… Supreme Court majority dismisses application to reverse initial ruling, ostensibly for lacking merit
… Lone dissenting judge argued otherwise, urging colleagues to reinstate removed governor
… Unlike in Bayelsa State case, Supreme Court does not award costs
… Ruling perpetuates the tradition of kinetic party politics in Imo State
By Chudi Okoye
The petition from Imo loomed very large and hope had bloomed; but the case was probably doomed the moment Bayelsa was mooned by the Supreme Court.
Nigeria’s highest court had, on 14 January 2020 – following a petition brought by the opposition party – nullified the election of Hon. Emeka Ihedioha of the People’s Democratic Party (PDP) in the Imo State governorship election of 19 March 2019. Ihedioha and the PDP had filed an application on 6 February 2020 pleading with the Supreme Court to reverse that ruling. On Tuesday, 3 March 2020, after some delay in the controversial case, the Supreme Court ruled on the application: it refused to grant the plea and threw out the audacious application for want of merit.
The court’s dismissive ruling came as a shocking conclusion to the high-profile case, but it was not entirely surprising given the precedent of what transpired very recently in Bayelsa State where the court had refused even to entertain a judicial review of its initial ruling.
The Supreme Court was clearly in no mood for legal experimentation.
The Nigerian apex court had seemed apoplectic when the All Progressives Congress (APC) filed a petition asking it to review its ruling in the contested outcome of Bayelsa State 2019 gubernatorial election. The court had earlier delivered a ruling overturning the presumed victory of APC’s candidate in that state’s election, Mr. David Long, on the basis that his running mate, Mr. Biobarakuma Degi-Eremienyo, had filed forged certificates of qualification with the Independent National Electoral Commission (INEC). The apex court seemed upset to be asked by the losing side to review its judgement. In a splenetic February 26, 2020 decision, the court threw out the petition saying that it was “vexatious, frivolous, and constituted a gross abuse of court process.”
Justice Amina Augie, who read the decision of the Supreme Court, said that granting the application for judicial review would “amount to violating the finality of [the Supreme Court’s] judgment”, that such concession would open the “floodgate” for judicial review application, and that “there must be an end to litigation.”
Justice Augie said she had tears in her eyes and was filled with regret that “very senior” lawyers could file such an application. To demonstrate its disgust, the court awarded a cost of ₦10 million against each of the two lead appellant lawyers, Chief Afe Babalola (SAN) and Chief Wole Olanipekun (SAN), to be paid to each of the three respondents in the case – the PDP, its Bayelsa State governorship candidate, Duoye Diri, and his deputy, Lawrence Ewhruojakpo.
It all stacked up to a ₦60 million smacking.
Against this background, it had seemed improbable that the Supreme Court would grant a petition, as canvassed in the case of Imo State, asking it not simply for a judicial review but to reverse its own ruling.
Dramatic Overturn
It will be recalled that on 14 January 2020, the Supreme Court had delivered a bombshell ruling voiding the election of PDP’s Emeka Ihedioha as Imo State governor, declaring APC’s Hope Uzodinma as the winner of the 9 March 2019 Imo State governorship election. Uzodinma had in fact been 4th-placed in the original vote tally. But Uzodinma had filed a complaint with the Imo State Governorship Election Petition Tribunal, claiming top position with a controversial re-computation that included votes from 388 polling stations which he argued that INEC had unlawfully excluded. He had lost the petition. He had also lost a petition on the same case filed at the Court of Appeal. Both the tribunal and the appeal court ruled that Uzodinma had not proved his allegation against the election of Ihedioha.
▲ Emeka Ihedioha vs Hope Uzodinma
But good fortune awaited the persistent Uzodinma, for on January 14 the Supreme Court, in a unanimous ruling delivered by Justice Kudirat Kekere-Ekun, found in his favor, agreeing with him that results from the 388 polling stations should be computed. The court ordered that Uzodinma be sworn-in as the rightful governor of Imo State.
In the highly-charged aftermath of the ruling, the dislodged Imo State Governor, Emeka Ihedioha, along with his party, PDP, had filed an application on February 6 asking the Supreme Court to “set aside” its earlier ruling of January 14, arguing that the judgment was a nullity because it was procured by fraud.
The Imo case had seized public imagination far more than most such petitions, drawing widespread media coverage and sparking anti-Supreme Court demonstrations within and outside Nigeria. At a point, Washington DC-based National Press Club, the world’s largest professional organization for journalists, weighed in, berating the Nigerian Supreme Court for allegedly delivering a “flagrantly fraudulent” judgement. The association said global punitive action, including visa restrictions and international legal sanctions, could be sought against the justices if the decision was not reversed.
All this heightened expectations that Imo might prove different from Bayelsa.
No Hope for Ihedioha
The hearing of the ruling reversal application was not without some drama. Initially set to be heard on 18 February 2020, Ihedioha’s lawyer, Chief Kanu Agabi (SAN), had asked the court for adjournment to afford him time to study, and be in a position to respond to, the processes filed by the APC and Hope Uzodinma, the first and second respondents in the case. The seven-man panel of Supreme Court justices, led by Chief Justice of Nigeria (CJN), Tanko Muhammad, had granted that request and fixed 2 March 2020 for the hearing.
However, when the matter was called up on March 2, Agabi yet again asked for a short adjournment, informing the court that he had just been served inside the court with the reply of the respondents and that he needed time to look at the documents in order to respond accordingly. The lawyer for Uzodinma and the APC, Mr. Damian Dodo (SAN) as well as INEC’s lawyer, Mr. Tanimu Inuwa (SAN), had said that they were ready to proceed with the hearing, but the CJN Justice Muhammad adjourned the hearing to the next day.
The court finally considered the application as adjourned on March 3. In a tough 6-1 decision, the Supreme Court panel dismissed the application requesting it to set aside its January 14 decision, arguing that the application lacked merit. Because the application prayed the apex court not for a judicial review but to reverse its initial ruling which nullified the election of Ihedioha, the panel majority, in a ruling read by Justice Olukayode Ariwoola, held that the application in fact amounted to asking the Supreme Court to sit on appeal over its own judgment. The majority held that the court lacked powers to do so in a judgment delivered on merit and in accordance with the dictates of the law and justice.
As Justice Ariwoola put it, “it is settled law that this court has no power to change or alter its own judgement or sit as an appellate court over its own judgement.” Continuing, he argued: “Certainly this court has no inherent power to grant what is being sought, it is beyond the powers of this court. There are no constitutional provisions for this court to review its own judgment.”
He said that on the basis of Order 8 Rule 16 of the Supreme Court, ”the general law is that [the court] has no power to alter any judgment.” He also referred to Section 235 of the 1999 Nigerian Constitution which he said provides that any judgment of the Supreme Court based on merit is final and shall not be reviewed under any guise once delivered, “except for clerical errors” or “if there is a missing link in the main body of the judgment.”
Justice Ariwoola concluded: “To say the least, this court has no competence and indeed lacked the power to sit on appeal in its own decision where the finality of the Supreme Court is entrenched in the constitution and inherent power can only be invoked where there is the law to do so.
“This court cannot ridicule, alter any judgment under any inherent power, as doing so would bring the court into disrepute and ridicule.
“The application is liable to dismissal and is hereby dismissed for want of jurisdiction and competence.”
Unlike the Bayelsa case, however, the justices did not award costs in the Imo case, stipulating that each side should bear its own cost.
The six majority justices on the Imo State panel were: CJN Tanko Muhammad, Olukayode Ariwoola who read the majority judgement, Sylvester Ngwuta, Kudirat Kekere-Ekun, Amina Augie and Uwani Abba-Aji.
Lonely Dissent
A dissenting opinion was offered by the 7th member of the apex court panel, Justice Centus Nweze. Justice Nweze said that he agreed with the applicants that the Supreme Court’s initial judgement which declared Hope Uzodinma as winner was entered in error. As such, he said, the Supreme Court owed a duty to the principle of justice to set aside a decision it had rendered in error. He insisted that the Supreme Court had the power to overrule itself, and averred that the court had “done so in the past.”
▲ Lonely dissenter: Justice Centus Nweze
In a very sharp assessment, Justice Nweze said that “Mr. Uzodinma mischievously misled the court into [an] unjust conclusion with the unverified votes credited to himself in the disputed 388 polling units.”
He said that in his “intimate reading of the January 14 judgment, the meat and substance of Ihedioha’s matter were lost to time frame. This court once set aside its own earlier judgement and therefore cannot use the time frame to extinguish the right of any person.” This was a reference to the argument advanced by the respondents that the 60 days allowed for the Supreme Court to hear and rule on an appeal from the Court of Appeal in an election matter had elapsed by the time Ihedioha filed his application.
“This court’” Justice Nweze said, “has powers to overrule itself and can revisit any decision not in accordance with justice.”
He charged that Uzodinma and his party, the APC, misled the court into accepting the allegedly excluded results in 388 polling units without indicating the votes polled by the other political parties, and without indicating the number of accredited voters in the polling units. Justice Nweze said that he recalled that during the election tribunal hearing, Uzodinma had been pressed into admitting that he “hijacked the result sheets from the electoral umpire officials and completed the result sheets by himself.” The judge therefore wondered how the Supreme Court could have “misled itself into declaring Mr. Uzodinma as governor,” in light of such blatant irregularities.
Based on these facts, Justice Nweze said that he was of the view that the application by the PDP and Emeka Ihedioha should succeed. He concluded: “I hereby make an order repealing the decision of this court made on January 14… I also make an order restoring the respondents [Emeka Ihedioha and the PDP] as the winner of the March 9, 2019 governorship election.”
It was all to no avail, however. The majority ruling carried the day, and as it stands Mr. Hope Uzodinma of the All Progressives Congress, by dint of the Supreme Court’s ruling, is confirmed as the governor of Imo State. With the ruling, APC controls 20 of Nigeria’s 36 states at gubernatorial level, PDP 15, and All Progressives Grand Alliance (APGA) 1 state.
Kinetic Party Politics
The APC’s recapture of Imo State continues the tradition of kinetic party politics in the state. After the Second Republic dominance of the state by the Nigerian People’s Party (NPP) under the governorship of Sam Mbakwe (1979 to 1983), the state was taken by the conservative National Republican Convention (NRC) during the abortive Third Republic, under the governorship of Evan Enwerem (1992 to 1993). Following the return to civilian rule in the Fourth Republic, the PDP governed the state for eight years under Achike Udenwa (1999 to 2007), and afterward under Ikedi G. Ohakim (2007 to 2011) who decamped to the PDP from the Progressive People’s Alliance (PPA) in 2009.
The APC captured the party in 2011 under the helmsmanship of the political carpetbagger, Rochas Okorocha, who seemed to have conjured up a victory in the governorship election of 2011, doing same as well to win a reelection in 2015. Both wins were secured under highly controversial circumstances.
It will be recalled that Rochas Okorochas’ major competitor in the 2015 election had been the former deputy speaker, House of Representatives, Hon. Emeka Ihedioha, who contested under the PDP’s flag. The highly volatile election was deferred for several weeks, with federal authorities citing security concerns. Eventually the election took place on 11 April 2015, but just as with Okorocha’s first election, INEC had declared the 11 April 2015 governorship Imo State governorship polls inconclusive. A re-run was fixed for 25 April 2015 which Okorocha was judged to have won, thereafter governing Imo until 2019.
Emeka Ihedioha’s win in the 2019 government election had brought Imo State back into PDP fold, but in the continuing saga of competitive politics in the state, his apparent victory has now been overturned by a Supreme Court ruling through which an APC candidate, who had been accounted fourth in the initial vote tally, has vaulted into the vaunted governorship seat in Imo State.
Little wonder the bemusement of Justice Nweze, the lone dissenting voice within the Supreme Court panel. He had told his colleagues that the court made a mistake in its initial ruling, arguing that “the finality of the court cannot extinguish the right of any person,” and that the “court [had] a duty of redeeming its image.”
Being outvoted on the panel, however, Justice Nweze concluded with a prediction that “the decision of the Supreme Court in the instant matter will continue to haunt our electoral jurisprudence for a long time to come.”
