Editorial: Imo Governorship Conundrum & the Case for Judicial Review

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A high-stake drama, precipitated by a stomach-turning judicial embarrassment with serious implications for democracy and the rule of law in Nigeria, has been unfolding in Imo State. Although the Judiciary never ceases to amuse Nigerians with its controversial positions on important national issues, the controversial ruling by the Supreme Court, which sacked Emeka Ihedioha of the Peoples Democratic Party (PDP) and replaced him with Hope Uzodinma of the ruling All Progressives Congress (APC) as governor of Imo State was a breath-taking display of judicial activism and impertinent self-aggrandizing recklessness. And whilst the public is still trying to make sense of the utterly reckless decision by Justices that has precipitated and provoked the current tension and confusion over the Imo state governorship, it is becoming clear that Nigerians, indifferent as they seem, to that verdict, want a judicial review; that will afford the apex court the opportunity to reverse itself and reinstate Ihedioha as the legitimate elected governor of Imo state. That way, the interest of justice will best be served.

The facts of the Imo governorship controversy are straight forward. In a unanimous judgment delivered by Justice Kudirat Kekere-Ekun, the Supreme Court on January 14, 2020, held that Ihedioha was not duly elected and that “his election was void and illegal.” The apex court consequently set aside the judgment of the Imo State Governorship Election Petition Tribunal and that of the Court of Appeal, both of which had refused to recognize votes from 388 polling units and to accept that the results were unlawfully excluded in the general collation. In compliance with the verdict, the Independent National Electoral Commission (INEC) issued a certificate of return to Uzodinma, who has now been sworn in as governor. The strange saga has also become a major embarrassment for the Buhari administration as the verdict reinforces Nigeria’s international image as a country with highly dysfunctional institutions where bizarre things can happen. What was already a confusing tale moved into the realm of parody, after evidence emerged that the Supreme Court acted in error; in sacking Ihedioha and replacing him with Uzodinma, who came a distant fourth, as lawful winner of the March 9, 2019. Nothing, after all, could be more absurd and sensational at this period of governance by distraction.

Quite predictably, Ihedioha and the PDP have filed an application a judicial review of the verdict, hoping the apex court would reverse itself. But a look back at the nation’s political history shows a plethora of instances of such earth-shaking pronouncements that affected the course of democracy. This begs the question: is there any legal basis or precedent for the court to over-rule itself through a judicial review? The answer is a resounding yes! The court has itself recognized and acknowledged the principle of review of a judgment apparently given either per incuriam (in error) or for jurisdictional error; to the extent that it defeats the whole essence of justice. As a practical matter, if the review is brought, not in the case in which the error is alleged but in a fresh instance under the slip rule; wherein the court is invited to restate the law and correct a previous error, the apex court if convinced, will reverse its previous decision by restating the law under the principle of restatement. The PDP and Ihedioha having shown on strong affidavit evidence the basis for the judicial review, accompanied by compelling legal arguments, the onus is now on the apex court to review the case in the interest of justice and fairness.

To begin with, the power sharing arrangement in the state made it very unlikely that the electorate voted for Uzodinma. It is on record that from 1999 through 2007 and 2011 to 2019, Imo West Senatorial District, aka Orlu Zone, have provided governors for 16 years -Achike Udenwa (1999 -2007) and Rochas Okorocha (2011 to 2019). Furthermore, a breakdown of the State Assembly election results which election held simultaneously with the guber poll show the APC had scant presence. It stretches credulity to claim voters in Imo West voted Uzodinma for governor, when incumbent Governor Okorocha had a preferred candidate in the person of Ugwumba Uche Nwosu of Action Alliance (AA).

Secondly, the fact that the Supreme Court resorted to canceled votes from 388 poling units, which it wholly validated and awarded to Uzodinma is also strange and raises certain posers: how come “canceled votes” were not reflected in the total number of accredited voters given by  the Imo State’s INEC as 823,743? Assuming arguendo that elections were canceled in the 388 polling units which statutorily average 500 registered voters per polling unit; totaling 194,000 registered voters. Does the apex court expect Nigerians to believe that all 194,000 eligible voters in the 388 polling units picked up their Permanent Voters Cards (PVCs)? And even if they did; is it possible that all 194,000 voters turned out at the 388 polling units and voted 100% for Uzodinma with zero votes to other candidates? As a practical matter, such a scenario is an impossibility; more so, because INEC reported a substantial number of unclaimed PVCs. This, in itself, represents a credible ground for judicial review.

Besides, it will amount to a great miscarriage of justice if the apex court ignores the mathematical errors and factual inconsistencies in the certified-true-copy of the record of the appeal filed by the APC and Uzodinma. In the records tendered at the tribunal, Uzodinma, from pages 9 to 27 of his petition, drew a table of vote allocations which he claimed were the figures obtained from duplicate copies of Forms EC8A handed over to APC agents at the 388 polling units, whose results were excluded in the overall vote tally. From the table compiled from the 388 polling units, there were 252,452 registered voters, of which 213,695 voted for APC, and 1,903 voted for Ihedioha. But the table does not indicate the total number of accredited voters or the number of invalid votes, if any, and the votes allocated to the other 68 candidates who contested the election, aside from Uzodinma and Ihedioha.

Also, the duplicate Forms EC8A tendered by the PW54, Deputy Commissioner of Police (DCP), Rabiu Hussein, showed at least six polling units where more votes were recorded above the registered number of voters. For instance, figure number 69 showing votes cast at Eziama/Okpala (Umualum Village Square, Eziama), the total number of registered voters was 492, whereas the table shows the APC scored 819 votes and PDP scored 7 votes, meaning 334 more votes than the registered voters were recorded, apart from the votes polled by the other candidates at the election that were not shown on the table. Similarly, on page 22 of Uzodinma’s petition referencing polling unit 282, the number of registered voters was 591, whereas the tabulation shows that APC polled 586 votes and PDP nine votes, indicating a total of four votes higher than the registered number of voters. This, again, excluded the votes scored by the other candidates. On the same page 22; at polling unit 285 (Obudi/Aro, Central Assembly Square) with 449 registered voters, APC was credited with 780 votes and PDP with four votes, leaving a total of 335 votes higher than the actual number of registered voters.

Figures obtained from page 79 of the record of appeal under item 384 show that APC scored 526 votes, while PDP had two, and the total votes cast was 526, indicating two votes higher than the total number registered voters in the area. But in its judgment, the Supreme Court said that the votes from the disputed 388 polling units were wrongly excluded from the votes of Uzodinma. By relying on the tabulation made by Uzodinma, the Supreme Court arrived at a figure of 950,952 votes, which is more than the official 823,743 votes cast at the election, thereby affirming 127,209 excess votes. It is against this background that most observers hold that the apex court’s ruling was not only shocking, but wrong in law and amounted to a miscarriage of justice unprecedented in history.

The Supreme Court, over time, has created room for a review of its previous decision where such a review would cure a manifest injustice or miscarriage of justice. In the present instance, the authority for a judicial review of the Imo governorship verdict could be found in the decision of the Supreme Court in the case of Adegoke Motors Ltd v. Adesanya (1989) 13 NWLR (Part 109) on page 275, where the erudite Justice Chukwudifu “Socrates” Oputa, in considering the powers of the apex court to review its earlier decision categorically stated: “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 shortsighted arrogance not to accept this obvious truth. It is also true that this 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 (that is without averting the mind of the court to an existing fact or authority, which could have made the court to decide otherwise), such counsel should have the boldness and courage to ask that such a decision be overruled. This court has the power to overrule 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.”

Consequent upon the foregoing, and with the facts now established beyond measure that the Supreme Court decision in the decided case of Emeka Ihedioha v. Hope Uzodinma was reached per incuriam, (in error) nothing stops the court from reviewing its decision based on starre decisis (respect for precedent) eloquently articulated in Justice Oputa’s submission.