The recent Supreme Court decision in SC.1462/2019- SENATOR HOPE UZODINMA & ANOR v. RT. HON. EMEKA IHEDIOHA & 2 ORS has been subject to several criticisms and commentaries by lawyers and political analysts.
While many have viewed the decision of the apex court as a wrong decision which endangers Nigeria’s democracy, a proper analysis of the judgment itself largely justifies the apex court’s position, and reveals that failure to rebut pleadings and evidence led Senator Hope Uzodinma, was the reason of the loss of Rt. Hon. Emeka Ihedioha at the apex court.
This analysis aptly summarizes the decision of the apex court in the appeal, and highlights the most essential points for commentators on the decision.
FACTS
Senator Hope Uzodinma (the 1st Appellant) and Rt. Hon. Emeka Ihedioha (the 1st Respondent) were candidates of the All Progressive Congress (‘APC’ the 2nd Appellant) and the People’s Democratic Party (‘PDP’ the 2nd Respondent) respectively in the Governorship Election conducted in Imo State on 8th March, 2019 along with 68 other candidates.
After the elections, Rt. Hon. Emeka Ihedioha was returned by INEC as the winner of the election, and Senator Hope Uzodinma through his lawyers filed a petition challenging the said return on two grounds:
(a) That Rt. Hon. Emeka Ihedioha was not validly elected by majority of lawful votes cast and;
(b) That the declaration and return of Rt. Hon. Emeka Ihedioha was invalid by reason of non-compliance with the Electoral Act.
Senator Hope Uzodinma and the APC (the ‘Appellants’) asked the court for the following:
1. Nullification of Ihedioha’s return and declaration as winner because INEC (the 3rd Respondent) excluded results from 388 polling units in which Uzodinma scored an overwhelming majority.
2. That the total votes due to Uzodinma which was unlawfully excluded by INEC from the 388 polling units was 213,695 while that of Ihedioha was 1,903 votes. Therefore, Ihedioha was returned based on a wrong computation of votes.
Ihedioha, PDP and INEC filed their reply to the petition, called witnesses and tendered documents on their position, and after hearing of the petition, the trial Tribunal found no merit in the petition by Uzodinma and the APC, and dismissed it.
Dissatisfied with the decision, Uzodinma and the APC appealed to the court of appeal which also dismissed the petition by a 4/1 majority, as a result of which they further appealed to the Supreme Court.
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ARGUMENTS OF PARTIES BEFORE THE SUPREME COURT
Preliminary application:
At the Supreme Court, Ihedioha and the PDP filed a motion dated 10th of January 2020 seeking to strike out the appeal of Uzodinma on the ground that:
1. By A Supreme Court judgment in SC1384/2019: Ugwumba Uche Nwosu V. Action Peoples Party (APP) & Ors. delivered on the 20th of December 2019, the Supreme court held that the issue of nomination of a person as candidate of two political parties was invalid, null and void and in violation of Section 37 of the Electoral Act, 2010 (as amended).
They argued that the APC also nominated and projected two candidates in the same election where Uzodinma contested, therefore the nomination of Uzodinma by the APC is invalid, null and void.
In response Counsel to Uzodinma and the APC argued that:
1. The judgment in SC1384/2019: Ugwumba Uche Nwosu V. Action Peoples Party (APP) & Ors. which the motion relies upon was a pre-election matter for which jurisdiction is vested in the High court and it cannot be raised in the Supreme Court for the first time;
2. Ihedioha was not a party in the APC’s primary elections which gave rise to the issue of nomination of Uzodinma and lacks locus to challenge it;
3. The question of validity of Uzodinma’s nomination as candidate of the APC was already laid to rest by the judgment of the High Court of Imo State in Suit No. HOW/756/2018-Prince Madumere V. APC & Uawumbo Uche Nwoso delivered on 21st of November 2018.
Having considered the arguments of counsel, the Court in dismissing the motion held that:
1. The application by Ihedioha’s counsel which raises the issue of nomination, is a fresh issue being raised for the first time at the Supreme Court and requires prior leave of court to raise it. The issue was therefore incompetent having been raised without such leave. See: A.I.C Ltd vs NNPC (2005) 5 SCN J 316;
2. The pleadings and evidence of Ihedioha and the PDP on record could not support the fresh issue being raised and that “the issue cannot be at large, otherwise it would constitute an instrument of ambush against an opponent”. See. Adeosun Vs Governor of Ekiti State (2012) 4 NWLR (Pt. 1291) 581, and Bankole & Ors. Vs Mejidi Pelu & Ors. (1991) LPELR-749 (SC) @ 36 C-F;
3. The jurisdiction to determine the issue of nomination is vested in the High Courts and the original jurisdiction of the Supreme Court does not extend to pre-election or election related matters. See. Section 87 (9) of the Electoral Act, 2010 and Section 233(1) of the 1999 constitution as amended.
Substantive appeal:
Argument of Uzodinma’s Counsels:
On the substantive appeal, the arguments of Learned Senior counsel for the Appellants, D.D. Dodo SAN were mainly that:
1. The appellants discharged the burden of proving exclusion of results by tendering relevant documents and calling several witnesses;
2. The Respondents did not tender any result for the election in the 388 polling units to contradict the duplicate originals of the results tendered by the Appellants even though their witnesses admitted that election was conducted in those polling units. Therefore, the duplicate originals of Forms EC8A tendered by the Appellants enjoyed the presumption of regularity since it was not rebutted;
3. The lower court misconstrued the appellants case to be about the anomalies in the 388 polling units complained of because the Appellants, in their pleadings, never made any complaint about any anomaly in any of the 388 polling units. Rather, all that the Appellant alleged was wrongful exclusion or cancellation of votes;
4. INEC called no witness nor tendered any documentary evidence to justify the exclusion and none of the Respondents cross-examined nor discredited the Appellants’ witnesses on the complaint that polling unit results were excluded from ward collation result;
5. The Respondents ought to have tendered what they claimed to be the genuine results to enable the tribunal compare both sets of results and determine which was authentic from the 388 polling units;
6. The only issue joined between the Parties to the appeal was whether INEC excluded votes due to the appellants from 388 polling units and not whether election took place in those units and therefore the presumption under Section 168(1) of the Evidence Act, 2011 remained unchallenged.
Argument of Ihedioha’s Counsels:
In response to the Appellants argument, Counsel to Ihedioha, Onyekachi Ikpeazu SAN argued that:
1. The Appellants, were obliged to prove (i) that elections were conducted in each of the 388 polling units; (ii) that the elections were properly conducted in those polling units; (iii) that they had agents in each of the polling units and (iv) that the results of the election in each of the 388 polling units were issued by the presiding officers to the appellants’ agents who were present when the election took place in those units. He contended that the only evidence that would infuse life into the Forms EC8A and EC8B relied upon by the appellants was the evidence of the makers of the documents;
2. The claim of the Appellant relating to the exclusion of votes and alleged result sheets relied upon were false;
3. The duplicate result sheets tendered by the Appellant were of no evidential value, having not been tendered by their makers and that it was imperative for the Police Officers who were at the specific polling units to have been called to testify;
4. The Appellants called only 28 polling unit agents whose evidence was disbelieved by the Tribunal leaving 360 polling units unattended and that finding was unchallenged. He submitted further that from the record, the evidence led by the appellants’ polling unit agents was untruthful because it was evident that they alone signed all the results tendered;
5. The tabulation of scores relied upon in their pleading in fact contradicted their case by revealing inconsistences between the number of votes scored vis-a-vis the number of registered voters.
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RESOLUTION OF THE ISSUES & JUDGMENT:
In resolving the issues in contention in the appeal the apex court held that:
1. The basis of the case, on which issues where joined is contained in paragraphs 18 — 25 of the Appellant’s Petition and relates only to claims that:
i. In the course of collation of results at Ward, Local Government and State Levels, INEC incorrectly reduced the votes of the Uzodinma by excluding the results from the 388 polling units where he scored overwhelming, majority of votes cast;
ii. INEC’s omission to record and reckon with votes due to Uzodinma from the 388 polling units gave undue advantage to Ihedioha and the PDP, and that INEC unlawfully excluded the polling unit results in the areas where Uzodinma recorded very high number of votes;
iii. INEC unlawfully excluded the votes in those polling units were elections were properly conducted and results issued by the presiding officers to APC’s agents as contained in the duplicate copies of the polling unit results (Form EC8A);
iv. Of the votes unlawfully excluded, Uzodinma scored 213,695 while the total votes of the Ihedioha from the same units was 1,903;
v. When the votes unlawfully excluded by INEC is added to both parties, Uzodinma and APC’s total score will be 310,153 while that of Ihedioha and PDP will be 260, 162, thus making Uzodinma the winner of the election by majority.
2. The court viewed that the main issue joined on the pleadings was the allegation that votes due to the appellants from 388 polling units were excluded from the votes accredited to them at the election, and that if the said excluded votes were added to their score, they would have emerged as the winners of the election;
3. A careful perusal of the appellants’ pleading revealed that they did not, at any stage challenge the holding of elections in any polling unit. Their contention was that elections held, they scored votes but their votes were excluded at the collation stage. Therefore, the need to call the polling unit agents to prove that elections actually held in those polling units did not arise;
4. INEC denied excluding the votes scored by the appellants in the affected units. In other words, they did not contend that elections did not take place in the 388 polling units. Their contention is that the results relied upon by the appellants are false and they are not genuine. They pleaded that they would tender the genuine results but failed to do so;
5. Having pleaded that the documents were false, the Respondents made allegations of a criminal nature against the Appellants. They were required to plead the specific elements of fraud and lead evidence showing the genuine results, which beyond reasonable doubt, must prove forgery. See: Uchechukwu & Anor. Vs Barr. Uzama Simon Okpalake & ors (2010) LPELR – 5041 (CA); Maihaia vs Gaidam (2017) LPELR – 42474 (SC) @35 – 36 A – D; Audu vs INEC (No. 2) (2010) 13 NWLR (Pt. 1212) 456;
6. Although Ihedioha’s Counsel relied heavily on the assertion that Exhibits PPP 1 — PPP366 tendered by the Appellants were fake, no evidence was adduced to prove the assertion at all, let alone beyond reasonable doubt. The respondent failed to produce the “genuine” results as pleaded;
7. The apex court also held that Exhibits PPPI — PPP366 being duplicate originals required no certification. See. Section 86(2) of the Evidence Act, 2011 and the cases Gambo Idi Vs the State (2017) 6 SC (Pt. IV)96; P.D.P. vs INEC (2014) 17 NWLR (Pt. 1437) 525: Daggash vs Bulama (2004) 14 NWLR (Pt. 892) 144;
8. On the admissibility and validity of Election Result Forms given to the Police, the court held, relying on Nnadi Vs Ezike (1999) 10 NWLR (Pt. 622) 228 at 238 C-E, that ‘Election result forms given to the Police security men cum observers at the polling booths, as dictated by the provisions of paragraph 33 of Schedule 4 to Decree No.5 of 1999, constitute an internal and inbuilt control mechanism or measures designed to unravel unlawful cancellations, alterations, mutilations and juggling of figures during elections and such result as produce by the Police are the best and tenable available source to test the veracity of the parties’ contention on the issue of what in fact were the actual scores made by the contending parties;
9. The court further held that INEC, failed woefully to tender the results it termed “genuine,” which would have rebutted the presumption of regularity in favour of the documents tendered by the appellants;
10. The Court therefore held that ‘on a preponderance of evidence, the appellants discharged the burden on them of proving that the results from 388 polling units, which were in their favour, were excluded from the collation of results and that if the excluded votes are added to the results Senator Uzodinma was winner of the election by majority ;
11. The judgment of the lower court was therefore set aside and Senator Uzodinma was declared winner after the addition of the votes which were stated to be in favour of Uzodinma by the pleadings and unchallenged evidence adduced.
IN CONCLUSION
The rules of court practice can be very tricky to navigate, even for the most experienced lawyers. The counsels to Ihedioha in the appeal are some of the best election petition experts in the country, however, the very basic issues of challenging evidence and rebutting pleadings were the basis of the loss of the case.
The decision of the court may not be perfect, but as it stands it very well accords with the rules and procedure of trial practice. Therefore, SC.1462/2019- SENATOR HOPE UZODINMA & ANOR v. RT. HON. EMEKA IHEDIOHA & 2 ORS neither endangers Nigeria’s democracy nor was it a wrong decision. It is only one which leaves much lessons for lawyers to learn from.
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