By Senator Sola Akinyede OON, LL.M
Certain facts in the Imo State gubernatorial election petition appear to be clear.
1. Senator Hope Uzodinma claimed that elections took place in 388 polling units and that his votes in those units were excluded from the results of the election.
2. INEC claimed that elections did not take place in those polling units.
3. The Election Tribunal and the Court of Appeal agreed that Uzodinma did not prove that elections took place in those polling units.
4. A policeman who was not and could not have been, at the 388 polling units tendered the results of those polling units.
5. Both the Election Tribunal and the Court of Appeal rejected them.
6. The Supreme Court accepted them contrary to the legal principles the Supreme Court itself laid down over several decades, principles which the Supreme Court still confirmed two months ago in the case of Atiku V INEC.
7. As a result of the Supreme Court’s decision, Imo State now has a situation where the total number of votes cast exceed the total number of accredited voters by over 100,000 votes- an electoral impossibility -meaning that something is manifestly wrong with the conclusion reached in the judgement of the Supreme Court.
8. Under the general principles of the Electoral Law, where the total number of votes cast exceed the total number of accredited voters,the election shall be declared void.
9. It was not the act of INEC, or the acts of the candidates or the political parties that created this electoral impossibility but the decision of the Supreme Court to accept the votes in the 388 polling units and add them to Uzodinma’s votes. Without the details of where there was over-voting, it is impossible for the Supreme Court or anyone to know which votes and results to declare void.
10. The judgement of the Supreme Court means two things. Either over 100,000 people who should not have voted did vote, or those votes are fictitious. Whichever the case, the only way this electoral impossibility could have arisen is by an error.
11. The Supreme Court in an earlier judgement had disqualified Uche Nwosu on the grounds that he was both the candidates of the APC and the AA. If Nwosu was a nominated candidate of the APC, the grounds on which he was disqualified, how come the same Supreme Court accepted that Uzodinma was also a validly nominated candidate of the APC who was now declared by the Supreme Court as having defeated Ihedioha ?
12. INEC declared that Rt Hon Emeka Ihedioha polled 273,404 votes, while Senator Hope Uzodinma polled 96,458 votes. For Uzodinma to have defeated Ihedioha, he must have polled at least additional 176,946 votes (perhaps close to 200,000 votes) while Ihedioha’s votes did not increase in those 388 polling units. For the credibility and legitimacy of our justice system, the integrity, credibility and sustainability of our democracy, the nation needs to know where these votes came from.
Justices of the Supreme Court are human and therefore fallible. This is more so having regard to the workload thrust upon them not just by gubernatorial election petitions, but by pre-election matters in gubernatorial and other elections. Judicial officers do make mistakes, and that exactly is the reason for the appellate system. But where the apex appellate court that has a final say makes a mistake what should be done?
The conventional wisdom in the legal profession is that since the Supreme Court is the final appellate court nothing can be done. The Supreme Court should wait for another opportunity perhaps in 2024 to correct its mistake.
But is it correct, fair or just to replace Ihedioha with Uzodinma when the victory of Uzodinma depends on over 100,000 people who voted but who were not accredited, and who should not have voted? Or possibly on over 100,000 votes that did not exist?
Is it right to let the consequences of the decision of the judgment of the Supreme Court- an electoral impossibility remain? Is it right for any court including the Supreme Court to make a mistake and make that error its final decision? These are the questions that the Supreme Court would need ask itself. What are the consequences if the Supreme Court stands its ground and refuses to correct its mistakes?
In the 2018 United States case of Rosales- Mireles V US, Justice Sonia Sotomayor of the United States Supreme Court stated. “Fairness requires that the court should correct mistakes when they involve substantial rights.” “Correcting errors guarded judicial legitimacy. The public reputation of the judicial system hangs on the perceived adherence to the principles of justice. An unjust court is considered an illegitimate court”
With the present situation in Imo, this may be where we are headed. The decision of the Supreme Court in Imo goes beyond Ihedioha. It goes beyond Imo. It goes beyond PDP or APC. It goes to the heart and foundation of the acceptability, credibility not just of the Supreme Court, but of our justice system and our democracy. Amid its conflicts and contradictions, if this decision is allowed to stand, it will set a precedent, and under the doctrine of STARE DECISIS, the decision must be replicated in the different Election Petitions Tribunals and Divisions of the Court of Appeal across the country with each one picking any that fits its fancy. With a loss of confidence in the justice system and disparate decisions by the various courts and Tribunals, the consequences could be grave, leading to a breakdown of law and order in different parts of the country in 2023/2024.
By changing the time-honoured legal principles and accepting the results from a police officer who was not at the 388 polling units, the Supreme Court may not appreciate the serious implications of their decision. But as a politician, I know that without knowing, they have just given a licence to politicians to manufacture results from their bedrooms and call an army officer, Civil Defence officer or anyone to present the results in court.
After PDP started its protests, we are now hearing from APC stalwarts that Ihedioha did not poll one-quarter of the votes cast in at least two thirds of the twenty-seven local government areas in Imo State as required by Section 179 (1) (b) of the Constitution. The first question for the Supreme Court to address is whether this issue of spread was one of the grounds raised by Senator Uzodinma in his petition at the Tribunal. If it was not, this then is simply an after-thought which will occasion a miscarriage of justice as Rt. Hon Ihedioha would not have had the opportunity to address this issue both at the Tribunal, the Court of Appeal and the Supreme Court contrary to the principles of natural justice.
Secondly, the Supreme Court has held for decades that the court will not grant a litigant what he did not ask for. Thirdly, the issue of spread is one of simple mathematics based on the number of votes. The question therefore is ‘Spread based on which figures? The figures declared by INEC or the figures added by the Supreme Court? If it was based on the figures declared by INEC, the election should have been declared inconclusive and a re-run should have been scheduled between Ihedioha and the candidate who came second to him.
Fourthly, if based on the figures from the 388 polling units accepted by the Supreme Court, then the Supreme Court needs to state the number of votes polled by Ihedioha in those 388 polling units because those figures will affect the issue of spread.
Fifthly, if it was based on the figures added by the Supreme Court, is it fair to base the issue of spread on the figures obtained from those polling units when INEC had rejected those figures and Ihedioha had stated that the figures were fictitious ? In other words, is it fair to base spread on figures that are being contested or unproven?
Finally, if over 100,000 people who should not have voted because they were not accredited did vote making those votes unlawful, how will anyone including the Supreme Court know where out of the total votes cast in Imo State these unlawful votes came from and how can the issue of spread be based on these unlawful votes when no one knows where they came from?
A court correcting its own mistakes is not new. More than five hundred years ago, the English Courts, recognizing the fallibility of judges originated the Writ of Error Coram Nobis which allowed a court to correct its own error. Since then, other devices have been designed to address the problem. –eg The Slip Rule designed by English Common Law which we adopted in Nigeria.
The Indians designed their Constitution, to permit their Supreme Court to review any judgement pronounced by the Supreme Court. Even after the dismissal of a Review Petition, the Indian Supreme Court may consider a Curative Petition to cure a gross miscarriage of justice. What has happened in Imo appears to be a gross miscarriage of justice as over 100,000 votes of unproven origin have been deployed to nullify the election of Ihedioha.
Granted that Nigeria does not have a similar provision in its Constitution, there is nothing in the Nigerian Constitution that states that the Supreme Court cannot make a mistake and that where it does, it cannot correct it.
What section 235 of the Constitution states is that no appeal shall lie to any other body from the determination of the Supreme Court. It does not state that the Supreme Court cannot suo motu (by its own initiative) correct its own mistake.
The Chief Justice of the Federation, Justice Mohammed Tanko, as an act of historic courage and statesmanship should convene a conference of all the 17 Justices of the Supreme Court to decide whether there has been a mistake or mistakes, and what the consequences of allowing the mistakes to stand are for the parties, for the judiciary, for democracy and for our country; and be bold enough to correct them.
Of course, one is not unaware of the arguments against. That it will open the floodgates, as everyone who loses an appeal will ask the Supreme Court to reconsider its decision. No one is suggesting a further right of appeal. Section 235 is clear on that. In trying to ensure that the power to correct its mistakes is not abused, the Supreme Court should set out stringent parameters, including the minimum number of Justices who can correct such mistakes
The Supreme Court is a court of justice, and it has an inherent jurisdiction, power and duty to do justice. Once there is a mistake, there can be no justice. If they make a mistake, it may be pardonable because they are human. But to insist that because their decision is final, the people of Imo must accept that mistake as their final decision, will not only be itself the most egregious mistake, but an unpardonable sin.
In correcting its error, the Supreme Court will have to re-instate Rt Hon. Emeka Ihedioha by ordering INEC to return his Certificate of Return to him, on the basis of the fact that he won the March 2019 gubernatorial election as declared by the Election Tribunal and the Court of Appeal, or order that INEC conducts fresh elections in those 388 polling units while the Speaker of the Imo State House of Assembly is sworn in as Acting Governor. To hold that Senator Hope Uzodinma should remain the governor while fresh elections are conducted will not only be a violation of the Electoral Act but will amount to another gross miscarriage of justice. In times like this, what our country needs is an act of courage.
*Senator Sola Akinyede, a Constitutional Lawyer was in the Senate from 2007 -2011