Much juristic cum political ink have continue to flow in trying to exergisize the rationale behind the Supreme Court decision that sacked Emeka Ihedioha as the Governor of Imo State.

For example, while commenting on the Supreme Court judgment, Chief Mike Ozekhome SAN remarked that though the judgment of the Supreme Court was final, legal experts and analysts must critically discuss the judgment to ascertain whether the court was right. On his part former Vice President and PDP presidential candidate in the 2019 presidential election, Alhaji Atiku Abubakar noted that “With regards to the judgment of the Supreme Court which nullified the election of Ihedioha as Governor of the state of Imo, I can only say that since the Supreme Court is final, we must accept its judgment, however unaccepted and unpalatable it may be. The Rule of Law must guide our path even if logic sheds light on a different path.”

The APC National Leader, Senator Bola Tinubu, also celebrated the victory, arguing that some foes of democracy had engineered a plot by which the improper and willful 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…The Supreme Court prudently and judiciously rose to the occasion as the defender of our constitution by rendering the only judgment that could protect the democratic rights and the collective will of the people of Imo State,” Tinubu stated.

The judgment of the Supreme Court is actually unprecedented because this is the first time the Supreme Court has nullified an election petition to remove someone declared by INEC. The Supreme Court no doubt remains the last resort with respect to legal disputes in Nigeria, this has culminated into a debate on the fact that this highly esteemed court possesses the power of life and death, it is not necessarily infallible, and often, its judgments could be subject to its own review.

In recognizing this fact, the Supreme Court in Adegoke Motors Ltd. V. Adesanya (1989) 13 NWLR (Pt. 109) 250 at 275, Oputa JSC (as he then was) cited with approval the dictum of Robert Jackson of the US Supreme Court as follows:

“we are final not because we are infallible, rather we are infallible because we are final.”

In the Imo State debacle, the result as released by INEC showed that Ihedioha of the PDP polled a total of 273,404 votes, Uche Nwosu (AA) polled 190,364 votes, Sen. Ifeanyi Ararume (APGA) got 114,676 votes while Sen. Hope Uzodinma (APC) who came forth scored 96,458 votes.

Three parties, to wit, Uche Nwosu, Ifeanyi Ararume and Hope Uzodinma filed appeals against the election of Ihedioha on different grounds. Nwosu later withdrew his appeal because the Supreme Court disqualified his candidature as flagbearer of Action Alliance on the ground that he had no locus standi to contest on the platform of the party, having earlier contested for the position in the primaries of APC.

On the other hand, Ararume wanted outright cancellation of the election and asked for a re-run, arguing that Ihedioha did not have the geographical spread of the votes across the state. But Hope Uzodinma contended that the votes he won were not counted. He contended that his votes should count. The Supreme Court upheld his contention and after adding the figures, he was declared winner.

The seven-member panel in its lead judgment read by Kudirat Kekere-Ekun (JSC) unanimously agreed that the results in the 388 polling units were unlawfully excluded during the collation of the final governorship election result. In her words:

“Vote due to the appellant, Senator Hope Uzodinma and the APC from 388 Polling Units were wrongly excluded from scores ascribed to the appellant. It is hereby ordered that the Appellant votes from 388 Polling Units unlawfully excluded from the Appellant vote declared shall be added and that the first Respondent, Emeka Ihedioha, was not duly elected by a majority of lawful votes cast at the said election,”

Many Nigerians were puzzled and have been struggling to appreciate how a candidate who came a distant fourth position in an election was declared winner by the Supreme Court? Where did the votes came from that turned the pendulum of victory to the direction of Sen. Hope Uzodinma? One is tempted to asked.

The argument put forward by the legal team of Sen. Uzodinma was that results emanating from 388 polling units were he had won was wrongfully excluded by INEC and that if same was added to the figures presented by INEC, he would have been returned elected. In prove of this assertion, a Deputy Commissioner of Police was called to tender the results from the said 388 polling units. It was on the basis of this that the apex court was urged to declare Hope Uzodinma the winner of the election.

Surprisingly, there were no reasons given by INEC for the cancellation of the 388 “polling units” that were not counted in the final result declared by INEC, the safest step one would have taken was to have filed a cross-petition challenging the integrity of the results from the affected “polling units” upon which Sen. Uzodinma was relying, and praying the Election Petition Tribunal to formally nullify the said results.

In other words, without a cross-petition, none of the grounds under S. 138(1) of the Electoral Act 2010 (as amended) could have been competently raised by Ihedioha in defence of Uzodinma’s petition.

The Court of Appeal decision that was upheld by the Supreme Court in Atiku v. Buhari buttresses this fact. In Atiku v. Buhari, the Presidential Election Petition Tribunal invoked this principle in dismissing Buhari’s contention that Atiku Abubakar was born in Cameroon to parents who originally were Cameroonians, and thus disqualified from contesting the election. Dismissing the contention, the Court of Appeal held that the issue was incompetent since Buhari did not file a cross-petition.

Unfortunately for Ihedioha, it was this pivotal cross-petition that was missing to have challenged the validity of the figures from those polling units. The principle as enunciated by the Supreme Court in the case of Osunbor v. Oshiomhole (2007) 18 NWLR 9Pt. 1065) 32 which is to the effect that when votes are cancelled, they are not to be reckoned with in determining the outcome of an election would have been re-stated.

This notwithstanding, can it be validly said that of all the votes in the said 388 poling units, Ihedioha did not score any? Will the number of votes casts in the Governorship election held in Imo State won’t be more than the number of accredited voters?

Ordinarily, the finality of judgments of the Supreme Court ought to dictate that those who adjudicate in the highest court in the land leaves no room for elementary doubts on the logic and parameters for the justice they dispense. What makes this judgment troublesome is the possibility that a mathematical error may have been entered as the basis by the apex court to determine who governs a state.

In his article titled ‘When Judges Imperil Democracy’, Segun Adeniyi wrote: “At all times and in all circumstances, the role of the courts as the interpreter of the law, resolver of disputes and defender of the Constitution, requires that Judges abide by their oath. That explains why a judiciary debilitated by, or prone to, all manner of misconduct, including corruption and political interference, is a danger to society. Sadly, we can see the evidence of this in our polity and it is important for critical stakeholders to understand that we cannot continue like this if our nation must develop and thrive.”

Taken together, there are far too many grounds for inconsistencies and loopholes on which lawyers and the general public now question both the integrity and indeed the professional competence of the Supreme Court. It is a sad day for the nation if the apex court displays traits that undermine confidence in the quality of justice available to the people. It is even more tragic when the slant of decisions tempts the public to suspect that these respected men and women may have succumbed to partisan pressures.

I take solace in the words of Baron de Montesquieu when he said “There is no crueller tyranny than that perpetuated under the shield of law, and in the name of justice”

After all, Law they say is an ASS.

Prince Azubuike Esq.

Distinguish Member of the Nigerian Bar Association, Degema Branch

Writes from Port Harcourt and divides his research interest in International Law with a bias for afro centric views, Constitutional Law, Commercial Arbitration and Oil and Law Law.