Tuesday, January 14, 2020 might be the day to be remembered as a turning point in the governorship contest in Imo state. It was the day the Supreme Court of Nigeria dealt a hammer blow to Rt.Hon.Emeka Ihedioha, then the incumbent governor of the state. It was the day a seven-member panel of the apex Court, led by the Chief Justice of Nigeria (CJN), Justice Tanko Muhammad, in a unanimous judgement, ousted Ihedioha, and declared Sen. Hope Uzodinma as the winner of the March 9, 2019 governorship election. Justice Kudirat Kekere-Ekun, who read the lead judgement, directed the Independent National Electoral Commission (INEC) to immediately withdraw the Certificate of Return earlier issued to Ihedioha, and issue a fresh Certificate of Return to Uzodinma. INEC complied with the order. Uzodinma had since assumed office as the validly elected governor of Imo state.
But the dust raised by the Supreme Court’s decision is yet to settle. A series of protests, many of them sponsored, had taken place in Imo state and elsewhere. Many supporters of the Peoples Democratic Party, the political platform on which Ihedioha contested the election, have been nose-to-the-grindstone, bemoaning their loss, struggling and toiling to cast aspersions on the integrity of the Justices of the Supreme Court. Expectedly, Ihedioha and the PDP have filed application to that effect. Ihedioha has prayed the Supreme Court for an order setting aside as “nullity” the judgment delivered in the Appeal No: SC.1462/2019 and Cross-Appeal No. SC. 147/Yo/2019. That application will be heard today. It’s a last ditch effort by Ihedioha to get back to Douglas House, Owerri, the seat of power. Anxiety is at fever pitch in Imo state. Legal experts say asking the Supreme Court to reverse itself will be a mountain to climb for Ihedioha. I agree. It must be noted that the decision of the Supreme Court to look at the application filed by Ihedioha is keeping with the Supreme Court’s rules and the Constitution of the Federal Republic of Nigeria. In that respect, it has the inherent power to look at its previous judgments if the reasons are compelling enough. But in keeping with the doctrine of “Stares Decisisis”, as many learned lawyers have said, anybody who is asking the Supreme Court to review its judgement and reverse same, has a big mountain to climb. That person must, of necessity, have a clear case, absolutely compelling one that is based on the violation of the Constitution. And you ask : Has the apex Court violated the Constitution in the instant case? So, keep an eye on the matter today.
Therefore, the basis for a review or reverse of an already decided case, must be based on any, or all of these conditions. First, if the decision was based on the Constitution. Second, if the Supreme Court has no jurisdiction from the outset to sit on the matter. Third, if the consequential orders of the court were made when they are functus officio, then the appellant can go back to the Supreme Court and ask for a review. Besides, if the judgment complained about was delivered “per incuriam”, that is, if it was obtained by fraud or serious mistakes.
Governor Uzodinma has already, through his lead councel, Damian Dodo, SAN, replied to Ihedioha’s application asking the apex Court to set aside its January 14 judgment that sacked Ihedioha from office. In his preliminary objection, dated February 6,2020, Gov. Uzodinma has challenged the competence of Ihedioha’s motion, and has asked the Supreme Court to strike it out. Uzodinma’s lawyers are arguing that having delivered its judgement on January 14, the matter has become functus officio and divested of jurisdiction over the same subject matter. Indeed, Order 8 , Rule 16 , of the Supreme Court, agrees with Uzodinma’s point of view . Rule 16 of the Supreme Court(Rules 2014), prohibits the apex Court from reversing itself once judgment has been given and delivered, save to “correct clerical mistakes or accidental slip”.
In addition, Uzodinma has asked the Supreme Court that Ihedioha’s application “constitutes an abuse of court process”, and is against “public policy”. His lawyers are also submitting that the application filed by Ihedioha amounts to the court indulging in academic exercise and answer hypothetical questions that have become needless . We need to recall that the apex Court had in its epic judgment, January 14, held that votes belonging to Uzodinma from 388 polling units, were unlawfully excluded from his total score declared by INEC. These are the issues on the basis of which the Supreme Court reached its decision the last time.
There’s no doubt that today’s sitting by the Supreme Court to review its previous judgment is an extraordinary moment for the country, for the judiciary, and the people of Imo state. Lawyers conversant with the case, and the history of the Supreme Court, are of the view that it will be extremely difficult for Ihedioha to convince the Court to reverse itself, unless and until, the factors enumerated earlier exist . According to Robert Clarke, SAN, the facts of the case against Ihedioha was that certain evidence was laid at the Elections Petitions Tribunal ,and it admitted those documents on the basis that they have no evidential value. However, at the Appeal Court, which affirmed Ihedioha’s election, there was a dissenting judgment by Justice Oho Adah who faulted the majority decision, saying the documents should have been admitted. The Supreme Court agreed with the dissenting judgment that INEC should not have nullified those votes from the controversial 388 polling units. In the opinion of eminent lawyers, INEC killed Ihedioha’s joy by relying more on technicalities than anything else. The commission should not have declared Ihedioha winner of the March 9, 2019 election in the first place. By doing so, when Ihedioha did not meet the required geographical spread of 2/3 of the 27 Council areas of the state, it succeeded in sealing Ihedioha’s fate. Uzodinma’s lawyers exploited this obvious mistake by INEC. And that’s what smart lawyers do. It also needs to be stated that the Supreme Court is not above making mistakes. In fact, it had said so in the past. For instance, delivery judgment in Adegoke Motors Ltd, v. Adesanya(1989) 13 NWLR(Pt.109), p. 250 at 275A, Justice Chukwudifu Oputa( fondly called the Socrates of our Supreme Court), said inter alia as follows, “We are final not because we are infallible, rather, we are infallible because we are final…”
Justice Oputa, now of blessed memory, humbly admitted that the courts are made of human beings, capable of making mistakes. Nonetheless , except on two or three cases, the Supreme Court of Nigeria, has not reversed its previous judgments. One of the rare cases it did so was in Elias v. Ecobank (Nig) Ltd. Another one was an electoral matter in Barrister Oriker Jev & Ors v. Iyortom & Ors(2015) NWLR(Pt.1443) 484. In that case, the Supreme Court ordered INEC to conduct a run-off. Later on, the apex Court discovered that it made the said order based on a wrong interpretation of sections 133(2) and 141 of the Electoral Act 2010(as amended).
It bears repeating that what the Supreme Court is doing today is not to hear an appeal against its own judgement. Nigerians need to understand that. The Justices cannot entertain or determine new facts. The irreducible minimum they can do is to look at matters arising from the judgement of January 14. No more. I, therefore, do not think it is right to fault the judgement when many people are uninformed about how it arrived at its conclusion. That, however, as Oputa, noted, the learned Justices are not angels, they are capable of making mistakes. But to try to armtwist them as some are doing, is useless. Governance in Imo state has somewhat suffered on account of the governorship tussle. It’s time to move on. What the opposition PDP is doing may amount to chasing the wind. The same way the ruling All Progressives Congress(APC) is asking it to reverse itself in the Bayelsa governorship election in which the Supreme Court last Thursday nullified the election of APC’s Governor-elect, David Lyon, 24 hours to his swearing in.