Last week, precisely on Tuesday, January 14, the Supreme Court of Nigeria nullified the election of Chief Emeka Ihedioha of the Peoples Democratic Party (PDP) and pronounced Senator Hope Uzodinma of the All Progressives Congress (APC) the validly elected governor of Imo State. The legal reasons for the apex court’s decision have not been made public, hence, creating room for speculations and mixed reactions. While some think that the battle between Ihedioha and Uzodinma was won and lost on technical grounds and judicial precedence, others are full of insinuations that there could be more to the controversial judgement.
What experts say
Human Rights activist, Monday Ubani said: “Full reasons for the decision in Hope Uzodimma V Emeka Ihedioha are yet to be made public but many legal analysts’ criticisms are directed at the seeming departure from the precedent already established by the same Supreme Court on the probative value to be attached to documentary evidence like EC8 Forms (INEC Result Sheets).
“The Supreme Court held a notorious precedent that where a petitioner needs to establish the regularity or irregularity of election results in the polling units with the documentary evidence which is the Result sheets made out after the announcement of the voting, that the proper person to tender the said documentary evidence during trial is the Presiding officer or the polling agents of the political parties that participated in the election at that unit level.
“With this burden, it is practically impossible to succeed as a petitioner in electoral matters.
“Calling all the Presiding Officers or polling unit agents within a limited time allowed by the Electoral Act has made virtually all Petitioners perennial losers in all Election Petition Cases.
“In the recent case of Atiku V Buhari and others, the Supreme Court held that for Atiku to succeed in proving the regularity or irregularity of the results of INEC, he should have produced at least 250,000 witnesses from the various polling units.
“In Uzodinma v Ihedioha, the Supreme Court frowned at the rejection of the result sheets as produced by the police that participated in the election and which tendered their results sheets as given to them by INEC officers. To the eternal glory of God and to the survival of electoral democracy in Nigeria, the sound of the drum has changed suddenly and the dancers are now required to alter their dancing steps accordingly.”
But for the national leader of the All Progressives Congress, Chief Bola Tinubu: “Foes of justice and democracy had engineered a plot by which the improper and wilful exclusion of over 200,000 valid votes cast for Uzodinma would deny him the office the people of Imo had chosen him to fill. The wrongful exclusion of such a vast number of valid votes threatened to turn the Imo governorship election into an unfortunate rejection of the sovereign will of the electorate.
“It was imperative that this injustice be corrected and in line with its responsibility, the Supreme Court carefully reviewed the case. Recognising the obvious impropriety and unfairness of the exclusion, the apex court objectively and impartially ruled in favour of the people and in support of democracy.”
Senior Advocate of Nigeria and a constitutional lawyer, Chief Mike Ozekhome, said: “The Supreme Court is the final court of the land. That is why it is called the apex court. Once it settles a dispute, it becomes final for all times. Anyone who is disappointed or dissatisfied can only appeal to God almighty. In governorship election matters, it constitutes a full panel of seven Justices to hear it, in place of five Justices of the Court of Appeal that hear a governorship election petition. As the apex court itself once famously declared in Adegoke Motors case, ‘the Supreme Court is final in the sense of real finality. It is final not because it is infallible; it is infallible because it is final’.
“In the Hope Uzodinma v Emeka Ihedioha’s case, it has spoken. I believe in the Rule of Law and its sanctity. I also believe in total and absolute obedience to court orders, however unpalatable to the loser, to avoid chaos and anarchy. Obedience to court orders is one of the inescapable building blocks of constitutional democracy. There is ordinarily a presumption by the society that the Supreme Court, being the final court of the land, is supposed to be right in its decisions, after rigorous and painstaking perusal of cases brought before it between feuding parties.
“However, the next stage is for legal pundits, analysts and academicians, to dissect the judgment thoroughly, to decipher if it met the justice of the case, having regard to the available facts. They must interrogate whether the judgment actually delivered justice according to law. After all, law is but a handmaid instituted by man to deliver justice. “The two are siamese twins. One without the other is bare and vacuous. One area that needs critical analysis and interrogation is what makes a candidate that came 4th in an election to be declared the winner of that election. Another area that requires an urgent answer is why INEC has so failed the nation, such that presidents and governors are now being packaged and delivered for the country and states, against the clear choice of the electorate at the polls.
“If INEC got its acts right, the Judiciary’s frequent interventions would have been greatly minimised.
A professor of International Law and Jurisprudence, Prof. Akin Oyebode said that the judgment of the Supreme Court on the Imo governorship election reflected the poverty of Nigeria’s electoral process and did not reflect the wish of Imo electorate. He said, “It strikes me as curious that the candidate, who came fourth in the Imo Governorship election, has now been declared as governor. The decision reflects the poverty of the Nigerian electoral process such that judges are now substitutes for the electorate. Regrettably, the pronouncement by the Supreme Court, for better or worse, is the last word on the matter under our jurisprudence. A day will come when Nigeria would take a fresh and hard look at its fundamental law with a view to removing the “perfidy of placing unelected judges above voters’’.
A lawyer and political analyst explained, “Apparently concocted results, perhaps not having any basis whatsoever in reality, but signed by INEC presiding officers, were turned in from more than 350 polling units, giving Hope Uzodinma of the APC an incredibly unassailable lead. When those results were transmitted to the wards collation centres, the collation officers, who had no power in law to cancel or reject them, rejected the said polling units’ results, and refused to collate them, thereby effectively excluding them from the total tally of the governorship result that was eventually declared by the Returning Officer.”
He said the exclusion of the results of those polling units was the fulcrum of the petition presented at the Tribunal by Hope Uzodinma. Ever since David Mark V. Abubakar Usman and Doma V. INEC, the law has been settled that neither collation officers nor a returning officer, has the power in law to exclude a polling unit result duly signed by the presiding officer at the polling unit; only the election tribunal possesses the power to cancel or exclude such a result.”
He continued: “At the point of its presentation, Senator Uzodinma’s petition was potentially viable, in spite of the apparent dubiousness of the polling units’ results on which it was anchored, there being a rebuttable presumption of regularity and correctness, by virtue of both the Electoral Act and Evidence Act, inuring in favour of any result declared by a presiding officer.
“The fatal error made by Ihedioha’s legal team was in not filing a cross petition fiercely challenging the integrity of the suspect-polling-units’ results upon which Uzodinma was relying, and praying the election tribunal to formally nullify the said results. Without a cross petition, none of the grounds under section 138 (1) of the Electoral Act for questioning the elections conducted in those polling units in which Uzodinma “won” could have been competently raised by Governor Ihedioha in his defence to Uzodinma’s petition. Ihedioha indeed did set up facts in his Reply to the petition rehashing the serial infractions that led to the exclusion of the results of the said 300 plus polling units. But that was legally not enough, in the absence of a cross petition.”
The roles of legal technicalities and judicial precedence cannot be undermined in any legal system. While stating reasons for supporting Alhaji Atiku Abubakar’s appeal against President Muhammad Buhari’s election, PDP governors had said that if the judgement was not challenged, there would be greater implications for Nigeria’s democracy. Bayelsa State governor, Seriake Dickson, as the chairman of the PDP Governors’ Forum, alleged that, the decision of the court was aimed at laying a faulty foundation for the future generations. “We would be doing a greater disservice and moral injustice to our party, our democracy and Nigerians in general if we turn blind eyes, swallow such bile and applaud that rape of justice,” he said. “The Supreme Court knowing that its integrity is at stake will avoid disaster and employ all known technicalities to save Nigeria.”
The Presidential Election Petition Tribunal had said that President Muhammadu Buhari was qualified for the 2019 election; because his certificate from the Nigerian military was higher than the Secondary School certificate stated in the constitution as a minimum academic requirement for the election; as a result, he was not only qualified but eminently qualified. Counsel to Atiku had argued, “I am not so comfortable with the position of the Tribunal on the issue of Buhari’s certificate. Once something is defective ab initio, it is defective ad infinitum. That the president later secured certificates higher than the initial certificate required for his education goes to no issue in law.”
In the case of Abdulrauf Abdulkadir Modibbo vs Mustapha Usman, the Supreme Court corrected an error it made 12 years earlier, where it sacked then Rivers State Governor, Celestine Omehia from office and replaced him with Rotimi Chibuike Amaechi whose name was not on the ballot. The party had settled for Omehia, who did not participate in the primary election as against Amaechi, who came first in the election. But the Supreme Court rejected Omehia on the grounds that he never existed in the eyes of the law despite the fact that his name was on the ballot. In his place, the Supreme Court ordered that Amaechi, who was disallowed to take part in the general election be sworn in as governor. Prof. Ben Nwabueze (SAN), Chief Gani Fawehinmi (SAN) and many others had faulted the judgment of the court. Since 2007, the judgment remained a judicial precedent. The Supreme Court used the case to sack a former senator from Taraba State, Abubakar Danladi and another lawmaker representing Benue State in the House of Representatives, Herma Hembe in 2017.
But the new position of the Supreme Court had upturned the controversial judgment according to Section 141 of the Electoral Act, which says that before anybody is declared elected in any election, such person must participate in all the stages of the election. Justice George Oguntade, who delivered the lead judgment made it explicitly clear that without a political party in Nigeria, a candidate cannot contest election. He said since there was no provision for independent candidacy in Nigeria, it is a political party that wins election in Nigeria not the candidate.
Sometimes, it takes longer for the Supreme Court to reverse its judgment. A lawyer, Joe Nwokedi however, explained that the Supreme Court can overrule itself by setting a new precedent during hearing of case which may nullify the earlier precedent set by Supreme Court on the same matter.
“Precedents don’t last for eternity,” he said. “It’s binding when it has not been overruled by subsequent decisions of the supreme court but no longer binding on lower courts once it has been overruled in subsequent cases.”
In law, judicial precedent refers to judgment of a court of law cited as an authority for deciding a case with similar set of facts. In other words, a case which serves as an authority for the legal principle embodied in its decision. Consequently, the judgment is used as a source for future court’s decision making; because decisions of a superior court is absolutely binding on subsequent inferior courts. Meanwhile, it’s only the Supreme Court that can overrule itself faced with a matter with similar set of facts.
In giving judgment in a case, the judge will set out the facts of the case, state the law applicable to the facts and then provide decision. It is only the ratio decidendi: the legal reasoning or ground for the judicial decision which is binding on later courts under the system of judicial precedent. The judge may go on to speculate about what his decision would or might have been if the facts of the case had been different. This is an obiter dictum; observation made by the judge.
Summarising their position on the “Rationality of Judicial Precedent in Nigeria’s Jurisprudence” Ephraim A. Ikegbu, S. A. Duru and Dafe Emmanuel of Department of Philosophy, University of Calabar, argued philosophically, that the application of the doctrine of judicial precedent or stare decisis in our legal system is not only an imposition, it is also reductionist, absolutist, suspect and lacking in substance as no two cases are exactly the same in the question of facts and law and in all the material circumstances of the case.
They argue that its application in the Nigerian legal system could occasion injustice as a result of its conservatism and failure to admit novelty in deciding cases; it also fosters rigidity; dampening the spirit of experimentation; leading to a repetition of past mistakes and the cumbersome nature of finding binding precedent. “It is our submission that the doctrine of judicial precedent or stare decisis inspite of its perceived benefits as making for certainty and uniformity, saving time and prevention of legal chaos in the hierarchical operation of the court system among others ought to be jettisoned as this doctrine is alien to our legal system; also the incidence of travesty of justice cannot be completely overruled. Nigerian legal system will be basically floating on the surface of foreign jurisdiction with a strict application of judicial precedent.”
According to Wikipedia, the term legal technicality is a casual or colloquial phrase referring to a technical aspect of law. The phrase is not a term of art in the law; it has no exact meaning, nor does it have a legal definition. It implies that strict adherence to the letter of the law has prevented the spirit of the law from being enforced. However, as a vague term, the definition of a technicality varies from person to person, and it is often simply used to denote any portion of the law that interferes with the outcome desired by the user of the term.
Some legal technicalities govern legal procedure, enable or restrict access to courts, and/or enable or limit the discretion of a court in handing down judgment. These are aspects of procedural law. Other legal technicalities deal with aspects of substantive law, that is, aspects of the law that articulate specific criteria that a court uses to assess a party’s compliance with or violation of, for example, one or more criminal laws or civil laws.
During the screening of Justice Ibrahim Tanko Muhammad, the Chief Justice of the Federation, he was asked by Senator Enyinnaya Abaribe a question which borders on the Supreme Court’s policy on technicality and substantial justice in the determination of cases. The Senator cited Abraham v. Akeredolu confirming the policy of the apex Court that the courts will not allow technicality to thrive. Justice Ibrahim Tanko Muhammad explained: “…The question by distinguished Senator Abaribe centres on technicalities and perhaps the difficulties we are facing on technicalities. Permit me, distinguished President and the Senators to say that something which is technical, in my definition, is something that is not usual. That may sometimes defy all the norms known to a normal thing. It may be technical. Now, we have technicalities in our laws. And this is because these laws that we have inherited, we inherited them from the British and the British people have for quite centuries ago, introduced what is known as technicalities in their laws. Now, if something is technical, it is in a way, giving a leeway for double interpretation. It may be interpreted this way by Mr. A, or it may be interpreted this way by Mr. B. Now, if something is technical comes before the law or before the courts, what we normally do at the trial courts is that we ask people who are experts in that field to come and testify. We rely on their testimony because they are experts in that field.
“Ask me anything on aeroplane. I don’t know. Ask me to drive an aeroplane; I am sure if you are a passenger and they told you that that flight is going to be driven by Hon. Justice Ibrahim Tanko, I am sure you will get out of the plane. Because, it is something that requires technicality and if I have any technicality, my technicality will only be limited to law. Therefore, it is something that has to do with the perception of the way you think you will be able to achieve the goals of what you want to achieve. Several of our laws are dependent on technicalities. But remember, when we come, we have what is known as Rules of Interpretation. We resort to rules of interpretation. There are several rules of interpretation. Those of us who are lawyers here know we have several rules of interpretation. So, we resort to that one. And it is through that we resolve the problem that is technically raised. So, that is the answer.”
An analyst explained that a perfect definition of technicality is largely unavailable. But in the context of hearing and determination of cases by our courts, judgment based on technicality is often differentiated from judgment based on substance or merits of a case, otherwise known as substantial justice. “Technicality refers to any point not precisely touching on the merits of a case. Sometimes, it may be considered as something trivial or inconsequential. By this, it is the sharp antonym of substance; i.e., something not so material. Technicality largely involves an attempt to take advantage of any loophole in the laws or any mistake by a party or counsel, in the presentation of one’s case; or strict reliance on Procedural Rules of Court to defeat the substance of a particular case and win on that ground. When this happens, it is commonly said that a case was won on mere technicalities. Technicality may also involve pinpointing a narrow (but important) issue of law, not necessarily trivial. Here, the brightest of lawyers show their talents by their critical appraisal of the issue(s).”
Late Supreme Court judge, Justice Niki Tobi, had this to say about technicality: “I realize that courts of law seem to be using the word technicality out of tune or out of turn, vis-a-vis the larger concept of justice. In most cases, it has become a vogue that once a court is inclined to doing substantial justice by deflecting from the rules, it quickly draws a distinction between justice and technicality so much that it has become not only a cliche but an enigma in our jurisprudence. In most cases when the courts invoke the substantial justice principle, they have at the back of their minds the desire to put to naught technicalities which the adverse party relies upon to drown an otherwise meritorious case. We seem to be overstretching the technicality concept. We should try to narrow down the already onerous and amorphous concept in our judicial process. A technicality in a matter could arise if a party is relying on abstract or inordinate legalism to becloud or drown the merits of a case. A technicality arises if a party quickly takes an immediately available opportunity, however infinitesimal it may be, to work against the merits of the opponent’s case. In other words, he holds and relies tenaciously unto the rules of court with little or no regard to the justice of the matter. As far as he is concerned, the rules must be followed to the last sentences, the last words and the last letters without much ado, and with little or no regard to the injustice that will be caused the opponent.”
Supreme Court’s policy on Technicality
The Nigerian Supreme Court has unequivocally stated in myriads of cases that the days of justice based on technicality are over, and that we are in the era of substantial justice. In the case of Amaechi v. I.N.E.C. it held that: “The sum of the recent decisions of this Court is that the court must move away from the era when adjudicatory power of the court was hindered by a constraining adherence to technicalities.” In Joseph Afolabi & Ors v. John Adekunle & Anor, it held that “While recognising that the Rules of Court should be followed by parties to a suit, it is perhaps necessary to emphasise that justice is not a fencing game in which parties engage themselves in an exercise of out-smarting each other in a whirligig of technicalities to the detriment of the determination of the substantive issues between them.”
A constitutional lawyer, Prof. Ben Nwabueze said that decided election-cases show convincingly that there is, on the part of the courts in Nigeria, a certain predisposition, if not an overzealousness to make the technicalities of the law rather than the lawful votes cast at an election, the determinant of who should govern. “It should be stated at the outset that the problem here does not arise from the rules of the Substantive Law, unduly technical as they may sometimes appear to be, but rather from the technicalities of the rules of pleadings and procedure, the technicalities of the law of evidence, the doctrine of precedent – what Kishna Iyer has described as the tyranny of procedure, the horror of the doctrine of precedent with its stifling and deadening insistence on uniformity and the booby traps of pleadings.” Nwabueze concluded that there is need for a change in the law that will leave the courts free in election petition cases to decide according to the substantial merits of each case, unfettered by legal forms, rules of pleadings and procedure. He said, “But it is not only the law that needs to be changed. The election tribunals and courts involved in the adjudication of election cases themselves also need to be reoriented to rid them of their technicality-minded approach in election cases.”