Supreme Court adjourns review of Imo guber poll verdict to March 2

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Hearing on the application filed by former Imo State Governor, Emeka Ihedioha, against the declaration of Hope Uzodinma as winner of the March 9, 2019 governorship election was, on Tuesday, adjourned to March 2 by the Supreme Court following a request by Ihedioha’s lead counsel, Chief Kanu Agabi (SAN), for a short adjournment to enable him respond to a process served on him the previous day by the respondents. Counsel to Uzodinma and APC, Damian Dodo (SAN) and INEC, Inuwa Tanimu (SAN) however did not oppose the request for adjournment. Consequently the seven man panel led by the Chief Justice of Nigeria (CJN), Justice Ibrahim Muhammad adjourned to March 2 for hearing.

The adjournment came after the Chief Justice of Nigeria (CJN), Tanko Muhammad, rejected a request by the PDP urging the apex court to reconstitute a new panel to review the January 14 ruling, saying it had become “imperative that Tanko (Muhammad) and the other justices who served in that panel be replaced to ensure that fairness and justice is (are) not only done but seen to have been done.” The PDP request was contained in a letter dated Feb 14, 2020, signed by PDP National Chairman, Uche Secondus and the National Secretary, Ibrahim Tsauri; and titled: “Demand For Recusal Of Justices That Heard The Earlier Case And Request For A Different Panel To Hear The Application To Set Aside Judgment.”

PDP said: “As a follow-up to our earlier call on all members of the panel to recuse themselves, we have now sought to formalise that request or demand. We hereby request that the seven persons that heard the case earlier recuse themselves from participating in the consideration of this new application. We are not unmindful of the fact that a litigant cannot dictate to the court the panel that should hear its case. However due to the extraordinary circumstances and the nature of this case, we think that our request is a fair one that meets the justice of the case.

“Consequently, we feel it is our patriotic duty to hereby humbly request that your Lordship constitute a different panel of this great court (other than the one that delivered the judgment) for the purpose of hearing this application.” The PDP beseeched the CJN to note that, “there are judicial precedents in Nigeria, Great Britain and the United States of America in support of our request for reconstitution of a different panel to handle the current application before the court.”

Specifically, the party requested that “their Lordships, The Hon. Chief Justice Tanko Muhammad, CJN; The Hon Justice Nwah Sylvester Ngwuta JSC; The Hon Justice Olukayode Ariwola, JSC; The Hon Justice Kudirat Kekere-Ekun, JSC; The Hon Justice Amina Adamu Augie, JSC; The Hon Justice Uwani Musa Abba Aji, JSC; recuse themselves from participating in hearing the application for setting aside their earlier judgment in the above case on grounds of likelihood of bias, that is, fair hearing.”

Ihedioha and the PDP had in an application dated February 6, 2020, asked the apex court to set aside its judgement of January 14, which nullified his victory in the March 9, 2019 election and declared Uzodinma of the ruling APC, winner of the election after he presented excluded results from 388 polling units. INEC had declared Ihedioha as the winner of the March 9, 2019, gubernatorial poll in the state. The decision was earlier upheld by both the election tribunal and the appellate court before the apex court overruled both last month. Similarly, the Imo State Governorship Election Petition Tribunal and the Court of Appeal in their concurrent decisions in the appeal filed by Senator Uzodinma, upheld Ihedioha’s election and dismissed the petition on grounds that Uzodinma did not prove his allegations against the election of Ihedioha.

However, the Supreme Court in its January 14 judgment disagreed with the decisions of the lower court on the grounds that they erred in law when they excluded votes from 388 polling units from the total scores at the poll. According to the apex court in the judgment delivered by Justice Kudirat Kekere-Ekun, when the excluded votes totaling over 200,000 were added, Uzodinma and not Ihedioha actually won majority of the lawful votes cast in the March 9 governorship election in Imo State. The apex court consequently declared Uzodinma Governor of Imo State and ordered the INEC to withdraw the earlier certificate of return issued to Ihedioha and issued a fresh one to Uzodinma.

However, Ihedioha in the appeal he filed on February 6 is asking the apex court to set aside the judgment sacking him as governor on the grounds that the judgment was procured by fraud and deceit. In the application, Ihedioha and the PDP said the court was induced into error because Uzodinma’s petition was speculative. “The 1st Appellant/Respondent alleged that votes from 388 polling units were unlawfully excluded or cancelled and urged the court to include in the computation of the election results the votes from those polling units. At the same time the 1st Appellant/Respondent prayed that fresh elections be conducted in the said polling units thus rendering the petition speculative.”

Another ground he said, is that Uzodinma and his party, APC failed to plead the votes scored by all the parties in the 388 affected polling units as only votes allegedly scored by APC and PDP were pleaded, “an omission which rendered the petition incompetent.” The applicants further argued that by Exhibit A1 (Form EC8D) the total number of voters accredited for the Governorship Election held on March 9, 2019 in Imo State was 823,743,while the total valid votes cast was 731,485.

Ihedioha submitted that with the inclusion of 213,695 votes for the 1st Appellant/ Respondent and 1,903 to the votes of the 1st Applicant, as ordered by the apex court, the total number of votes cast at the election now stands at 953,083 (ie 731,485 + 213,695 + 1,903) making the total number of votes cast at the election to be far in excess of the total number of voters accredited for the election, by 129,340.
“It is unlawful for the total number of votes cast in an election to exceed the number of accredited voters and that illegality rendered the judgment sought to be set aside null and void.

The applicants accordingly asked the court for, “An Order setting aside as a nullity the judgment delivered by this Honourable Court on the 14th of January 2020 in Appeal No. SC.1462/2019 and Cross Appeal No: SC.1470/2019. “And for such other order(s) as this Honourable Court may deem fit or proper to make in the circumstance.”

However, Uzodinma has asked the court to dismiss the appeal for lacking in merit and a waste of the court’s time having been statute-barred by section 285 of the 1999 constitution, which provides a 60 day deadline for the hearing and determination of the appeal. Uzodinma and the APC who are 1st and 2nd respondents respectively, in their reply to Ihedioha’s motion claimed the request is nothing but a mere academic exercise. In a 19-paragraph affidavit filed in opposition to Ihedioha’s application, the governor and his party asserted that the 60 days allowed for the Supreme Court by the Constitution has since lapsed.

“The undisputed facts relating to the Respondents/Applicants’ Motion hereinafter referred to as “the motion” are to the effect that the judgment of the Court of Appeal was delivered on 21st September, 2019 while the one sought to be set aside was delivered on 14th January, 2020. Clearly, the 60 days allowed by Section 285(7) of the 1999 Constitution (as amended) for this Honourable Court to hear and determine appeal from the Court of Appeal in an election matter, lapsed on 17th January, 2020. The Motion to set aside was filed on 5th February, 2020, 19 days after the time allowed by the Constitution.   “It is now a settled law that the 60 day time limit to determine and conclude litigation on election matters is sacrosanct and cannot be extended by any guise”, they insisted in the counter affidavit.
However, when the matter was called, neither the CJN, nor the other six judges - Justices Sylvester Ngwuta, Kayode Ariwoola, Kudirat Kekere-Ekun, Amina Augie, Adamu Galinje and Uwani Aba-Aji recused themselves as demanded by the PDP. Ihedioha’s lawyer informed the court that, “processes are still coming in” and as such he would be asking for a short adjournment, adding that he was only served the respondents process on Monday. Hearing on the review was thus adjourned till March 2, 2020.