued to the first respondent, Right Honourable Emeka Ihedioha, is hereby withdrawn.
“It is hereby ordered that a certificate of return shall be issued to the first appellant, Senator Hope Uzodinma, forthwith and should be sworn in as the governor of Imo State immediately.
“In the circumstance, appeals numbers SC/1461 of 2019 and SC/1470 of 2019 have become academic and are hereby struck out.”
Other members: Justices Ibrahim Muhammad (the Chief Justice of Nigeria and head of the panel), Sylvester Ngwuta, Olukayode Ariwoola, Amiru Sanusi, Amina Augie and Uwani Abba-Aji agreed with the lead judgment.
An expert’s view
A lawyer, Kenneth Ikonne, in an article entitled “The Imo gubernatorial judgment – a painful but legally correct verdict!” said the Supreme Court, based on the facts, was right in declaring Uzodinma the winner in law.
According to him, Ihedioha’s legal team made a “fatal” error.
He recalled that results from more than 350 polling units, signed by INEC presiding officers, which gave Uzodinma an unassailable lead, were rejected by ward collation officers, who had no power in law to cancel or reject them.
Ikonne said the law was settled that neither collation officers nor a returning officer has the power in law to exclude a polling unit result duly signed by the presiding officer; except the tribunal.
“The backbreaking and fatal error made by Ihedioha’s legal team was in not filing a cross-petition fiercely challenging the integrity of the suspect polling units results upon which Uzodinma was relying and praying the election tribunal to formally nullify the said results.
“Without a cross-petition, none of the grounds under section 138 (1) of the Electoral Act for questioning the elections conducted in those polling units in which Uzodinma ‘won’ could have been competently raised by Governor Ihedioha in his defence to Uzodinma’s petition.
“This was the ratio decidendi of the old Court of Appeal decision in IDRIS V. A.N.P.P.(2008)8 NWLR(PT.1088) Page 1.”
Citing several legal authorities, Ikonne said without a cross-petition praying for the nullification of those results, the law forbade Ihedioha as respondent from raising the issue of the alleged serial corrupt practices and irregularities marring the results, in a mere statement of defence.
“Ihedioha, being a respondent, could only have competently raised them via a cross-petition, being a new issue not nominated by Uzodinma, the petitioner.
“Tragically, Ihedioha’s legal team forgot to include the pivotal cross-petition.
“And in the absence of a cross-petition, the Supreme Court was right in law, painfully though it may seem, to rely on the presumption of regularity and correctness enshrined by both the Electoral Act and Evidence Act in favour of the said results, and to reckon with them and add them up to the final result, since Ihedioha’s legal team had woefully failed to effectively attack the results and rebut that presumption.
“For the Supreme Court, this was the legally correct conclusion to come to, having found that INEC had no power in law to exclude polling units results duly affirmed by the various polling units presiding officers!”